Lu, Ex parte - Re MIMA M109/2001 [2002] HCATrans 541 (31 October 2002)

Office of the Registry

Melbourne No M109 of 2001

In the matter of -

An application for a Writ of Prohibition or for an Injunction or for orders in the nature of Certiorari against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Ex parte -

HO SONG LU

Applicant/Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 31 OCTOBER 2002, AT 9.34 AM

Copyright in the High Court of Australia

MR T.V. HURLEY: If it please the Court, I appear on behalf of the prosecutor/applicant in the proceedings, who is the respondent today. (instructed by Haines & Polites)

MR J. BASTEN, QC: I appear for the respondent and the applicant on the motion. (instructed by the Australian Government Solicitor)

HIS HONOUR: Yes, Mr Basten.

MR BASTEN: Your Honour, the matter has progressed slightly since we filed this motion and I think if I understand the position rightly, the present position of the applicant is that he does not in effect pursue any of the relief that he sought in November 2001 prior to the present decision to cancel being made, but he now seeks to agitate the correctness of that decision and he has filed, or his solicitor has annexed to an affidavit, a further draft order nisi for consideration which, while seeking an injunction, in substance, is a challenge to the decision made by the Minister 14 March 2002.

It seems to us in those circumstances that what we said about the original application is correct and that there is no utility in that application remaining on foot because there is no relief which is now sought pursuant to it. I am not sure whether the proposal at the moment is that there be an amendment of the application which was made last year. If there is, we would say that that is inappropriate. There really is no power to amend an application for an order nisi. Order 29 seems to have no operation in that context. In any event, as I indicated, I think this is really a fresh matter.

HIS HONOUR: It is an application to commence a matter.

MR BASTEN: That is so, yes. The matter which is the subject of the application is the fresh matter, your Honour is correct. The only reason, as I understand it, that the applicant wishes to keep the old application on foot - and this I draw by inference, I may be wrong about this - is that there is probably a time problem in relation to the new order nisi if it is treated as a new application because of the fact that the decision was made on 14 March. That raises a question, I suppose, as to what your Honour would do with that fresh application today. It may be that nothing can be done with it, so that at the end of the day we seek an order that the 2001 application be struck out and it may be appropriate to discuss what should happen with the fresh application as a separate matter. That is the position, as I see it, your Honour.

HIS HONOUR: Yes, Mr Basten. Yes, Mr Hurley.

MR HURLEY: Your Honour, we are in substantial agreement with my learned friend that the relief that was sought in the proposed order nisi that was filed in November had been overtaken by events. We would, with respect, differ as to whether we are commencing a matter. We submit, your Honour, the position is that the Court has not yet considered whether to grant an order nisi and that when it does come to that point, that it will decide whether to grant an order nisi on the material before it at that time and in the circumstances at that time.

Now, it is unarguable that the dispute between the parties that was expressed in the originating affidavit has matured or developed into a decision but it is respectfully submitted that the fundamental dispute between the parties which existed between November and March and which is now subject to the decision made in March is not in any way so different or involving different parties or different sources - - -

HIS HONOUR: Well, it is altogether different subject matter of the application, is it not? You now seek to challenge a decision. Previously you sought to intercept a decision being made.

MR HURLEY: Yes, your Honour. What was quia timet has a perceived - an application to prevent something has now been overtaken because that event has happened. The reason I am making this submission, your Honour, is, as my friend has said, there are perceived difficulties on behalf of the applicant in now starting fresh proceedings, not that we would concede they are insuperable, but that we submit that because the proceeding involved the same parties and the same, as it were, status and obligations, that the question is not now - the Court should now decide to allow the application to proceed to consideration as to whether an order nisi should issue with the Court considering the situation as at that date.

Now, as at that date the Court will have the decision of March before it and the question would be whether an order nisi should issue in respect of that.

HIS HONOUR: But for the moment what is sought against you is an order, which I take to be an order to this effect: that the application for order nisi in the form being exhibit HSL-38 to the affidavit of Ho Song Lu sworn 12 November 2001 be dismissed. That I take to be the application against you. On that understanding, what do you say to my making an order of that kind?

MR HURLEY: Only this, your Honour, that it is not now the application which my client seeks to make. He seeks to rely on the order nisi which is exhibit HSL-41 - - -

HIS HONOUR: HSL-41, I think, to the affidavit of A.J. Cope of 25 October. Yes, I understand that, but do you say I should not make an order that an application for order nisi in the form of exhibit 38 be dismissed?

