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High Court of Australia Transcripts |
Melbourne
CALLOVER OF 494 IMMIGRATION
HAYNE J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON FRIDAY, 7 FEBRUARY, 2003 AT 11.12 AM
Copyright in the High Court of Australia
HIS HONOUR: Before we begin this morning, there is a statement that I wish to make. It is this. On 4 February 2003 the Court gave judgment in the matter of Plaintiff S157 of 2002 and also in the matter of S134. The Court held that the definition of "privative clause decision" in Part 8 of the Migration Act refers to decisions involving neither - and I emphasise "neither" - a failure to exercise jurisdiction, nor an excess of the jurisdiction conferred by the Act. See what is said in the joint judgment at paragraph 76. Accordingly, neither section 474 nor section 486A of the Act, upon their proper construction, bars or limits the exercise of the jurisdiction of this Court where it is alleged that there has been jurisdictional error. See paragraphs 87 and 92.
The Court further held that the limitation upon the power of this Court under section 44 of the Judiciary Act to remit proceedings to the Federal Court of Australia is controlled by the construction given to section 474. See paragraphs 94 and 95.
That being so, unless cause is shown to the contrary, I propose this morning to order that the proceedings now pending in this Court initiated after the coming into operation of the privative clause provisions in Part 8 of the Act be remitted to the Federal Court. Orders for remitter were made in most, but not all, matters pending in the Sydney Registry of the Court yesterday by her Honour Justice Gaudron. To the extent to which a remitted proceeding alleges jurisdictional error, the Federal Court will have jurisdiction to hear and determine the proceeding.
Now, the course of proceeding that I propose to adopt today, not previously having had 494 matters in a list of cases with which I have had to deal, is indicated on the callover list that I think representatives of parties and others should have received on their way into Court. So I will deal first with the Adelaide matters, then deal successively with matters in which counsel are engaged generally in order of seniority and so on down the list.
Now, I will ask my associate to give to counsel now a copy of the pro forma order that is under consideration for being made. It is an order of the kind that was adopted for by far and away the bulk of cases pending in the Sydney Registry. There were, I think, something of the order of eight or ten cases in which variants had to be adopted but, generally speaking, the order followed this form.
I will deal with matters in groups. It is, I think, the only way in which I am going to deal with them. I will deal with them without calling the numbers of the matters concerned. If I had them called, we would be here all day just calling the list. Because I have asked those appearing to fill in a form about appearance, there will be no need to formally announce appearances, leave aside announce appearances in identified matters. Again, we will be here all day if we do it.
Now, that is the general plan of attack for today. Can I just say this, that towards the end of the list we have a number of matters in which parties are appearing for themselves. Some of those parties who are appearing for themselves have asked for, and arrangements have been made for, the provision of interpreters. I will go through again, when we get to the end of the list, a shorter explanation of what is happening, but if practitioners, if representatives, particularly of the Minister, feel in a position where they can offer assistance to litigants in person who have questions no doubt that they will want to ask, I would be most grateful indeed if that assistance could be offered. We have a lot of work to do. There is a great risk that people will be bewildered by what is happening. I will try as best I may to explain to people what is happening, but any assistance that the profession can offer in that regard is of obvious advantage to all concerned.
All that being said, can we move first to the Adelaide matters.
At 11.19 am - Adelaide matters
MR M.W. CLISBY appeared for the applicant. (instructed by Mark Clisby)
MS S.J. MAHARAJ appeared for the respondent Minister. (instructed by Sparke Helmore)
HIS HONOUR: Now, Mr Clisby and Ms Maharaj, you have, I think, the whole of the Adelaide list between you. Is there any reason why I should not make an order to the form of the order that has just been given to you, Mr Clisby, remitting the matters to the Federal Court?
MR CLISBY: No, that is by consent, your Honour.
HIS HONOUR: Yes. You are content, are you, Ms Maharaj?
MS MAHARAJ: If it please your Honour, we agree to the remitter.
HIS HONOUR: Very well. Then there will be orders in each of the Adelaide matters in the form of the pro forma for remitter. We will go from Adelaide next to those matters in which Mr Dean appears.
At 11.20 am - Block 2
MR M.E. DEAN, SC appeared for the applicant. (instructed by Slater & Gordon)
MR C.J. HORAN appeared for the respondent Minister. (instructed by Australian Government Solicitor)
HIS HONOUR: Mr Dean.
MR DEAN: Your Honour, I appear in the matter of M190 of 2002.
HIS HONOUR: And you, I think, Mr Horan, have the Minister's representation in the Melbourne matters.
MR HORAN: Yes, in all of the Melbourne matters.
HIS HONOUR: I should have said, and did not, in the Adelaide matters that I hold a certificate from the Deputy Registrar that she has been informed that the Refugee Review Tribunal and the named members of that Tribunal submit to any order of the Court save as to costs, as do the Migration Review Tribunal and named members of that Tribunal. I also hold a certificate from the Deputy Registrar in all of the matters filed in the Melbourne office that she has been informed to like effect by the Tribunal and named members of the two Tribunals, the Refugee Review Tribunal and Migration Review Tribunal.
Now, Mr Dean, what is the position?
MR DEAN: There is no reason why this matter should not be remitted to the Federal Court pursuant to - - -
HIS HONOUR: Yes. Do you want to be heard against it, Mr Horan?
