Plaintiff S288/2017 v Honourable Justice Jane Margaret Jagot & Ors

[2018] HCATrans 160

[2018] HCATrans 160

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S288 of 2017

B e t w e e n -

PLAINTIFF S288/2017

Plaintiff

and

HONOURABLE JUSTICE JANE MARGARET JAGOT

First Defendant

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Third Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON WEDNESDAY, 22 AUGUST 2018, AT 9.36 AM

Copyright in the High Court of Australia

PLAINTIFF S288/2017 appeared in person.

MR N.D.J. SWAN:   May it please, your Honour, I appear for the second defendant.  (instructed by DLA Piper Australia)

SITTAMTALAM NALLAINATHAN, affirmed as interpreter.

HER HONOUR:   Yes, sir.  Now, as I understand it you have filed a number of documents. 

PLAINTIFF S288/2017 (through interpreter):   Yes, your Honour.

HER HONOUR:   Those documents include an application for an order to show cause, an affidavit sworn by you on 13 December last year, and then two further documents that are relevant – a summons on 18 June of this year and an outline of submissions.

PLAINTIFF S288/2017 (through interpreter):   Yes, your Honour.

HER HONOUR:   I have read those documents.  Could you tell me whether there is anything else you wish to add to those submissions in relation to your application?

PLAINTIFF S288/2017 (through interpreter):   Yes, your Honour.

HER HONOUR:   What are those matters that you wish to bring to my attention?

PLAINTIFF S288/2017 (through interpreter):   I need to get a barrister to appear for me, your Honour, so I need a little bit of time from you.  I will be able to explain all my actual problems to you through him.  That is why I am here today.  I am requesting your Honour.  Only you can do this, your Honour, I think only you can do this.

HER HONOUR:   I will hear what Mr Swan has to say in relation to your application.

MR SWAN:   Your Honour, in relation to the application for the adjournment, that is opposed.  This matter has been ‑ ‑ ‑

HER HONOUR:   Mr Swan, the plaintiff has to have his matter interpreted.

MR SWAN:   I apologise, your Honour.

HER HONOUR:   I ask you to do three things:  one, speak slowly; two, speak in simple language; and, three, speak in terms that the interpreter can interpret.  So you will need to wait while it is being interpreted.  Just before you start, Mr Swan, does the plaintiff have a piece of paper and a pen so he can write notes while he is going along?

PLAINTIFF S288/2017 (through interpreter):   Yes, your Honour.

HER HONOUR:   May I suggest that he sits down so he can undertake that task.  May I suggest to the plaintiff that he writes notes as Mr Swan is speaking and then the plaintiff can tell me what he wishes to say, by reference to those notes, after Mr Swan has spoken.  Do you understand?

PLAINTIFF S288/2017 (through interpreter):   Yes, your Honour.

HER HONOUR:   Thank you.  Mr Swan.

MR SWAN:   Your Honour, the application for an adjournment is opposed.  This proceeding has been on foot for almost nine months.  It is not, with respect, clear why the plaintiff has not been able to obtain legal representation in that time.  There also appears to be no evidence or indication of whether he is likely to be able to obtain a representative in the near future.  For those reasons, your Honour, we submit that an adjournment is not appropriate in the circumstances.

HER HONOUR:   Thank you, Mr Swan.  You have heard what Mr Swan has said in response to your application for an adjournment.

PLAINTIFF S288/2017 (through interpreter):   Yes, your Honour.

HER HONOUR:   What do you wish to say, if anything, in response to the matters raised by Mr Swan?

PLAINTIFF S288/2017 (through interpreter):   I have no barrister at this moment.  I am looking for a barrister.  Only through the barrister I can submit the relevant response to this because I am not educated.  Therefore, if I get a little bit of time I will be able to provide all the evidence and everything through my barrister.  Yes, please give me an opportunity to do that.

HER HONOUR:   Yes, thank you.  Have a seat.

By an application for an order to show cause filed in this Court on 13 December 2017, the plaintiff seeks a variety of relief.  The plaintiff identified a single ground on which relief was claimed.  Justice Jagot, the first defendant, “made a jurisdictional error in refusing for an extension of time in circumstances where the substantive grounds of appeal was meritorious [sic]”. 