MR HURLEY: I cannot resist it, your Honour.

HIS HONOUR: The consequence may be a consequence, first, as to costs and, second, it would, I think, likely point to a conclusion that the application for order nisi which you would seek to make would be an application which, at least arguably, is to be regarded as having been commenced on the filing of 25 October 2002, with whatever consequences that may have.

MR HURLEY: Arguably, your Honour, yes, I - - -

HIS HONOUR: That seemed to me to be where we got to and that the procedural thicket that might appear to be being presented is in fact one that we need to look at, we need to beat our way through to to an end of, but is a procedural thicket that really comes to this: you either made or foreshadowed an application for order nisi in November 2001. You do not prosecute that for reasons which are evident. You now seek to prosecute an application that is made or evidenced by the filing of the further affidavit in October 2002. That is where we have got to, is it not?

MR HURLEY: Yes, your Honour, that is where we have got to.

HIS HONOUR: Now, what do you say I should do about this further application foreshadowed by the affidavit of October 2002? That is, what do you say I should do today about that?

MR HURLEY: Your Honour, we would ask that it be adjourned for a period of approximately six weeks so that my side could present contentions in three, or two, and my opponent in a further two.

HIS HONOUR: That will simply take us past the end of the year and into next year. That may well be inevitable. Is it an application which depends in any way upon the outcome of the matters S134 and S157 which are now reserved before the Court and which concern at least some aspects, but I think not all, of the amendments to introduce privative clause decision provisions?

MR HURLEY: It must, your Honour, because, as we have conceded in our submissions, the decision that the Minister has made which we would seek constitutional writs in respect of is a privative clause decision made after 2 October because this proceeding was drawn in one regime and issued in another. So the answer to your Honour's question is it would be affected by those reserve matters on the basis that all privative clause decisions, in our submission, will be - - -

HIS HONOUR: There is, I think, a challenge to the validity of the 35-day limit. That may then invite attention to questions of the six-month limit on certiorari - it may not - even if the 35-day limit were to be held invalid and, of course, until that case is decided I express no view about its validity or invalidity. Those are matters on which we stand reserved. Then if it depends in any respect upon S134 and S157, is there any utility in directing submissions? Is there utility in standing the matter over to a fixed date? Or does it simply await the outcome of S134 and S157?

MR HURLEY: It does depend on that, your Honour, in this sense. Clearly what concerns this end of the Bar table is the time limits that affect the applicant's circumstances. The merits of that are matters that can await determination, but absent those time limits - - -

HIS HONOUR: And do you refer to anything other than the 35-day and six-month time limits? Are there other time limits that I should be conscious of?

MR HURLEY: Your Honour, there is a time limit of 35 days to apply to the Federal Court in respect of the decision of the Minister, which is found in, I think, section 477, but that is not, as I understand it, the subject of consideration by the High Court in any matter before it.

HIS HONOUR: It is going to be for your side to take whatever steps it thinks necessary to preserve its position and you should not - I repeat not - act on the assumption that if I stand the matter out of the list that I thereby intend in any way to protect your position for you. That is entirely your side's responsibility to work out what it has to do to protect its position. Sorry to be so unhelpful, but I do not want it later to give rise to some misunderstanding.

MR HURLEY: It is clear, your Honour.

HIS HONOUR: Yes.

MR HURLEY: But in response to my friend's notice of motion, we do not dispute that at the time it was issued the relief that was sought had been overtaken and therefore it is futile in that sense.

HIS HONOUR: Yes, and the reasons for it being overtaken are well apparent from the frequency and pressing nature of the communications your instructors tried to have with the principal who sought the relief, but there we are.

Now, Mr Basten, I am minded to make an order that either the application or any application for an order nisi in the form being exhibit HSL-38 to the affidavit of Ho Song Lu sworn 12 November 2001 stand dismissed. What other steps, if any, do you say I should take? In particular, what steps do you say I should take in connection with the application foreshadowed by the further draft order nisi of October?

MR BASTEN: Your Honour, in relation to the first one, we would seek an order that it be dismissed with costs. It appears from Mr Fell's affidavit that notice was given of our intention to do this and we sought to do it by consent and that was not possible. In relation to the second matter: S157, of course, was a challenge to the validity of 486A and the time limit in this Court. If that provision remains on foot, then it would be necessary to establish a factual matter, namely the date of actual notification, and that might itself involve questions of both fact and law.