MR HORAN: Only in one respect, your Honour. I am not sure whether it arises in relation to these matters particularly, but could I just say by way of general statement which covers all of the matters that the Minister consents to and seeks the remittal of all matters to the extent possible, so that is to the extent to which those matters are within the Federal Court's jurisdiction.
HIS HONOUR: I cannot by my order give the Federal Court what I do not have and what they do not have.
MR HORAN: Yes, or, more particularly, what they do not have in the sense that there is provision in the Act excluding the Federal Court's jurisdiction in relation to the section 417, section 351 decisions which are the non-compellable discretions of the Minister.
HIS HONOUR: And those were dealt with in S134 in a fashion that would not encourage pursuit of such claims, I think is the most delicate way in which I might put it.
MR HORAN: Certainly. On the basis of those comments, I think in particular paragraphs 48 and 100 of the judgment in S134, the Minister would seek the dismissal today of all matters that exclusively seek review of decisions under either of those two sections and, secondly, dismissal where applications seek review of both a Migration Review Tribunal decision or a Refugee Review Tribunal decision and a decision under section 351 or 417 that the remittal be a remittal in part and that the latter decisions that the application be dismissed insofar as it seeks review of those decisions.
HIS HONOUR: Now, if we are to consider going down that path, we are going to have to do it by reference to specific matters and you are therefore going to have to take up with the representatives of the parties concerned whether that disposition is agreed in, opposed or what the outcome is. I think - and I may not have this entirely accurate because we had only some of the transcript of Sydney available - the transcript writers have done a most remarkable effort getting that to us - but I think in Sydney there were some matters where 417-type issues arose where there was either a consent dismissal or a rejigging of the application for order nisi, so that in Sydney there were some matters where, by consent, amendments were made to the order nisi in respect of which application was made, so amendments to the draft.
Now, I understand the position. We are going to have to deal with them either globally by my simply remitting what I can or, if you want a more refined order, we are going to have to do it matter by matter. Mr Horan, I am very much in your hands.
MR HORAN: Yes. One alternative might be to, in the remittal order which is made in all matters, have an exception which will be redundant and inapplicable in most matters but which excludes review to the extent that it seeks review of a decision falling within the limitation on the Federal Court's jurisdiction in section 476(2).
HIS HONOUR: I am hesitant to depart in that way from what was done in Sydney yesterday.
MR HORAN: Yes. The alternative would be to, as your Honour suggested, identify the particular matters concerned and, unless the applicant seeks to amend their draft order nisi, either to replace the decision sought to be reviewed with a decision within the jurisdiction of the Federal Court, or removes any part of the application which is outside the Federal Court, then specific orders could be made in those matters which address the particular circumstances.
HIS HONOUR: Can you give me any indication of the number involved? Are we talking fives, tens, twenties, what?
MR HORAN: I can hand up to your Honour a list maybe for present purposes so that your Honour gets an idea of the spread. The great majority are in what I will call category 3, which is a full remittal, where there is no such issues as I have outlined. Category 1 on this list, there are 10 matters which, in the form that they currently stand, cannot be, in my submission, remitted because they seek review of a section 351 or a section 417 decision. I might say in relation to two of those matters, M52 and M53, I believe an amended order nisi has been filed which seeks to replace the decision with a Tribunal decision and that would make those two fall down into category 3.
HIS HONOUR: Mr Horan, I understand the difficulty. I think you will need, or perhaps those instructing you will need, to take up the specific cases with those who are representing the persons concerned. Let us leave aside for the moment how we deal with the litigants in person. They, I think, may have to be dealt with rather separately, but can you or those instructing you take up these cases with those who have the carriage of them for the applicants and see where we get to?
MR HORAN: Certainly. The list of the order of proceedings for this morning identifies matters by reference to their representative but does not number them, so it might just take a moment to cross-reference my list.
HIS HONOUR: I understand that. These things happens. Okay. Now, is it a concern of Mr Dean or not?
MR DEAN: It is not an issue in this application, your Honour.
HIS HONOUR: Is that so, Mr Horan, as you understand it?
MR HORAN: Your Honour, in this particular proceeding it does not involve the issues I have raised.
HIS HONOUR: There will be an order then in M190 of 2002 for remitter in the standard form. Yes, thank you, Mr Dean.
MR DEAN: If I could just indicate, your Honour, my learned friend Mr Gilbert and I would be available to assist the Court in relation to those unrepresented applicants who are here today.
HIS HONOUR: I would be indebted.
MR DEAN: I am not quite sure how your Honour would like us to do it.
HIS HONOUR: Nor am I, Mr Dean, nor am I. A generalised undifferentiated cry for help is about all you are hearing from me, which is not particularly useful.
MR DEAN: Perhaps those who are present - if I went outside and perhaps Mr Gilbert and myself could perhaps try and make some arrangements to assist the unrepresented applicants.
HIS HONOUR: Yes, thank you. Thank you very much indeed. Before you purloin Mr Gilbert, his matter is, I think, next.
At 11.30 am - Block 3
MR W.G. GILBERT appeared for the applicant. (instructed by Erskine Rodan & Associates)
MR C.J. HORAN appeared for the respondent Minister. (instructed by Australian Government Solicitor)
HIS HONOUR: Now, Mr Gilbert - - -
MR GILBERT: There is no cause, your Honour, why this matter should not be remitted.
