Plaintiff S229-2012 v Minister for Immigration and Citizenship and Anor and Ors

[2012] HCATrans 303

[2012] HCATrans 303

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S229 of 2012

B e t w e e n -

PLAINTIFF S229/2012

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
  Sydney  No S165 of 2012

B e t w e e n -

PLAINTIFF S165/2012

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
  Sydney  No S215 of 2012

B e t w e e n -

PLAINTIFF S215/2012

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
  Sydney  No S55 of 2012

B e t w e e n -

RAJWINDER SINGH

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
  Sydney  No S124 of 2012

B e t w e e n -

PLAINTIFF S124/2012

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
  Sydney  No S366 of 2011

B e t w e e n -

ARAFAT MUNIRAHMED ANSARI

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

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

Office of the Registry
  Sydney  No S98 of 2011

B e t w e e n -

PLAINTIFF S98/2011

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
  Sydney  No S155 of 2011

B e t w e e n -

PLAINTIFF S155/2011

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
  Sydney  No S158 of 2011

B e t w e e n -

PLAINTIFF S158/2011

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
  Sydney  No S186 of 2011

B e t w e e n -

PLAINTIFF S186/2011

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
  Sydney  No S190 of 2011

B e t w e e n -

MANJEET SINGH

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

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

Office of the Registry
  Sydney  No S200 of 2011

B e t w e e n -

PLAINTIFF S200/2011

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
  Sydney  No S205 of 2011

B e t w e e n -

VINKEY DHARIWAL

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
  Sydney  No S208 of 2011

B e t w e e n -

PLAINTIFF S208/2011

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
  Sydney  No S217 of 2011

B e t w e e n -

OZONE KORGBARA

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
  Sydney  No S222 of 2011

B e t w e e n -

PLAINTIFF S222/2011

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
  Sydney  No S233 of 2011

B e t w e e n -

PLAINTIFF S233/2011

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
  Sydney  No S245 of 2011

B e t w e e n -

PLAINTIFF S245/2011

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
  Sydney  No S317 of 2011

B e t w e e n -

PLAINTIFF S317/2011

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

Office of the Registry
  Sydney  No S333 of 2011

B e t w e e n -

PLAINTIFF S333/2011

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
  Sydney  No S346 of 2011

B e t w e e n -

ABUL ADNAN

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
  Sydney  No S348 of 2011

B e t w e e n -

PLAINTIFF S348/2011

First Plaintiff

PLAINTIFF S348/2011

Second Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
  Sydney  No S363 of 2011

B e t w e e n -

PLAINTIFF S363/2011

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
  Sydney  No S214 of 2011

B e t w e e n -

PLAINTIFF S214/2011

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, 19 NOVEMBER 2012, AT 9.42 AM

Copyright in the High Court of Australia

____________________

HIS HONOUR:   Before I call the next matter, you are in most of these matters, Mr Markus, that succeed?

MR A. MARKUS:   I am in a lot of these matters, yes, your Honour.  (instructed by Australian Government Solicitor)

HIS HONOUR:   A lot, yes, perhaps not most.  What is your proposal as to how they should be disposed of?  Is your proposal that the application be dismissed - Mr Karp, you can be excused.

MR KARP:   Thank you, your Honour.

HIS HONOUR:   You are not I think in any of them, fortunately.  Is your proposal that in each case the initiating process be dismissed?

MR MARKUS:   That would be our application, yes, your Honour.

HIS HONOUR:   Problem number one is – and this is a matter of pure form – there is no summons or process in which you seek that.  What there are are written submissions which I think were served last Thursday on Parish Patience.

MR MARKUS:   Yes, your Honour.

HIS HONOUR:   If you served something on the solicitors for BHP on the Thursday before a Monday, an important thing in the life of BHP, that would not be regarded as giving very much notice.  And there is the further complication that it is fairly easy to find usually some solicitor or someone in BHP who can deal with the matter; not so in these cases.

MR MARKUS:   Well, I understand the point your Honour is making.  The ‑ ‑ ‑

HIS HONOUR:   Just one moment.

MR H.D. MURDOCH:   Your Honour, my name is Murdoch, solicitor for Parish Patience appearing on behalf of the plaintiffs.  (instructed by Parish Patience Immigration Lawyers)

HIS HONOUR:   Have a seat.

