Plaintiff S213/2012 v Minister for Immigration and Citizenship & Anor

[2012] HCATrans 312

[2012] HCATrans 312

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S213 of 2012

B e t w e e n -

PLAINTIFF S213/2012

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 3 DECEMBER 2012, AT 11.13 AM

Copyright in the High Court of Australia

HIS HONOUR:   Could the plaintiff’s name be called outside the Court?

COURT OFFICER:   No appearance, your Honour.

MS M.E. STONE:   I appear for the defendants, your Honour.  (instructed by DLA Piper Australia)

HIS HONOUR:   Yes, thank you, Ms Stone.  You have nothing to add to what has been filed?

MS STONE:   No, your Honour.

HIS HONOUR:   On 10 August 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 wished to take advantage of with a view to overturning a prohibition against him applying for a visa. The second defendant refused to refer to the first defendant the plaintiff’s request for intervention under s 417.

On 7 September 2012, the High Court of Australia dismissed the applications in four representative actions being run by the solicitors 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 s 417, inter alia, and they held that it was not conditional on observing the principles of natural justice. The plaintiff was sent a letter stating the outcome. The letter asked 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 to withdraw. The solicitors received no response to their letter save that on 12 November 2012 they were advised by the plaintiff that he could not sign the document requested because he was in Canberra.

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.

The first defendant attempted to have the plaintiff served with documents notifying him that today the first defendant would seek an order dismissing the plaintiff’s application.  Those attempts failed.  The plaintiff had ceased to live at the address at which service was attempted.  That was the residential address given by the plaintiff when he applied for a visa.  There is no evidence that the plaintiff was served personally with the defendant’s 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 solicitors’ address.  The defendant’s submissions were served at the solicitors’ address before the solicitors received leave to withdraw on 19 November 2012.  The lack of success by the solicitors in obtaining a response to their letter concerning discontinuance and withdrawal suggests that any attempt to serve the defendants’ submissions personally, or notify the plaintiff of them, would have been 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.  It is to be inferred that the plaintiff would have been aware of the decision of the four cases referred to above on 7 September 2012.

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

AT 11.17 AM THE MATTER WAS CONCLUDED