Plaintiffs S325-2002 v RRT & Anor

[2003] HCATrans 326

[2003] HCATrans 326

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S325 of 2002

B e t w e e n -

PLAINTIFFS S325/2002

Plaintiffs

and

REFUGEE REVIEW TRIBUNAL

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Summons

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 26 AUGUST 2003, AT 9.41 AM

Copyright in the High Court of Australia

MR S.B. LLOYD:   May it please the Court, I appear for the second defendant, the Commonwealth.  (instructed Blake Dawson and Waldron)

HIS HONOUR:   Call that outside the Court too.  I will see if there is any appearance first. 

COURT OFFICER:   No appearance, your Honour.

HIS HONOUR:   We will take an adjournment until 10.00 am or earlier if one or more of the plaintiffs appears before then.

AT 9.42 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.06 AM:

PLAINTIFF S325/2002:   Your Honour, I am the second plaintiff.

HIS HONOUR:   Wait a minute, you are one of the plaintiffs, are you not?

PLAINTIFF S325/2002:   I beg your pardon, your Honour.

HIS HONOUR:   You are one of a number of plaintiffs.

PLAINTIFF S325/2002:   Yes, I am the second plaintiff, your Honour.

HIS HONOUR:   Do you seek to appear for the others as well?

PLAINTIFF S325/2002:   Yes, your Honour.

HIS HONOUR:   Is there any opposition to that?

MR LLOYD:   No, your Honour.

HIS HONOUR:   Yes, very well.  The Court holds a certificate from the Deputy Registrar that he has been advised by the solicitor for the first defendant, which is the Refugee Review Tribunal, that it submits to the order of the Court save as to costs. 

Now, before the Court is a writ of summons filed 16 September 2002, a document headed “Statement of Claims” filed 16 September 2002 and then what is immediately before the Court this morning is a summons by the second defendant, Mr Lloyd’s client, seeking that the proceedings be stayed on the footing that there is an abuse of process on the basis that there is not a reasonable or probable cause of action and, in the alternative, that the proceeding be remitted to the Federal Court of Australia.  The first question, I think, which arises, Mr Lloyd, is, does section 91X apply to this?  It is important for the transcript.

MR LLOYD:   It does, your Honour, I think, because the matter arises out of a protection visa.  It relates to “a person who applied for a protection visa”.

HIS HONOUR:   Yes.  Now, in support of the summons there are written submissions for the second defendant and there are submissions in response on behalf of the plaintiffs.  Is there any reason – and I am asking you this in the first place, Mr Lloyd – is there any jurisdictional reason why this cannot be remitted to the Federal Court?

MR LLOYD:   There is none, your Honour.

HIS HONOUR:   I would not have thought so.

MR LLOYD:   The reason why ‑ ‑ ‑

HIS HONOUR:   I understand.  Now, the basis on which the application is put, as I understand it, is the principles set out in Walton v Gardiner 177 CLR 378.

MR LLOYD:   That is so, your Honour.

HIS HONOUR:   The particular passage at 393 where an example of an abuse of process indicated in the joint judgment is as follows:

proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.

And it is said that the earlier proceedings here are those of the Full Court which are set out in exhibit SEH10 to Ms Hanstein’s affidavit of 4 June.

MR LLOYD:   That is so, your Honour.

HIS HONOUR:   Yes, very well.  Now, what I propose to do, madam, is to remit this matter to the Federal Court of Australia.  Do you understand that?

PLAINTIFF S325/2002:   Thank you, your Honour.  May I please – I apologise – your Honour, may I please ask for further suppression orders, additional to those already in place ‑ ‑ ‑

HIS HONOUR:   There are none in place yet.

PLAINTIFF S325/2002:   I apologise, but my understanding was that section 91X prevents the publication of the plaintiffs’ names.

HIS HONOUR:   That is right.

PLAINTIFF S325/2002:   I would seek additional suppression orders, your Honour.  I would like to ask that no dates that could identify my family, such as the precise date of our arrival to Australia, places we have been in Australia – as an example, in past proceedings it was mentioned that we have a mailing box in Richmond and that led some third parties to identify the proceedings although there was no mention of our names and for reasons that somehow were explained in my submissions, I do need further protection and I would be very grateful if you could, please, your Honour, allow this to happen.

HIS HONOUR:   Now, what precisely do you want?

PLAINTIFF S325/2002:   As an example, the precise ‑ ‑ ‑

HIS HONOUR:   No, precisely; not just by way of example.

PLAINTIFF S325/2002:   Yes, sure, of course.  The precise date when we entered Australia, the precise date of hearings before the Department of Immigration, the Refugee Review Tribunal, Federal and Full Court and High Court.  So date of hearings and judgments, please, of all jurisdictions we have been too.

HIS HONOUR:   Yes.

PLAINTIFF S325/2002:   Also mention of towns such as Richmond where it is known that we have our mailing address for the past two years, I believe, and we are the only Romanian to have had our mailing address in Richmond.  That is another detail that I would appreciate if it could be excluded.

HIS HONOUR:   And what is the reason for this?

PLAINTIFF S325/2002:   Your Honour, I have been in different proceedings, the tutor of my 13‑year‑old son in an education matter because he has been denied the right to study, and without me mentioning the details of my court proceedings the plaintiffs in that specific matter picked up out of the Internet the three decisions that were available, the judgments from the Federal Court ‑ ‑ ‑

HIS HONOUR:   Yes.  So?

PLAINTIFF S325/2002:   Because they just did a search on the word “Richmond” and “Romanian” and they were able to identify that we were the parties in these specific applications.  So if your Honour believes that this could be of assistance for not identifying us, I would appreciate if this could be done, if the defendant does not oppose it.

HIS HONOUR:   Yes, very well.

PLAINTIFF S325/2002:   Thank you.

HIS HONOUR:   I will see what Mr Lloyd says.  Yes, Mr Lloyd.  It seems to me very awkward.

MR LLOYD:   I am not party to the education proceedings but I have had some involvement where the Department of Education, I think, tried to subpoena documents from my client in relation to the proceedings and we were bound by a previous order of the court not to disclose those documents.  So there was an issue there.

HIS HONOUR:   I think if there is any application to be made, it can be made to the Federal Court.  These applications are not to be encouraged, it seems to me.  This is what I propose: 

(1)      Order that there be remitted to the Federal Court of Australia New South Wales District Registry the whole of the cause No S325 of 2002, including the balance of the summons filed 5 June 2003, and that all steps taken to date in this Court, including the filing of evidence and process be effective as if taken in the Federal Court;

(2)      The costs of the proceedings to date in this Court be costs of the further proceedings in the Federal Court of Australia, but in respect of costs in this Court, at the High Court scale;

(3)      Certify for counsel.

MR LLOYD:   May it please the Court.

HIS HONOUR:   It should sufficiently appear from that that one would expect the Federal Court to proceed in the first instance to deal with the remaining paragraphs of your summons, Mr Lloyd, which is ready for hearing, as I see it.  I will now adjourn.

AT 10.20 AM THE MATTER WAS CONCLUDED