Plaintiff S233/2011 v Minister for Immigration and Citizenship

[2012] HCATrans 324

[2012] HCATrans 324

IN THE HIGH COURT OF AUSTRALIA

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

Application for order to show cause

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 3 DECEMBER 2012, AT 12.06 PM

Copyright in the High Court of Australia

HIS HONOUR:   Please call the plaintiff outside Court.

COURT OFFICER:   No appearance, your Honour.

MS L.B. BUCHANAN:   May it please the Court, I appear for the defendants.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Ms Buchanan.

MS BUCHANAN:   Your Honour, I seek leave to file in Court two affidavits regarding attempts of service in this proceeding.

HIS HONOUR:   I grant leave to the defendants to serve an affidavit sworn on 30 November 2012 by Freda Taah and an affidavit sworn on 28 November 2012 by Mark Slater.

On 4 July 2011, 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 ss 48B and 417 of the Migration Act 1958 (Cth). Those are provisions the plaintiff wishes to take advantage of with a view to overcoming a prohibition against him applying for a visa. The first defendant refused to exercise his powers under s 417 and the relevant officials refused to refer to the first defendant the plaintiff’s requests in relation to ss 48B and 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 of 2011 v Minister for Immigration and Citizenship (2012) 86 ALJR 1019; 290 ALR 616. Those cases dealt with provisions which included ss 48B and 417 and they held that those provisions were not conditional on observing the principles of natural justice.

The solicitors for the plaintiff sent 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 to withdraw.  The plaintiffs have received no response to their letter. 

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.

Evidence filed in Court this morning states the last address and telephone numbers known to the Department of Immigration as being those of the plaintiff.  It also reveals that a process server attended the address recorded as the last address and was informed by an occupant of those premises that the plaintiff did not reside there, although he used to be a boarder there.  It also records that she said he moved about 12 months ago.  She said that she did not know where he had moved to and that she had no contact details for him.  Her name was Mrs Thieda.

A process server placed telephone calls to both numbers recorded as the plaintiff’s telephone numbers.  In relation to one of them, the number would not connect.  In relation to the other one, the call was diverted to a generic voicemail service.  The process server left a message requesting a return call.  He did not receive any return call.  There is therefore 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 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 defendants’ 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 and the process server’s lack of success suggests 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.  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 12.12 PM THE MATTER WAS CONCLUDED