HIS HONOUR: Yes.
MR GILBERT: It falls into the category 3 that Mr Horan has indicated to your Honour.
HIS HONOUR: Yes. Mr Horan, this is M183 of 2002?
MR HORAN: Yes, this is a category 3 case on the list.
HIS HONOUR: There will be an order for remitter in the ordinary form in matter M183 of 2002.
MR HORAN: As your Honour pleases.
HIS HONOUR: Thank you. Next are Mr Hurley's matters.
At 11.31 am - Block 4
MR T.V. HURLEY appeared for the applicant. (instructed by Armstrong Ross)
MR HURLEY: Your Honour, there were three, there are now two.
HIS HONOUR: Yes, now M30 of 2002, a notice of discontinuance has been filed, is that so?
MR HURLEY: That being so, no order is needed in M30 of 2002, am I right?
MR HURLEY: Yes, your Honour, no order is required.
HIS HONOUR: We are left then with matters M209 and M210 of 2002. Is there any reason not to make an order for remitter?
MR HURLEY: Yes, your Honour. If they raise directly these section 417 points, they cannot be remitted. The order nisi pleads a form of jurisdictional error as it was perceived when the proceedings were drawn.
HIS HONOUR: How do they survive what was said in S134?
MR HURLEY: That is, as was said in S134, a conundrum or within a conundrum, your Honour.
HIS HONOUR: How does it sit with the outcome of S134 is perhaps the more pressing question that would need to be confronted, is it not?
MR HURLEY: They face difficulties, your Honour, because the basis of the jurisdictional error was in analysis not dissimilar from that recognised in the failure to take into account certain documents that were meant to be before the Minister but apparently were not.
HIS HONOUR: Correct me if I am wrong, but is not one aspect of S134 that even were that so, what relief could go where mandamus cannot go to compel performance of a duty?
MR HURLEY: Only a declaration, your Honour, that the duty had not been performed. I do not know what attitude the Minister has in this, your Honour. What we would propose is that my client file written submissions, the respondent reply, and the matter be determined on the papers.
HIS HONOUR: I will stand it down in the list for the moment, Mr Hurley, and you can give further consideration to what course is to be adopted in these matters. I will simply stand the matters down, that is matters M209 and M210, and I will take them later in the list.
MR HURLEY: Thank you, your Honour.
At 11.33 am - Block 5
HIS HONOUR: Next, I believe are Ms Mortimer's matters. Ms Mortimer, those matters are M74, M215.
MS D.S. MORTIMER appeared for the applicants. (instructed by Wimal & Associates)
MR C.J. HORAN appeared for the respondent Minister. (instructed by Clayton Utz)
MS MORTIMER: Your Honour, there is no problem with M74 being remitted on those standard orders.
HIS HONOUR: Yes.
MS MORTIMER: M215 is a challenge under section 417 in a slightly different form, your Honour, and I am hopeful I can persuade my learned friend is not necessarily affected by what the Court said in Bhattacharya and I would ask for an opportunity to be able to do that.
HIS HONOUR: If I then, Mr Horan, make an order in M74 of 2002 remitting the matter.
MR HORAN: Yes, your Honour.
HIS HONOUR: Yes, there will be that order and I will stand down matter M215.
MS MORTIMER: Thank you, your Honour.
MR HORAN: If the Court pleases.
At 11.34 am - Block 6
HIS HONOUR: Next, we have Mr Krohn's matters.
MR A.F.L. KROHN appeared for the applicant. (instructed by K.P.Aravindan, Terrence O'Brien, Ravi James & Associates, Access Law, P.T. Associates, Zolis Lawyers, MSC Legal Services)
MR C.J. HORAN appeared for the respondent Minister. (instructed by Australian Government Solicitor)
HIS HONOUR: Mr Krohn, your matters are M6, M21, M93, M99, M107, M120, M141, M146, M147, M150, M164, M216, M110, M122 - - -
MR KROHN: May I just intervene at that moment, your Honour. In M110, Ravi James, the solicitor on the record, has been unable to obtain instructions, but I have no instructions. It is simply a matter of informing your Honour that it has not been possible to obtain instructions from the applicant in that matter.
HIS HONOUR: Yes, subject to that - and I will return to what is to happen in that matter - you appear in M122, M188, M205, M219, M232 and M238, is that right?
MR KROHN: I believe that is correct, your Honour. I checked the numbers on the document that I signed as I came in and I am sure that that document is correct, your Honour.
HIS HONOUR: Yes. Is there any of these in which an order for remitter should not be made?
MR KROHN: Yes, your Honour.
HIS HONOUR: Which ones?
MR KROHN: Your Honour, in M122 of 2001, that is No 423 in the list, that is at the moment solely concerned with an application to review a decision of the Minister. I am instructed that in that matter the applicant desires some short time to consider his position.
HIS HONOUR: Yes.
MR KROHN: Then, if I may mention also - I have mentioned to my learned friend, M99 of 2002, No 407 in the list, the applicant is happy for it to be remitted but desires to amend the application by adding one ground; it is a denial of natural justice ground.
HIS HONOUR: Is the amendment formulated?
MR KROHN: It is formulated. I have not yet had an opportunity to give it to my learned friend for him to consider but I have a copy and I can make a copy and that can be done today. It is in the form just of an additional paragraph at this stage, your Honour, it does not recapitulate the whole draft order.
