Plaintiffs S619-2007 v MIAC

[2008] HCATrans 219

[2008] HCATrans 219

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S619 of 2007

B e t w e e n -

PLAINTIFFS S619/2007

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

Summons

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 3 JUNE 2008, AT 9.32 AM

Copyright in the High Court of Australia

MS D.J. WATSON:   I appear for the first defendant, your Honour.  (instructed by Australian Government Solicitor – Sydney)

HIS HONOUR:   Have you served the plaintiffs with your summons?

MS WATSON:   Yes, your Honour.  We did not serve the plaintiffs with the summons until the return date was provided.  I have an affidavit of service which attaches the covering letter notifying the plaintiffs of the return date and also indicating that we would be seeking orders for dismissal if there was no appearance today.  If I could hand up that affidavit, it is an affidavit of myself sworn today, 3 June 2008.

HIS HONOUR:   Thank you.  It was forwarded by post.  Without being disrespectful to the postal service, is it not desirable to have delivery by some form of post which will cause the postal authorities to indicate whether or not they made delivery and so on?

MS WATSON:   Your Honours, one of the difficulties is I was looking at serving it by courier but the home address of the applicants is a caravan park.

HIS HONOUR:   It was sent to Post Office Box 356, Gol Gol.  He lives in a caravan park near there, does he?

MS WATSON:   Yes, the address for service is indicated as the post office box and so that was the address that it was forwarded to.  I understand it did go express post but there is no indication of that in the affidavit.  I have just been informed that that was the way in which it was sent.

HIS HONOUR:   What is the latest bit of evidence that suggests that he has a post office box numbered 356 at Gol Gol?

MS WATSON:   The only documents that were served - have been received by the first defendant in the proceedings are the initiating process which was served in December.  That is the only correspondence that we have had with the applicant.

HIS HONOUR:   That is the address given.

MS WATSON:   The documents were accompanied by an express post envelope which indicates that post office box as the address.

HIS HONOUR:   It might be useful if you could tender that as well.

MS WATSON:   Yes, your Honour. 

HIS HONOUR:   The first defendant tenders the express post envelope in which the letter which is described as exhibit DJW1 to Dale Jennifer Watson’s affidavit sworn on 3 June – you are correcting me about something?

MS WATSON:   I am sorry, I may have misunderstood your Honour.  That is the envelope which the plaintiff provided to us when he served the documents.

HIS HONOUR:   I withdraw that.  Exhibit DJW1 to Ms Watson’s affidavit of 3 June will be exhibit A in these proceedings.

EXHIBIT A: Exhibit DJW1 to the affidavit of Dale Jennifer Watson.

Exhibit B will be an express post envelope from the first plaintiff to the Australian Government Solicitor enclosing the writ of summons filed on 13 December 2007.

EXHIBIT B:Express post envelope from the first plaintiff to the   Australian Government Solicitor enclosing the writ of   summons filed on 13 December 2007.

Do you know any rule that bears on the question of service of documents once proceedings are on foot as distinct from initiating process?

MS WATSON:   Your Honour, the requirements as far as the period of time for which service of the summons relates is found at rule 28.02 which provides that:

a summons shall be served at least 3 days before the day on which it is to be heard.

HIS HONOUR:   Thank you.  Do you know of any rule that deals with service by post of documents in litigation once it has been properly commenced.  Part 22 deals with service of initiating process.

MS WATSON:   Yes.  We have served it at what the plaintiff has provided as his address for service.  Unfortunately, as I said, it is a little bit unsatisfactory because an address for service is usually a place where a person can effect personal service, but that is the address which the plaintiff has indicated is his address for service, being a post office box.

HIS HONOUR:   Just to complete the formalities, if the matter could be called three times outside the Court.

COURT OFFICER:   No appearance, your Honour.

HIS HONOUR:   Thank you.

MS WATSON:   Part 9 is the general service provision, your Honour.

HIS HONOUR:   Rule 9.01 is initiating process.

MS WATSON:   Rule 9.01.5 states:

Unless these Rules provide otherwise, any other document may be served by ordinary service.

HIS HONOUR:   “Ordinary service” is?

MS WATSON:   That is 9.04.1 - “leaving it at the person’s address for service”; “posting it to the person’s address for service” or arranging for “facsimile transmission” or transmission to a DX box.

HIS HONOUR:   Unless you have anything further to say on this service question, I think we can cease this dialogue.

MS WATSON:   Thank you, your Honour.

HIS HONOUR:   Neither of the two plaintiffs has appeared, despite the matter having been called three times outside the Court about five minutes after it was listed for hearing.

