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High Court of Australia Transcripts |
Sydney No S221 of 2000
In the matter of -
An application for Writs of Certiorari, Mandamus and Prohibition, and an Injunction against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
SECRETARY, DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS
Second Respondent
LYN JACKSON, REVIEW OFFICER, MIGRATION INTERNAL REVIEW OFFICE, DELEGATE OF THE MINISTER
Third Respondent
MARGARET BANAS, DELEGATE OF THE MINISTER
Fourth Respondent
Ex parte -
WEI ZHU
Applicant
GLEESON CJ
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON THURSDAY, 30 NOVEMBER 2000, AT 10.23 AM
Copyright in the High Court of Australia
MS N.E. ABADEE: May it please the Court, I appear for the respondents. (instructed by Clayton Utz)
HIS HONOUR: Yes, Mr Killalea.
MR KILLALEA: Your Honour, this is an application for an order nisi, an application filed on 8 September 2000; the supporting affidavit of James Coelho filed on the same date.
HIS HONOUR: You read the affidavit of James Coelho of 31 August, is that right?
MR KILLALEA: Yes, that is correct, your Honour.
HIS HONOUR: Is there any objection to that, Ms Abadee?
MS ABADEE: No, your Honour.
HIS HONOUR: Just give me time to read it to myself. Yes, I have read that affidavit. I am sorry, I still have not read the review decision. Yes, I have read that affidavit.
MR KILLALEA: Your Honour, there is a second affidavit of James Coelho, affirmed on 29 November and filed on 29 November. It is just a one-page affidavit.
HIS HONOUR: Any objection to that, Ms Abadee?
MS ABADEE: No, your Honour.
HIS HONOUR: I will read that to myself. That is the one headed "Chronology", is it?
MR KILLALEA: Yes.
HIS HONOUR: Mr Killalea, when the unfavourable decision of the Migrant Internal Review Office was made on 5 February 1999, what, if any, avenues of review or appeal existed at that stage?
MR KILLALEA: The applicant could have gone to the Federal Court. Sorry, after the MIR Office, it could have gone to the Immigration Review Tribunal.
HIS HONOUR: Say that again.
MR KILLALEA: There was an avenue of review before the Immigration Review Tribunal.
HIS HONOUR: Under what provision of the Act is that?
MR KILLALEA: It is set out in the respondent's material at section 346. It is at tab 1 of the respondent's material.
HIS HONOUR: What was the time for making that application?
MR KILLALEA: That is 28 days, and it is at section 347(1)(b), 28 days after notification of the MIRO decision.
HIS HONOUR: And would that have been a full merits review?
MR KILLALEA: Before the - yes.
HIS HONOUR: And is there any evidence as to why that step was not taken?
MR KILLALEA: No. I can only inform your Honour that - - -
HIS HONOUR: No, I am not interested in being informed of anything. I have asked if there is any evidence?
MR KILLALEA: No, there is no evidence. Shall I proceed, your Honour?
HIS HONOUR: Yes.
MR KILLALEA: Your Honour, in the first instance, I have - this has been sounded with my friends and they say, no, to it but - - -
HIS HONOUR: Well, just a moment, that is the whole of the evidence on which you rely.
MR KILLALEA: Yes.
HIS HONOUR: Now, is there any evidence on which you rely, Ms Abadee?
MS ABADEE: Yes, your Honour. We rely on an affidavit of my instructing solicitor, Mr Brian Wilson. It was filed in this Court on 27 November, a very short affidavit, your Honour, which just annexes three documents.
HIS HONOUR: Do you have any objection to that affidavit, Mr Killalea?
MR KILLALEA: No objection, no.
HIS HONOUR: I will just read that to myself. When did time expire for an application to the Immigration Review Tribunal?
MR KILLALEA: It would have been 28 days after the MIRO decision. The MIRO decision was 5 February 1999. It would have been on or about 5 March 1999, your Honour.
HIS HONOUR: So, as far as the evidence goes, the time for making the application expired before the letter of 12 March?
MR KILLALEA: Yes.
MS ABADEE: Your Honour, I am very loathe to interrupt my friend, but I think he is doing himself a slight injustice. We have prepared a chronology. I had filed in Court a chronology but there is an error in that. I seek leave to hand up another chronology.
HIS HONOUR: The first - yes.
MS ABADEE: The answer to your Honour's question - and I do hesitate to interrupt my friend - but it is Regulation 4.10 which provides for a 28-day period from notification of the decision. You then go to Regulation 5.03 which says that a decision is deemed to be notified seven days after the date of the letter. So we say the way it works is the letter was dated 5 February. She was deemed to receive that letter on 12 February. She then has 28 days from then so that the period expires on 12 March. I am sorry to interrupt my friend.
HIS HONOUR: All right.
MS ABADEE: I seek leave to hand up an amended chronology. That is the only matter that was amended.
HIS HONOUR: Thank you. By the way, where is your client now, Mr Killalea?
MR KILLALEA: At liberty locally, is all I know, your Honour.
HIS HONOUR: Do you have any quarrel with any of this chronology that has just been handed up?
MR KILLALEA: My friend says the only thing that is changed is what she has just put to your Honour and we have no objection.
HIS HONOUR: One thing I am not clear about from the evidence I have seen so far is this. Was the original application, and then the application for review by the Migration Internal Review Office, made by the applicant with legal or other advice or assistance?
MR KILLALEA: I can only take your Honour to the application for review tomorrow, which is annexure B to Mr Coelho's affidavit, and on the last page of that document it shows that Julie Bouloux, Justice of the Peace, of the Office of Laurie Ferguson, MHR, is the Migration adviser or agent.
HIS HONOUR: Subject to that, there is just no evidence at all as to what, if any, advice or assistance your client had before Bruce Bian wrote his letter of 12 March, is that so?
MR KILLALEA: Yes, that is so, your Honour.
HIS HONOUR: Yes. Is there any other evidence, Ms Abadee?
MS ABADEE: No, your Honour.
HIS HONOUR: Yes, Mr Killalea.
MR KILLALEA: Your Honour, I submit that this is a matter which properly might be remitted to the Federal Court under section - - -
HIS HONOUR: What would be the grounds within the jurisdiction of the Federal Court?
MR KILLALEA: Section 476(1)(e).
HIS HONOUR: So you seek relief under section 75(v) of the Constitution but the ground on which you seek relief is a ground that is covered by section 476(1)(e) of the Migration Act?
