SZTOV v Minister for Immigration and Border Protection & Ors

[2015] HCATrans 138

[2015] HCATrans 138

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S260 of 2014

B e t w e e n -

SZTOV

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

FEDERAL COURT OF AUSTRALIA

Third Defendant

Directions hearing

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 4 JUNE 2015, AT 9.33 AM

Copyright in the High Court of Australia

MR P. RAMA:   May it please the Court, I am appearing on behalf of the plaintiff.  (instructed by Westside Legal)

MS A.M. MITCHELMORE:   If the Court pleases, I appear for the first defendant.  (instructed by Australian Government Solicitor)

HER HONOUR:   Yes.

MR RAMA:   Your Honour, we are here today because as we have been telling everyone through emails and all, we have sought an adjournment because our counsel is unavailable to attend to this matter – Mr Shane Prince.

HER HONOUR:   Yes.

MR RAMA:   We also requested for a video link and it was also not possible to get video link for him to appear from Katoomba.  Now, apart from that, we only seek an adjournment if the Court is minded to dismiss the matter today and the serious prejudice to our client’s case will arise if the matter is dismissed today.  In the absence of our counsel, particularly given that the basis that the Minister seeks the matter to be dismissed is essentially just a pre‑emption of the substantive issue of – sorry, your Honour, I have just prepared this because ‑ ‑ ‑

HER HONOUR:   Not at all, Mr Rama.  As I understand it, you seek an adjournment in the event I was minded to accede to the application of the first defendant to dismiss the proceedings.

MR RAMA:   Yes, your Honour.

HER HONOUR:   If the alternative proposed by the first defendant is that I list for hearing the relief that is claimed in the first and I think it is sixth orders, you have sought in your summons for directions that the matter be listed for hearing and that I direct that the appeal book that was before Justice Flick stand as the evidence in the proceedings.

MR RAMA:   Yes, your Honour.

HER HONOUR:   Well, I think, Mr Rama, I understand, at least in general terms, the basis of your opposition to me proceeding today to determining any application that the proceedings in their entirety be dismissed.  I might hear from Ms Mitchelmore.

MR RAMA:   Yes.

HER HONOUR:   Ms Mitchelmore.

MS MITCHELMORE:   Yes.

HER HONOUR:   Ms Mitchelmore, my preliminary view would be against determining to dismiss the proceedings in their entirety in the absence of Mr Prince, who I understand is available to appear in the matter pro bono in the event that it is not determined today.

MS MITCHELMORE:   Yes.

HER HONOUR:   Do you wish to argue against that?

MS MITCHELMORE:   Your Honour, I do formally oppose the application for the adjournment and your Honour will see I have an affidavit of Mr Andras Markus affirmed on 2 June 2015.  Does your Honour have a copy of that affidavit?  It was filed on 2 June.

HER HONOUR:   An affidavit by Mr Markus.

MS MITCHELMORE:   I have a spare copy, your Honour, if I can hand that up.

HER HONOUR:   Thank you.

MS MITCHELMORE:   Your Honour will see paragraph 3 of the affidavit just notes the proceedings were commenced on 30 September – that is some eight months ago now.

HER HONOUR:   Yes.

MS MITCHELMORE:   Paragraph 4, your Honour will see that my instructing solicitor took over the matter on 9 February.  On the 16th – I am sorry, your Honour.

HER HONOUR:   I will just interrupt you for one moment, Ms Mitchelmore.

MS MITCHELMORE:   Yes, certainly, your Honour.

HER HONOUR:   I have not seen this affidavit.

MS MITCHELMORE:   I am sorry, yes.

HER HONOUR:   I might just inquire ‑ ‑ ‑

MS MITCHELMORE:   Of course.  It was served.

HER HONOUR:   Yes, I take it you seek to rely on it.

MS MITCHELMORE:   Yes.

HER HONOUR:   Mr Rama, have you seen the affidavit – this is the affidavit of Mr Markus?

MR RAMA:   Yes, your Honour.

HER HONOUR:   Do you have any objection to any part of it?  Ms Mitchelmore seeks to rely on it.