HIS HONOUR: Yes, M407 is a problem. What other problems do you identify?
MR KROHN: If I may raise for your Honour's consideration this issue, that undoubtedly there are some of these matters which clearly are covered by paragraph 8(2) of the transitional provisions of the Migration Legislation Amendment (Judicial Review) Act. If I may mention, your Honour, not by way of objecting to remitter but to alert your Honour to it, that there is a category of cases in which quite a number appear where, in my submission, there is no explicit transitional provision which applies. Transitional item 8(1) states that the old Part 8 applies to any application for review which is made prior to the commencement date.
That is clear enough and it would appear that it applies simply to that application, that the old Part 8 does not apply explicitly to any later application for judicial review in another court of the same decision. Item 8(2) of the transitional provisions provides that if the decision is made after the commencement date or the decision sought to be reviewed is before the commencement date and at the commencement date there was no application which had been made for judicial review, then the new Part 8 applies, but it leaves - - -
HIS HONOUR: What consequence do these submissions have on whether or not an order for remitter should be made?
MR KROHN: This, your Honour, that if there is a case - there are cases where people made application to the Federal Court prior to the commencement date, so they had made an application for judicial review. They have later come to this Court. The consequence may be that depending on the view taken by judges of the Federal Court, it may be that it would be considered by the Federal Court on remitter that in some way the power of the Federal Court to consider other than the old Part 8 grounds would not be there. That is not the view of the applicants but - - -
HIS HONOUR: No doubt their Honours in the Federal Court will be either right or wrong in that outcome. If they are right, that will be demonstrated on appeal. If they wrong, that will be demonstrated on appeal. Why does that stand in the way of remitter?
MR KROHN: If your Honour were to remit a large number of matters and in that large number of matters some judges of the Federal Court were to decide that on the remitter there was a significant limitation on what the Federal Court could do, as your Honour says, it could be the subject of appeal, it could be the subject of many appeals. What I am proposing to your Honour is that it would be appropriate perhaps to include in those remitter orders a phrase or a clause effectively to the extent that the Federal Court has power and jurisdiction to determine the application that is remitted. I understand that your Honour would not be pleased with that result because it would leave these matters in the Registry.
HIS HONOUR: These are either being remitted or they are not being remitted, Mr Krohn. If they are remitted we will have the advantage of the views of the Federal Court if later some party considers that those views are erroneous. They are either being remitted or they are not. Why should I not remit them?
MR KROHN: In my submission, on a correct construction the Federal Court does have power to deal with them on remitter, so I cannot advance anything further, save simply to inform your Honour that in the past it has been an issue on which a number of single judges of the Federal Court appear to have divided the extent of the limitation provisions in the old Part 8, and perhaps also that, as I discovered yesterday in another court, there is quite a range of positions that can be taken on what happens when there is an explicit gap in the transitional provisions. But save that, your Honour, I have no reason to urge against remitter, except in those - - -
HIS HONOUR: You have mentioned M99, M122 and M110 as presenting separate questions, M110 for want of instructions, M99 and M122 for other reasons.
MR KROHN: Yes, your Honour.
HIS HONOUR: Apart from those - - -
MR KROHN: With respect, your Honour, there are no others.
HIS HONOUR: Yes. Mr Horan, leaving out of account M99, M110 and M122, is there any reason an order for remitter should not be made in those matters?
MR HORAN: There is an additional matter that the respondent has identified as a category 1, no remittal matter, which is M107. So that and M122 are the no remittal matters.
HIS HONOUR: Matters M99, M107 and M122 I will stand down for the parties to consider what they want to do about them.
MR HORAN: I am sorry, your Honour, there is a further one to M107 which I overlooked, it is M188.
HIS HONOUR: Then M188 is stood down.
MR HORAN: Thank you, your Honour.
HIS HONOUR: There will be orders for remitter then in M6, M21, M93, M120, M141, M146, M147, M150, M164, M216, M205, M219, M232, M238.
Dealing with M110, Mr Horan, where Mr Krohn was good enough to say that neither he nor his instructors had instructions, my inclination is to remit in any event, leaving it for the Federal Court to determine whether, in truth, the matter is abandoned rather than to conduct such an inquiry today. What do you say I should do?
MR HORAN: I have no objections to remittal of that matter.
HIS HONOUR: Then in M110 there will be no appearance on behalf of the applicant. Nonetheless, there will be an order for remitter. Now, Mr Krohn, that leaves four matters of yours undetermined. They are M99, M107, M122, M188. First member of the Bar who calls "Bingo" will have something to answer for.
MR KROHN: It never occurs to me, as I come to your Honour's Court, that I might win a prize, your Honour.
HIS HONOUR: Survival is all that counsel are concerned with, Mr Krohn.
MR KROHN: I have always thought so, your Honour.
HIS HONOUR: Exactly.
MR KROHN: Your Honour, may I ask that those matters be stood down while I consider and perhaps get instructions.
HIS HONOUR: Yes.
MR KROHN: Certainly it can be resolved today, your Honour.
HIS HONOUR: Yes. Yes, it will be resolved today, Mr Krohn.
At 11.47 am - Block 7
MR J.R. HAMILTON appeared for the applicant. (instructed by Di Mauro Solicitors)
MR C.J. HORAN appeared for the respondent Minister. (instructed by Clayton Utz)
HIS HONOUR: Now, what am I to do? Do you say there is any reason why I should not remit?
