Somanader & Ors, Ex parte - Re MIMA & Anor

[2004] HCATrans 317

[2004] HCATrans 317

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Melbourne  No M59 of 1999

In the matter of -

An application for Writs of Certiorari and/or Mandamus and/or Prohibition or an Injunction against MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

BRENDAN F. KISSANE CONSTITUTING THE REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte –

IRENE SUNTARARANEE SOMANADER (CORRECTLY IRENE SUNTHARANEE SOMANADER), SATHIAJIT VIVUVASHARAN (CORRECTLY SATHIAJIT VISUVASAHARAN OLIVER SOMANADER) AND CHRISTOPHER NIMALARAJ SOMANADER

Applicants/Prosecutors

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 24 AUGUST 2004, AT 9.35 AM

Copyright in the High Court of Australia

__________________

MR P.H. WALLIS:   If it please the Court, I appear for the applicants.  (instructed by Ravi James & Associates)

MR S.P. DONAGHUE:   Your Honour, as I am appearing for the Minister in all the other matters in the list, I have been asked to apply to appear in this matter.  I am not actually briefed in this matter, but the applicant is proposing to withdraw.  (instructed by Australian Government Solicitor)

HIS HONOUR:   I see, yes.  What is the position, Mr Wallis?

MR WALLIS:   Your Honour, the applicant would discontinue the proceeding.  There has been discussion as to the appropriate order for costs.  After discussions with counsel, I think perhaps the best way to proceed is to order that the applicants pay the respondents’ costs.

HIS HONOUR:   What exact forms of order then would I make, that the proceeding be dismissed and applicants pay the costs? 

MR WALLIS:   I have a draft order here.

HIS HONOUR:   Has Dr Donaghue – perhaps if you would be good enough to show him that.

MR WALLIS:   Yes, your Honour, and here is another copy.  Dr Donaghue takes the view that we should add that the costs be taxed at the end of the second order.

HIS HONOUR:   Let me just look at the Rules.

MR WALLIS:   Has your Honour found Order 27 rule 1?

HIS HONOUR:   Yes.  If we deal with it in that way, the discontinuance would be by notice in writing.  If the proceeding stands dismissed, there would have been no determination on its merits.  It is not instantly apparent to me that there would be any difficulty confronting your client other than the rather large difficulties that might arise if they tried to start the proceedings again so long after the decision.  Would you want to be heard against my ordering simply that the proceedings stand dismissed and that the applicants pay the respondents’ costs?

MR WALLIS:   No, your Honour.

MR DONAGHUE:   I am content with that also, your Honour.

HIS HONOUR:   Then the proceeding stands dismissed, applicants to pay respondents’ costs.  I certify for the attendance of counsel. 

I think no other order is required, is it, gentlemen?  There will be orders in those terms.

AT 9.39 AM THE MATTER WAS CONCLUDED