Toprak, Ex parte - Minister for Immigration

[2000] HCATrans 51

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B69 of 1999

In the matter of –

An application for Writs of Prohibition, Mandamus, Certiorari and Injunctions again the MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Ex parte –

MUSTAFA TOPRAK

Prosecutor

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 24 FEBRUARY 2000, AT 10.49 AM

Copyright in the High Court of Australia

MS M.L. McDONALD:   I appear for the applicant.  (of South Brisbane Immigration & Community Legal Service Inc.)

MS C.E. HOLMES, SC:   I appear for the respondent, your Honour.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   I understand that the problem is, Ms McDonald, you have been unable to locate your client.  Is that right?

MS McDONALD:   That is correct, your Honour.  A fairly short time ago, on 10 February, the applicant attended an appointment at our office and gave me, fundamentally, new instructions.  I made another appointment with him and, at that time a couple of days later, explained to him the circumstances under which we could continue to act for him and advised him of what I thought was his legal obligation.  He left the office, saying he would contact me about which course of action he intended to take.  He subsequently has not contacted the office and I have been unable to locate him.

HIS HONOUR:   Right.  What you will need is an order under Order 7 rule 7, is that right?

MS McDONALD:   I understand.

HIS HONOUR:   I am just looking at that rule to see what the form of the order is.  You would not have any objection to that, Ms Holmes?

MS HOLMES:   No, I have nothing to say about it, your Honour.

HIS HONOUR:   Let me just have a look at the rule, Ms McDonald.  Ms McDonald, have you written a letter to the last known address of your client?

MS McDONALD:   I have not, your Honour.  I have rung the phone number at his last address and been told that he had left that address.

HIS HONOUR:   I do not think I can make an order until you have done that.  Is that your understanding of it too?

MS McDONALD:   That was my understanding.

HIS HONOUR:   I probably should not make any order today at all.  I think I should just allow you whatever time you need to comply with Order 7 rule 7.

MS McDONALD:   Certainly.  I will undertake to do that.

HIS HONOUR:   The matter should just be adjourned, I think.

MS McDONALD:   Thank you, your Honour.

HIS HONOUR:   Is that your view of it?

MS McDONALD:   That was my understanding, yes.

HIS HONOUR:   What do you think, Ms Holmes?

MS HOLMES:   Your Honour does have the power to direct otherwise than the need for notice served personally.  The rule does say:

the solicitor may, on notice to be served on the party personally or by pre-paid post letter…..unless the Court or a Justice otherwise directs –

HIS HONOUR:   Yes.  I knew I had the power.  I am just a bit loath to exercise it.  I am always concerned that somebody might lose his or her rights.

MS McDONALD:   I appreciate, your Honour, had these events all happened without such haste, I probably ‑ ‑ ‑

HIS HONOUR:   It is no criticism of you in any way at all.

MS McDONALD:   Thank you.

HIS HONOUR:   You obviously have not had time to try to comply with the rule.  It is just that I am loath to make an order dispensing with the requirements just in case your client is around and wishes to pursue his rights.

MS McDONALD:   Certainly, your Honour.

HIS HONOUR:   I think I will just adjourn the matter to be brought on on 3 days notice, perhaps 7 days notice.  Is that convenient?

MS McDONALD:   That would certainly be convenient, your Honour.

HIS HONOUR:   All right.  I will make that order accordingly.

MS McDONALD:   Thank you, your Honour.

HIS HONOUR:   Call the next matter.

AT 10.54 AM THE MATTER WAS ADJOURNED