MR HAMILTON: No, your Honour, the applicant has no objection at all to the order for remitter.
HIS HONOUR: Mr Horan, M221.
MR HORAN: The respondent consents to remitter.
HIS HONOUR: Thank you. There will be an order for remitter.
MR HAMILTON: Thank you, your Honour.
At 11.48 am - Block 8
MR C.G. FAIRFIELD appeared for the applicants. (instructed by Satchi & Co and Sulaika Dhanapala)
MR C.J. HORAN appeared for the respondents. (instructed by Clayton Utz, Australian Government Solicitor and Blake Dawson Waldron)
HIS HONOUR: Mr Fairfield.
MR FAIRFIELD: Yes, Your Honour.
HIS HONOUR: You have the matters of M152, M169 and M174 I believe.
MR FAIRFIELD: That is correct, your Honour.
HIS HONOUR: Is there any reason not to remit any of those?
MR FAIRFIELD: Your Honour, the applicant prosecutors consent to the remittal in the matter of M152. In the other two matters I would submit, your Honour, that you should stand the matters down. They raise the issues identified earlier by my learned friend.
HIS HONOUR: Mr Horan, if I stand down M169, M174 but remit M152, do you wish to be heard?
MR HORAN: No, your Honour.
HIS HONOUR: There will be an order for remitter in M152. Matters M169 and M174 are stood down.
At 11.49 am - Block 9
MR S. SIVARASA appeared for the applicants. (instructed by K.P. Aravindan)
MR C.J. HORAN appeared for the respondents. (instructed by Australian Government Solicitor)
HIS HONOUR: Mr Sivarasa, you have matters M162 and M187 I believe.
MR SIVARASA: That is so, your Honour.
HIS HONOUR: Is there any reason not to remit those?
MR SIVARASA: No, your Honour. I have instructions to say that the applicants do consent to the order that this honourable Court enforces to make.
HIS HONOUR: Yes. Mr Horan, M162 and M187.
MR HORAN: The respondent consents to remittal.
HIS HONOUR: There will be an order for remitter in each. Thank you.
At 11.50 am - Block 10
MS N.P. KARAPANAGIOTIDIS appeared for the applicants. (instructed by the applicants)
MR C.J. HORAN appeared for the respondents. (instructed by Australian Government Solicitor, Clayton Utz, and Blake Dawson Waldron)
HIS HONOUR: Ms Karapanagiotidis, forgive me. My pronunciation is no doubt appalling, forgive me.
MS KARAPANAGIOTIDIS: Not at all, Your Honour. Your Honour, I seek leave of the Court to appear on behalf of 18 unrepresented applicants.
HIS HONOUR: Thank you. The ones for whom you seek to appear, as I understand it, are M8, M70, M76, M78, M81, M104, M120, M127, M134, M135, M153, M154, M196, M197, M217, M227, M233 and M234.
MS KARAPANAGIOTIDIS: That is correct, your Honour.
HIS HONOUR: Now, the position?
MS KARAPANAGIOTIDIS: There is no reason as to why these matters should not be remitted. I understand that they do fall within the category 3 of Mr Horan's list.
HIS HONOUR: Yes. Mr Horan, have you had a chance to check them off as we have gone?
MR HORAN: Would your Honour give me just thirty seconds.
HIS HONOUR: You have to be quicker, Mr Horan.
MR HORAN: I am instructed that they can all be remitted. I am indebted to my instructor.
HIS HONOUR: In other words responsibility rests there. There will be orders of remitter in matters M8, M70, M76, M78, M81, M104, M120, M127, M134, M135, M153, M154, M196, M197, M217, M227, M233 and M234. Do I have the full list?
MS KARAPANAGIOTIDIS: Your Honour, I believe that you do. If your Honour pleases, thank you.
HIS HONOUR: Yes, thank you very much for stepping into the breach. It is a matter of great assistance and we are indebted to you for doing so.
MS KARAPANAGIOTIDIS: Thank you, your Honour.
At 11.52 am - Block 11
MR M.F. QUINLAN appeared for the applicants. (instructed by Wimal & Associates and applicants)
MR C.J. HORAN appeared for the respondents. (instructed by Australian Government Solicitor, Clayton Utz and Blake, Dawson Waldron)
HIS HONOUR: The day is proving long already, Mr Quinlan. Now, Mr Quinlan, you appear in matters M41, M46, M52, M53, M58, M59, M67, M80, M94, M95, M101, M103, M108, M111, M112, M119. M123 is listed, but has in fact already been remitted.
MR QUINLAN: If Your Honour pleases.
HIS HONOUR: M129, M130, M136, M138, M139, M140, M151, M172, M206, M213, M222, M223, M236, M237, then M4 of 2003, M8, M10. That, I think, completes the list.
MR QUINLAN: Yes, your Honour.
HIS HONOUR: Now, what is the position in these matters?
MR QUINLAN: I understand that remitter is consented to in all matters. There is a question mark, as my learned friend mentioned earlier, over M52 and M53. They were initially proceedings, application was just against the Minister. It was the subject - - -
HIS HONOUR: Forgive me, you have lost me a moment. M52 and M53, yes.