MR KILLALEA: Yes, your Honour.
HIS HONOUR: And, therefore, would be within the jurisdiction of the Federal Court?
MR KILLALEA: Yes, your Honour.
HIS HONOUR: What is the error of law that you say would be arguable?
MR KILLALEA: The error of law is this - and I can just take your Honour to the starting point, to the review decision, which is at annexure C to Mr Coelho's affidavit, page 6 of that decision. At point 7, the third-last paragraph begins "Accordingly".
HIS HONOUR: Yes.
MR KILLALEA: If I might just give your Honour a moment to - I invite your Honour to read just that one paragraph.
HIS HONOUR: Yes.
MR KILLALEA: The essence of the argument is this, your Honour, that consideration of the application for a visa was made by reference to Regulation 1.03 of the Migration Regulations but what the MIRO officer has done is that she has determined the matter by reference to the Department's policy. So she has determined the matter without reference to the law and in that case, in so far as she has presumed to act upon the law, to act upon Regulation 1.03 - - -
HIS HONOUR: Where do I find that regulation?
MR KILLALEA: There is a copy in tab 2 of the respondent's submission, the respondent's bundle, your Honour.
HIS HONOUR: What are the relevant parts of it?
MR KILLALEA: It is tab 2, which is Regulation 1.03 - it is an interpretative provision - and at page 13 in the top right-hand corner.
HIS HONOUR: "Special need relative"?
MR KILLALEA: Yes.
HIS HONOUR: That looks as though, in the circumstances of a problem such as this, the critical question would be whether the need for assistance that the mother of the child had could not reasonably be obtained from "welfare, hospital, nursing or community services". Would you agree with that?
MR KILLALEA: That, I would agree, is a critical consideration, yes. It is of paramount importance in this matter.
HIS HONOUR: Your submission, as I understand it, is that instead of addressing that issue the decision maker addressed the Department's policy?
MR KILLALEA: Yes, and the policy limited consideration of that issue as it arises under the regulation. That is at page - you will see the limitation at page 4 of the MIRO officer's decision.
HIS HONOUR: Where do I see that?
MR KILLALEA: Annexure C.
HIS HONOUR: I have page 4, but where on page 4?
MR KILLALEA: About point 8, the last five lines. It begins:
It is policy that the present level of assistance generally available to Australian residents from welfare, hospital, nursing and community services constitutes reasonably obtainable substantial and continuing assistance for the purpose of this regulation.
HIS HONOUR: I am just not sure I understand those two sentences. It is the last two sentences on page 4?
MR KILLALEA: Yes, beginning "It is policy".
HIS HONOUR: The first sentence seems to say that it is policy that available assistance is available.
MR KILLALEA: Yes.
HIS HONOUR: That is a start. Then it says:
The onus is therefore on the applicant to demonstrate that such services are not available - - -
MR KILLALEA: Yes.
HIS HONOUR: Just at the moment I would have thought that the issue is slightly different. It is that the question to be resolved is whether the available services provide the assistance needed by the mother of the child.
MR KILLALEA: Yes, that issue should have been - - -
HIS HONOUR: Was that issue addressed?
MR KILLALEA: The issue is addressed, and I think it just follows on page 5 - - -
HIS HONOUR: What I am suggesting to you is that the two sentences that you fasten on on the bottom of page 4 do not seem to take the matter very far at all, one way or the other. They just state the obvious, that available services are available.
MR KILLALEA: Yes, but I submit that the conclusion that the onus is therefore on the applicant is where the officer has drifted into error because it is raising a rebuttable presumption, in effect, that the Department is right, that the services are here, and it is for the applicant to rebut that. Whereas that is not what the law requires.
HIS HONOUR: But that is not the issue. The issue is not whether there are available services to look after Down's syndrome children. As I understand it, the issue is whether such services as are available meet the need for assistance of the mother of the child.
MR KILLALEA: Yes.
HIS HONOUR: Now, where do we find that issue addressed? The top of page 5 she points out that the child attends a special school.
MR KILLALEA: And at the bottom of page 5, the last paragraph, goes into evidence of the Children's Hospital, and such like.
HIS HONOUR: What earlier references, or what other references to the Department's policy are there, apart from those on the bottom of page 4?
MR KILLALEA: About two-thirds of the way down on page 5, point 6, "As further stated in the Department's PAM 111".
HIS HONOUR: It is not for me to formulate an argument for you, Mr Killalea, but in your position I would be zeroing in on the last sentence in the third paragraph on page 6. She says:
Special need relative provisions are not intended to address situations in bringing up children and relieving the possibility of financial disadvantage.
MR KILLALEA: Yes. I had not picked up that sentence in particular, your Honour, but that, in a sense, is very close to the nub of the submission, that the member - the MIRO officer - has erred in law because she has written out of consideration those matters which are written out by the Department's policy, which are exactly that, that the special need relative provisions are not intended to address those situations. See, those have been written out in the reference I have taken your Honour to at page 5.
HIS HONOUR: Where do I see that?
MR KILLALEA: Page 5 about point 6:
As further stated in the Department's PAM 111, it is policy that, in the absence of other factors, none of the following constitutes a permanent or long -term need:
That is addressing Regulation 1.03(a) which is in the italics above.
HIS HONOUR: Where do we find that PAM 111? Is that in evidence or do we just know a bit about it from what is in the - - -
MR KILLALEA: It is not in evidence. I can only tell you physically it is a bundle of folders, some six or seven in number, which are used as departmental policy, departmental guidelines.
HIS HONOUR: All right. Now, I have understood your argument concerning what you say is an arguable case of error of law. What do you say about the discretionary considerations? Did we not give a judgment in a case in the last - Aala, was that the case?
MS ABADEE: Yes, your Honour.
HIS HONOUR: This constitutional relief is discretionary and that was a case in which somebody got out of time because a solicitor made a mistake, but there is no evidence of anything like that here, is there?
MR KILLALEA: No.
HIS HONOUR: You see, what is happening in this case, not to put too fine a point on it, is that having failed to take advantage of an opportunity for a full merits review of the decision maker's decision, your client has come to the High Court.
MR KILLALEA: Yes, and it is one of the reasons why I press that the matter ought properly be considered for remittal to the Federal Court.
