Radojicic, Ex parte - Re Min for Immig

[1999] HCATrans 490

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S154 of 1999

In the matter of –

An application for Writs of Prohibition, Certiorari and Mandamus against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

First Respondent

JOHN GODFREY sitting as the REFUGEE REVIEW TRIBUNAL

Second Respondent

JOHN GODFREY in his capacity as acting Principal Member of the REFUGEE REVIEW TRIBUNAL

Third Respondent

Ex parte –

PETAR RADOJICIC

Prosecutor

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 20 DECEMBER 1999, AT 10.13 AM

Copyright in the High Court of Australia

___________________

MR N.C. POYNDER:  If it please your Honour, I appear for the prosecutor.  (instructed by Anne O’Donoghue & Associates)

MR P. ROBERTS:  If it please the Court, I appear for the first respondent.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Yes, what is the situation in relation to this, Mr Poynder?

MR POYNDER:   Your Honour, this is the first return date of an application for order nisi.  In general terms, the application relates to the prosecutor who says that he did not receive a decision by registered mail.

HIS HONOUR:   How is that constitutional jurisdictional error?

MR POYNDER:   Your Honour, having heard what you just indicated to the previous applicant, perhaps, that is something that will need to be addressed in terms of this proceeding.

HIS HONOUR:   Yes, it is a matter that needs to be dealt with fairly quickly.  Do you propose to adduce any evidence apart from that which has already been filed?

MR POYNDER:   Your Honour, there is a likelihood that we will be able to obtain evidence from the migration agent who also says he did not receive the decision.

HIS HONOUR:   I appreciate that.

MR POYNDER:   But apart from that, there is no further evidence.  I am not sure whether the respondent seeks to adduce evidence.

HIS HONOUR:   Yes, well, it may depend, I suppose, upon what evidence is filed by the immigration agents, is that so, Mr Roberts?

MR ROBERTS:   That is right, yes, your Honour.

HIS HONOUR:   Any other evidence that you ‑ ‑ ‑

MR ROBERTS:    I suppose if it was an issue, we would have to put some evidence that we actually sent the document on the requisite date but other than that, no.

HIS HONOUR:   Yes.  Mr Poynder, how long will it take you to get this evidence?

MR POYNDER:   Several days, your Honour.  We have spoken to the migration agent but we have not made an appointment to see him yet, so, a minimum of several days, I would imagine.

HIS HONOUR:   Very well.  You have no idea how long you would need in reply, would you?

MR ROBERTS:   We could probably put our evidence on in advance anyway to say that we sent the document.  Whether it was received or not, we would have no idea.  It is said not to have been received.

HIS HONOUR:   Yes.  Mr Poynder, I am going to make some directions and I am also going to fix a hearing date for this matter. 

In these matters, convenience of counsel are going to be of little, if any, relevance so far as this Court’s work is concerned.  They will just have to be heard when the Court is able to hear them and I propose to hear this matter on 17 January.  It is a question then of fixing time for filing affidavits which will give each party an opportunity to prepare their cases.  I propose that the matter be heard before me on January 17.

I direct that the applicant serve any affidavits upon which it relies by 6 January 2000.  Seven days should be time for you?

MR ROBERTS:    Certainly, your Honour.

HIS HONOUR:   I direct the respondents to file all affidavits, including any affidavits in reply, by 13 January 2000.  I direct that any affidavit in reply to the affidavits of the respondent by the applicant be filed by 5.00 pm on 14 January.  I direct that the applicant file written submissions by 13 January and that the respondent file its submissions by 14 January. 

I give your side leave, Mr Poynder, because your submissions may be in before you get the affidavit evidence from the respondent, to file any submissions in reply by 9.30 am on 17 January.  I will stand the matter over for hearing then until 10.00 am 17 January.  So there will be no mistake about it, in each of those dates that I have given, the time for filing any documentation will be 5.00 pm on any of those days.

AT 10.20 AM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 17 JANUARY 2000