Plaintiff S98/2012 v Minister for Immigration and Citizenship & Anor

[2012] HCATrans 313

[2012] HCATrans 313

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S98 of 2011

B e t w e e n -

PLAINTIFF S98/2011

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 11.18 AM

Copyright in the High Court of Australia

HIS HONOUR:   Could the plaintiff’s name be called outside the Court.

COURT OFFICER:   No appearance, your Honour.

MS L.B. BUCHANAN:   May it please the Court, I appear for the defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Ms Buchanan.

MS BUCHANAN:   If I might seek the leave of the Court to file affidavits of attempted service?

HIS HONOUR:   Certainly.

MS BUCHANAN:   Your Honour will see there are two affidavits.  One provides details of the last‑known address held by the Department, which in this case accords with the information included in the affidavit filed by the plaintiff’s former solicitors and the other is an affidavit of attempted service.

HIS HONOUR:   Thank you.  Unless you have anything to add I need not ask you further to address.

On 14 March 2011, 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 48B and s 417 of the Migration Act 1958 (Cth). They are provisions the plaintiff wishes to take advantage of with a view to overturning a prohibition against applying for a visa.

The second defendant refused to refer to the first defendant the plaintiff’s request for a notice under s 48B, and the first defendant refused to exercise his powers 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 including ss 48B and 417 and they held that those provisions were not conditional on observing the principles of natural justice.

The then solicitors for the plaintiff sent to the plaintiff 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.

Today the solicitor appearing for the defendants has sought leave to file in Court, which leave I grant, an affidavit of 30 November 2012 sworn by Freda Taah and a second affidavit by Ian Jones sworn on 28 November.  Those affidavits reveal that Mr Jones attempted to serve the defendant’s outline of submissions filed on 15 November 2012 at the last known address of the plaintiff – namely, 8 Clendinnen Street, Dunlop in the ACT.  He was unable to achieve service and he was advised by a neighbour that there had been no one at those premises for at least a month.  There is, therefore, no evidence that the plaintiff was served personally with the defendant’s 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 in the originating process as that party’s address for service.  That address is the address of Parish Patience.  The defendants’ submissions were served at that address before the solicitors 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 suggests that any attempt to serve the defendants 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.  It is to be inferred that the plaintiff would have been aware of the decision of the four cases referred to above on 7 September 2012.

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

AT 11.23 AM THE MATTER WAS CONCLUDED