HIS HONOUR: I understand that, but it has to be properly here in the first place, has it not? Presumably the same discretionary consideration that would affect the matter if it were dealt with in the High Court would affect it if it were dealt with in the Federal Court, would it not? The Federal Court will be asked to grant relief under section 75(v) of the Constitution, will it not?
MR KILLALEA: Well, as I understand it, once it is remitted, it will then become a matter in the Federal Court and a matter heard under 476(1) - - -
HIS HONOUR: I think section 476 is relevant to the jurisdiction of the Federal Court, but what is being remitted to the Federal Court is the exercise of jurisdiction under section 75(v) of the Constitution.
MR KILLALEA: Yes, I appreciate that, your Honour.
HIS HONOUR: So just as at present advised, I would have thought that the same discretionary issue will arise there.
MR KILLALEA: Arise again, your Honour?
HIS HONOUR: Will arise there. That is to say that there seems to be no explanation of why your client did not exercise her right to have a full merits review.
MR KILLALEA: Yes.
HIS HONOUR: There is no affidavit that says, "I forgot about it", or, "I wasn't advised by the migration adviser", or, "I wasn't advised by a solicitor". What, if any, explanation is there as to why the time for applying for full merits review to the Immigration Review Tribunal was simply allowed to pass without action being taken?
MR KILLALEA: I can only just quickly say that she was unaware of the time limitation.
HIS HONOUR: Well, you say that. There is no evidence of it.
MR KILLALEA: Yes, I understand. Yes, there is no evidence of it.
HIS HONOUR: Could it be that you want an adjournment to get evidence of that?
MR KILLALEA: Yes, your Honour. Yes, I would make application now for an adjournment to get evidence of that.
HIS HONOUR: I will hear what Ms Abadee has to say about that in due course but - - -
MR KILLALEA: Yes. Perhaps in support of that, what is clear from the chronology, your Honour, is that, albeit that the applicant has not taken that step of seeking relief in the IRT, the applicant has nevertheless pressed ahead at all times to get the relief she wanted, and that is to be allowed to stay in this country. She has not at any point sat back on her situation here.
HIS HONOUR: So you say, but on the face of it, where the legislation provides a person in your client's position with an opportunity to obtain a full merits review of an administrative decision, no step is taken to pursue that entitlement and then months later an application is made to the High Court for relief under section 75(v) of the Constitution, it is not difficult to understand why the respondent relies on that as a discretionary ground for refusing relief.
MR KILLALEA: Yes. Your Honour would appreciate from the chronology and from Mr Coelho's second affidavit that the applicant had made application to the Minister on 12 March, which, as my friend has indicated, was the last day she had to do something - sorry, that was the last day perhaps she could have gone to the IRT. She has made the application to the Minister in March 1999. The Minister has responded in April 2000 and then approximately one month later she has briefed the solicitor, she has sought the solicitor's assistance to file - - -
HIS HONOUR: I do not think the delay that is being relied on against you is the delay between April and now. I think that has been explained by the evidence. It was related in large part to your own illness.
MR KILLALEA: Yes.
HIS HONOUR: I do not understand that to be the principal problem. The question is, "What is the explanation of the failure to pursue the full merits review?", and I am simply drawing your attention to the fact that in the present state of the evidence there has not even been an attempt made to explain that.
MR KILLALEA: That is right, your Honour, and I can see the Court is not properly and fully informed on that point. Perhaps rather than take the Court through the whole of the argument at this stage, I assume the applicant would appreciate the opportunity and, again, just request time to put on evidence on that matter.
HIS HONOUR: We will see what Ms Abadee has to say about all this.
MS ABADEE: Your Honour, first, I cannot identify any prejudice if your Honour was to grant such an adjournment but we would resist it very strongly. This applicant or prosecutor has had every opportunity to put before the Court the evidence upon which she seeks to rely. She filed one affidavit in support of the application which, in our submission, made no attempt whatsoever to deal with any of the delays - and we say that there have been two - and, in fact, that there are two grounds that we rely upon as being matters that go to the Court's discretion.
The first is the availability of an alternative avenue of review, and that is the IRT review. The second is delay. There are two limbs to that delay. The first is the delay from 5 February 1999. The second delay is the delay in - having received the letter from the Minister in April of this year, the second delay was the delay in commencing these proceedings. A second affidavit was filed yesterday dealing with the second of those issues.
So, in our submission, the applicant, I might say, having read our submissions on discretion and having seen that the point was to be raised, took the opportunity to put on an affidavit to deal with one aspect of the delay. We did not object to that, although we received yesterday. In our submission, your Honour, although I cannot identify any prejudice, this would not be an appropriate matter in which to grant an adjournment.
HIS HONOUR: Ms Abadee, my approach to granting an adjournment might properly be affected by any tentative view I have formed on the merits of the application.
MS ABADEE: I was about to come to that, your Honour.
HIS HONOUR: Page 6 of the reasons for the decision of Ms Jackson, the last sentence on the third paragraph.
MS ABADEE: Yes, your Honour.
HIS HONOUR: I am not sure I have the facts straight, but the mother of this child works full time.
MS ABADEE: Yes, your Honour.
HIS HONOUR: Doing what?
MS ABADEE: I believe that she has a business as a seamstress. So she has her own business as a tailor.
HIS HONOUR: Right. In essence, the basis of the special need argument is that so that the mother can continue to work in her business full time the applicant acts as a carer of the disabled child.
MS ABADEE: Yes, your Honour.
HIS HONOUR: What exactly do you think is meant by the proposition that these "provisions are not intended to address situations in bringing up children and relieving the possibility of financial disadvantage"? What does that mean?
MS ABADEE: Your Honour, in our submission, one would read that as meaning that neither of those things are matters that come within the definition of special need relative and the special need relative, as your Honour will see, the definition refers to "a permanent or long-term need for assistance because of", which arises out of certain limited factors. So the first element of the definition, if you like, your Honour, is that there must be a relative who would be the applicant for the visa - - -
HIS HONOUR: Looking at the regulation, what it says is that, "the citizen or resident", that is the mother of the child, "has a permanent or long-term" - - -
MS ABADEE: Yes, "need for assistance" because of enumerated factors and those factors are "death, disability, prolonged illness or other serious circumstances" - - -
HIS HONOUR: Right. So this is "other serious circumstances" or "disability", is it?
