Skillington v Minister for Immigration and Border Protection

[2017] HCATrans 89

[2017] HCATrans 089

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S47 of 2017

B e t w e e n -

SANDRA MARGARET SKILLINGTON

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Defendant

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 20 APRIL 2017, AT 9.33 AM

Copyright in the High Court of Australia

MR J. WILLIAMS:   May it please the Court, I appear on behalf of the plaintiff.  (instructed by the plaintiff)

MR A. MARKUS:   If your Honour pleases, I appear for the defendant.  (instructed by Australian Government Solicitor)

HER HONOUR:   Yes, Mr Williams.

MR WILLIAMS:   Your Honour, the plaintiff, Ms Skillington, and her husband, are in Court today.  They are sitting down the back.

HER HONOUR:   Yes, very well, Mr Williams.

MR WILLIAMS:   Your Honour, in terms of the application before the Court, there is an application to show cause as to why the constitutional writs should be issued with regard to the decision on 24 February 2017 of the delegate to the Minister to uphold the defective notification process.

HER HONOUR:   You refer, Mr Williams, to the plaintiff’s affidavit to which she has exhibited a proposed amended application, and, as I understand it, you seek leave to proceed on the amended show cause application which addresses one difficulty in relation to the relief claimed in the initial application, the attack now being on the decision of an officer of the Department of Immigration and Border Protection to not exercise such power as that officer may have to renotify of the visa refusal decision.  Is that right?

MR WILLIAMS:   That is correct, your Honour, yes.  In that regard, I understand my friend is opposed to the amended application but not opposed to the three affidavits which we seek to – the plaintiff seeks to read and rely upon.

HER HONOUR:   Yes.  Now, I have had an opportunity to read the papers.  You read, do you, the affidavit of the plaintiff which was filed on 19 April 2017?

MR WILLIAMS:   That is correct, your Honour.

HER HONOUR:   You refer to two other affidavits - they are?

MR WILLIAMS:   Yes, that is right.  There is a second affidavit by the plaintiff sworn 21 March 2017, and an affidavit by Tina Jillian Szmej sworn 10 March 2017, who was the former instructing solicitor and migration agent to the plaintiff.

HER HONOUR:   Yes, thank you, Mr Williams.  Do I understand, Mr Markus, there is no objection to those affidavits?

MR MARKUS:   Not for the purposes of today.

HER HONOUR:   Yes.  Very well, thank you, Mr Markus.  Mr Markus, is it right that the leave to amend is opposed?

MR MARKUS:   Well, your Honour, we oppose leave because your Honour has characterised the decision in a particular way that is sought to be reviewed.  We simply say that if one looks at the proposed amended application it is unclear what the decision is that is sought to be challenged but, in any event, there is some reference to such a decision having been made on a particular day by a delegate of the Minister.

Now, your Honour, there is simply no basis for the decision.  There was a compliance officer dealing with a bridging visa issue in relation to the plaintiff and the compliance officer may or may not have said certain things, but there is simply no basis for asserting that he or she is a delegate of the Minister for relevant purposes and, indeed, it is most unlikely that that is the case.

HER HONOUR:   Mr Markus, I wonder if I can take these matters up with you?

MR MARKUS:   Yes.

HER HONOUR:   In the endeavour to reframe the application I hear what you say in relation to the characterisation of the decision‑maker as the delegate of the Minister.  I think reference is made to a decision on 24 February 2017, and from the materials that were filed yesterday, together with the plaintiff’s earlier affidavit, I infer that is a reference to the compliance officer who is described as Ivana and her position number stated.

MR MARKUS:   Yes, that is my understanding.

HER HONOUR:   Now, the submissions filed in support of the application to amend set out some extracts purportedly from the Minister’s guidelines, and if those are accurate they suggest that some departmental officers have the power to determine in some circumstances to renotify a visa applicant.

MR MARKUS:   I accept that, your Honour.