MR MURDOCH:   Thank you.

HIS HONOUR:   Is there any other solicitor in Court who is appearing for any of the plaintiffs in these matters?

MR MARKUS:   No, your Honour, Mr Murdoch represents all of the plaintiffs.

HIS HONOUR:   Very well.

MR MARKUS:   Your Honour, can I approach it this way?  The Court’s rules envisage that when applications for orders to show cause are filed, those applications are served together with summonses on the defendants and that the summons for directions is then listed before this Court.  I will just grab the rules, your Honour.  It is rule 25 which relevantly deals with these matters.  In particular, your Honour will see that rule 25.03.1 provides how the plaintiffs are to give notice to the defendants of the hearing of an application for an order to show cause.  When such a hearing is fixed before the Court, the Court may make orders on the hearing of the application in accordance with rule 25.03.3 and paragraph (a) there provides that the Court may make orders dismissing the application.
           Our position is that the applications, having been listed before this Court, the plaintiffs are or should be on notice that the order – or an order that may be made by this Court is that the application be dismissed.  It is not necessary, in my respectful submission, to have a summons filed to give notice to plaintiffs that that is an order that would be sought.  Now,

your Honour, in addition, your Honour may have seen that in some cases what we have done is we have filed submissions; in others we have filed affidavits.

HIS HONOUR:   And in a handful, both.

MR MARKUS:   Well, I can only speak ‑ ‑ ‑

HIS HONOUR:   Not you, but ‑ ‑ ‑

MR MARKUS:   I can only speak about our matters but what we have done, in any event, your Honour, is that in circumstances where we have been instructed that the plaintiffs have already left Australia we have filed affidavits, and in circumstances where on our instructions the plaintiffs are still in Australia we have filed submissions addressing the issue of why the applications ought to be dismissed.  That is the way we approached it, your Honour.

HIS HONOUR:   I appreciate that, and the affidavits no doubt are almost certainly correct.  The submissions are very powerful.  But you have to give the party who will lose, if that affidavit is believed or if that submission is accepted, an opportunity to say something to the contrary.  Now, you have served Parish Patience as the solicitors for these plaintiffs and normally, they being named as the solicitors for service in the initiating process, service on them is good service.  But we know in the real world that Parish Patience are having the most immense difficulty in getting in touch with the plaintiffs in relation to their related but quite distinct endeavour to get leave to cease to act.

We do, however, know that Plaintiff S55 wants to fight on and Plaintiff S366 wants to fight on.  Just dealing with them to start with, I just do not see how we can make ex parte orders against them unless they were rather grand old Duke of York type orders in which you made the order but gave liberty for it to be set aside if application were made within 28 days or something of that kind.

MR MARKUS:   Well, your Honour, I am not suggesting that.  It seems to me that the application for an order to show cause having been listed today, if your Honour is not satisfied that the plaintiffs have been given notice of the listing and of the fact that their solicitor to date is proposing to withdraw from the proceedings, then your Honour may not make the orders.  In my respectful submission, on the evidence that has been filed in support of the summons filed by my friend, your Honour would be satisfied that these plaintiffs have been given notice that these matters are to be listed and that an application would be made for the solicitors to withdraw.

HIS HONOUR:   But when?

MR MARKUS:   I am sorry, your Honour?

HIS HONOUR:   In many cases, not all, but in many cases, notice has been given by Parish Patience that unless some consent to discontinuance is forthcoming, they will be withdrawing.

MR MARKUS:   Yes, your Honour.

HIS HONOUR:   But it has not been said when that will take place, or at least there is no evidence that they have been told precisely when.

MR MARKUS:   Not all of the affidavits are identical, your Honour, obviously, but ‑ ‑ ‑

HIS HONOUR:   You mean the Parish Patience affidavits?

MR MARKUS:   The Parish Patience affidavits, and in different matters slightly different issues may arise.  Your Honour, in my respectful submission, insofar as there are affidavits which depose to the fact – that is, affidavits from us which depose to the fact that on our instructions plaintiffs have left Australia, your Honour, in my respectful submission, would dismiss those matters, and if I can very briefly just note that there is some documentary material before this Court indicating that applicants have left Australia and have no right to re‑enter at the moment.

HIS HONOUR:   Without a visa.