MS ABADEE: In this case, the son with Down's syndrome means that there is arguably "a permanent or long-term need for assistance because of" the "disability" which does not affect the citizen or resident personally but affects "a member of his or her family unit". But your Honour will see that the "permanent or long-term need" must be "because of", namely, a product of, enumerated factors: "death, disability, prolonged illness or other serious circumstances".
Putting myself into the position of the decision maker in relation to that sentence, your Honour, I infer that what the decision maker is saying is that it is not good enough to have a need for assistance which arises out of the mere bringing up of children or the mere relief of the possibility of financial disadvantage. Your need must be the product of one of those matters. I think what the decision maker is saying is this mother's need does not arise out of the death or disability of her son. It arises out of just difficulties she has as a working mother in dealing with after school arrangements.
HIS HONOUR: You mean by that that the need would not relevantly be different if this were a perfectly healthy child?
MS ABADEE: I infer that that is what the decision maker is saying, your Honour. If I might just take you to some findings of fact that we rely upon. Your Honour, in our submission, as we have indicated in the outline of submissions, the nub of this case is that the decision maker made a factual finding that the assistance could reasonably be obtained from "welfare, hospital, nursing or community services".
I think your Honour asked my friend earlier whether there was an actual finding of fact as to whether or not there was a need within limb (a) of the definition that arose because of those factors. I think it is fair to say there is not a factual finding. You can infer that that was not the basis, that limb (a) was not the basis upon which the decision maker found that she did not fall within the definition. The problem for this applicant was limb (b)(ii). The decision maker made a finding of fact - - -
HIS HONOUR: Where do we find that?
MS ABADEE: Your Honour, it is at a number of places. The first is at page 5 point 9 of the decision, the final paragraph:
Evidence from Dr. Wal Grigor Consultant Paediatrician of the Children's Hospital.....states that Edward will need regular developmental therapy as do all children with Down syndrome. This therapy is currently provided by the Fairfield Community Health Centre, at Edward's home once a fortnight and continued daily by his parents. It is further stated that children with Down syndrome always require ongoing medical care and that Edward's needs are no greater than most and will be met to a large degree by his parents themselves.
So that is the first factual finding that we rely upon. The second factual finding is at about point 6, point 7 on that page. Yes, it is the fifth paragraph, which begins:
Whilst I am sympathetic.....I also note that the nominator has previously sought assistance from community services.
Presumably that is a reference back to the therapy provided by the Fairfield Community Health Centre.
HIS HONOUR: How old is this child?
MS ABADEE: I think he is three or four, your Honour. I am not absolutely sure. No, I am told seven.
HIS HONOUR: What is going through my mind is this. I can understand that in respect of children under a certain age, say 10 or so, having regard to the availability of the health care services, the need for care of a child with Down's syndrome before and after school is not relevantly different from the need for care before and after school of any child, but after a certain age presumably ordinary children could be left on their own before and after school and I presume a Down's syndrome child could not.
MS ABADEE: Yes, if I could just take that on notice, your Honour. I am sorry, I think the answer that I gave was incorrect. I think seven or eight is correct, but if I could just check that.
HIS HONOUR: All right.
MS ABADEE: Your Honour, the final and what we say the critical finding of fact on which we rely and which we say really lies at the heart of the challenge to this decision is at 6 point 8 on the page, which follows the sentence that I have just read:
Whilst I am sympathetic to the claims that have been made, I also note that the nominator has previously sought assistance from community services -
the nominator being the mother -
The child is attending a special school and professional help can reasonably be obtained by parents of Down Syndrome children through welfare and community services available in Australia.
Now, that is a finding of fact. It is a finding of fact which means that - - -
HIS HONOUR: Yes, but the critical question of fact is not whether help is available. I would have thought the critical question of fact is whether such help as is available is reasonably sufficient to meet the needs of the mother, no doubt bearing in mind that the mother ought also to be expected to be making some contribution herself.
MS ABADEE: And that is something the decision maker deals with earlier. She refers to the evidence that was before her from the applicant, and that is on page 6 at paragraph 2:
this assistance is primarily to care for the nominator's child before and after school so the nominator can continue to operate her business. The nominator has also said that if the applicant is to leave Australia, she will have to scale down her contracts, which will impact on her income and standards of living.
HIS HONOUR: Just pausing there, this is not some kind of anti-private enterprise sentiment entering into this, is there? People being able to continue their business strikes me as a perfectly reasonable aspiration.
MS ABADEE: I suppose there is a question, your Honour, as to whether that creates the need for assistance to which this regulation refers.
HIS HONOUR: Yes. Different people might have different approaches to that.
MS ABADEE: Yes, your Honour. We would put emphasis on the words "because of" in limb (a) of the definition. Your need must be the product of the disability, not the product of the normal difficulties faced by a mother with a child. If I could just answer your Honour's question as to the child's age. His date of birth was 6 February 1994. So as at the date of this decision, February 1999, he was about five. As at today's date, he is six and a half. So he was five, I suppose, at the date of this decision.
Your Honour, it is our submission that this application is an impermissible attempt to revisit that factual finding, that help could reasonably be obtained from "welfare, hospital, nursing or community services". That is a finding of fact that was made. In our submission, if, which we deny, that was an incorrect finding of fact, there is no error of law in making an incorrect finding of fact, and your Honour will see in the written submissions we have referred to Waterford v The Commonwealth and Enfield.
HIS HONOUR: Ms Abadee, may I interrupt you for a moment to ask Mr Killalea a question?
MS ABADEE: Yes, your Honour.
HIS HONOUR: Mr Killalea, in relation to your application for adjournment, are you in a position to tell me what you would hope to be able to prove if you were given time to get further evidence?
MR KILLALEA: Yes, that Mrs Zhu made proper inquiry as to her next course of action, made proper and reasonable inquiry.
HIS HONOUR: Of whom?
MR KILLALEA: Well, I can answer that will depend upon the circumstance she was in. You know, it appears she has approached the office of the member of Parliament, that is the Justice of Peace of that office. So she has approached someone in a sense in relevant authority, query what advice she had, and perhaps because she has gone to the political office she has taken the political course.
HIS HONOUR: Are you foreshadowing that you would expect to be in a position to have evidence, not only from Mrs Zhu, but also from whoever was giving her information or advice as to the course she should be taking?
MR KILLALEA: Certainly we would look to make contact with Julie Bouloux, the one who has advised her in relation to the application to the MIRO officer.
