Plaintiff S118/2018 v Minister for Home Affairs & Ors

[2018] HCATrans 159

[2018] HCATrans 159

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S118 of 2018

B e t w e e n -

PLAINTIFF S118/2018

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

SECRETARY FOR THE DEPARTMENT OF HOME AFFAIRS

Second Defendant

LAUREN IN THE MINISTERIAL INTERVENTION OF THE DEPARTMENT OF HOME AFFAIRS

Third Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON WEDNESDAY, 22 AUGUST 2018, AT 9.31 AM

Copyright in the High Court of Australia

____________________

MR P.M. KNOWLES:   May it please the Court, I appear for the defendants.  (instructed by Australian Government Solicitor)

HER HONOUR:   Thank you, Mr Knowles.

MR KNOWLES:   There is no appearance in Sydney here by the plaintiff.  The Deputy Registrar was faxed an email attaching some medical information, which suggests that the plaintiff does not intend to appear today.  Might I inquire whether the Court has that?

HER HONOUR:   I do.

MR KNOWLES:   In my submission the communication from the plaintiff suggests, particularly in the second substantive paragraph, that the plaintiff is content for his application for an order to show cause to be heard in his absence on the basis of the written submissions and written submissions in reply that he has filed.

HER HONOUR:   Do you wish to say anything in addition to what you have already filed?

MR KNOWLES:   Not in addition to my written submissions, no, your Honour.

HER HONOUR:   Is there anything else you wish to bring to my attention?

MR KNOWLES:   The only other matter that I should bring to the Court’s attention is that in submissions in reply the plaintiff sought to distinguish the decision of this Court in Plaintiff S10 v Minister for Immigration and Citizenship (2012) 246 CLR 636. He did so on a basis that suggested that the decision of the third defendant, which he seeks to impugn, was an exercise of non‑statutory power conditioned by procedural fairness.

There may be a question as to whether that invokes a matter under the Constitution which could therefore engage section 78B of the Judiciary Act but, in my submission, given the decisions of both the plurality and Justices French and Kiefel in Plaintiff S10, that position is both concluded and unarguable such that, properly speaking, a matter does not arise for interpretation under the Constitution.

HER HONOUR:   Yes, thank you, Mr Knowles.  On 30 April 2018, the plaintiff filed an application for an order to show cause, seeking relief in the nature of a declaration, certiorari and mandamus or an injunction.

On 27 June 2018, the defendants filed a summons seeking to have the application dismissed on the basis that the plaintiff had failed to prosecute the proceeding.  Subsequently, the plaintiff filed two summonses.  The first set out the substantive relief that the plaintiff sought, and the second sought an order that the defendants’ summons be dismissed with costs.

The defendants no longer press their summons seeking dismissal of the application on the basis that the plaintiff has failed to prosecute the proceeding.  However, the defendants have submitted that the application for an order to show cause should be dismissed on the merits.

The plaintiff did not attend the hearing this morning.  Yesterday, the plaintiff informed the Court that he would not attend but that he nevertheless requested the Court to make the appropriate orders considering his circumstances and the submissions he had provided to the Court.

I would dismiss the plaintiff’s application for an order to show cause.  I publish my reasons.

In matter number S118 of 2018, the order of the Court is:

1.The plaintiff’s application for an order to show cause filed on 30 April 2018 is dismissed with costs.

I publish that order.

MR KNOWLES:   May it please the Court.

AT 9.36 AM THE MATTER WAS CONCLUDED