HER HONOUR:   It may be thought there are some remaining difficulties with the proposed amended application in terms of the relief that is claimed but, as I apprehend it, at its heart it is a contention that the compliance officer had the discretion to determine to renotify and the decision in all the circumstances not to do so was legally unreasonable.  Now, the merits of that I do not go into but that as I ‑ ‑ ‑

MR MARKUS:   No, I understand what your Honour is putting to me, and if I could just say this.  The reason why my client takes the position he has taken is simply to be able to make the submission that we make in relation to the way that the proposed amended application is formulated.  We do not want to be seen to acknowledge that there is such a decision that the proposed application raises any arguable issue and the like.  But it is principally for those reasons, your Honour, that we take the position we have.

HER HONOUR:   One further matter, Mr Markus, while you are on your feet.  As the application is presently framed, it seeks to challenge a primary decision and there would be no power to remit to the Federal Circuit Court.

MR MARKUS:   Correct.

HER HONOUR:   But if leave were granted to amend with a view to challenging the failure to exercise the discretion to renotify, there would be no preclusion, would there, on remittal?

MR MARKUS:   Your Honour, if I can put it this way.  No, but your Honour would have to extend time.

HER HONOUR:   Yes, yes.

MR MARKUS:   And we would oppose the extension of time application because we would say that there is no error in the notification process and, indeed, the allegation that there is such error is entirely unarguable.

HER HONOUR:   That there is an error in the notification process; yes, I understand the Minister’s submission that there is no arguable case that the notification mechanism is defective.  As I understand one strand of the argument that is sought to be put, it is that the Minister’s guidelines contemplate that in some circumstances a departmental officer will renotify and the intention is that renotification is required where there has been some defect in the notification procedure and where the departmental officer appreciates that a review application has not been filed within time.

On the other hand, if the applicant has not been prejudiced in that way, then there is no requirement under the guidelines to renotify.  All of that might be thought to evince the concern for effective communication of the notification and in circumstances – if it be the case that the officer has the discretion to renotify, in circumstances in which the officer is satisfied, if it be the case, that the notification was returned unopened and ‑ ‑ ‑

MR MARKUS:   Your Honour, I understand where your Honour is going with that but, with respect, your Honour, the discretion to renotify is really not a discretion in that sense.  There is a power to renotify because there is a power to notify.  There is a duty to notify, and if that duty has not been performed according to law then, indeed, there is a duty to renotify.

HER HONOUR:   Yes.

MR MARKUS:   What we simply say is that the argument that the original notification was defective is not – or does not raise any substantial issue, and therefore this question of whether there is a power or there is a duty to renotify does not really arise.

HER HONOUR:   The one thing that on the material simply in Mr Williams’ submissions, which contains purported extracts from the guidelines, that left me wondering if there was some, as it were, broader discretion – I mean, some of the guidelines plainly are directed to a defective notification and to renotification in such a circumstance, and I appreciate the submission that you put.

MR MARKUS:   Yes, your Honour.

HER HONOUR:   Mr Williams has extracted, amongst other things, guideline A104‑50.2.4 which is dealing with notifications by prepaid post when the letter is returned undelivered and it is said in those circumstances that “the letter cannot be relied upon to establish actual notification”.  I do not know what actual notification means, but it is plainly something different to the deemed notification with which we are concerned.

MR MARKUS:   Yes, your Honour.

HER HONOUR:   But then your contention, Mr Markus, is that the only provision for renotification arises in circumstances of a legally defective initial notification.  Is that the ‑ ‑ ‑

MR MARKUS:   That is my understanding, your Honour, but can I just ask where your Honour is ‑ ‑ ‑

HER HONOUR:   Yes, I am simply looking at Mr Williams’ submissions that were filed on 19 April.  Page 15 extracts two guidelines that are quite unclear to me.  They involve some concept of actual notification under the FOI legislation.

MR MARKUS:   Your Honour, if I can say this.  Actual notification, as I understand it, means nothing more than the letter actually having been received.  That is what actual notification is ‑ ‑ ‑

HER HONOUR:   Yes.  I mean, plainly it is something other than the deemed notification ‑ ‑ ‑

MR MARKUS:   It is in direct opposite to it and, indeed, if your Honour looks at section 494C(7), your Honour will see that indeed there is then a reference to actual notification.