HIS HONOUR: Let me make it clear to you that if the only evidence you came along with was evidence from Mrs Zhu which indicated that she was in a state of confusion and uncertainty, that would not necessarily take the matter very far.
MR KILLALEA: Yes.
HIS HONOUR: What I am trying to find out is why Mrs Zhu did not apply for a full merits review within the time available to her and Mrs Zhu herself may not be in a position to give a very clear answer to that question.
MR KILLALEA: Yes, it will be appropriate to make all due inquiries as to who she spoke to and what they told her.
HIS HONOUR: Yes, but you may need to inquire further than Mrs Zhu herself.
MR KILLALEA: Yes, quite, your Honour.
HIS HONOUR: Just take a seat, Mr Killalea. Ms Abadee, my present tentative view is that there is a good deal of force in the arguments that you are putting about the merits of the application, but I have not heard Mr Killalea say what his answer to them might be. Furthermore, I think there is a distinct possibility that you might have a knock-out blow in relation to the failure to seek a merits review within time. But partly having regard to the length of time that has elapsed in relation to this applicant and partly because I have a distinctly uncomfortable feeling that somewhere along the line the applicant might not necessarily have been made as aware as she should have been by her own advisers of what steps were in her interest, I am presently minded to grant an adjournment to a time suitable to you.
MS ABADEE: Would your Honour hear me further?
HIS HONOUR: Yes.
MS ABADEE: Your Honour, there are a number of further submissions, I suppose, that we would make. The first, as to the proposition put by your Honour that she may or may not have received proper advice as to the avenues of appeal, we would refer your Honour to annexure A to Mr Wilson's affidavit, which was the covering letter that was sent with the MIRO decision, which specifically advises of - there are two points that we would seek to draw from that.
She is specifically advised in that letter of her right to apply to the Immigration Review Tribunal and she is told she must do it within 28 days. She is not told about any other right she might have under section 345 of the Act to throw herself at the mercy of the Minister.
HIS HONOUR: Yes. Somebody has to explain how it came about that she made this application under section 345 instead of going to the Immigration Review Tribunal.
MS ABADEE: Or instead of doing both at the same time, your Honour. There was nothing to preclude her from doing both. A further point, and this is annexure C of Mr Wilson's affidavit, when she makes that application - I am sorry, there are a couple of further points. The date by which she had to apply to the IRT was 12 March 1999. The letter in which she writes to the Minister making an application under section 345 is dated 12 March 1999, but you will see from annexure A it is not received until 18 March 1999. So arrangements were not even made for that letter to be sent within time.
A further matter that we say is significant, and I refer to annexure C to Mr Wilson's affidavit, is that she gets a letter back on 30 March saying, "Thanks for your application under section 345. Bear in mind the Minister is very busy at the moment and he has no obligation to consider that". So, your Honour, we would say that those are matters that are relevant and simply, in our submission, cannot be answered. A further and final submission, because I hear what - - -
HIS HONOUR: Does this woman speak English?
MS ABADEE: I do not know, your Honour.
MR KILLALEA: I did meet her once and I do not think so, your Honour.
HIS HONOUR: It does not even seem to have occurred to anybody that there should be evidence on today about whether this woman speaks English, let alone what the explanation is of her conduct and the conduct of her advisers.
MR KILLALEA: Yes, the Court could have been much better informed, your Honour.
MS ABADEE: Your Honour, there is one further submission, and that is this. We rely for our submissions on discretion on two points. Delay is only one of them. The other is the existence of an alternative avenue of appeal, and we rely in that respect on what is said by members of this Court in Reg v Cook; Ex parte Twigg. Your Honour will be familiar with that but if I just - - -
HIS HONOUR: I assumed that was your main point.
MS ABADEE: Yes, it is.
HIS HONOUR: I assumed that your main point was - - -
MS ABADEE: There was an alternative avenue of full merits review.
HIS HONOUR: Yes, exactly.
MS ABADEE: With respect, your Honour, there is no evidence that the prosecutor could give that can deal with that point.
HIS HONOUR: Well, an interesting question that may need to be looked at is whether this is a question of discretion or a question of election. In other words, your argument may be stronger than a discretionary argument. Your argument may be an argument that there has here been an election as a result of which she is out of Court. That is why I would have thought I would have been provided with information explaining what she did and failed to do in circumstances where she appears to have been acting with some kind of advice from somebody, but there is no evidence from her and no evidence from her advisers.
MS ABADEE: Your Honour, my concern, I suppose, is this. As I say, as to the first ground, which is the existence of an alternative avenue of appeal, in our submission, there is nothing she can say about that that will affect that exercise of discretion. She can give evidence as to why she delayed or I suppose as to why she elected to go down one path rather than the other.
As to that, I am not sure we could put it as highly as an election because the way in which the relevant statutory provisions are drafted it appears - and I am told by those that instruct me that what would often happen is that someone would make an application to the IRT within time but at the same time they would write a letter to the Minister, throwing themselves at the Minister's mercy under section 345, but there is nothing in the Act which makes it clear that you must elect between those.
So I am not sure I could put it as highly as an election but I can put it as - in fact, it goes further than just an alternative ground of appeal because had she followed the orthodox course she would have gone from the - there is the primary decision; there is then the MIRO decision, which is the internal review decision; there is then the IRT decision, which is full merits review; there is then the Federal Court.
So it goes further even, I suppose, than a conventional alternative grounds of appeal point and, in our submission, there is simply no evidence that she could lead that would affect that submission. There was an alternative ground of appeal. For whatever reason, she did not take it. That, in our submission, is sufficient for this Court, we would say, together with the strong argument on the merits, for the application to be dismissed.
A further concern that I have, your Honour, with respect, is the course that your Honour proposes opens up potentially, I do not know, a one-day hearing involving cross-examination of her and her advisers. In our submission, that is simply not appropriate in an application of this nature. If your Honour is still minded to grant the adjournment, might I be heard further on the merits of the application?
HIS HONOUR: Merits of what application?
MS ABADEE: I am sorry, the merits of the substantive application because, in our submission, no jurisdictional error which would engage the power of this Court to grant the constitutional writs is disclosed on this decision.
HIS HONOUR: Yes. Well, you put whatever you want to put on that now.
MS ABADEE: Your Honour, essentially I do not wish to unnecessarily traverse matters that have already been dealt with in my written submissions, but perhaps if I could ask your Honour to turn to page 2.
