Plaintiff S472-2007 v MIAC & Ors

[2007] HCATrans 611

[2007] HCATrans 611

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S472 of 2007

B e t w e e n -

PLAINTIFF S472/2007

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

MANAGER MINISTERIAL INTERVENTION UNIT ONSHORE PROTECTION NSW DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

BUSINESS MANAGER RESIDENCE AND ONSHORE PROTECTION NSW DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Third Defendant

COMMONWEALTH OF AUSTRALIA

Fourth Defendant

Application for order to show cause

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 10 OCTOBER 2007, AT 10.17 AM

Copyright in the High Court of Australia

__________________

PLAINTIFF S472/2007 appeared in person.

MR S.B. LLOYD:   If it please the Court, I appear for the defendants.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Lloyd.

MR LLOYD:   Has your Honour received a copy of my written submissions?

HIS HONOUR:   Yes.

MR LLOYD:   It is our submission there that in relation to the question of remitter, we agree with the plaintiff that it cannot be remitted.

HIS HONOUR:   Yes, that is right.  When your client and other emanations of the Commonwealth say to us, as they did last week in Full Court, that there is an urgent need for a decision in an important constitutional matter they should take on account this sort of legislation which they pass which burdens single justices.  So it has then, if it is to go ahead, to proceed to a single Justice hearing in this Court, does it not, on the application for an order nisi?

MR LLOYD:   Or can be referred to a Full Court, I believe.

HIS HONOUR:   Yes, quite. 

MR LLOYD:   It is our submission that your Honour could dismiss it today if your Honour is satisfied that there is no reasonably arguable case.

HIS HONOUR:   It is much better to hear it than deal with it in that sort of half‑baked way really.  The question is, when can I deal with the application for an order nisi?  What you have in your favour is the decisions on section 417 which say there is no duty so there would be no mandamus.

MR LLOYD:   Against the Minister in any event.

HIS HONOUR:   Yes, I will say something to the plaintiff about that shortly.

MR LLOYD:   There is also a claim for damages, I think, as well which is novel.

HIS HONOUR:   Yes.  There is no basis for a claim for damages in this sort of proceeding.

MR LLOYD:   The thrust of the substantive claim was that, in effect, they were led to believe at a time when – at least as I understand it – Minister Vanstone was in office that the matter would be considered by the Minister.  Our short answer to that is it was considered by the Minister and so to that extent those points also fade away, which then leaves only a claim that it was unreasonable or bad faith in the public servants not to refer a couple of additional matters to the Minister.  Those matters were matters which were just sort of more information about claims previously made.

HIS HONOUR:   What further material would you want to put on, if any?

MR LLOYD:   We may want to put on the submission to the Minister.

HIS HONOUR:   I see.

MR LLOYD:   With the correspondence, although the affidavit of the applicant is quite thorough, there are still documents that are missing, other documents that were supportive.  Maybe that would fill out the whole course of correspondence.

HIS HONOUR:   How soon could that go on? 

MR LLOYD:   Probably within a week.

HIS HONOUR:   Do you have your diary, Mr Lloyd?

MR LLOYD:   I do not, your Honour.

HIS HONOUR:   Can I tell you what I have in mind.  I have in mind to urge upon the plaintiff the necessity of obtaining legal advice.  She cannot possibly present this sort of case.  It is very complicated and technical.  This is the highest Court in the country.  The best lawyers in the country appear here.  She needs some legal advice and legal representation.  Against that background I propose to hear the application for the order nisi some time in the last week of November.  I will take a short adjournment for you to make a phone call, if you need to, Mr Lloyd.

MR LLOYD:   Thank you, your Honour.

HIS HONOUR:   I will take a short adjournment.

AT 10.22 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.26 AM:

MR LLOYD:   Your Honour, I am apparently in Adelaide on 26 to 28 November, so I guess I would prefer the 30th, but the 29th is also ‑ ‑ ‑

HIS HONOUR:   Just a minute.  Shall we say Friday, the 30th?

MR LLOYD:   Thank you, your Honour.

HIS HONOUR:   Your appearance is for which defendants?

MR LLOYD:   All four of them, your Honour.

HIS HONOUR:   Thank you.  This is what I propose:

1.        The defendants file and serve any further affidavits on or before 24 October.

2.        The plaintiff file any further affidavits on or before 7 November.

3.        Set the application for an order nisi down before me at Sydney at 9.30 am on 30 November.

4.        Costs of today be costs of the order nisi application.

Is that understood?

PLAINTIFF S472/2007:   I have requested for my file under the Freedom of Information Act as early as 16 August 2007 up to now.

HIS HONOUR:   I do not think that has any particular bearing on this.

PLAINTIFF S472/2007:   Because my argument relies on the submission of the Department, I want to know exactly what happened.

HIS HONOUR:   That is going to be put on.  Mr Lloyd is going to put that on, are you not?

MR LLOYD:   I believe so, your Honour.

HIS HONOUR:   He believes so, yes.  So that will disappear.  It is much more important for you to get legal advice, if I may say so.  Do you have legal advice?

PLAINTIFF S472/2007:   I already have, your Honour, but unfortunately my barrister is not available today and I think he is amenable to ‑ ‑ ‑

HIS HONOUR:   Is he available on 30 November?

PLAINTIFF S472/2007:   Yes, your Honour.

HIS HONOUR:   All right.  You can discuss all the evidence with your barrister after you have seen what Mr Lloyd’s side puts on.  So the orders then are:

1.The defendants file and serve any further affidavits on or before 24 October.

2.The plaintiff file any further affidavits on or before 7 November.

3.Set the application for the order nisi down before me at Sydney at 9.30 am on 30 November.

4.Costs of today be costs of the order nisi application.

I will now adjourn.

AT 10.32 AM THE MATTER WAS CONCLUDED