The first defendant has handed up, and I treat as formally read, an affidavit deposing to the fact that the deponent, Dale Jennifer Watson, on 26 May forwarded by post a copy of the summons filed by the first defendant on 2 May 2008 and a copy of the affidavit in support of it together with a letter.  The letter refers to the fact that it encloses by way of service that summons and affidavit.  The letter further says that the first defendant has been advised by the High Court that the summons is to be listed before a Justice of the Court on 3 June 2008 at 9.30.  The letter concludes by stating that if the plaintiffs do not appear or arrange for a legal representative to appear on their behalf, orders may be made against them, including orders that the proceedings be dismissed with costs.

Rule 28.02.2 provides that:

Unless the Court or a Justice, by order, allows a shorter time, a summons shall be served at least 3 days before the day on which it is to be heard.

The 26th May was a Monday, that is to say, eight days before today – I should interrupt. Ms Watson, section 160 of the Evidence Act provides that:

It is presumed . . . that a postal article sent by prepaid post addressed to a person at a specified address in Australia . . . was received at that address on the fourth working day after having been posted.

Your letter was sent on a Monday. The fourth working day after it having been posted was the Friday. Section 160 therefore enables one to presume that the plaintiff has got the document on the Friday. The question is, is that at least three days before the day on which the summons is to be heard – Saturday, Sunday, Monday, but can one count Saturday and Sunday?

MS WATSON:   The answer to that, your Honour, is, I think, no, because of Part 4.  With the calculation of time when there is a period of five days or less it excludes the periods of time that the Registry is closed.

HIS HONOUR:   I follow your point, but there was no act that was to be done or that may be done on the Saturday or Sunday.  Does it still ‑ ‑ ‑

MS WATSON:   Sorry, yes.

HIS HONOUR:   Rule 4.01.05 says:

Where the last day for doing any act is a day on which the office of the Registry is not open . . . the act may be done on the next day the Registry is open.

But your reliance on 4.01.04 really means it is a question of Monday is a clear day but there are not two other clear days. 

MS WATSON:   I think, unfortunately, the notification of the correct time for this hearing only occurred last Monday so the letter went out as soon as we were notified of the – I think there was a listing notice which went out on the Friday which unfortunately I was not in the office that day and so did not see it, but then there was a correction to the time that the commencement of the proceedings was to occur.  I think the original notice said 9 o’clock and then there was an amendment to 9.30 and so a letter went out as soon as we were notified of that change.

HIS HONOUR:   I do not suppose you have a copy of section 160 before you?

MS WATSON:   No, I did not bring it up.

HIS HONOUR:   It might be helpful if you could fetch a copy of the Evidence Act (Cth) 1995. While it is being got, can I just raise this? Do you want to put a new submission to this effect, that section 160 is, as it were, a beneficial presumption which people can take advantage of so as to cast a burden of proof on the party claiming not to have been served, but it does not actually mandate – it does not say that one must infer that the document did take four working days to get where it was sent and it may be possible to infer that something posted from Sydney on Monday to a post office box in New South Wales, that is to say PO Box 356, Gol Gol, would get there by Wednesday.

MS WATSON:   Your Honour, I must say that I was aware of the fact that there was a tight timeframe involved.  However, as I said, the letter had gone out as soon as was able and even thought the Evidence Act does provide a presumption that it is received within a period of four working days, it may be the case that if your Honour is satisfied that the plaintiffs have been provided with sufficient notice, if your Honour is satisfied of that fact, it could be dismissed today on the basis of non‑appearance.  Perhaps a safer course is to adjourn it to another day in perhaps a fortnight’s time or something to give the plaintiffs the opportunity to come again.  In the alternative, your Honour, your Honour will see from the matter that the plaintiffs have in fact been in default of the rules in any event in failing to ‑ ‑ ‑

HIS HONOUR:   Yes, and that is a good ground for dismissing their writ of summons, but one could not do that without hearing them first and with notice of the fact that that application was to be made.  A third possibility is, if the writ of summons is going to be dismissed, to have it dismissed subject to the plaintiff having liberty to apply for the orders to be set aside on proof that they did not in fact receive your letter of last Monday.

MS WATSON:   Or, I suppose, liberty to apply on whatever basis they may wish to apply, but ‑ ‑ ‑

HIS HONOUR:   That would be about the only sympathetic basis.

MS WATSON:   Yes.  I think that course that your Honour suggests is the course that I would urge upon your Honour, only that it at least avoids the potential of having to come back on another day and it is then a matter for the plaintiffs to prosecute the matter if they believe that they have not received adequate notice of today’s hearing.