MR MARKUS:   Without a visa.

HIS HONOUR:   That visa will be a new visa, not some visa they have been trying to get in the past and they have been trying to exploit the discretionary mechanisms in the Act to get the Minister to remove barriers to that or to change a decision.

MR MARKUS:   That is correct, your Honour, and if they re‑enter they, for example, do not have a difficulty with section 48A.

HIS HONOUR:   But my problem is this, Mr Markus.  These are very important records and I am sure they are kept with the utmost diligence and it is virtually certain that they are correct, but one cannot be certain that any factual assertion in this mortal world is correct.  There may have been some mistake.  You only have to have a slip in a digit and the wrong person has been recorded.  We are talking about very common names of people from many countries in Asia.  It is just not an exception to the rule that notice must be given of a hearing, that the government is relying on records that are virtually certain to be correct.

I do not want to be unduly pedantic or to seem too much of a, as Mr Hughes would say, namby‑pamby about this, but there is no real substitute for bringing it to the subjective knowledge of the plaintiff as to what may happen.  Parish Patience, for example - and I am not being critical of Parish Patience in any respect - but they have not made it their business since last Thursday to acquaint their clients with what may happen today; at least there is no evidence that they have.  From the point of view of a claimant for a visa, there is a substantial difference between one’s solicitor departing the scene and one’s action in the High Court being dismissed.  That is one way of looking at it.

The other way of looking at it is, assuming nothing important happens today, or does not happen in very many cases today, what can be done to remedy it?  I think in some instances there are actual numbers or addresses.  If we take, for example, S229, which is not one of your ones, but is the first of this group in the list for hearing today, Parish Patience got in touch with someone called Sister Pat Healey, a religious social worker, and S229 is a person who I think is in detention in South Australia.  Now, Sister Healey may have moved; she may simply have failed to get the message.

A rhetorical question would be that there must be – and this is a person who it is not said has been deported – it must be possible to actually lay before that person a piece of paper saying on such and such a day two applications are going to be made:  one is for your initiating process to be dismissed because it is inconsistent with the very High Court case or group of cases which were selected as the test case for your matter; and two, Parish Patience will cease to act as your solicitor.  You are the one – or someone you brief is going to be the one who is going to have to defend this in front of a Full Court if we make orders and some of these plaintiffs object to them.  I mean, S55 and S366 must be very likely possibilities for people who will object procedurally to what is happening.

MR MARKUS:   Well, I understand what your Honour is putting to me.  I do not think I want to say anything further, your Honour.  If your Honour’s preferred course is that in these matters the defendants file summons and seek to serve them, then that is what we will do.  If your Honour simply wishes to stand it over so that the plaintiffs can be notified that the applications are now listed on a particular date - and I am presuming for relevant purposes that Parish Patience will be allowed to withdraw as lawyers so that we are then in a position to seek to communicate directly with the plaintiffs, which we have not been until now or until Parish Patience remained on the record.

But of course, your Honour, we only have the addresses - or the best addresses that we have are which have been provided by Parish Patience in the affidavits.  We will need to cross‑check them against our own records and see whether we have some more up‑to‑date addresses, but clearly for the purposes of any notification we would have to act on the affidavits provided by Parish Patience and possibly send some extra copies to different addresses if we have different addresses apart from those contained in the affidavits from Parish Patience.  But I understand what your Honour is putting to me.  If that is the preferred course, that is what we will do.

HIS HONOUR:   Yes.  Well, I appreciate this is in some ways a waste of time and money except possibly for S55 and S366 and even there it is probably a waste of those commodities.

MR MARKUS:   Well, as your Honour said, these are important matters for the plaintiffs and if that is what needs to be done, that is what we will do.

HIS HONOUR:   Mr Murdoch, is your primary desire to exit the case?

MR MURDOCH:   Yes, it is, your Honour.  Our only desire now after the full High Court decision is now we have advised most of the clients or all of the clients to the best of our ability that there is no utility in persevering with this particular matter except for those people who wish to do it on their own.

HIS HONOUR:   Mr Markus does not seem to oppose your departure. I think I might dispose of that now. Before the Court are 26 sets of proceedings. In those proceedings plaintiffs seeking visas to stay in Australia have filed applications for orders to show cause by prerogative writs and other relief should not run. The thesis underlying those applications is that the first defendant or the second defendant or the second defendant’s officers have failed to observe natural justice in relation to sections 48B, 195A, 351 and 417 of the Migration Act 1958 (Cth). In at least one case there is also a claim there has been a failure to observe natural justice in relation to section 46A of the Migration Act.

