VOAQ v MIMA

[2007] HCATrans 439

[2007] HCATrans 439

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M10 of 2007

B e t w e e n -

VOAQ

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Summons for reinstatement

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 22 AUGUST 2007, AT 9.35 AM

Copyright in the High Court of Australia

MR R.C. KNOWLES:   If your Honour pleases, I appear for the first respondent in this matter.  (instructed by Clayton Utz)

HIS HONOUR:   Yes, Mr Knowles.  Do you know whether the applicant is present in Court?

MR KNOWLES:   I am afraid that I do not.

HIS HONOUR:   Next question, are you expecting the applicant to be present in Court?

MR KNOWLES:   Yes, your Honour, and to that end I would seek leave to file an affidavit which has been prepared I think just today in relation to recent communications between my instructing solicitors and ‑ ‑ ‑

HIS HONOUR:   Well, if we are going to expect the applicant to arrive I should perhaps wait until – is it a he or a she, forgive me?

MR KNOWLES:   It is a he.

HIS HONOUR:   ‑ ‑ ‑ the applicant arrives and see where we go to from there, Mr Knowles.

MR KNOWLES:   If your Honour pleases.

HIS HONOUR:   It is probably better if I simply stand the matter in the list and we shall come to it presently.

MR KNOWLES:   Yes, if your Honour pleases.

AT 9.36 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.52 AM:

APPLICANT VOAQ appeared in person.

SEDAT MALAYIM, sworn as interpreter:

HIS HONOUR:   Now, you are here to assist the applicant, are you, sir?

MR MUSTAFA:   Yes, sir.  My name is Ken Mustafa, I am here to help the gentleman to speak on his behalf if I could.  I am not a lawyer, I am not a barrister, I am not a migration agent.  I am a friend of the family of this gentleman.

HIS HONOUR:   The applicant, yes.  Now, Mr Knowles, is there any reason why I should not hear Mr Mustafa on – say anything he wishes to add on behalf of the applicant?

MR KNOWLES:   No, there is no objection, your Honour.

HIS HONOUR:   Yes.  Now, Mr Knowles, we seem to have got ourselves into a fearful procedural tangle here.  What is going on and how do we sort it out?  What do you say we should do?

MR KNOWLES:   Well, there seems to be a situation, your Honour, where there are two proceedings on foot before this Court, both of which relate to a particular decision made by the Federal Court.

HIS HONOUR:   I know you say one is enough, but how do we sort it out?  What do we do?

MR KNOWLES:   Well, what has been suggested by my instructing solicitors to the applicant and also Mr Mustafa is that one of the proceedings, and in this instance perhaps the first proceeding, be discontinued.

HIS HONOUR:   Is that M10?

MR KNOWLES:   That is M10, and that is the matter that comes before your Honour today.

HIS HONOUR:   Yes.

MR KNOWLES:   There is really ‑ ‑ ‑

HIS HONOUR:   Now, if he discontinues are there going to be cost consequences, Mr Knowles?

MR KNOWLES:   Yes.

HIS HONOUR:   I mean, I want the cards on the table.

MR KNOWLES:   Yes, there are, in my submission, some cost consequences, and the reason for that is the matter was commenced and then subsequent to that it was deemed to be abandoned by dint of the High Court Rules.  Then there was a summons by which orders were sought for the reinstatement of the application effectively, and then a second application was filed instead of ‑ ‑ ‑

HIS HONOUR:   I understand we have more paper than Amcor produce in a year.

MR KNOWLES:   Than required.

HIS HONOUR:   But if we were to get rid of one proceeding on terms that the costs of that proceeding follow the costs in the other proceeding, have we got anywhere then?

MR KNOWLES:   I have not got any instructions ‑ ‑ ‑

HIS HONOUR:   I know that.

MR KNOWLES:   ‑ ‑ ‑ in relation to the costs point but perhaps I could briefly seek some instructions on that point, your Honour.

HIS HONOUR:   I understand you want one proceeding and at some point you say somebody is going to have to pay for all of this paper, but why should not the costs follow the event of the ultimate outcome of the litigation?

MR KNOWLES:   The reason for that, your Honour, is twofold.  Firstly, the Rules actually provide that where a notice of discontinuance is filed costs would follow the event in those circumstances.

HIS HONOUR:   Subject to contrary order I think, Mr Knowles.

MR KNOWLES:   Of course, yes, your Honour.

HIS HONOUR:   Yes, that is what I am contemplating.

MR KNOWLES:   That is accepted.

HIS HONOUR:   Yes.

MR KNOWLES:   But this is a case where one of the proceedings which has been brought before the Court has been brought…..and ‑ ‑ ‑

HIS HONOUR:   I understand all that, and if you win at the end of the day you will get your costs free, and if you lose at the end of the day, well, there is an unfortunate outcome for you, is there not, Mr Knowles?

MR KNOWLES:   That would be so, but in relation to a situation where there need not have been a second proceeding ‑ ‑ ‑

HIS HONOUR:   I understand all that.

MR KNOWLES:   ‑ ‑ ‑ and that should not be something that in the event that the first respondent were unsuccessful in the matter, ultimately it should bear the costs of an application which was brought unnecessarily before the Court.

HIS HONOUR:   Then the final offer before I go and consult the vendors, Mr Knowles, it really is turning into an auction, is that the defendant’s costs should be the defendant’s costs in the proceeding, so if you win you get them, if you lose know that they lie where they fall.

MR KNOWLES:   Well, that might be a course of action which is appropriate, your Honour, in my submission.

HIS HONOUR:   If I order M10 struck out, the defendant’s costs of proceeding M10 be the defendant’s costs in the cause, his Honour generally satisfied, Mr Knowles?

MR KNOWLES:   In my submission, yes, it is.

HIS HONOUR:   Now, Mr Mustafa, you have heard the exchange.  All I want to do is get the procedural tangle cut and if the Minister wins the plaintiff is going to have to pay for it.  If the Minister loses, the costs lie where they fall.  Is there any reason not to follow that path?

MR MUSTAFA:   I would follow that path, your Honour, thank you.

HIS HONOUR:   Yes.  Yes, then if I order proceeding M10 of 2007, what, dismissed, Mr Knowles?

MR KNOWLES:   Well, actually, your Honour, that matter as it presently stands is deemed abandoned.

HIS HONOUR:   Is deemed abandoned.

MR KNOWLES:   Really the present situation is that there is a summons before your Honour brought by the applicant seeking that your Honour order otherwise pursuant to rule 41.10.4, and essentially the position of my client is that no order otherwise ought be made and that it remain abandoned.

HIS HONOUR:   Well, if I simply order in M10 that the defendant’s costs of and incidental to the proceedings, which is to say proceedings M10, be the defendant’s costs in matter M72 of 2007.

MR KNOWLES:   Yes, your Honour, and perhaps just for the sake of completeness the only other order that might be appropriate is that the summons which was actually the source of all of this, that that summons be ‑ ‑ ‑

HIS HONOUR:   Is that the summons of 7 June 2007, is it?

MR KNOWLES:   It is, your Honour.

HIS HONOUR:   Yes.  Summons of 7 June 2007 dismissed.

MR KNOWLES:   Yes.

HIS HONOUR:   Defendant’s costs of and incidental to the proceedings be the defendant’s costs in matter M72 of 2007.

MR KNOWLES:   If your Honour pleases.

HIS HONOUR:   Yes, thank you for your help, Mr Mustafa.  Thank you, Mr Interpreter.

AT 11.00 AM THE MATTER WAS CONCLUDED