HIS HONOUR:   Yes.  I might just adjourn for a moment.

AT 9.51 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.01 AM:

HIS HONOUR: Section 29 of the Acts Interpretation Act 1901 – I will give you a copy of it – says:

Where an Act –

problem, “Act” –

authorizes . . . any document to be served by post . . . the service shall be deemed to be effected by properly addressing prepaying and posting the document as a latter, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post –

question No 1 is this is limited to Acts and does not apply to things like the High Court Rules and question No 2 is what is the ordinary course of post between Sydney and Gol Gol? Frankly, Ms Watson, if a house was about to be burned down or something I would proceed with the application, but we are talking about deporting the plaintiffs and in the circumstances I think we had better make sure they have been served which means it is probably best to adjourn the matter. You mentioned two weeks. If you sent off a letter today and it came back on today fortnight, you would have the advantage of the four days of section 160.

MS WATSON:   Yes, that is why I suggested the two weeks.  I think it gives us sufficient time without letting the matter drag on for too long.

HIS HONOUR:   The problem is would you need any additional evidence from the Post Office as to the time of service – when you sent it, did you send it by express post?

MS WATSON:   My understanding is that it was sent by express post, which has an indication that I think it is delivered two days in regional centres and one day in the metropolitan areas, but we could possibly send it by express post as well as registered post and then we might actually have evidence of a receipt as well as relying on the presumption.

HIS HONOUR:   If you send it by registered post that would establish it went into that post box in Gol Gol on the second day.

MS WATSON:   Well, what occurs is there is a registry kept by the Post Office which indicates where the notifications have been given to the owner or the person who is leasing the post office box and then ultimately if anyone picks up the item, there is then a signature in the registry.  The difficulty with sending things by registered post items is that sometimes they languish in the Post Office and then are returned after a certain period of time, which is why we tend to send things by express post.

HIS HONOUR:   I suppose litigants who give post office boxes as their address for service have simply got to look at the post office box every day, but it would suffice if it could be established when it got into the post office box.  Anyway, I think I will just have to leave all that in your hands.

MS WATSON:   We will try all methods we can.

HIS HONOUR:   Yes, very well.  Thank you.  I withdraw what I said by way of interlocutory judgment before and I will begin again. 

This matter was called three times shortly after the time when it was listed for hearing this morning, but there was no appearance by the two plaintiffs.

The first defendant, who is moving on a summons for dismissal of the writ of summons filed last December by the plaintiffs, has relied on evidence demonstrating that a copy of the first defendant’s summons and supporting affidavit and a letter were sent last Monday, 26 May 2008 to the plaintiffs.  It was sent to the address for service of the plaintiffs, Post Office Box 356, Gol Gol, NSW, 2738. 

Rule 28.02.2 of the High Court Rules provides that:

Unless the Court or a Justice, by order, allows a shorter time, a summons –

that is to say, in this case, the first defendant’s summons seeking dismissal of the proceedings –

shall be served at least 3 days before the day on which it is to be heard.

Rule 4.01.4 provides that:

Where a period of 5 days or less –

I interpolate, fixed under these Rules –

would include a day on which the office of the Registry is not open in the State or Territory where the act is to be done or may be done that day shall be excluded.

The solicitor for the first defendant accepts that the consequence here is that last Saturday and last Sunday are to be excluded. Any attempt to rely on section 160 of the Evidence Act 1995 (Cth) which creates a presumption that a postal article sent by prepaid post to an address “was received at that address on the fourth working day after having been posted” must fail because that presumption would mean that delivery could be taken to have been effected last Friday, 30 May, which leaves only one clear working day, namely yesterday.

The first defendant submits, in essence, either that the matter should be adjourned for two weeks, or that the matter proceed and the plaintiffs be given liberty to apply to reopen any order made.  In view of the seriousness of the proceedings from the point of view of the plaintiffs, I think the former of those two courses is the desirable course.

Accordingly, I adjourn the matter for two weeks for the first defendant to take such steps as it may be advised.  I reserve costs.

Thank you, Ms Watson.  The Court will now adjourn.

AT 10.09 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.12 AM:

HIS HONOUR:   Ms Watson, the Court will be in Brisbane in two weeks time and I imagine that is very inconvenient for you if the hearing were to take place then, not to mention the plaintiffs.  We will be in Sydney in three weeks time and I think it might be better if we adjourn it for three weeks.

MS WATSON:   Yes, thank you.

HIS HONOUR:   Very well.  I amend the earlier order by substituting three weeks for two.

AT 10.12 AM THE MATTER WAS CONCLUDED