These plaintiffs form part of a class.  In February this year argument was heard on behalf of four other plaintiffs within that class.  On 7 September this year the applications of those four other plaintiffs was dismissed in orders of this Court which were unanimous.  It must therefore be accepted that, so far as the reasoning in that litigation, which is known as Plaintiff S10/2011 v Minister for Immigration and Citizenship & Anor (2012) 86 ALJR 1019; 290 ALR 616, the present proceedings are unsustainable unless some other ground can be found on which they can be based. In the papers filed, no such ground has been suggested.

When the decision in those four proceedings was handed down on 7 September 2012, the solicitors for the plaintiffs, Messrs Parish Patience, adopted various methods to attempt to acquaint their clients with what had happened.  In some cases meetings were called at Parish Patience, in other cases telephone calls were made, and in all cases in one way and another documents were supplied to the plaintiffs.  Those documents fulfilled two functions.  The first was to indicate that Parish Patience considered that there was no further point in the proceedings.  For that reason they requested each plaintiff to sign a document giving instructions to discontinue the proceedings.  In default of receipt of those written instructions, Parish Patience indicated that they would be applying to this Court for leave to withdraw as the plaintiffs’ solicitors on the record pursuant to rule 6.02.5 of the High Court Rules.

The solicitor appearing for the defendants does not oppose Parish Patience’s application.  I can see no basis on which it can be opposed and the evidence does not record any suggestion by any plaintiff preventing accession to it.  In fact, it might be said that the conduct of Parish Patience in this respect is to be applauded in view of its goal of endeavouring to save costs and time.  There is a difficulty in some instances.  In many instances there is evidence that the documents, that is to say, the letter and accompanying documents to be signed which Parish Patience had prepared, was actually handed to the relevant plaintiff.  In some instances attempts to inform them by fax or email appear to have succeeded.

There are, however, some cases where it is not clear that the plaintiff in question is aware of the application which Parish Patience is making today.  For example, in S229 of 2012 the technique adopted was to send an email to a person who was helping the plaintiff in relation to his immigration affairs.  It is not clear that that email got through to that person or that that person advised the plaintiff of what was going on.  However, I am not inclined to draw a distinction between a case like S229 and clearer cases.  If Plaintiff S229 wishes to continue to be represented by some other solicitor, it is open to that plaintiff to take whatever steps are necessary.

Accordingly, I would grant leave to the solicitors for the plaintiff to withdraw in these matters.  Is there any other order you need, Mr Murdoch?

MR MURDOCH:   I do not believe so at this stage, your Honour.

HIS HONOUR:   Unless you have anything further to say, Mr Markus, I might deal briefly with ‑ ‑ ‑

MR MARKUS:   Nothing further, your Honour.

HIS HONOUR:   Thank you, Mr Markus.  The Commonwealth, that is to say, the Minister for Immigration and Citizenship and the Secretary of the Department of Immigration and Citizenship, have filed either an affidavit or written submissions or, in some cases, both.  In the written submissions the defendants have argued that in consequence of the decision in Plaintiff S10/2011 and the other cases, there are now no prospects of success for the plaintiffs.  There is prima facie a great deal of strength in that submission.  In other instances, the Commonwealth has filed not written submissions, but an affidavit, revealing that the relevant plaintiff has left the country.

The consequence of the departure of each relevant plaintiff from the country is that lawful entry will not be possible until a visa is obtained and that visa will be a new visa, not the visa that was in question in relation to the proceedings challenged in the applications for orders to show cause as they stand.  In a third category of cases – and this is sometimes accounted for by questions of timing – there are both written submissions attacking the legal validity of the applications and affidavits revealing their futility in view of the departure of the plaintiffs.

The defendants have not endeavoured to serve each or any of the plaintiffs personally.  It was implicit in the course of argument that they have served Parish Patience who until this morning were the solicitors of the plaintiffs and pursuant to the rules, those solicitors having been named as the solicitors for service in the initiating process, service on them is good service.  But Parish Patience have not endeavoured to inform each plaintiff personally of the defendant’s proposals this morning and it is understandable why they did not do so.  Apart from the difficulties of getting in touch with some of the plaintiffs, there has not been any useful period of time for that to be done in.