HER HONOUR:   So it is in that context.

MR MARKUS:   It is in that context, your Honour.

HER HONOUR:   I understand.

MR MARKUS:   But the bottom line is the fact that actual notification cannot be established, that does not mean that in the absence of actual notification there is a discretion or a duty to renotify.  The whole point of deemed notification procedure is that there is a certainty and there is consistency about how these matters are dealt with.

HER HONOUR:   I understand.  Yes, I understand the Minister’s position.

MR MARKUS:   That is our position, your Honour.  Otherwise, if your Honour is minded to grant leave for the applicant to move on the proposed amended application to file a proposed amended application, I have nothing further to say.

HER HONOUR:   It might be that there is an issue in relation to the capacity of an officer within the Department to exercise a discretion to renotify in circumstances where, as here, it is on – it may be that the plaintiff can establish that it was plain beyond argument that she had not received the notification.  That was through no fault of her own.  A mechanism that had been standardly used for communication, namely, by email, was available.  If there were a discretion then there might be an argument that in those circumstances it was unreasonable legally not to exercise the discretion in her favour.

I say nothing about the merits of that argument, but that I think is the argument that is sought to be made.  I understand there are some other contentions that are put but at its heart that seemed to me from the submissions to be the argument that is sought to be made.

MR MARKUS:   That would mean, your Honour, with respect, that you actually have to be satisfied that there is actual notification and that is the whole point that the deemed notification procedure wishes to avoid.

HER HONOUR:   Yes, I understand that.  It seems to me there is a difference between – there might be a difference between circumstances in which there can ever be an issue about whether notification was received and circumstances in which it is plainly on question that through no fault of the visa applicant notification has not ‑ I mean, I do express no view about it.

MR MARKUS:   I understand what your Honour is putting to me.

HER HONOUR:   But I am conscious, as I understand that the Minister seeks summary dismissal and ‑ ‑ ‑

MR MARKUS:   Well, your Honour I would not put in those terms.  We do not seek summary dismissal, we seek an order that the application for extension of time be refused.  That may be the same ‑ ‑ ‑

HER HONOUR:   Some may think that is a fine distinction.

MR MARKUS:   ‑ ‑ ‑ effect, but there is a slightly different sort of questions of who bears what onus and the like.

HER HONOUR:   There is a difference.  There is a significant difference.  It falls to the plaintiff to establish that the interests of the administration of justice favour the extension that is sought, so the onus is plainly upon her, and I understand the Minister points to some deficiencies in terms of the content of the application insofar as that aspect is concerned.

MR MARKUS:   Well, your Honour, we basically say that insofar as what is being challenged is a failure by an officer of the Department who is dealing with a bridging visa application to make a favourable decision on the renotification issue, the proceeding is just hopeless.

HER HONOUR:   Yes, I understand.

MR MARKUS:   That is our position in relation to that.  Your Honour is putting a slightly more refined proposition to me about there being a general discretion to renotify in circumstances – and if there is a discretion to renotify then there could possibly be an issue as to the existence of a duty to notify in particular circumstances.

HER HONOUR:   Yes.

MR MARKUS:   I see the force of what your Honour is putting to me in that context.  That is not, in my respectful submission, what the application or the amended application seeks to do, but I understand what your Honour is putting to me.

HER HONOUR:   Mr Markus, I am right in thinking were I to grant the extension that is sought the matter could be remitted to the Federal Circuit Court if the application were amended so as to seek to challenge the decision made by the officer of the Department on 24 February 2017 not to exercise a power to renotify.

MR MARKUS:   Your Honour, that is where the problem lies because we would say that there was never such a decision made.  The person that the plaintiff points to is an officer of the Department but there is no basis for the proposition that she had the power to make a decision about notification.  The notification provisions, in particular, section 66 of the Act – and I do not know – does your Honour have copies of ‑ ‑ ‑

HER HONOUR:   Yes, I have a copy of the Act.

