Applicant S378/2002, Ex parte - Re MIMA & Ors S378/2002 [2002] HCATrans 619 (9 December 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S378 of 2002

In the matter of -

An application for Writs of Prohibition, Mandamus and Certiorari against MR PHILIP RUDDOCK MHR MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND DR IRENE O'CONNELL IN HER CAPACITY AS A MEMBER OF THE REFUGEE REVIEW TRIBUNAL AND STEVE KARAS IN HIS CAPACITY AS A PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Respondents

Ex parte -

APPLICANT S378/2002

Applicant/Prosecutor

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 9 DECEMBER 2002, AT 9.54 AM

Copyright in the High Court of Australia

MR A. MARKUS: If your Honour pleases, I appear for the first respondent. (instructed by Australian Government Solicitor)

HER HONOUR: Now, is this the one where there has been a consent signed?

MR MARKUS: Yes, your Honour.

HER HONOUR: This notwithstanding - Mr Markus, I should call this matter.

MR MARKUS: I think your Honour should, yes.

HER HONOUR: How do I do that?

MR MARKUS: I think your Honour should just call Applicant S378 of 2002.

HER HONOUR: It is not likely to be very effective but I will - - -

MR MARKUS: Your Honour, I accept that but, having said that, the applicant does not appear to be in the premises.

HER HONOUR: If he were - it is a he, is it?

MR MARKUS: It is a he, yes.

HER HONOUR: If he were, he might not even have - - -

MR MARKUS: I accept that, your Honour.

HER HONOUR: - - - any idea that he is being called. But call Applicant S378 anyway, please, Mr Deputy Registrar.

DEPUTY REGISTRAR: No appearance, your Honour.

HER HONOUR: I should indicate at this stage then that the Deputy Registrar has certified that he has been informed by the solicitor for the second and third respondents that they do not intend to appear at the hearing and that they will submit to the order of the Court save as to costs. There is on file a consent to the remission of this matter to the Federal Court on terms as set out in that consent, apparently signed by the applicant/prosecutor. I wonder, Mr Markus, if you can - - -

MR MARKUS: If I can just briefly address your Honour in relation to the proposed orders and I have heard what your Honour has said to Mr Reilly in the earlier matter.

HER HONOUR: Yes.

MR MARKUS: Your Honour, this is a privative clause decision. Having said that, your Honour, there is no time issue in this case. So the question of section 486A of the Migration Act does not arise. The Federal Court of Australia would have the same jurisdiction as would this Court.

HER HONOUR: Yes. The difficulty I have, apart from the fact that I feel one should obey the law until it is clear - when I say "obey the law", one should, and one does not quite know what it is in this matter, but I suppose if it has been consented to and there would be a further term, I suppose, that the matter not be determined until the decision of this Court in, I think it is S134 - can you confirm that?

MR MARKUS: It is S134, yes, your Honour.

HER HONOUR: - - - of 2002 is handed down. That would solve the problem, would it not? It is just that at the moment one thinks if it goes to the Federal Court, they have made a particular decision and if they followed that decision, it would be - - -

MR MARKUS: Your Honour, I do not have any difficulty with that. I should say that from a practical perspective it seems impossible for the Federal Court to actually deal with this matter prior to the handing down of the High Court decision because it just will not be listed for hearing this term and the Federal Court does not start sitting again until February. So it seems to me that from a practical perspective it just will not happen.

HER HONOUR: What I am trying to avoid, Mr Markus, is a ping-pong game if matters turn out that way. Do you understand?

MR MARKUS: I do understand what your Honour is saying about that, yes.

HER HONOUR: Yes. So if I make orders in accordance with the consent filed in the Court that the further proceedings in this application be remitted to the Federal Court of Australia Sydney Registry, that the application proceed in that court as if the steps already taken in this matter had been taken in that court and that the Deputy Registrar forward to the proper officer of that court photocopies of all documents filed in this case and make the further order that the matter not proceed - I do not know if I can make that order - if I can seek an undertaking from you that you will not proceed to a final determination of the matter before the decision is given in matter S134 of 2002, would that be satisfactory?

MR MARKUS: Yes, your Honour. I am happy to give that undertaking.

HER HONOUR: Thank you. Upon that undertaking, I will make orders as in the consent to remission signed by the applicant and the solicitor for the first respondent and initialled by me and placed in the papers. I certify for the attendance of counsel.

MR MARKUS: Thank you, your Honour.

HER HONOUR: That is, I think, all that need be done, is it not?

MR MARKUS: Yes, thank you, your Honour.

HER HONOUR: Yes, thank you, Mr Markus. On that basis, the Court will now adjourn. Thank you.

AT 10.01 AM THE MATTER WAS CONCLUDED