Plaintiff S277/2017 v Minister for Immigration and Border Protection & Ors

[2018] HCATrans 163

[2018] HCATrans 163

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S277 of 2017

B e t w e e n -

PLAINTIFF S277/2017

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

SECRETARY FOR THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Second Defendant

RASHMI THE MINISTERIAL INTERVENTION OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Third Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON WEDNESDAY, 22 AUGUST 2018, AT 10.18 AM

Copyright in the High Court of Australia

____________________

MR P.M. KNOWLES:   May it please the Court, I appear for the defendants.  (instructed by Australian Government Solicitor)

HER HONOUR:   Is there an appearance on behalf of the plaintiff?

MR KNOWLES:   There is no appearance on behalf of the plaintiff.  An interpreter is present.  I will ask the Deputy Registrar to call the matter outside the Court, if the Court wishes.

HER HONOUR:   I would be grateful if the Deputy Registrar could do that, please.

COURT OFFICER:   No appearance, your Honour.

HER HONOUR:   Thank you.  Yes, Mr Knowles.

MR KNOWLES:   Your Honour, in the absence of an appearance from the plaintiff I move that the application for an order to show cause be dismissed under rule 13.03.4 on the basis that the plaintiff has failed to attend the hearing.  In the alternative, and for the reasons outlined in my written submissions, which I will not elaborate on unless your Honour wishes me to, the defendants seek to have the application dismissed, either on the basis that the plaintiff has failed to prosecute the application, or alternatively on the merits.

HER HONOUR:   Thank you.  Can I ask you one factual question, Mr Knowles?

MR KNOWLES:   Yes, your Honour.

HER HONOUR:   You filed a summons seeking to have the proceeding dismissed with costs.

MR KNOWLES:   Yes.

HER HONOUR:   That summons was served on the plaintiff according to the affidavit of 9 August 2018.

MR KNOWLES:   Yes.

HER HONOUR:   Were the summons and the affidavit served on the plaintiff, or just the summons?

MR KNOWLES:   Your Honour, if you will allow me, I am just seeking some instructions in relation to that.

HER HONOUR:   Thank you.

MR KNOWLES:   Your Honour, both were served, and exhibit HD‑2 to the affidavit of Ms Dejean filed on 9 August indicates that the service was both a sealed copy of the summons and an affidavit filed on 27 June.

HER HONOUR:   The submissions of 9 August?

MR KNOWLES:   They are not dealt with in the affidavit of service.  I am seeking some instructions and I have, and can provide to the Deputy Registrar, a covering letter to the plaintiff sent by express post that serves a sealed copy of the defendants’ submissions.

HER HONOUR:   Thank you.  You may have a seat.  On 7 December 2017, the plaintiff filed an application for an order to show cause, seeking a variety of relief.  That application for an order to show cause was listed for hearing on 22 August 2018.  The plaintiff did not appear at that hearing.

The defendants submitted that the application should be dismissed with costs.  I agree that the application should be dismissed with costs.

I publish my reasons.

The order of the Court is that the plaintiff’s application for an order to show cause, filed on 7 December 2017, is dismissed with costs.

MR KNOWLES:   May it please the Court.

HER HONOUR:   You are excused, Mr Knowles, and thank you to the interpreter for attending.

AT 10.23 AM THE MATTER WAS CONCLUDED