Plaintiff S156/2013 v The Minister for Immigration and Border Protection & Anor

[2015] HCATrans 202

[2015] HCATrans 202

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S156 of 2013

B e t w e e n -

PLAINTIFF S156/2013

Plaintiff

and

THE MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 19 AUGUST 2015, AT 10.03 AM

Copyright in the High Court of Australia

MR A. MARKUS:   If your Honour pleases, solicitor for the defendants.  (instructed by Australian Government Solicitor)

Your Honour, I do not expect the plaintiff to appear but perhaps he ought to be formally called outside.

HER HONOUR:   Indeed.  Thank you, Mr Markus.  Would you call the plaintiff?

COURT OFFICER:   No appearance, your Honour.

HER HONOUR:   Yes, thank you, Mr Markus.

MR MARKUS:   Your Honour, the matter has been listed this morning for the hearing of the defendants’ summons filed on 17 December last year and I move on that summons and I read in support of that summons two affidavits affirmed by me, the first on 17 December last year and the second on 27 July this year.  Your Honour, I should just say I will not read paragraph 12 of the second of those affidavits because subsequent to 24 July we, in fact, have been able to obtain an address for the plaintiff, although I should say, your Honour, that I did not attempt to communicate with him because I was a bit concerned about sending offshore letters on behalf of the Commonwealth to somebody in Iran.

HER HONOUR:   I understand.  Yes, thank you, Mr Markus.  I have read each of those affidavits.

MR MARKUS:   Thank you, your Honour.  Your Honour, I seek orders 1 and 2 in the summons.  In substance, we say that the judgment of the Full Court of this Court given on 18 June last year resolves most of the issues.  There is one outstanding issue which has not been addressed by the stated case which relates to the so‑called “taking” direction and we submit that your Honour would be satisfied that it is appropriate to dismiss the whole of the proceedings because of the failure to prosecute that part of the proceeding.

HER HONOUR:   Thank you, Mr Markus.

MR MARKUS:   Thank you, your Honour.

HER HONOUR:   In light of the contents of the two affidavits read in support of the relief claimed in the defendants’ summons, I am satisfied that it is appropriate to make the order dismissing the proceedings, taking into account the failure to prosecute the outstanding claim, briefly described as the “taking” claim, and taking into account the advice that the plaintiff has voluntarily returned to his country of origin. 

The orders that I make are:

1.         The proceeding be dismissed.

2.         The plaintiff pay the defendants’ cost of the proceeding.

Thank you, Mr Markus. 

AT 10.08 AM THE MATTER WAS CONCLUDED