Cujba, Ex parte - Re Minister for Immigration and Multicultural Affairs & Anor S38/2001 [2001] HCATrans 158 (11 April 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S38 of 2001

In the matter of -

An application for Writs of Prohibition and Certiorari against the MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

LORETTA BAXTER

Second Respondent

Ex parte -

NICOLAE CUJBA

Applicant

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 11 APRIL, 2001, AT 9.32 AM

(Continued from 22/3/01)

Copyright in the High Court of Australia

MR R.W. KILLALEA: I appear for the applicant, your Honour. (instructed by Low & Associates)

MR R.T. BEECH-JONES: I appear for the respondent, your Honour. (instructed by Sparke Helmore)

MR KILLALEA: Since we were last before your Honour we have taken the substance of the matter before your Honour here in this Court to the Federal Court. If I can show your Honour a copy of the application for review for Nicolae Cujba which is currently being heard in the Federal Court. The reason I show that to your Honour is that it covers - the grounds of the application are under section 476(1)(b), (1)(c) and (1)(e), and in respect of each ground the argument is that the jurisdictional fact of the Minister's satisfaction under paragraph 131(1)(b) was not lawfully satisfied.

That was the issue which we had sought to agitate before your Honour and in the circumstances of the matter now being before the Federal Court we ask for an order in these terms, that the matter be discontinued with costs in the cause below, that is, in the Federal Court proceedings.

HIS HONOUR: Yes. Now, one of the problems that arises from the decision in Abebe is questions of estoppel between two sets of proceedings, but that is probably obviated if you discontinue here, I think - let me just look at the discontinuance rule - rather than have an order for dismissal, do you see what I mean.

MR KILLALEA: Yes.

HIS HONOUR: Order 27. It is Order 27. That would have the result you would carry the costs. That is what Order 27 would produce. Unless something else is done, that is the prima facie position established by Order 27.

MR KILLALEA: Yes. I wondered if your Honour might simply make an order that the costs be costs in the cause in the Federal Court.

HIS HONOUR: Do you have anything to say about that, Mr Beech-Jones?

MR BEECH-JONES: I am instructed to seek costs, your Honour. I obviously do not oppose the discontinuance.

HIS HONOUR: It would mean you would get your costs if you won in the Federal Court.

MR BEECH-JONES: On my friend's case, yes, your Honour, but, look, all I could really say is we would have to reargue the merits, in one sense, of my friend's order nisi, but it was difficult to see how he was ever going to get a constitutional writ, even if he established his grounds.

HIS HONOUR: Yes, but litigants are entangled in this jurisdictional problem which is produced by federal legislation.

MR BEECH-JONES: I think that has been said numerous times, your Honour.

HIS HONOUR: So I think I should do as is sought. I will grant leave to the applicant to discontinue but without prejudice to the continued prosecution by him of matter number - what is the matter number in the Federal Court?

MR KILLALEA: N315 of 2001.

HIS HONOUR: Three one?

MR KILLALEA: Five.

HIS HONOUR: Just give me the whole thing. Three one?

MR KILLALEA: Five of 2001.

HIS HONOUR: Yes. It has a S number, has it?

MR KILLALEA: N, N315, sorry, your Honour.

HIS HONOUR: M?

MR KILLALEA: N for Nellie.

HIS HONOUR: Do you know what that stands for?

MR BEECH-JONES: New South Wales.

HIS HONOUR: I suppose that is right, yes.

MR BEECH-JONES: It must have changed since your Honour was there.

HIS HONOUR: It has. I have said grant leave to the applicant to discontinue but without prejudice to the continued prosecution by him of matter No N315 of 2001 in the Federal Court of Australia. The costs of the proceeding in this Court will follow the costs of the Federal Court proceeding. Does that deal with the matter?

MR KILLALEA: Yes, thank you, your Honour.

HIS HONOUR: Very well, thank you, gentlemen. I will now adjourn.

AT 9.38 AM THE MATTER WAS CONCLUDED