MR MARKUS:   If your Honour looks at section 66, that is where the power or duty, as it were, to notify or renotify can be found in the Act, and your Honour is putting to me that that power could possibly be exercised from time to time at the discretion of the person but, in substance, we would say that section 66 imposes the duty on the Minister when exercising the power to make the decision in question.  So there was presumably power in the delegate who made the original decision to refuse to notify, or a duty on her to notify, and the question arises whether that is a power that can be exercised from time to time at the discretion of the Minister or his delegate and then arguments may be formed.

But, your Honour, my difficulty is that to say that there was a power in any officer of the Department to renotify or a duty on any officer because ultimately it has to rise to that level, is simply not arguable and therefore we would say that this is just a misconceived attempt to raise an issue which may or may not arise ultimately.

HER HONOUR:   Yes.

MR MARKUS:   Your Honour, that is all I can say about the extension of time application and we would ultimately say that the argument that there is an error is simply misconceived.  Ultimately the plaintiff asserts that she had a preference, and that may well be, but ‑ ‑ ‑

HER HONOUR:   Yes, I understand that argument, Mr Markus.

MR MARKUS:   Yes, thank you.  So on the issue that your Honour is raising with me, there would not need to be an error demonstrated.  There would simply need to be an uncontested factual position which, if I may say so, on my instructions does exist.  We are not suggesting that the plaintiff had received the notification.  We accept that she did not.  We do say, however, that she was notified in accordance with the relevant statutory provisions and that, in those circumstances, there is no discretion to renotify her and, your Honour, if there is no discretion ‑ ‑ ‑

HER HONOUR:   If there is no discretion there is ‑ ‑ ‑

MR MARKUS:   ‑ ‑ ‑ to renotify.

HER HONOUR:   Yes, but that itself may be in issue, may it not?

MR MARKUS:   Sorry, your Honour?

HER HONOUR:   Well, there may be a question about that ‑ ‑ ‑

MR MARKUS:   Well, I understand what your Honour is putting to me about that.  In my respectful submission, however, where you have a deemed notification regime, the whole point of which is to avoid the possibility of having to consider these issues, then the argument is extremely weak and whatever section 33 of the Acts Interpretation Act may say about the availability of power, there is in these circumstances a contrary intention in the relevant provisions of the Act and the regulations.

HER HONOUR:   Yes, I understand.  Thank you, Mr Markus.  Mr Williams.

MR WILLIAMS:   Yes, your Honour.  Your Honour, there are a number of issues, and I do thank the Court and, indeed, my friend for sharpening the focus of the plaintiff on those issues.  Your Honour, the attempt in the amended application at ground 1 was specifically in line with what your Honour has indicated to the Court.  That was the intention of the drafting, to focus in on the delegate or the person, the decision‑maker, on that decision to uphold the defective notification process.

HER HONOUR:   If I can just interrupt you for a moment, Mr Williams.

MR WILLIAMS:   Certainly, your Honour.

HER HONOUR:   The application as it is presently framed asserts that the notification process was defective.  That would seem to be an argument with very considerable difficulties.  As I apprehend it, you seek to base that argument on a contention about the operation of section – just let me turn it up ‑ ‑ ‑

MR WILLIAMS:   Is it 494C, your Honour, part ‑ ‑ ‑

HER HONOUR:   It is 494C(7).

MR WILLIAMS:   Yes, your Honour.

HER HONOUR:   Documents not given effectively.

MR WILLIAMS:   Yes.

HER HONOUR:   Mr Williams, that subsection is directed to a circumstance in which the Minister purports to give a document in accordance with one of the methods specified in section 494B but the Minister makes an error in that attempt and the visa applicant, relevantly, nonetheless in fact receives the document, and in that context 494C(7) deems the person to have received the document at the times for which that section provides unless the person demonstrates that he or she received the document at a later time, in which case time runs from then.

