Plaintiff S363/2011 v Minister for Immigration and Citizenship & Anor

[2012] HCATrans 330

[2012] HCATrans 330

IN THE HIGH COURT OF AUSTRALIA

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

Application for order to show cause

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 3 DECEMBER 2012, AT 12.36 PM

Copyright in the High Court of Austral

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 two affidavits in Court regarding attempted service.

HIS HONOUR:   Thank you.  I grant leave to the defendants to file in Court an affidavit sworn on 30 November 2012 by Freda Taah, and secondly an affidavit sworn on 28 November 2012 by Mark Slater. 

On 11 November 2012, 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 s 417 of the Migration Act 1958 (Cth). That is a provision the plaintiff wishes to take advantage of with a view to overcoming a prohibition against applying for a visa. The relevant officials refused to refer to the first defendant the plaintiff’s request for a notice under s 417.

On 7 September 2012, the High Court of Australia dismissed the applications in four representative actions being run by Parish Patience with a view to settling the position of numerous persons, including the plaintiff:  Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 86 ALJR 1019; 290 ALR 616. Those cases dealt with provisions which included s 417, and they held that those provisions were not conditional on observing the principles of natural justice.

The plaintiff’s solicitors 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 solicitors 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.  Those submissions are correct. 

Evidence filed in Court this morning states what the last address and telephone numbers known to the Department of Immigration of the plaintiff are.  The evidence also records an attempt to effect personal service on the plaintiff of the defendants’ outline of submissions, together with a letter enclosing them.  On 26 November, the process server could get no response at 4.28 pm at the plaintiff’s last address known to the Department.  At 5.57 pm on 26 November, he spoke to a male and a female occupant who did not speak good English.  He said that he was looking for the plaintiff.  They said that the plaintiff did not live there and they said they had been there for a year.  He also placed a telephone call on the mobile number in the possession of the Department of Immigration and left a message on the generic voicemail service.  He did not receive a return call.  There is, therefore, no evidence that the plaintiff was served personally with the defendants’ submissions.  However, rule 9.05.1 of the High Court Rules provides that the address for service of a party commencing a 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 Parish Patience 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, together with the experience of Mr Slater in attempting to serve process, 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.

I order that the plaintiff’s application for an order to show cause is dismissed with costs.

AT 12.41 PM THE MATTER WAS CONCLUDED