B & C, Ex parte - Re Ruddock & Anor M7/1997 [2000] HCATrans 97 (16 March 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M7 of 1997

In the matter of -

An application for Writs of Prohibition and Mandamus against PHILIP RUDDOCK, THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

And in the matter of -

An application for Writs of Certiorari and Mandamus against A.H. SMITH, constituting the REFUGEE TRIBUNAL under the Migration Act 1958 (Cth)

Second Respondent

Ex parte -

"B" and "C"

Prosecutors/Applicants

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 16 MARCH 2000, AT 9.54 AM

Copyright in the High Court of Australia

HIS HONOUR: Mr Hurley, you again appear for the applicants in this matter, do you not?

MR T.V. HURLEY: I do, your Honour. (instructed by Erskine Rodan & Associates)

MR C. GUNST, QC: If your Honour pleases, I appear on behalf of the first respondent. (instructed by the Australian Government Solicitor)

HIS HONOUR: Now, Mr Hurley, where are we up to? These were initially stood over pending decisions in Abebe and Eshatu and later were stood over waiting on Applicant A. Now all those events have come to pass. Where are we now?

MR HURLEY: Well, your Honour, the prosecutors would seek that this matter be remitted but I understand that to be opposed by my learned friend. That is the position of the applicant, if your Honour is - - -

HIS HONOUR: Perhaps it may be convenient if I just hear Mr Gunst tell me whether he does oppose remitter and, if so, briefly, what are the bases of the opposition?

MR GUNST: Your Honour, we oppose remitter because we say the applications are completely without foundation. They are very long in the tooth. This is No M7 of 1997. It was last before your Honour, in a substantive way, in August 1998, that is some 18 months ago, and we say it ought to be heard and determined by your Honour. It will not take long.

HIS HONOUR: Can I say this, Mr Gunst? The difficulty I have about doing that is that if your submissions were acceded to and the application is disposed of, if the applicant then seeks to appeal we lose yet more Judge time in this Court. We are getting - I should speak only for myself, I suppose - I am getting, and I think I speak for most, if not all other members of the Court, very wary about the demands that this jurisdiction is making on the time of the Court. We really cannot spend more time on this jurisdiction than we have to. There are other demands on our time as well. If, then, I remit it, is there likely to be any substantial delay in your getting it on in the Federal Court? Are we talking weeks, months, years, in getting on?

MR GUNST: Months, as I understand it, your Honour, not weeks and not years.

HIS HONOUR: Are you able to give me any ballpark figure for time, Mr Gunst?

MR GUNST: Somewhere between April and October seems to be the best estimate from my instructor.

HIS HONOUR: These things are necessarily imperfect, I understand that.

MR GUNST: It is a short point and it should not take very long and we might be able to pick up a date that falls through in the judge's docket.

HIS HONOUR: What are you talking about? Do you think a days case or less than a days case?

MR GUNST: A day or less, certainly.

HIS HONOUR: Look, my inclination is to remit it, Mr Gunst, moved largely by that concern about harbouring this Court's resources. Is there any question in this case about jurisdiction of the Federal Court on remitter?

MR GUNST: Three out of the four grounds are grounds excluded under Part 8. There are four grounds apparent in the draft order nisi. The first is error of law and that would clearly be available in the Federal Court. The others are Wednesbury unreasonableness, taking into account irrelevant considerations and failing to take into account relevant considerations. The last three of those, of course, as your Honour well understands, all been excluded grounds under Part 8.

HIS HONOUR: Those last three grounds being grounds of a kind that commonly invite close attention to what exactly is meant by them in the particular context of the individual sets of facts. Justice Gummow, for example, in Eshatu, had something to say about Wednesbury unreasonableness in this context. I may be misremembering it, but to the general effect that Wednesbury unreasonableness is either concerned entirely, or at least primarily concerned, with discretionary decisions and the kind of decision with which these proceedings are concerned is not one of discretion, it is a decision dependant on satisfaction and certain criteria, and then obligations arise.

Mr Hurley seeks remitter, you would seek to have it dealt with here. Is there more you would say in support of the view that I should deal with it?

MR GUNST: No, thank you, your Honour. We understand the force of what your Honour puts and your Honour is not the only Judge of this Court who has expressed the view and may it be said, perhaps your Honour has been more patient or more kind than some other brethren.

HIS HONOUR: I am flattered that those words should be applied, Mr Gunst. I do not say anything about their accuracy.

MR GUNST: No, there is nothing further. Perhaps I should say for the sake of completeness, if it is to be remitted, we would say the whole ought to be remitted.

HIS HONOUR: The allegation for order nisi should go down, yes.

MR GUNST: Thank you.

HIS HONOUR: Now, Mr Hurley, if I remit your application for order nisi, is that what you seek?

MR HURLEY: Yes, your Honour.

HIS HONOUR: Yes.

There will be an order for a remitter of the application for order nisi in the common form.

I will certify for counsel.

Might I say generally about these matters that are remitted, there may be advantage, I think, if the transcript of proceedings on the application for remitter is drawn to the attention of the judge who ultimately hears it. That may avoid some difficulties that seem to have emerged about the way in which these cases are being dealt with in this Court.

Call the next matter.

AT 10.01 AM THE MATTER WAS CONCLUDED