Sidhu.doc- Ex parte- Re Min for Immig

[1999] HCATrans 108

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S153 of 1998

In the matter of -

An application for Writs of Prohibition, Certiorari and Mandamus against MARGRET HOLMES

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte -

DARSHAN SINGH SIDHU

Prosecutor

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 28 APRIL 1999, AT 2.15 PM

(Continued from 23/4/99)

Copyright in the High Court of Australia

MR LAWLER:   Your Honour, might I thank the Court for its indulgence in relation to the listing this morning.

HIS HONOUR:   Yes, and your opponent.

MR LAWLER:   Can I hand up to the Court please, and seek leave to file in Court an amended draft order.

HIS HONOUR:   Have you seen this, Mr Gageler?  Probably only recently.

MR GAGELER:   Yes, but I have read it. 

HIS HONOUR:   Now, which grounds does the applicant see as grounds that would have to stay here and could not be - - -

MR LAWLER:   Only ground 1, your Honour.  Your Honour, if the view that - - -

HIS HONOUR:   Is that right about ground 3?

MR LAWLER:   Yes, your Honour, because it is based on section 476(1)(a) and the Eshetu point.

HIS HONOUR:   And that is true of ground 4 as well, you would say.

MR LAWLER:   Yes.  Ground 4, I should say, is in fact new territory, your Honour, as a result of something.....this morning in discussions with Mr Robinson.

HIS HONOUR:   Yes.  It seems to be likewise based on 476(1)(a) though.

MR LAWLER:   It is, your Honour.

HIS HONOUR:   It is section 430, though.

MR LAWLER:   Yes, your Honour.  There are some Full Federal Court decisions that Mr Robinson informs me which enliven that ground.

HIS HONOUR:   All right.  Well, it does seem that only ground 1 need stay here, Mr Gageler.  Does that seem right to you?

MR GAGELER:   Yes, I agree with that, your Honour.  Your Honour, there is something I should mention.  It is in relation to ground 2.1(a) and also 2.1(d).  What is being done is an attempt to reframe what might otherwise be cast as an unreasonableness argument - - -

HIS HONOUR:   Yes, I see that.

MR GAGELER:    - - - as an error of law.  I just would not wish it to be thought that - - -

HIS HONOUR:   I do not take you as assenting to that and I am not assenting to it either.

MR GAGELER:   Yes.  That is what I wanted to clear up.

HIS HONOUR:   And that will appear clearly on the transcript.  That can be debated though in the Federal Court as to what flows from - - -

MR GAGELER:   Of course.

MR LAWLER:   Perhaps I am being a little slow, but I thought that was the import of the passages that your Honour referred me to.

HIS HONOUR:   You may well be right about that but Mr Gageler ‑ ‑ ‑

MR LAWLER:   Will take a different view, no doubt.

HIS HONOUR:   - - - may have another view and he must be allowed to put it.

MR LAWLER:   Of course.

HIS HONOUR:   That seems the appropriate subsection in section 44(2A). A person is “being sued on behalf of the Commonwealth.”

MR GAGELER:   Your Honour, I am not exactly sure that is necessarily so because the jurisdiction being invoked is section 75(v) where relief “is sought against an officer of the Commonwealth.”

HIS HONOUR:   Yes, I know, but there is a thought that 75(v) is within 75(iii), is there not, and is put there for further explanation and comfort? 

MR GAGELER:   That is one thought, your Honour.

HIS HONOUR:   I know Justice McHugh very firmly adheres to that view.

MR GAGELER:   Yes. I think nothing probably turns on whether it is section 44(1) or 44(2A).

HIS HONOUR:   I had just better say section 44.

MR GAGELER:   Yes.  That might be safe, your Honour.

HIS HONOUR:   I will say:

(1) Order pursuant to section 44 of the Judiciary Act 1903 (Cth) that so much of the application for relief under section 75(v) of the Constitution as is founded upon grounds 2, 3 and 4 of the draft order nisi, which is initialled by me, dated and placed with the papers, be remitted to the Federal Court of Australia New South Wales District Registry;

(2)  certify for counsel;

(3)  costs in this Court be costs of the application in the Federal Court.

It may be noted, though there is no need to reflect it in the order, that the certificate furnished by the Deputy Registrar, which I read on to the transcript on the last occasion as to the position of the first respondent, will obtain as to the position of the first respondent when the matter is further dealt with in the Federal Court without any need for any further certificates or communications on behalf of the first respondent.  Is there anything else?

MR LAWLER:   No, your Honour.

MR GAGELER:   No, your Honour.

MR LAWLER:   If it please the Court.

HIS HONOUR:   I make orders as just indicated and I will now adjourn.

AT 2.27 PM THE MATTER WAS ADJOURNED