SZGCL v MIMIA

[2007] HCATrans 74

[2007] HCATrans 074

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S454 of 2006

B e t w e e n -

SZGCL

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Summons for reinstatement

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 14 FEBRUARY 2007, AT 10.00 AM

Copyright in the High Court of Australia

SZGCL appeared in person.

MR D.H. GODWIN:   If it please the Court, I appear for the respondent.  (instructed by DLA Phillips Fox)

HIS HONOUR:   Do you wish to add anything to what is already in the written materials?

SZGCL:   Your Honour, I just want to make sure all the papers I…..have been considered.  I have just received the “RESPONDENT’S SUBMISSION ON REINSTATEMENT OF SPECIAL LEAVE APPLICATION” yesterday in the mail.  To my understanding this is not the court’s decision.  This is what the respondent’s opinion – something like this.  I just want to, if the Court can explain to me is that right or is that the court’s decision?

Your Honour, when I applied for appeal I applied the appeal on 12 December.  I was told to apply for some – to fill some forms after that and within 28 days and the person, the employee who was in the court or the office, calculated the time and told me it is going to be 13th – 13 December – sorry, 13 January but it was not.  When I got these forms and came back to the court to fill them I have been told that has been too late and my hearing or my time was over.  So I applied for relief – applied for another reinstatements and here am I, here I am.

HIS HONOUR:   Yes, very well.  I will see what Mr Godwin says.  Just sit down, if you would.

SZGCL:   Thanks.

HIS HONOUR:   Yes, Mr Godwin.

MR GODWIN:   Your Honour, I just rely on the written submissions.

HIS HONOUR:   Yes.  How late was the application?

MR GODWIN:   Only a number of days.  It was supposed to be filed on 9 January.  Because the respondent is not served with documents it is difficult for us to determine if the documents have actually been served, but he does say in his affidavit he attended his registry on 11 January, so assuming he had the documents in his possession at that time it would be two days late.

GUMMOW J:   What would be the appropriate order, Mr Godwin, if I decided to reinstate it?

MR GODWIN:   Your Honour could enlarge the time and give him a timetable for filing his written case.

HIS HONOUR:   Yes.  In this matter I am not sufficiently satisfied that the application for special leave is so lacking in merit no relief sought today should be given.  I order:

1.That the time for institution of the special leave application be extended up to and including Monday, 26 February 2007.

2.If order 1 be availed of in its terms then all further steps required by the Rules will be fixed by reference to that filing as having been within time.

3.The costs of the application heard today be costs in the special leave application.

MR GODWIN:   Your Honour, could I be heard on two matters?

HIS HONOUR:   Yes.

MR GODWIN:   The first one is, I think your Honour said in order 1 the time for the institution of the special leave application.  I think it should be the time for the filing of the special case and the notice of appeal.

GUMMOW J:   Yes, that is right.  I am not really sure what was filed.  The reason why I did it that way was because I am not sure the document that was filed on 12 December is an adequate document, in any event, to institute a special leave application.  It looks pretty defective to me, so I think what is best to do is for you to start again, put your documents in proper order and to put an application for special leave to appeal in adequate form.  Do you understand?

SZGCL:   Yes.

HIS HONOUR:   Do that by 26 February and then just follow through.

SZGCL:   That is for the reinstatement, your Honour.

HIS HONOUR:   Yes, that is right.  It is not so much reinstatement but doing it again, do you follow me?

SZGCL:   Yes.

HIS HONOUR:   Because what you did in December does not seem to me to be – it seemed to me to be defective, anyway.  In other words, you have to start again and do so by 26 February 2007 and just follow the rest of the rules.  Okay?

SZGCL:   Yes, your Honour.  Thank you very much.

HIS HONOUR:   Yes, Mr Godwin.

MR GODWIN:   Your Honour, if you would just hear me shortly on that question of costs.

HIS HONOUR:   Yes.

MR GODWIN:   The applicant’s default brought us before the Court and it normally would be the case, in those circumstances, as long as the respondent’s opposition is not groundless, that the order be made that the applicant pay the respondent’s costs of the application.  As your Honour has already observed, the application for special leave to appeal itself reveal nothing ‑ ‑ ‑

HIS HONOUR:   You must be confident you are going to lose the special leave application.

MR GODWIN:   I am just indicating, your Honour, that that is the order that is sought today.

HIS HONOUR:   Yes, I hear what you say but, nevertheless, I will do what I proposed.  I will read it again.  You had better take a note of this.  Have you got a pen?

SZGCL:   No, your Honour.

HIS HONOUR:   We can supply you with a pen and some paper.

SZGCL:   Thank you.

HIS HONOUR:  

1.Order that the time for institution of the special leave application be extended up to and including Monday, 26 February 2007.

2.If order 1 be availed of within its terms, then all further steps required by the Rules will be fixed by reference to that filing as having been within time.

In other words, you have to follow through from that starting point, all right?

SZGCL:   Yes.

HIS HONOUR:  

3.The costs of the application heard today will be costs of the special leave application.

MR GODWIN:   May it please the Court.

HIS HONOUR:   Have you a note of that?  If you have a word to the Deputy Registrar afterwards he will make sure you understand what we are doing.  Okay?

SZGCL:   Yes.

AT 10.14 AM THE MATTER WAS CONCLUDED