Now, unless I have missed something, Mr Williams, 494C(7) has no application here.  The Minister’s delegate sent the notification by prepaid post to the address that had been nominated as the address for correspondence by the plaintiff.  What is the defect?

MR WILLIAMS:   Well, your Honour, it was clear by the undisputed – the unchallenged affidavits that there was a defect.  Just putting aside that provision for a moment, that there was in fact – not in law, but in fact – a defect ‑ ‑ ‑

HER HONOUR:   Mr Williams, it is a big leap to move from a submission, a defect in fact but not in law, when we are dealing with a scheme of deemed notification.

MR WILLIAMS:   Sorry, your Honour, we say both, but I am just suggesting the first issue on the unchallenged affidavit there was never any receipt of that notification.

HER HONOUR:   Mr Williams, you may take it from my discussions with Mr Markus that fact has not escaped me, nor Mr Markus.

MR WILLIAMS:   Yes.

HER HONOUR:   This is a scheme that deems notification in order to ensure certainty and is in that sense of a par with the scheme under section 347 which imposes an inflexible, non‑extendable time limit in relation to the rights of review.  To the extent that your proposed amended application depends upon establishing legal defect in notification, one might think you have some difficulties.

MR WILLIAMS:   Yes, your Honour, I can see that there is some challenge there, except for the counter argument, your Honour, in regard to 494C(7), that last section where it says:

unless the person can show that he or she received it at a later time –

The words on that clearly open up the deeming effect ‑ ‑ ‑

HER HONOUR:   Mr Williams, the words do not open up more than the subsection bestows.  The subsection is concerned with the defective notification by which it in terms is concerned with circumstances in which the Minister purports to give notification in accordance with the statutory scheme and fails so to do.

MR WILLIAMS:   Yes, your Honour, but with respect, it is that last sentence – if I could direct your Honour’s attention to that last sentence:

then the person is taken to have received the document at the times mentioned in this section –

that was when it was served:

if the Minister had given the document to the person without making an error in doing so, unless the person –

and this is the arguable point:

can show that he or she received it at a later time –

She did not receive it until the freedom of information application was put in.

HER HONOUR:   Mr Williams, the concluding words of subsection (7) do not apply if the notification accords with one of the methods specified in 494B.

MR WILLIAMS:   Well, and that is the critical point, your Honour, where the PAM 3 guidelines come into play is that the established means of communication were through email and through no fault there was a registered post method delivered and at that point in time, as early as 3 January, the officer became aware that the bridging visa had been cancelled, but at 9 January it returned unopened.  Your Honour, that was already past the time limit, it was already well and truly past that time limit, and then it was not until considerable efforts by the plaintiff under freedom of information to obtain the document.

I do understand your Honour’s concern about whether it was defective or not and whether ‑ the deeming provision, but we do not get to the deeming issue at a – whether the Tribunal has jurisdiction or not.  We are a step before that where your Honour was raising with Mr Markus and we say that there was a discretion to correct that defective process, or the process, and to renotify, and that not to do so was unreasonable.  That is the crux of that argument.

HER HONOUR:   The crux of the case that you seek to make involves an assertion that on 24 February 2017 an officer of the Department had a discretion under the Act to renotify in the circumstances and that it was legally unreasonable not to do so; that is the argument you seek to make, is that ‑ ‑ ‑

MR WILLIAMS:   That is the crux, and perhaps the shift might be instead of a defective process the actual notification was not effected, actual perhaps.  And in those circumstances was it reasonable for the delegate or the officer exercising power under the Act not to renotify in those circumstances, given the strict time bar on applications to the Tribunal.

HER HONOUR:   The Minister contends the obligation to notify arises under section 66(1) of the Act.  The Act provides a statutory regime for how that notification is to take place and that is a regime that involves deemed notification.

MR WILLIAMS:   Yes.

HER HONOUR:   As I understand it, the Minister does not accept that his officers have a discretion to renotify other than in cases in which there has been a failure to notify in accordance with the statutory scheme.

