SZNMG & Ors v Minister for Immigration and Citizenship & Anor

[2010] HCATrans 175

[2010] HCATrans 175

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S50 of 2010

B e t w e e n -

SZNMG

First Applicant

SZNMH

Second Applicant

SZNMI

Third Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for reinstatement

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 29 JUNE 2010, AT 9.57 AM

Copyright in the High Court of Australia

__________________

SZNMG appeared in person.

MR J.A.C. POTTS:   If your Honour pleases, I appear for the first respondent.  (instructed by Clayton Utz Lawyers)

HIS HONOUR:   And the second respondent?

MR POTTS:   I think the second respondent has filed a submitting appearance, your Honour, but I will just confirm that.  I believe that to be the case, your Honour, but I will have the date of the filing noted.

HIS HONOUR:   All right.  Now, is there a translator?

RAJUL ZAVERI, affirmed as interpreter

HIS HONOUR:   Yes, Mr Potts.

MR POTTS:   May I assist your Honour.  Your Honour, an application for special leave was filed on 18 March.  On 16 April the High Court Registry notified there had been a deemed abandonment because of the failure to comply with certain provisions in rule 41, I think, namely the filing of a written case and a draft – I am not entirely sure, your Honour.  I have an unfiled written case.  I do not know whether that was ever filed, but there was no draft notice of appeal.

HIS HONOUR:   Yes.

MR POTTS:   The applicants have filed a summons, which your Honour will have, on 29 April 2010.

HIS HONOUR:   Yes.

MR POTTS:   In support of that is an affidavit, filed on the same date, of the first applicant.  Your Honour will see there are three applicants.  The first applicant is present in person.  The second applicant is his wife and the third applicant is their minor, the child who is ‑ ‑ ‑

HIS HONOUR:   For the matters to proceed there needs to be some order respecting the child, does there not?

MR POTTS:   Yes, your Honour, I accept that and I am not sure if your Honour has received a written outline that was filed on the 24th, but ‑ ‑ ‑

HIS HONOUR:   Yes, you mentioned it on paragraph 17.

MR POTTS:   I did, your Honour, and, indeed, if the matter does proceed, your Honour needs to deal with that and perhaps it is convenient to deal with that at the end if your Honour determines to reinstate, but I am in your Honour’s hands in that regard.

HIS HONOUR:   Right.

MR POTTS:   Your Honour, I do not oppose the reading of the affidavit.  I do not seek to cross‑examine the deponent.  Your Honour will have seen there is no issue taken about explanation or delay.

HIS HONOUR:   Yes.  What I am minded to do, having had the assistance of your written submissions, is to make the order for reinstatement but also provide that the first applicant be appointed the litigation guardian for the third applicant, the child, and that the special leave application then proceed for disposition on the papers.

MR POTTS:   May it please, your Honour.  I do not wish to be heard further.

HIS HONOUR:   Costs of today’s application will be costs of the leave application.

MR POTTS:   May it please, your Honour.

HIS HONOUR:   Have you indicated, Madam Translator, to your client what I have been saying to the counsel for the Minister?

SZNMG (through interpreter):   Yes, your Honour.

HIS HONOUR:   Does he understand?

SZNMG (through interpreter):   Yes.

HIS HONOUR:   Very well.

MR POTTS:   There is just one matter, your Honour, that strictly under the rules in order to become the litigation guardian the first applicant would need to file a consent.  Your Honour could probably dispense with that requirement if your Honour were content to do so, but in the ordinary course it would be required.

HIS HONOUR:   Let me just look at the rule.

MR POTTS:   Your Honour, it is rule 21.08.7.

HIS HONOUR:   I have a general power of dispensing, have I not?

MR POTTS:   Your Honour does and it is in rule 2.02.

HIS HONOUR:   Thank you.

MR POTTS:   May it please, your Honour.

HIS HONOUR:   What I will provide is as follows:

1.Pursuant to rule 41.10.4 order that the special leave application not be deemed abandoned and be reinstated.

Does your client understand that, Madam Translator?

SZNMG (through interpreter):   Yes.

HIS HONOUR:  

2.Pursuant to rule 21.08, I order that the first applicant be appointed litigation guardian of the third applicant and, pursuant to rule 2.02, dispense with the requirement of rule 21.08.7.

That means, Madam Translator, that your client will be representing the interests of the child, which is the third applicant.  He understands that?

3.Direct that the special leave application proceed for disposition on the papers without a listing for hearing.

4.Costs of the summons filed on 29 April be costs of the special leave application.

In other words, the costs are not being decided today, but they will follow the final result.

MR POTTS:   If the Court pleases.  May I simply note, in answer to your Honour’s earlier question, a submitting appearance was filed on 25 March 2010 for the second respondent, Refugee Review Tribunal.

HIS HONOUR:   Yes, that is right.  Thank you.  Very well, I will make orders as indicated in that application.

MR POTTS:   If the Court pleases.

HIS HONOUR:   Thank you, Madam Translator.

AT 10.11 AM THE MATTER WAS ADJOURNED