MR QUINLAN: Yes, Your Honour. My instructor, pursuant to advice yesterday, issued amended decrees nisi, but whilst he refers to the second respondent and brings it within a matter of error of jurisdiction, he does not name the second respondents in the document. So the amended decrees nisi in each case would appear to be defectively drawn. One solution, your Honour, might be to adjourn these two matters to the next callover.
HIS HONOUR: I think we will stand them down, Mr Quinlan. I would not want counsel to feel that they were under any pressure to conclude these matters today, but if they were to consider that they were under that pressure, there we are. Subject to that, I will stand them down and let us see where we can get to today, Mr Quinlan. There is obvious advantage to us all if we can get to some finality about the fate of these cases and whether they are to stay in this Court or whether they are to go to another court, if we can deal with that today.
MR QUINLAN: One solution, your Honour, might be for my instructor to do a further amended order nisi today.
HIS HONOUR: Well, if we can get to that point that may well be the best solution, Mr Quinlan.
MR QUINLAN: Yes.
HIS HONOUR: I suspect where I am heading, in the way the list is running is that I will have a rump of about 15 cases, maybe 20 cases that are stood down. Counsel for the Minister will need time in which to be able to speak with various counsel engaged on the opposite sides, and it may be that we will get to a point where we are standing those over until early afternoon. Let us see how we go. For the moment, if I stand down M52 and M53, subject to those two, you say, remit the rest?
MR QUINLAN: Yes, your Honour.
HIS HONOUR: Mr Horan, were you able to keep up with the listing?
MR HORAN: I was, in that instance.
HIS HONOUR: If we leave out of account M52 and M53, what do you say?
MR HORAN: M140, at least on one view, raises an issue concerning a section 351 or section 417 decision and so - - -
HIS HONOUR: I do not know whether it is this matter, Mr Horan, it probably is not, but I can remember looking at some of these files when we were preparing for this day and there were some where there is reference in the papers to the Minister taking or not taking steps under either 417 or its equivalent in relation to migration review matters.
MR HORAN: Yes.
HIS HONOUR: They were, I thought, at best equivocal.
MR HORAN: Yes. There are actually two categories, your Honour. There is the one perhaps which your Honour is referring where the relief that is sought in the "show cause" paragraph relates only to a tribunal decision.
HIS HONOUR: Just so.
MR HORAN: One of the grounds might refer to the duty to make a decision under one of the two sections I have identified.
HIS HONOUR: Now, it seemed to me in those cases, or at least my first impression of those was that although there is reference to 417-type issues as grounds, in truth because the relief sought is not attacking a 417-type decision, that there was certainly, it seemed to me, no obvious reason not to remit. But again, we will have to perhaps hear you on that.
MR HORAN: I do not disagree with that, your Honour, and it might be that an appropriate record on the transcript of that fact would be enough to clarify any doubt about what is being remitted.
HIS HONOUR: Yes.
MR HORAN: They have been included in the respondents', at least as category 2 cases, purely because there was some doubt.
HIS HONOUR: I understand the need for caution on your part about it. I do.
MR HORAN: I might say the other category of cases which is perhaps clearer is cases where the "show cause" paragraph seeks relief in relation to a section 351, section 417 decision.
HIS HONOUR: Yes.
MR HORAN: And yet there is no reference in the grounds to what ground that decision is challenged on.
HIS HONOUR: Yes.
MR HORAN: In either case it may be that the reference, particularly given the provenance of some of the draft orders nisi may be accidental and there may actually be no intention to challenge that decision - - -
HIS HONOUR: Yes.
MR HORAN: - - - in which case during the period in which they are stood down it may be possible to easily cure whatever ambiguity there is.
HIS HONOUR: Yes.
MR HORAN: But subject to those comments, M140, I cannot recall whether it is one of those situations that your Honour has raised but - - -
HIS HONOUR: Let us stand M140 down. That would leave M52 and M53 stood down, M140 stood down. Subject to those three?
MR HORAN: Yes, the respondent consents to remitter.
HIS HONOUR: There will be orders for remitter as follows: In M41, M46, M58, M59, M67, M80, M94, M95, M101, M103, M108, M111, M112, M119 - as I say, I note that M123 has already been remitted. M129 there will be an order for remitter. M130 there will be such an order, as too in M136, M138, M139, M151, M172, M206, M213, M222, M223, M236, M237, M4 of 2003, M8, M10, which I think concludes your matters other than those stood down, Mr Quinlan.
MR QUINLAN: Yes, three stood down, your Honour.
HIS HONOUR: Yes, thank you.
MR QUINLAN: I am indebted to your Honour.
At 12.00 noon - Block 12
MR T.A. FERNANDEZ appeared for the applicants. (instructed by Ruwan Samarakoon and the applicants)
MR C.J. HORAN appeared for the respondents. (instructed by Blake Dawson Waldron, Clayton Utz and Australian Government Solicitor)
HIS HONOUR: Mr Fernandez, you appear as I understand it in M128, M142 and M201, is that right?
MR FERNANDEZ: That is right, your Honour. M201 and M128 I see no objection for the order of remittal.
HIS HONOUR: Yes.
MR FERNANDEZ: But in M142 of 2002 I would request that the matter be stood down.
HIS HONOUR: Yes. Mr Horan, if I stand down M142, but remit M128 and M201?
MR HORAN: Could I ask your Honour to stand down M201 also?