MR WILLIAMS:   Well, that is to be borne out in argument, your Honour.  That would be a point of considerable contention and needs to be given considered thought to those arguments.  We would say that the person ‑ that the decision‑maker or the delegate or the officer is a person or body under the Act, exercising power.  There was a request put to that person to renotify and that request was denied and in the circumstances, in exercising that power, it would almost be that the officer was deeming the service to be effective, assuming some role there.

But in the affidavit evidence, in that conversation, which is unchallenged, there is a request formally to renotify and that is denied, and we are simply challenging that decision, your Honour.  That is the basis of the plaintiff’s contention.

HER HONOUR:   Well, the amended application – if we go to prayer 2, you seek a declaration that the notification process was defective.  Now, that is - the argument that you have just been developing with me is not that.

MR WILLIAMS:   Yes.  No, I do understand that, your Honour.

HER HONOUR:   The amended application refers to the decision on 24 February 2017 by the delegate to uphold the defective notification process.  Now, there are difficulties that I think the exchanges that have taken place this morning may have revealed, Mr Williams, about the form of the proposed amended application.

MR WILLIAMS:   Yes, your Honour.  I may have been under the misconception - with regard to that last provision of subsection (7) which says “unless the plaintiff ‑ ‑ ‑

HER HONOUR:   Yes, I think so.

MR WILLIAMS:   It may explain that language.  That could be easily tweaked to reveal a more succinct question, your Honour, but in that regard it is a real – just to focus squarely on whether there was a discretion and whether that was indeed…..reasonably, in terms of the extension of time issue, your Honour, there is some question about whether there is a need for that extension of time. 

The original application was brought on the basis of challenging the partner visa, given that there was no opportunity to go to the Tribunal.  For the applicant to have any opportunity to put on any further evidence the only place is – well, the only jurisdiction is the High Court.  So that was the formation of the original application.

We only received the freedom of information documents on 18 April – two days ago.  So that explains some delay.  I do apologise for any inconvenience to the Court in not meeting the 13 April deadline.  But in regard to that amended application that could be squarely refined and brought back and then it becomes an auxiliary migration – it is not a migration decision and it could then be remitted to the Federal Circuit Court for further argument.  But it does leave also the plaintiff in an awkward position in that she is unable to put on any further evidence.  She is denied of that whole opportunity.

HER HONOUR:   Mr Williams, I understand that the consequences for your client of the circumstance that she did not receive notification are grave.  I appreciate that.

MR WILLIAMS:   Yes.

HER HONOUR:   There is no need to develop it.

MR WILLIAMS:   But in terms of that extension of time, your Honour, which I was alluding to, the decision now being challenged was on 24 February and the application was made 10 March on the basis of the partner visa, but if it is now squarely only focusing in on that decision then there is no need for an extension of time because it is within – the application was within time. 

The extension of time is only needed if you are challenging the 16 November decision - it is therefore two months out of date.  But if it is just squarely the decision of the decision‑maker, your Honour, then it is within time and there is no need for an extension of time to be granted because it was made 10 March and the decision was 24 February.  It is within ‑ ‑ ‑

HER HONOUR:   I understand.

MR WILLIAMS:   Yes.  But in any case we say that the considerations on the extension of time fall - and if there is the need be for an extension of time – fall in favour of the plaintiff.  The impact on the plaintiff ‑ ‑ ‑

HER HONOUR:   The point that the Minister takes, Mr Williams, is if you look at section – so 486A(2) the requirement is to specify in writing the reasons why it is necessary in the interests of justice to grant the extension that is sought.

MR WILLIAMS:   Yes.

HER HONOUR:   The application is conspicuously absent in that respect.

MR WILLIAMS:   Mr Markus also follows on in the submissions and acknowledges that the impact on the plaintiff is obvious and it is in the affidavit.

HER HONOUR:   It is a question of complying with the terms of the statute.

MR WILLIAMS:   Yes.  Well, your Honour, just for future reference, on that – once the relief for the extension of time is made, is it appropriate to put ‑ ‑ ‑

HER HONOUR:   Mr Williams, I am not here to give you advice.