Mr Markus submitted that it was not necessary for the defendants to have moved by way of summons, nor for them to have given any other notice than has been given.  He said that when the applications for orders to show cause were filed, they were served on the defendants and in each case they were served with a summons.  That may or may not be strictly correct but Mr Markus’ point was that, pursuant to order 25.03.1, the plaintiff was obliged to give notice to a defendant of the hearing of the application to show cause by serving on the defendant the application, affidavits in support and a summons specifying the orders sought.

A hearing date was fixed for today to deal with the application of Parish Patience.  The submission in effect was that plaintiffs acquainted with the rules would appreciate that on this day one of the orders which might be made was an order under 25.03.3 that the application for an order to show cause be dismissed, therefore, Mr Markus submitted, there was no need for a special summons, as it were, seeking that order.  I think I have indicated already that the strength of submissions of the defendants in relation to the extreme weakness of these proceedings, after the decisions in Plaintiff S10 and its ilk, is very great.  It is also the case that the Commonwealth’s records in terms of recording which people depart Australia are almost certainly correct.

The fact remains that no plaintiff has been told either that it will be today that particular orders will be sought or that among those orders will be an order dismissing that plaintiff’s application for an order to show cause.  In the circumstances, I think it will be necessary for steps to be taken by which the defendants seek to serve personally on each plaintiff documents indicating what it is they seek today.  I think that it would suffice to serve on them either the defendant’s submissions pointing out the weakness of the case in the light of Plaintiff S10/2011 or, where an affidavit establishing departure from the country is concerned, that departure.  There is of course a vicious circle or an element of circuity in the last point.  If in truth the plaintiffs have left Australia, it will not be possible to serve them, but I think it would nonetheless be desirable to make a further check on the question of whether they in fact have left Australia.

Now, Mr Markus, how long do you think would be a sensible time to allow for this process of checking and attempted service?

MR MARKUS:   Your Honour, I think that probably a period of about four weeks would be appropriate because I think that one of the possibilities we need to contemplate is that some of these plaintiffs may wish to get some other type of legal representation or some legal advice.  So, whilst I think we can probably send out notices relatively speedily, I think that there ought to be some time given to plaintiffs to decide how they wish to proceed.

HIS HONOUR:   A choice of some fairly inconvenient date in December or some more convenient but more drawn out date in February – can I perhaps suggest this; that we return the matter to this Court at, say, 11 am on Monday, 3 December.  That is less than four weeks, and in that time the defendants endeavour to serve on the relevant plaintiff either the written submissions or the affidavit and perhaps a summary of what happened today so that they will know there is not much point in going to Parish Patience.

MR MARKUS:   Yes, your Honour.

HIS HONOUR:   And at least it may be possible to do some winnowing out on 4 December and that those who do wish to fight on, as it were, can receive a date in February in which the fight can occur.  Is that unreasonable?

MR MARKUS:   I understand what your Honour is saying, yes.

HIS HONOUR:   I order:

(1)      That the matter be relisted at 11 am on Monday, 3 December.

(2)That the defendants endeavour to serve on the plaintiff in each matter either the written submissions already filed for use today or the affidavit filed for use today, together with a short explanation of what has happened today.

Is that clear enough from your point of view?

MR MARKUS:   Yes, your Honour, we will draft the letter and we will serve documents under cover of that letter insofar as is possible to achieve service.  I think we will also file affidavits of service so that the Court will have the record in front of it.

HIS HONOUR:   Yes, and affidavits perhaps of what efforts were made to achieve service.

MR MARKUS:   What I meant is affidavit seeking to serve the documents.

HIS HONOUR:   Attempted service.

MR MARKUS:   Yes, your Honour.

HIS HONOUR:   And I do not think it is necessary to make an order about this but perhaps Parish Patience would assist in terms of – they have often put this into their material - but in terms of what contacts they had with the plaintiffs, what telephone numbers, what fax numbers and so on.

MR MARKUS:   Thank you, your Honour.

HIS HONOUR:   If there is nothing else, please adjourn.

AT 10.19 AM THE MATTER WAS CONCLUDED