HIS HONOUR: Yes.
MS ABADEE: Your Honour will be very familiar with the principles. I refer to paragraph 4 where I have set out the passage from the decision of this Court in Craig v South Australia. Now, your Honour, the only real complaints made by this prosecutor are that there was a failure to take into account relevant considerations and there was what I have described in a gloss-type way as an inflexible application of policy.
As to the first, in our submission, it is not enough for them to prove that there was a failure to take into account relevant considerations. We say there was not, but if there was, it is only in some circumstances that such a failure will constitute jurisdictional error such as to engage the grant by this Court of the constitutional writs. In our submission - perhaps then taking a step back. As to the submission that there was an inflexible application of policy, I would refer your Honour to our submissions on that at paragraph 13, page 5. In essence they are, first, that it was permissible for the Minister to adopt a guiding policy and for his delegates to refer to that.
Our second submission is that the policy was not inflexibly applied for the reasons to which I have - I have taken your Honour to the findings of fact upon which we rely. We say the policy was not inflexibly applied. She referred to the policy, as we say she was entitled to do. No challenge has been made here on the grounds that the policy was inconsistent with the statute and for that reason the decision in one way or another involved a jurisdictional error.
The third point that we make is if your Honour is against us on both those points and if there was an inflexible application of policy, in our submission, that is an error within jurisdiction. It is not a jurisdictional error as that concept has been developed by the Court. I would refer your Honour to the decision in Sinclair v Maryborough Mining Warden [1975] HCA 17; (1975) 132 CLR 473 at 480, and I did not refer to that in my written submissions.
HIS HONOUR: My present tentative view is that although the references to the policy in these reasons are confusing and perhaps even confused in some respects, it is not surprising that there being a policy she referred to it and I would have thought that if the applicant has a case it has to based on the third paragraph on page 6 - - -
MS ABADEE: Which it is not.
HIS HONOUR: - - - for which you offer an explanation.
MS ABADEE: My first submission, with respect to your Honour, is that the application as presently drafted is not based on that and if my friend wishes to amend, the rules provide that a prosecutor in these circumstances is bound by the grounds pleaded. If my friend wishes to amend to rely upon that, I would need to take instructions as to our position in relation to that, but I hear what your Honour says.
Those are our submissions on inflexible application of policy, but I stress, I suppose, the third fall-back one, which is if your Honour is against me and finds that, yes, there was an inflexible application of policy, in our submission, that is not a jurisdictional error. It is an error within jurisdiction because it does not involve the decision maker exceeding their jurisdiction or failing to exercise their jurisdiction or even a constructive failure of jurisdiction as that concept has been developed from the case of Sinclair v Maryborough Mining Warden referred to by Justices Gaudron and Kirby in this Court in Eshetu. Those are our submissions on inflexible application of policy.
If may turn now to failure to take into account relevant considerations. I am on page 5 of my submissions, your Honour. Our first submission is that there was no such failure to take into account relevant considerations. If I could ask your Honour to look at the grounds articulated in this respect. If I could take your Honour to the draft order nisi, page 3. Does your Honour have that?
The first particular of that failure to take into account relevant considerations is an allegation that she failed to consider the difficulties the nominator had in placing her son in before and after school care. We say that that was considered. I can refer your Honour to page 5 point 2 of the decision:
The child attends a special school, however, the nominator has stated that she has had difficulty in placing the child in before and after school care -
If I could refer your Honour also to page 6, paragraphs 2 and 3. The decision maker deals specifically with this issue. So as to particular (i), that consideration was taken into account.
As to particulars (ii) and (iii), the third respondent failed to consider that while in the care of the applicant the school noticed that the son's motor skills improved, in our submission, that is simply not a relevant consideration as that concept has been developed since the seminal judgment of Justice Mason, as he then was, in Peko-Wallsend. Your Honour, Justices Gummow and Hayne most recently in the case of Abebe v The Commonwealth referred at page 579 to the well-known concept that in determining which considerations are relevant recourse must be had to the statute.
If your Honour looks at this regulation, 1.03, in our submission, it is clear that the fact that his motor skills improved whilst he was in the care of the applicant is simply not a relevant consideration for the purposes of determining whether this prosecutor was a special need relative. Similarly as to particular (iii), the alleged relevant consideration is that the son, the little boy, would regress or would remain static if he was not in the prosecutor's care. Again, in our submission, that is not a relevant consideration for the purposes of Regulation 1.03 which focuses upon a need arising out of certain matters which cannot otherwise be met.
If your Honour is against me on that and was to find that there was a failure to take into account relevant considerations, in our submission, that on its own would not be sufficient to constitute jurisdictional error. Your Honour, in our written submissions we have referred to the cases on that in paragraph 16 to 20 and the footnotes, but in essence we would rely in particular upon the passage in Craig to which I have referred in paragraph 4 of the submissions:
If such an administrative tribunal falls into an error of law which causes it to -
do various things, including:
to ignore relevant material.....and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority -
and that is a jurisdictional error. So our point is this. The failure to take into account the relevant consideration must be the product of an error of law which affects the decision maker's exercise of power. In our submission, none of these alleged failures to take into account relevant considerations fall into that category.
Your Honour, in our submission, when I was giving consideration to what sort of failure would fall into that category of jurisdictional error, it seemed to me that, taking this regulation as an example, this regulation provides that you are a special need relative if there is "a relative willing and able to provide assistance". If the Australian citizen or resident:
has a permanent or long-term need for assistance because of death, disability.....affecting the citizen or resident personally, or a member of his or her family unit;
Now, in our submission, if the decision maker ignored that last part of limb (a) and only took into account whether the citizen had the "long-term need of assistance because of death" or "disability", "affecting the citizen" him or herself, that would be an error of law productive of a failure to take into account a relevant consideration, namely, whether the need arose from the death or disability of a family member. So, in our submission, that is what you would need for there to be a failure to take into account relevant considerations which rose to the level of a jurisdictional error.
His Honour Justice McHugh in the case of Durairajasingham, to which we have referred, dealt also with this issue in a case where there were allegations of failure to take into account relevant considerations. He made it clear that it was not every such failure that would constitute a jurisdictional error. In our submission, if, which we deny, any of these were failures to take into account relevant considerations, none of them rises to the level of a jurisdictional error. They were errors within jurisdiction.