This morning, when the application came on for hearing, the plaintiff sought an adjournment of the hearing to permit him time to seek to retain a barrister so that he could put the plaintiff’s claim to the Court.  That application was opposed by the second defendant.  Three principal reasons were given for that opposition:  first, this proceeding has been on foot for about nine months; second, the plaintiff had not provided an explanation as to why he had not been able to obtain representation to date; and, third, there was no evidence before the Court that the plaintiff was in a position to obtain representation in the near future.  As I said, it was for those reasons that the second defendant opposed the adjournment.  In those circumstances, I agree and the adjournment is refused.

We now turn, please, to the substantive hearing.  As I have said, I have received from you your affidavit, your application for an order to show cause and an outline of submissions.

PLAINTIFF S288/2017 (through interpreter):   Yes, your Honour.

HER HONOUR:   Do you wish to add anything to those written submissions, the affidavit or the application?

PLAINTIFF S288/2017 (through interpreter):   Sorry, your Honour, I could not understand that clearly.

HER HONOUR:   I will put the question again.  You have provided the Court with an application for an order to show cause, and in support of that application you have provided the Court with two documents.

PLAINTIFF S288/2017 (through interpreter):   Yes, your Honour.

HER HONOUR:   An affidavit sworn by you on 13 December last year and an outline of submissions on 12 June of this year.

PLAINTIFF S288/2017 (through interpreter):   Yes, your Honour.

HER HONOUR:   I have read those documents and what I would like to know is whether you wish to add anything in addition to what is set out in that affidavit or in those submissions.

PLAINTIFF S288/2017 (through interpreter):   Yes.  In that I looked for legal representation or lawyer.  I looked for, but I could not get a lawyer.  If the lawyer was available I could have collected all the evidence and then submit it to the Court.  The people who were helping me are now not available because they have gone on holidays.  It is only because of those reasons, your Honour, I am only begging of you to give me an opportunity – another opportunity.

HER HONOUR:   I have refused that request.  So the question is whether or not you wish to say anything in addition about the substance, that is the merits of what is set out in your submissions.

PLAINTIFF S288/2017 (through interpreter):   When you say addition, is it what is in these documents or is it anything outside that, your Honour?

HER HONOUR:   Anything else you think I need to know that is not set out in your submissions.

PLAINTIFF S288/2017 (through interpreter):   My brother came with me but they have accepted his position.  But they have rejected me.  Both had similar circumstances.  I have to explain that to you, your Honour.  Both are of the same blood.  The problem he had, I also have the same problem.  Therefore the Immigration is telling me to go back.  How can I go back?  That is what I want to explain to you.  Why did I get into this state?

HER HONOUR:   You will have been provided with submissions filed by the second defendant.

PLAINTIFF S288/2017 (through interpreter):   Yes, I think I got it.

HER HONOUR:   They were dated 9 August.

PLAINTIFF S288/2017 (through interpreter):   Yes, I received it, your Honour.

HER HONOUR:   Is there anything you wish to say in response to those submissions?

PLAINTIFF S288/2017 (through interpreter):   I read as much as I could but I did not understand everything, main reason being I did not have any legal assistance or anyone helping me with that.  …..I spoke they did not accept it but they did not give me time.  That is because if I have to go to any legal person, to the lawyers, I have to pay the fees.  Now, for the last two and a half years I do not have any work rights also.  It is only a church who has been helping me.  Today I have come through their help only.

HER HONOUR:   Thank you very much.  What I propose to do is to ask Mr Swan whether he wishes to say anything in addition to what is set out in his submissions and, as was the position before, you should sit and take notes.  Mr Swan.

MR SWAN:   Your Honour, has your Honour received and been able to read our written submissions?

HER HONOUR:   I have.  Do you wish to say anything in addition to those?

MR SWAN:   I do not, your Honour, unless there is anything I can assist the Court with.

HER HONOUR:   Thank you.  What I propose to do is to reserve my decision.  So I will go out from Court and I will read the submissions again and I will write my judgment.  I will deliver my judgment at 9.30 am on 30 August, which is next Thursday.  You do not have to attend.  The judgment will be sent to you.  Thank you for attending today.  You are excused.  You may leave the Bar table.

AT 9.57 AM THE MATTER WAS ADJOURNED