SRL v MIMA

[2002] HCATrans 68

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S153 of 2001

B e t w e e n -

SRL

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 5 MARCH 2002 AT 11.54 AM

Copyright in the High Court of Australia

MS E.N.J. WARNER:   Ms Warner, solicitor for the respondent, your Honour.  The respondent’s counsel, MR D. JORDAN, is presently appearing in another special leave application in the other Court, and I wonder if this matter might be stood down in the list.  (instructed by Australian Government Solicitor) 

KIRBY J:   You sound as though you can do it just as well. 

McHUGH J:   There is to be no oral argument in this case? 

MS WARNER:   Yes, your Honour.  That was indicated originally by the applicant. 

McHUGH J:   Yes.  Are you Mr SRL? 

MR E.N. RAJADURAI:   I am Edilbert Rajadurai, your Honour. 

McHUGH J:   You are? 

MR RAJADURAI:   Edilbert Rajadurai, and I helped SRL to prepare those written submissions. 

McHUGH J:   Yes, and where is SRL? 

MR RAJADURAI:   He is unable to come today, your Honour.  He spoke to the Registrar and he found that he will not be able to come today. 

KIRBY J:   Is he in immigration detention, or is he at large? 

MR RAJADURAI:   No. 

McHUGH J:   Ms Warner, how long do you think Mr Jordan will be? 

MS WARNER:   I would think no more than half an hour, your Honour. 

KIRBY J:   Is his case on now? 

MS WARNER:   I think it may have started.  I have not ‑ ‑ ‑

KIRBY J:   I see.  Well, we will just ‑ ‑ ‑

MS WARNER:   ‑ ‑ ‑ checked in the last moment. 

McHUGH J:   Mr Rajadurai, the written submission says that the applicant does not seek to supplement this submission with oral argument.  We have read the papers and, so far as I am concerned, we were prepared to give judgment because there was no oral argument expected.  Now, what is the position?  Is that still the position? 

MR RAJADURAI:   Yes, your Honour.  Unless there is any issue that the Court needs to clarify. 

McHUGH J:   Yes, well, there is nothing. 

KIRBY J:   The written submissions on both sides were quite full and we have read them.  So unless there is an application by either side, which we would entertain, to put oral submissions, we would normally simply proceed to deal with it on the written submissions.  Now, is the respondent still in the same position, subject to anything that happens from the applicant’s side? 

MS WARNER:   Yes, your Honour. 

KIRBY J:   And is the applicant in that same position? 

MR RAJADURAI:   Yes, your Honour. 

KIRBY J:   You rely on the written submissions? 

MR RAJADURAI:   Yes, your Honour. 

KIRBY J:   Or, rather, Mr SRL relies on the written submissions?

MR RAJADURAI:   Yes, your Honour. 

McHUGH J:   Take a seat, please, Mr Rajadurai. 

MR JORDAN:   May it please the Court, I apologise.  I was in the other Court.  My name is Jordan and I appear for the respondent.  

McHUGH J:   Yes, thank you, Mr Jordan. 

KIRBY J:   We have just clarified that the matter is to proceed on both sides on the written submissions, as was stated in the written submissions. 

MR JORDAN:   I am grateful. 

KIRBY J:   And that neither side wish to add to those written submissions. 

MR JORDAN:   That is certainly the case for the respondent.  Thank you, your Honour. 

McHUGH J:   Yes, this matter is to be dealt with on the written submissions.  The Court has considered the written submissions.  We are of the view that the substantial issue in the case was whether there was evidence to support particular facts.  In our view there was evidence before the Tribunal on which it was open to find the relevant facts which is the only substantive issue in the application.  In our view, the application for special leave has no reasonable prospects of succeeding in an appeal, and the application must be dismissed.

Yes, thank you.  Adjourn the Court to reconstitute.

AT 11.59 AM THE MATTER WAS CONCLUDED

UPON RESUMING AT 12.03 PM:

McHUGH J:   Yes, is there an application, Ms Warner?

MS WARNER:   Yes, the respondent makes an application for costs in this matter.

McHUGH J:   You were a bit slow on your feet, were you not – your counsel was a bit slow on his feet in ‑ ‑ ‑

MS WARNER:   I thought I should have done the matter myself, yes.

KIRBY J:   Why should counsel get his costs if he – counsel was not he and he turns up and then he does not make the one application which is important and then disappears?  Certainly there should be no counsel’s fees in the case.

MS WARNER:   Your Honours have the benefit of counsel’s submissions in the matter and ‑ ‑ ‑

McHUGH J:   Yes.  Well, the usual order is the application having ‑ ‑ ‑

KIRBY J:   Do you wish to say anything on behalf of the applicant ‑ ‑ ‑

MR RAJADURAI:   No.

KIRBY J:   ‑ ‑ ‑ or on behalf of SRL?

MR RAJADURAI:   No.

McHUGH J:   Very well.  The application is dismissed with costs.

KIRBY J:   Reluctantly in respect of the costs.

McHUGH J:   The Court will now adjourn to reconstitute.

AT 12.05 PM THE MATTER WAS CONCLUDED