HIS HONOUR: As I would understand part of your argument, it is that the problem to which the facts of this case gave rise was whether the assistance that was available from "welfare, hospital, nursing or community services", considered in the light of the business activities engaged in by the child's mother, produced the consequence that the assistance that could be obtained by the mother was reasonably sufficient to meet the need for assistance that she had?
MS ABADEE: Yes, your Honour.
HIS HONOUR: And that, on your argument, was a question of factual judgment that involved - - -
MS ABADEE: Recourse to policy, but not in an inflexible way.
HIS HONOUR: Well, from one point of view, it required and involved very little recourse to policy at all. What it ultimately came down to was a question of measuring the assistance available from the welfare authorities against the reasonable needs of the mother.
MS ABADEE: By inference, I mean, the word "reasonably" we put some emphasis on in limb (b). I mean inferentially this is a finding that if the mother was able to re-jiggle her work hours before or after work, she could manage. She would not have the need that is a precondition to the satisfaction of this criteria. In our submission, this is not - I mean to prove jurisdictional error the prosecutor needs to prove that either there was a failure to exercise jurisdiction, constructive or otherwise, or the decision maker exceeded her jurisdiction.
In our submission, she clearly did not. She asked the right question. It is just that the prosecutor does not like the answer. She made a finding of fact that assistance could reasonably be obtained from "welfare, hospital, nursing or community services". She referred to the evidence which gave rise to that finding, including the fact that the Fairfield Community Centre was currently providing therapy, the child was at a special school, the parents were to some degree meeting the needs.
Based on that evidence she made the finding of fact that limb (b)(ii) was not satisfied. It is not a case, with respect, of any failure to ask the right question.
HIS HONOUR: What did she mean, in the second-last complete paragraph on page 6 when she said there was not "sufficient evidence which would convince me to step outside of the Department's policy"?
MS ABADEE: I think, your Honour, that she is saying - she is referring back to page 4 where she talks about, at the bottom of page 4:
It is policy that the present level of assistance generally available.....constitutes reasonably obtainable substantial and continuing assistance for the purpose of this regulation.
Now, if that is all she had said, we would have been in trouble.
HIS HONOUR: If that is all she had said, she would have said nothing. That means what is available is available. We are here because we are here.
MS ABADEE: That is right, your Honour. I cannot cavil with that.
HIS HONOUR: That proposition on the bottom of page 4 strikes me as being almost devoid of meaning.
MS ABADEE: I think that is fair comment, your Honour, with respect, but she does not leave it at that. She goes on and considers the facts of this case.
HIS HONOUR: I understand that, and I understand the force of your proposition that she addressed a factual issue of judgment and gave a sensible answer to it.
MS ABADEE: And the nub of that finding, your Honour - - -
HIS HONOUR: But what is she talking about when she is talking about stepping "outside of the Department's policy"? What aspect of the policy did she have to consider stepping outside of?
MS ABADEE: I think what she is - I infer, putting myself in her position, your Honour, that it is a reference back to that passage at the bottom of page 4 to which your Honour has referred. "It is policy that the present level of assistance" is generally available. I have looked at the evidence of this case and I see that in this case the level of assistance generally available is reasonably obtainable continuing assistance, therefore limb (b)(i) of the definition is not met and therefore my decision, as it happens, will be consistent with the policy.
I do not think I can explain it any more than that, your Honour. I infer that that is what she is saying. We have a policy which says, usually in Australia we have such a wonderful society that "welfare, hospital, nursing or community services" are well and truly able to meet any such needs. But I am not just going to inflexibly apply that policy. I am going to look at the evidence in the case. I have looked at the evidence in the case and, what do you know, the evidence in this case is that the services "welfare, hospital, nursing or community services" are sufficient. They can reasonably be obtained so that the need is therefore met. I infer that that is what she means in that passage.
So you have the three steps. Here is the policy. But I am not going to apply that inflexibly. I am going to look at the evidence of this case. I look at the evidence of this case and she, as our past experience shows, like most people, falls into the category of those for whom the assistance is available. I think that is what she is saying in that passage.
Your Honour, unless I can be of further assistance, I do not have any further submissions in relation to the issue of jurisdictional error. Your Honour has read the written submissions and has heard my submissions. Just as to discretion, if I might just emphasise the chronological sequence - and I apologise that the chronology which I filed had a mistake in it which I have now corrected - but, your Honour, I would just like to - I know that your Honour has been taken to it a few times now, but just briefly to highlight the relevant chronological sequence for our purposes. Does your Honour have the chronology which I handed up this morning?
HIS HONOUR: Yes, I do, thank you.
MS ABADEE: If I could take your Honour to page 2 of that, and your Honour if, at the same time, I could take you to Mr Wilson's affidavit. Your Honour, the first important date is 5 February. That is the date of the MIRO decision, the decision of the review officer. Your Honour will see in the chronology that we have noted it is from that date the prosecutor could have sought review of that decision pursuant to 346(1)(a) of the Act as it then was. Such application had to be made within 28 days of notification and that is what it says in the covering letter to the applicant. That is by reason of Regulation 4.10 as well as section 347 to which my friend referred your Honour.
The MIRO decision, by reason of Regulation 5.03, is taken to be received seven days after the date of the letter. So it is taken to be received under the Act by 12 February. She then has 28 days from then to make her application for an IRT review. That is 12 March. Instead of that, a letter is written on that day - and I might say it is not annexed to Mr Coelho's affidavit - - -
HIS HONOUR: A letter is written dated that day.
MS ABADEE: Yes, your Honour. Your Honour will see it is not received until 18 March, and that is annexure B to Mr Wilson's affidavit. Annexure C is the response. If I might just conveniently take your Honour to section 345 of the Act. It is behind tab 1 in the bundle of material that we have provided. Tab 1 is the various sections of the Migration Act. I am sorry that the pages are not numbered. It is about halfway through, your Honour, page 171 of the statute. Does your Honour have that section?
HIS HONOUR: I do.
MS ABADEE: Section 345:
If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of a review officer under section 341 another decision being:
(a) the decision sought.....; or
(b) another decision -
Your Honour, on the next page is subsection (7) of 345 which provides in terms:
The Minister does not have a duty to consider whether to exercise the power under subsection (1).....whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.
So, in fairness, in the letter from the Minister or the Minister's delegate that goes out on 30 March - and I am referring to annexure C to Mr Wilson's affidavit - the prosecutor is told that:
Thank you for your letter.....