HIS HONOUR: Yes.
MR HORAN: It may be one of these ambiguous cases. That is in addition, your Honour, to - - -
MR FERNANDEZ: To M142.
MR HORAN: Yes, to M142.
HIS HONOUR: Yes. Well, I will stand down M142 and M201 and order remitter in M128. Yes, thank you.
At 12.01 pm - Block 13
MR VADIVELU appeared for the applicants. (instructed by Mano & Associates)
MR C.J. HORAN appeared for the respondents. (instructed by Clayton Utz and Australian Government Solicitor)
HIS HONOUR: Mr Vadivelu, you appear in M170, M207, M208 and M5 of 2003, is that right?
MR VADIVELU: That is right, your Honour.
HIS HONOUR: What is the position in these matters?
MR VADIVELU: Subject to your Honour's.....and it could be remitted by consent, your Honour.
HIS HONOUR: Yes. Mr Horan?
MR HORAN: I have included M207, M208 and M5 as category 2 cases, again perhaps because of some ambiguity.
HIS HONOUR: Right. If I order remitter of M170 of 2002?
MR HORAN: Yes, the respondent consents, your Honour.
HIS HONOUR: Right. Then I will stand down M207, M208. Did you say M5 as well?
MR HORAN: Yes, your Honour, and M5.
HIS HONOUR: Yes, right. Well, I will stand down M5.
At 12.02 pm - Block 14
HIS HONOUR: Next we have Mr Weerakoon's matters. I think Mr Weerakoon may not be here. He is engaged elsewhere at the moment, is that right? Mr Weerakoon not here? Very well then, I will stand it down until he is able to attend.
Now, that I think completes matters in which counsel appear. Where I want to go to now is to begin to deal as far as I can with those in which parties appear in person. Now, I think Mr Dean and - no, you are in Court. You have not taken any of the litigants in person outside to speak to?
MR DEAN We have not yet, your Honour, no, but it would appear, your Honour, that of those applicants in categories 15 to 20 in the callover list, only two of those applicants appear in either categories 1 or 2 of the list provided on behalf of the various people representing the Minister.
HIS HONOUR: Yes.
MR DEAN: The practical issue would appear to be there for, your Honour, informing those, other than the two, of the procedure of remitter and how it will affect their applications and then dealing with those two who are in categories 1 and 2.
HIS HONOUR: I would be grateful if you felt able, and I really must emphasise that you should feel no obligation at all, but if you felt able to offer any assistance to the two in the remaining categories, obviously there is assistance to me. But please do not feel constrained in any way by the request.
MR DEAN: I am happy to take up that invitation, your Honour, but I will no doubt be assisted by Mr Horan.
HIS HONOUR: See how we go. Yes. What I will do I think then, Mr Dean, is this. There are four matters in which interpreting has been asked for by a Sinhalese interpreter. I will deal with those as a group . There are then two other matters in which other interpreters are asked for. Those are the matters grouped as matters 15, 16 and 17. Now, are any of those group 1 or 2 matters? Sorry, before we get to them can I just do the housekeeping. Mr Horan, I am about to move through M97, M126, M175 and M195 as a group. Are any of those - - -
MR HORAN: Yes. The Minister consents to remitter of those.
HIS HONOUR: Right. M77?
MR HORAN: Consents.
HIS HONOUR: M218?
MR HORAN: The Minister consents.
HIS HONOUR: All right. Let me deal with those first. We will use the interpreters for those. That will enable those people to go about their business, and then we will come and we will deal with the remainder of the litigants in person and, I suspect, it may prove individual order or as groups. We will see how we go.
MR HORAN: Would it assist your Honour - I do not know whether your Honour is working from the detailed list of proceedings, but I can tell your Honour which are the only matters remaining, just in advance of them being called.
HIS HONOUR: Yes.
MR HORAN: Which have these issues arising. M182, M121 - - -
HIS HONOUR: Hang on, I am lost.
MR HORAN: I am sorry. The middle of the second-last page is M182.
HIS HONOUR: Yes, I have M182, yes.
MR HORAN: And then three matters below that, M121.
HIS HONOUR: Yes.
MR HORAN: And then at the top of the following page, M186.
HIS HONOUR: Yes.
MR HORAN: All of those are what I have called category 2 cases, they are part remittals.
HIS HONOUR: Yes.
MR HORAN: I have also noted M215 is a category 1 case, which I do not believe has been called unless I have accidentally consented to remitter.
HIS HONOUR: That is exciting, is it not, Mr Horan?
MR HORAN: It is.
MS MORTIMER: That is mine.
MR HORAN: Have we stood that down? Sorry, I just have not noted that on my list.
HIS HONOUR: Ms Mortimer was about to take advantage of your unwitting consent.
MS MORTIMER: Feel free.
MR HORAN: So there are only four matters remaining in the list which the Minister raises issues in relation to remitter. The rest are all consented to.
HIS HONOUR: Yes, I understand.
MR HORAN: I am sorry, three remaining matters I should say, yes.
HIS HONOUR: Yes, that we have not called. Can I ask whether the interpreter into the Sinhalese language is present in Court? Would you mind coming forward, sir, please? Now, I think it may be desirable that we swear you as an interpreter, just as an absolute excess of caution. Would you mind administering the interpreter's oath?
At 12.09 pm - Block 15
APPLICANT M97/2002 appeared in person.
