Plaintiff S193/2011 v Minister for Immigration and Citizenship & Anor

[2012] HCATrans 318

[2012] HCATrans 318

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S193 of 2011

B e t w e e n -

PLAINTIFF S193/2011

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Application for an order to show cause

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 3 DECEMBER 2012, AT 11.37 AM

Copyright in the High Court of Australia

HIS HONOUR:   Please call the plaintiff outside the Court.

COURT OFFICER:   No appearance, your Honour.

MS L.B. BUCHANAN:   If the Court pleases I appear for the defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Ms Buchanan.

MS BUCHANAN:   Your Honour, I seek leave to file in Court three affidavits, one seeking to place before the Court information held by the Department regarding the plaintiff’s last‑known address.  In this case the affidavit filed by the plaintiff’s former solicitors recorded that they had been unable to contact the plaintiff also at that address.  There is also an affidavit of attempted service at that address and a further affidavit recording a telephone conversation on Friday in light of the address being one where it was known that the plaintiff may not have been living.

HIS HONOUR:   Yes, thank you.

I grant leave to file in Court an affidavit of 30 November sworn by Freda Taah, an affidavit sworn on 29 November 2012 by Martin Kevin Connolly and an affidavit of 2 December 2012 affirmed by Louise Bernadette Buchanan.

On 2 June 2012, the plaintiff filed an application for an order to show cause why prerogative writs and other relief should not run. It complained that the first defendant, the second defendant and its officers had failed to observe natural justice in relation to s 417 of the Migration Act 1958 (Cth). That is a provision the plaintiff wishes to take advantage of with a view to overturning a prohibition against applying for a visa. The first defendant refused to exercise his powers under s 417.

On 7 September 2012, the High Court of Australia dismissed the applications in four representative actions being run by Parish Patience with a view to settling the position of numerous persons including the plaintiff:  Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 86 ALJR 1019; 290 ALR 616. Those cases dealt with provisions which included s 417 and they held that those provisions were not conditional on observing the principles of natural justice.

The solicitors of the plaintiff sent to the plaintiff a letter asking the plaintiff to sign a document of instructions to discontinue this litigation in view of its lack of utility and in view of the need to avoid further costs.  The letter also said that if the plaintiff did not give those instructions the solicitors would seek leave to withdraw.  The solicitors have received no response to their letter.  The plaintiff informed an employee of the solicitors before July 2011 that she did not wish to renew her bridging visa.  The plaintiff left her place of residence and did not inform the solicitors of a new address, telephone number or email address. 

On 15 November 2012, the defendants filed written submissions contending that the plaintiff’s application should be dismissed with costs because of the decision in the four cases referred to.  Those submissions are correct. 

Today evidence filed in Court reveals that an attempt to effect personal service on the plaintiff by the Department of Immigration by calling on the premises recorded in the Department’s records as the plaintiff’s last residential and postal address failed in the sense that the person resident at that address said that the plaintiff did not live there and said that he did not know the plaintiff.  He also said that he had lived there for six months and he said he did not know who lived there before.  Accordingly, personal service could not be effected at that place.

Evidence was also filed in Court this morning that at 2.00 pm on Friday, Ms Buchanan made a telephone call to the plaintiff.  The plaintiff said that she had ceased to live in the address where service was attempted in Griffith but instead lived in Melbourne.  Ms Buchanan informed the plaintiff that her matter was listed for hearing in this Court today in Sydney.  Ms Buchanan also informed the plaintiff that her former solicitors, Parish Patience, were no longer acting for her.  I interpolate to say that is because on 19 November leave was given for them to withdraw.  Ms Buchanan went on to tell the plaintiff that the matter was listed in this Court today in Sydney and that the first defendant was going to ask the Court to dismiss the plaintiff’s application then.  Ms Buchanan said, “You need to attend.  I have a letter to send to you about it.  What is your new address in Melbourne?”  The plaintiff replied, “I don’t understand.  Can you call me back with an interpreter?”  Ms Buchanan said, “Yes, I can do that.”  Shortly after that call ended in that fashion later on 30 November Ms Buchanan telephoned the number again.  That call was answered but it immediately ended without anyone speaking.

There is, accordingly, no evidence that the plaintiff has been served personally with the actual document which is the defendants’ submissions.  However, rule 9.05.1 of the High Court Rules provides that the address for service of a party commencing a proceeding in the Court shall be the address stated on the originating process as that party’s address for service.  That address is the address of Parish Patience.  The defendants’ submissions were served at the address of Parish Patience before Parish Patience received leave to withdraw on 19 November 2012.  The lack of success by Parish Patience in obtaining a response to their letter concerning discontinuance and withdrawal, together with the attempt by the defendants to serve the documents narrated in Mr Connolly’s affidavit and Ms Buchanan’s telephone conversation, suggest that any attempt to serve the defendants’ submissions personally would have been and will remain futile.  It is the duty of plaintiffs to keep in touch with their solicitors in relation to the conduct of litigation and this duty the plaintiff has not fulfilled.

I order that the plaintiff’s application for an order to show cause be dismissed with costs.

AT 11.46 AM THE MATTER WAS CONCLUDED