Plaintiff S214/2012 v Minister for Immigration and Citizenship & Anor

[2012] HCATrans 331

[2012] HCATrans 331

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S214 of 2012

B e t w e e n -

PLAINTIFF S214/2012

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Application for order to show cause

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 3 DECEMBER 2012, AT 12.41 PM

Copyright in the High Court of Australia

HIS HONOUR:   Call the matter outside the Court.

COURT OFFICER:   No appearance.

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

HIS HONOUR:   Thank you.

MS BUCHANAN:   Your Honour, I seek leave to file in Court two affidavits regarding attempted service.

HIS HONOUR:   I grant leave to the defendants to file in Court an affidavit of Freda Taah sworn on 30 November 2012 and an affidavit of Mark Slater sworn on 28 November 2012.

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 wishes to take advantage of with a view to overturning a prohibition against applying for a visa. The first defendant refused the plaintiff’s request for a notice 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 of 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 plaintiff’s solicitor 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 a 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 have received no response to their letter.

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

There is no evidence that the plaintiff was served personally with 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 solicitors’ address.  The defendant’s submissions were served at the solicitors’ address before the solicitors, Parish Patience, were granted leave to withdraw on 19 November 2012.  Evidence filed in Court this morning has revealed the plaintiff’s address according to information held by the Department of Immigration together with telephone numbers.  The evidence also reveals an attempt by Mr Slater, a process server, to attempt service of a letter enclosing the defendants’ outline of submissions.  No response could be elicited from within the relevant premises. 

Mr Slater spoke to a female neighbour.  The neighbour said that the plaintiff had moved from the relevant address months ago and the neighbour did not know where he had moved to.  The process server then went back to the address for service and spoke to a female occupant.  That person said that the plaintiff did not live there.  She said that he was the previous occupier and had moved out six months ago.  She said that he had left no forwarding details.  She declined to give her name.  The process server also endeavoured to place a telephone call to the mobile number in the Department of Immigration’s records.  He left a message on the generic voicemail service but he did not receive any return call.

The lack of success by the solicitors in obtaining a response to their letter concerning discontinuance and withdrawal and the experiences of Mr Slater suggest that any attempt to serve the defendants’ submissions personally, or notify the plaintiff of them, 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 is dismissed with costs.

I think there is no more business, Ms Buchanan.

MS BUCHANAN:   No, your Honour.

HIS HONOUR:   Thank you for your attendance.  The Court will now adjourn.

AT 12.48 PM THE MATTER WAS CONCLUDED