MR WILLIAMS:   No, no, because it is in the affidavit, your Honour.  I am not sure if we – it is clearly stated in the affidavit that it should – it is clear that should be separated by from the husband ‑ ‑ ‑

HER HONOUR:   Mr Williams, let us not delay further on the question of the extension.

MR WILLIAMS:   No.

HER HONOUR:   Do I understand what you seek to do is have a further opportunity to frame the relief that you claim and to proceed on an amended application?

MR WILLIAMS:   That is correct, your Honour, yes.

HER HONOUR:   Mr Markus, the consequences for the plaintiff are considerable.  Mr Williams points to the fact that the Freedom of Information Act information only became available very recently.  I am minded to give an opportunity to try and put the application in order to overcome some of the difficulties that you identify.  It does seem to me there may be an issue that would need to be ventilated.

MR MARKUS:   I understand, your Honour.  I have nothing to say against that, your Honour.  We simply would say again that the way that the current version of the proposed amended application is framed it is an essential part of the plaintiff’s claim that there is legal deficiency in the notification process.

HER HONOUR:   Yes.

MR MARKUS:   It needs to be clear whether that remains part of the plaintiff’s case or not because we say if that is the plaintiff’s case then there is no arguable basis for the ‑ ‑ ‑

HER HONOUR:   I understand, Mr Markus.  Mr Williams, you might take that on board.  As presently framed your proposed amended application and, indeed, the submissions in support of it, are directed as a foundation of your case that there was legal deficiency in the notification process.  You might wish to think about that.

MR WILLIAMS:   Certainly, your Honour, yes.

HER HONOUR:   Now, how long will you require to prepare an amended – a draft of an amended pleading, Mr Williams?

MR WILLIAMS:   Two weeks, your Honour – a week to two weeks.  I am really in the Court’s hands.

HER HONOUR:   What I have in mind, perhaps, is bringing this matter back before me in the week beginning 15 May when I will next be in Sydney.  Now, Mr Markus, does that cause ‑ ‑ ‑

MR MARKUS:   I am just trying to check on my diary, your Honour.  If your Honour – that is a busy week.

HER HONOUR:   It is a busy week – would ‑ ‑ ‑

MR MARKUS:   If your Honour could list it on Friday ‑ ‑ ‑

HER HONOUR:   Would the following week be better?

MR MARKUS:   The following week is not better, but if your Honour could list it on Friday, the 19th.

HER HONOUR:   Yes, by all means.  Would that ‑ ‑ ‑

MR WILLIAMS:   Your Honour, I may be required to travel to Bulgaria in that week on a pre‑existing criminal matter.  The hearing is on the 16th but it has yet to be confirmed.  So the following week I am available, but if Mr Markus can find a date, I am available on the Monday.

HER HONOUR:   Mr Markus, is there ‑ ‑ ‑

MR MARKUS:   I am just looking, your Honour.  Unfortunately, I have hearings every day that week.

HER HONOUR:   That is more difficult for you, is it?  Yes, well, Monday, 29 May.  That is pushing things out, I know.

MR MARKUS:   Monday, 29 May would be suitable to me.

MR WILLIAMS:   I am available ‑ ‑ ‑

HER HONOUR:   Very well.  I will simply stand the matter over to Monday, 29 May at 9.30 am.  Now, perhaps it would assist, Mr Williams, if you could file and serve the proposed amended pleading by close of business on Tuesday, 23 May, together with any submissions, Mr Williams, and that would give the Minister an opportunity to address any submissions that he cares in advance of the date for hearing.  In the event the Minister wishes to put on any submissions, Mr Markus, could that be done by the close of business on the Friday?

MR MARKUS:   Yes, your Honour.

HER HONOUR:   Yes, thank you.

MR WILLIAMS:   Yes, your Honour.

HER HONOUR:   I will not make formal directions in that regard, but I simply stand the matter over as indicated.

Yes, very well, the Court will adjourn.

AT 10.21 AM THE MATTER WAS ADJOURNED