MR RAMA:   Actually I have got no objection because they are just trying to prove that I have not done my work here accordingly – just attacking me in terms of like, you know, why it was delayed.  I have got my reasons why it was delayed because this is the first appearance I am making in the High Court.

HER HONOUR:   Mr Rama, as I understand it, you do not object formally to any part of the affidavit so what I might do is just read it now and then ‑ ‑ ‑

MS MITCHELMORE:   Certainly, your Honour.

HER HONOUR:   Give me a moment, Ms Mitchelmore.

MS MITCHELMORE:   Certainly, your Honour.

HER HONOUR:   Yes.

MS MITCHELMORE:   Your Honour, it is a matter where the matter has really come before the Court at the instance of my instructing solicitor trying to get the matter on and in circumstances where there is now a further delay.  It is not terribly satisfactory from my client’s perspective.

HER HONOUR:   I appreciate that.

MS MITCHELMORE:   Yes.

HER HONOUR:   Nonetheless, I have some hesitancy about proceeding to determine an application to dismiss it in circumstances in which, as I understand it, counsel would be available if the matter were to go over for a short period.

MS MITCHELMORE:   Yes.

HER HONOUR:   The next thing that occurs to me, Ms Mitchelmore, looking at your submissions, you sought in the alternative that the matter be listed for hearing in relation to orders 1, 2, 8 and 9 alone.

MS MITCHELMORE:   Yes.

HER HONOUR:   I wondered whether it might be more useful to bring the matter back before me, relatively shortly, so that there can be some argument about that with the benefit of Mr Prince’s submissions and then, depending on the outcome of that, if the matter is to be listed for hearing orders can be made at that time once it is, as it were, in shape.

MS MITCHELMORE:   Yes.

HER HONOUR:   Now, I will be in Canberra for the next fortnight, but the matter could be listed one morning convenient to you and perhaps I might just – I do not know whether – Mr Rama, do you have Mr Prince’s dates?

MR RAMA:   No, your Honour, I need to just find out – if you can just suggest some dates I can call him and quickly find out.

HER HONOUR:   What I might do, Mr Rama, is – Ms Mitchelmore, if you do not mind, if I stand this matter down so that Mr Rama can make some inquiries of Mr Prince.

MS MITCHELMORE:   Yes.

HER HONOUR:   I had in mind perhaps either by video link in the next fortnight or, alternatively, the week beginning – I think it is 22 June I will be back in Sydney and any morning that week.  It really depends very much on your position, Ms Mitchelmore, in terms of the speed with which you want the matter brought back.

MS MITCHELMORE:   Certainly, your Honour, we would be wanting the matter to be dealt with expeditiously given the delay.

HER HONOUR:   Yes.

MS MITCHELMORE:   But perhaps if Mr Prince’s dates can be checked and we can stand the matter down.

HER HONOUR:   If I just stand the matter down shortly and if those inquiries can be made and perhaps you could have some liaison with

Mr Rama about a suitable date and the Court will accommodate you, Ms Mitchelmore.

MS MITCHELMORE:   Thank you, your Honour.

HER HONOUR:   Very well, I will stand this matter down so that you can make inquiries about Mr Prince’s dates and I will come back to it shortly.  Thank you, Mr Rama.

AT 9.42 AM SHORT ADJOURNMENT

UPON RESUMING AT 9.58 AM:

HER HONOUR:   Ms Mitchelmore.

MS MITCHELMORE:   Thank you, your Honour.  The parties have conferred as to a date - if 23 June is suitable to your Honour when your Honour will be back in Sydney that would be convenient, both to Mr Prince and myself. 

HER HONOUR:   Yes, that is suitable.  Would 9.30 be convenient, Ms Mitchelmore?

MS MITCHELMORE:   Yes, thank you, your Honour.

HER HONOUR:   Yes, very well.  I will stand over SZTOV v Minister for Immigration and Border Protection for further directions to 9.30 am on 23 June 2015.  Are any further directions required?

MS MITCHELMORE:   No, your Honour.  Just in relation to the costs of today can I make an application for it to be the first defendant’s costs in the cause for today?  Thank you.

HER HONOUR:   Yes.  The costs of today will be the first defendant’s costs in the cause.

I will adjourn.

AT 9.59 AM THE MATTER WAS ADJOURNED