Plaintiff S256/2012 v Minister for Immigration and Citizenship

[2013] HCATrans 9

[2013] HCATrans 009

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S256 of 2012

B e t w e e n -

PLAINTIFF S256/2012

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

Application for order to show cause

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 11 FEBRUARY 2013, AT 9.43 AM

Copyright in the High Court of Australia

MR R.J. WHITE:  If it please your Honour, I appear for the first defendant.  (instructed by Sparke Helmore)

HIS HONOUR:   Thank you.  We are not expecting any appearance, I suppose, for the plaintiff.

MR WHITE:   No, your Honour.

HIS HONOUR:   Could the plaintiff be called outside? 

COURT OFFICER:   No appearance, your Honour.

HIS HONOUR:   Thank you.  You are moving on a summons filed on 19 December 2012 with an affidavit of Bernadette Marie Rayment in support on that date?

MR WHITE:   We do, your Honour.  We seek dismissal on the basis of want of prosecution.  I also have an affidavit of service sworn 7 February 2013 by Bernadette Marie Rayment serving the summons.

HIS HONOUR:   Yes, I grant leave to the first defendant to file in Court an affidavit of 7 February 2013 sworn by Bernadette Marie Rayment.  I do not think I need trouble you further.

MR WHITE:   Thank you, your Honour.

HIS HONOUR:   On 14 September 2012, the plaintiff filed an application for an order to show cause why relief should not be granted on the ground of a denial of procedural fairness by the second defendant.  On 19 December 2012, the first defendant filed a summons seeking an order dismissing the plaintiff’s application on the ground that the plaintiff had left Australia on 20 November 2012.  There is evidence that that is the case.  The matter was called outside the Court today but there was no appearance by or on behalf of the plaintiff.  To keep these proceedings on foot would be futile in view of the plaintiff’s departure from Australia and the plaintiff’s lack of entitlement to return.  Accordingly, I dismiss the plaintiff’s application with costs.

AT 9.45 AM THE MATTER WAS CONCLUDED