There is nothing, I would think, that your Honour would wish to do to give further directions in relation to this matter in the abstract, as it were, until we know the answer to those questions. So I would not submit that any other order would be appropriate.

HIS HONOUR: And it seemed to me to depend on what was happening in S157 and S134 and therefore futile, but if the Minister has some other view to press, now is the time to do it.

MR BASTEN: The only alternative proposition I was going to put to your Honour was this: the only preclusion on remittal under the Migration Act is now in section 476(4), which does not address the sort of situation which arises here. So long as the Minister was not precluded from taking the time point and therefore the invalidity of the application in this Court in the Federal Court, we would not oppose a remittal of the whole of the matter to the Federal Court, otherwise it will have to come back before your Honour or a single Judge of this Court for further consideration.

HIS HONOUR: This is question rather than statement in the form of a question, Mr Basten: do we encounter any difficulty in making a remitter which has certain intrinsic attraction to it on the basis that - what is the prohibition? The prohibition is against us remitting where we do not have jurisdiction. Sorry, what is the remitter provision?

MR BASTEN: There used to be a provision in those terms, your Honour. The remitter provision now I think is limited to 476(4), which only - - -

HIS HONOUR: Yes:

Must not remit . . . if it relates to a decision or matter in respect of which -

the court to which it is remitted "would not have jurisdiction", yes.

MR BASTEN: Yes, "because of this section" which would not be - - -

HIS HONOUR: Which therefore does not pick up the time.

MR BASTEN: It does not pick up the time.

HIS HONOUR: Yes, I see.

MR BASTEN: I make the qualification clear that we would wish to reserve our rights in relation to an argument based on the time provisions, both in 476 and in the High Court Rules.

HIS HONOUR: So both the 35-day question and the six-month question.

MR BASTEN: Yes.

HIS HONOUR: Yes.

MR BASTEN: I say that for this reason, that I am not sure what course this Court would take if that were not a difficulty, but there would then be a question as to whether it was an arguable matter which should go to a Full Court. At that stage the remitter issue would arise and at that stage there would be no doubt that it could be remitted to the Federal Court in toto.

HIS HONOUR: Given that there is at least an area for factual controversy about time of notification and therefore time at which the 35-day limit is to be engaged if it is valid, there seems much to be said for remitting.

MR BASTEN: Yes.

HIS HONOUR: And you say to the Federal Court, not to the Magistrates Court?

MR BASTEN: I think it is a matter - I would say to the Federal Court, your Honour.

HIS HONOUR: Yes, I am not pressing you to say otherwise.

MR BASTEN: It could go to either, but only for this reason, that I am not aware of there being decisions about the meaning of actual notification and what needs to be determined in that regard and it would seem appropriate that a judge would deal with that in the first instance and not have the matter dealt with twice perhaps.

HIS HONOUR: Yes. Now, Mr Hurley - I am sorry, Mr Basten.

MR BASTEN: Your Honour, could I just - I am sorry. I should say something else. It was not clear to us before we came here this morning what would happen about this new application. We are just getting some instructions about the Minister's position in relation to that which I just put to your Honour, but I should indicate that I need to just confirm that that would be an appropriate course from the Minister's view.

HIS HONOUR: Otherwise you have gone a furlong ahead of where you should be, Mr Basten.

MR BASTEN: Indeed.

HIS HONOUR: Yes. On that hypothetical, Mr Hurley, first, the question of costs. It is hard to resist, is it not?

MR HURLEY: I cannot resist. I do not consent to it. I cannot resist it.

HIS HONOUR: I understand that. Now, if the Minister does not wish to be heard further against remitter, why should I not remit to the Federal Court?

MR HURLEY: We would have no objection to the matter being remitted to the Federal Court, your Honour. We have no objection to the matter being remitted to the Federal Court.

HIS HONOUR: And that would be on the clear basis that the Minister does not, by suggesting remitter, suggest that he thereby gives up any reliance on whatever applicable time limit may exist. The Minister would wish to pursue the argument that you are time barred.

MR HURLEY: That basis is understood, your Honour. That basis is clearly understood.