The Minister has also asked me to inform you that whilst section 345 provides the Minister with the power to substitute a decision of a review officer with a decision more favourable to your client, he is under no obligation to exercise that power.
It is currently taking some time to finalise requests -
Now, even at that stage, I might say the 28-day period having expired for the application for review to the IRT, there is no evidence even then of any attempt, having received that letter, to do something to progress the prosecutor's claim or to protect her rights.
Your Honour, just a further matter on which I wish to make submissions, and that is the issue of remitter. It is, in our submission, a slightly difficult question of construction, but in our submission there is a very simple reason why these proceedings cannot be remitted to the Federal Court. If I could take your Honour to section 475 of the Migration Act, which is behind tab 1 of our bundle, it is page 228. Does your Honour have that section?
HIS HONOUR: Yes.
MS ABADEE: Your Honour, section 475(2) provides that:
The following decisions are not judicially-reviewable decisions:
.....
(c) an IRT-reviewable decision;
Now, the decision the subject of this challenge, the MIRO decision, the internal review decision, was an IRT-reviewable decision. The intention of this section is obviously that you cannot go straight from internal review to the Federal Court. You have to stop off via the IRT. So, prima facie, this section provides that the Federal Court has no jurisdiction over such a decision. You do not even get to the next stage, 476, as to whether the grounds of review are available to the court. You are stopped at the first hurdle in that it is simply not a judicially-reviewable decision.
The only complicating factor to which I should draw your Honour's attention is that the Migration Act has since been amended. In 1998 - I think I have referred to it in the chronology - there was the Migration Legislation Amendment Act which came into effect on 1 June 1999. The significance of that is that it abolished the Immigration Review Tribunal and established instead the Migration Review Tribunal, but more significantly, it also abolished the part that dealt with internal review of decisions. So the decision the subject of this challenge was an internal review decision. There is now no such provision. So I suppose the only rider to the submission that I am making is that, strictly speaking, section 475 in its current form, section 475(2), has replaced that - decisions which are not judicially reviewable has replaced that (c) to which I have just taken you with the words "an MRT-reviewable decision".
Now, this is not an MRT-reviewable decision because the MRT was not in existence at the time. But, in our submission, the short point is this, it is clear from the statute that it was never intended that the Federal Court could review a decision that ought first to have stopped off via the IRT. We would say, for that reason, the Federal Court has no jurisdiction over this and for that reason it cannot be remitted.
Assuming that I am wrong about that, your Honour raised with my friends the grounds. With respect, I think my friend put that the ground that he would rely upon was 476(1)(e), error of law. I would adopt what your Honour said, which is if it is remitted, it is these proceedings under section 75(v) of the Constitution which are remitted. The problem that my friend has is that 476(3)(e) specifically excludes relevant considerations as being a ground of review though, as to the other ground of review, 476(3)(c) provides that you can review a decision where there has been:
an exercise of a discretionary power in accordance with a rule or policy without regard to the merits -
With respect, that seems to us to raise the spectre of the bifurcated proceedings to which her Honour Justice Gaudron, I think, referred in her dissenting opinion in Abebe.
Our first submission is it simply cannot be remitted because it is not a judicially-reviewable decision as defined by sections 474 and 475. If your Honour is against me on that, in our submission only part of it could be remitted. That is the part dealing with the inflexible application of policy. The part dealing with the failure to take into account relevant considerations cannot be remitted.
Your Honour, unless I can be of further assistance, those are our submissions.
HIS HONOUR: How are you placed on 18 December?
MS ABADEE: I think I am available that day, your Honour.
HIS HONOUR: You would be available at 2.15 on that day, would you?
MS ABADEE: Yes, your Honour.
HIS HONOUR: Mr Killalea, Ms Abadee has put her arguments on the merits of the case. I take it that your application for an adjournment is accompanied by an offer to pay any costs thrown away by the adjournment.
MR KILLALEA: That would have to be the case. I do not say that the party is able to pay but I think that would follow, your Honour.
HIS HONOUR: I missed what you just said.
MR KILLALEA: I am not specifically instructed on that, so I am not saying the party would have to be subject to a costs order if made by the Court.
HIS HONOUR: Do you have any argument to put against the proposition that your client, if granted an adjournment, should pay the costs thrown away by that adjournment?
MR KILLALEA: No, I have no argument against that proposition.
HIS HONOUR: All right.
I am minded to adjourn the matter until 2.15 on Monday, 18 December. There are some very formidable arguments that you are going to have to meet on that occasion.
MR KILLALEA: Yes.
HIS HONOUR: But, because of the history of the matter, and because, as I see things at the moment, one of the most formidable arguments you have to meet relates to the failure of your client to pursue her right to a full merits review of the decision about which you are complaining, I want to give your client an opportunity to put such evidence before the Court as she may be advised to deal with that point that I last mentioned. That is not necessarily confined to evidence from her as to why she did and did not do things, but might also include evidence from whoever was advising her.
When we resume on the 18th, I will have the benefit of Ms Abadee's submissions that have been put this morning and recorded and I will hear what you have to say in answer to those, as well as whatever evidence there is to be in relation to the matter that I just mentioned.
MS ABADEE: Your Honour, might your Honour just give a date by which the affidavits must be filed and served.
HIS HONOUR: On the applicant's application, and over the opposition of the respondent, I will adjourn the further hearing of this matter until 2.15 pm on Monday, 18 December.
Any affidavits upon which the applicant wishes to rely in addition to those already filed must be filed and served by 4 pm on Friday, 8 December.
Does that suit you, Ms Abadee?
MS ABADEE: Yes, your Honour.
HIS HONOUR: The applicant is ordered to pay any costs thrown away by this adjournment.
MS ABADEE: The only thing that occurs to me, your Honour, I imagine it is highly unlikely, but I suppose there is a slim possibility we might want to put on evidence in reply.
HIS HONOUR: If you want to put on any evidence in reply, Ms Abadee, then you should do that by 4 pm on Friday, 15 December.
MS ABADEE: Thank you, your Honour.
HIS HONOUR: Because I have now a record of all your arguments, it will not be necessary for you to repeat any of those on the next date.
MS ABADEE: Thank you, your Honour.
MR KILLALEA: Thank you, your Honour.
HIS HONOUR: Very well. I will adjourn the matter on that basis.
AT 11.58 AM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 18 DECEMBER 2000
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