HIS HONOUR: Yes. Now, Mr Basten, do you need some more time if I - - -

MR BASTEN: I may do, your Honour. In fairness to my friend, there is another issue, which, I am sorry, I have not thought this through fully. Supposing that the 486A time bar were not preclusive, there would be an issue as to whether leave should be granted presumably, on one view of it anyway, under the six-month - - -

HIS HONOUR: Yes, but that would go down anyway, would it not?

MR BASTEN: Yes, and as long as that is a matter which can be the subject - otherwise my friend is going to be prejudiced by being sent back to a court which does not have power to extend time.

HIS HONOUR: Well, I had thought that if it was sent down, the Federal Court had the powers that the High Court has, including relevantly the power to extend time.

MR BASTEN: Yes.

HIS HONOUR: But I was not conscious of any difficulty about that.

MR BASTEN: No. I wished to make it clear that that was accepted and - - -

HIS HONOUR: And this question of mandamus and the like for the citizenship side of it would also simply fall for determination in that court.

MR BASTEN: That is so, yes. I do not need further time. Those submissions are appropriate.

HIS HONOUR: All right. I do not want you caught on the hop about it.

MR BASTEN: No, thank you, your Honour.

HIS HONOUR: Very well. There will be orders then as follows:

(1) The application for an order nisi in the form being exhibit HSL-38 to the affidavit of Ho Song Lu sworn 5 October 2001 is dismissed with costs;

(2) Remit the application for order nisi in the form being exhibit HSL-41 to the affidavit of A.J. Cope sworn 25 October 2002 to the Federal Court of Australia.

There would then be the usual orders and directions consequent upon remitter and I would certify for the attendance of counsel.

Otherwise, do counsel wish to say anything further? Yes, Mr Basten?

MR BASTEN: Your Honour, there is only one other matter and it may become apparent from the transcript as to what has happened today, but it appears that the second order nisi has been identified as filed in existing proceedings, namely M109 of 2001. I think it is clear from your Honour's orders that what has been remitted is the application annexed to the affidavit of 25 October of this year. I do not know whether that should in truth have been part of a separate proceeding or not in this Court.

HIS HONOUR: I spent a little time looking at what authority I could find about when an application for constitutional writs is to be regarded as being made. My tentative view, subject to anything that counsel might have told me, was that it is made at the time when the affidavit exhibiting the order nisi on which the applicant moves is filed and that it is not made until that time. In a case such as the present, where there are two draft orders nisi filed, difficulties which might arise seemed to me to go away when it was recognised that the orders nisi related to entirely different subject matters.

Had the second related to the same subject matter but, for example, proposed additional grounds, perhaps even proposed entirely substituted grounds, although the point may be not beyond argument, the better view seemed to me to be that in such a case the application was made at the time of filing the first of the draft orders nisi. By contrast, where, as here, the subject matters of the draft orders nisi are wholly different and, as it happens, the grounds inevitably are wholly different, it seemed to me that the application was made at the time of the filing of the second document.

So much seemed to me to follow from R v Murray and Cormie; Ex parte The Commonwealth [1916] HCA 58; (1916) 22 CLR 437 at 466 per Justice Higgins. So much seemed to be consistent with the decisions to which Justice Higgins referred, namely Ex parte Evans (1842) 2 Dowl (NS) 410, not a report found in the English Reports, consistent also with R v Plymouth and Dartmoor Railway Co (1890) 37 WR 334 and perhaps also Breedon v Capp 7 Jur 781, the year of decision of which eludes me.

It is also, it seemed to me, consistent with what is said in Re McBain; Ex parte Catholic Bishops 76 ALJR 703 and Re The Commonwealth; Ex parte Marks [2000] HCA 67; 177 ALR 491 at 492 to 493 per Justice McHugh. It would be consistent also, I think, with various State authorities, Victorian authorities with which I am familiar, about time of application for process like orders to review decisions of justices and the like that those are to be regarded as having been made for time purposes at the time of filing of the paper rather than at the time of counsel moving in court. Those were the impressions that I had formed of the matter but they were impressions not assisted by argument from counsel.

MR BASTEN: We would happily accept all of that, your Honour.

HIS HONOUR: I am sure you would, Mr Basten.

MR BASTEN: I am indebted to your Honour for the work that your Honour has put into those tentative views.

HIS HONOUR: Nothing else that counsel need to raise?

MR HURLEY: No, your Honour.

HIS HONOUR: Thank you. Then the orders will be in those terms and I will adjourn.

AT 10.06 AM THE MATTER WAS CONCLUDED