APPLICANT M126/2002 appeared in person.
APPLICANT M175/2002 appeared in person.
MR C.J. HORAN appeared for the respondent Minister. (instructed by Australian Government Solicitor)
BANDULA JAYASUIGHE, sworn as interpreter:
HIS HONOUR: Thank you, Mr Interpreter. Could you please say that I am now about to deal with the following matters. The matters I am going to deal with have the numbers as follows. They are matters 97, 126, 175 and 195. We have therefore, do we, the four applicants?
THE DEPUTY REGISTRAR: Only two at this stage, your Honour.
HIS HONOUR: Who are we missing is the difficulty.
THE DEPUTY REGISTRAR: We have Applicant M175.
HIS HONOUR: Yes, and I think we have Applicant M126, do we not?
THE INTERPRETER: Yes.
HIS HONOUR: But we do not have Applicants M97 and - - -
THE DEPUTY REGISTRAR: We have Applicant M97, your Honour.
HIS HONOUR: Thank you. And M195, no?
THE DEPUTY REGISTRAR: I will call that outside, your Honour.
HIS HONOUR: Thank you.
THE DEPUTY REGISTRAR: Not there, your Honour.
HIS HONOUR: Yes, thank you. Well, Mr Interpreter, would you be good enough to say to the applicants who are present this. This week the Court decided two cases about some changes Parliament made to the Migration Act. This affects your cases. Today, we have sent many cases like yours to another court, the Federal Court. If I send your case to the Federal Court, that court will tell you when you have to come to court again. The Federal Court will then decide what is to happen in your case. I want to send your cases to the Federal Court.
THE INTERPRETER: He wants to speak to the judge.
HIS HONOUR: Just one moment. If you do not want me to send your case to the Federal Court, you should tell me why now. Now, I believe one of you wished to say something, and forgive me, sir - Mr Interpreter, can we find which matter this is? What the matter number is.
THE INTERPRETER: M97.
HIS HONOUR: Yes. Thank you. Now, what is it you wish to say to me, sir?
APPLICANT M97/2002 (through interpreter): My partner is expecting to deliver a child in a week's time. So I have to look after her, because at the moment I am unemployed and I have no means of income. That is all, your Honour.
HIS HONOUR: Yes. Could you say then, please, to all of them: all I am deciding today is to send their case to another court. I am not deciding whether they should win or lose their case. It will be the other court that decides that and that other court will tell them when they are to come to court again. Well, then, Mr Horan, is there any reason not to make an order for remitter?
MR HORAN: No, your Honour.
HIS HONOUR: Mr Interpreter, would you be good enough to tell them that I will order that their cases are transferred to the Federal Court and that court will tell them when they have to come to court again. Thank you very much, and would you tell these three people that they need not stay any longer today. They can if they want, but they do not have to.
THE INTERPRETER: The other thing he wants to say in M97 is the address has to be changed.
HIS HONOUR: Then before he goes, can he talk to somebody at the counter. They will take down the details. It is very important that he give his current address. Thank you very much. Thank you, Mr Interpreter.
There will be orders for remitter in matters M97, M126 and M175. In addition, there being no appearance on behalf of the applicant in M195, there will nonetheless be an order for remitter.
Now, we go next to matter M77 and there is an interpreter in the Tamil language, I believe.
At 12.15 pm - Block 16
APPLICANT M77/2002 appeared in person.
MR C.J. HORAN appeared for the respondent Minister. (instructed by Australian Government Solicitor)
ASHA PHATARFOD, affirmed as interpreter:
HIS HONOUR: Thank you very much, Madam Interpreter. Would you be good enough to interpret to the applicant a script which you will find remarkably similar to the one you just heard. This week the Court decided two cases about some changes Parliament made to the Migration Act. This affects your case. Today, we have sent many cases like yours to another court, the Federal Court. If I send your case to the Federal Court, that court will tell you when you have to come to court again. The Federal Court will then decide what is to happen to your case. I want to send your case to the Federal Court. If you do not want me to send your case to the Federal Court, you should tell me why now.
APPLICANT M77/2002 (through interpreter): I do not object.
HIS HONOUR: Yes, thank you. Mr Horan, is there any reason not to make an order for remitter?
MR HORAN: No, your Honour. The respondent consents.
HIS HONOUR: There will be an order for remitter. Will you be good enough to tell the applicant, Madam Interpreter, that his case is sent to the Federal Court. They will tell him when he has to come to court again. Thank you very much. He need not remain - he can, of course, if he wishes, but he need not stay any longer. Thank you for your assistance, Madam Interpreter.
Next, we have matter M218, and I believe we have an interpreter in Hindi.
At 12.19 pm - Block 17
MS R. NAICKER appeared in person.
MR C.J. HORAN appeared for the respondent Minister. (instructed by Australian Government Solicitor)
SURINDER MUDHER, affirmed as interpreter:
HIS HONOUR: Thank you very much. Mr Interpreter, would you again interpret the same script which you have heard. This week the Court decided two cases about some changes Parliament made to the Migration Act. This affects your case. Today, we have sent many cases like yours to another court, the Federal Court. If I send your case to the Federal Court, that court will tell you when you have to come to court again. The Federal Court will then decide what is to happen in your case. I want to send your case to the Federal Court. If you do not want me to send your case to the Federal Court, you should tell me why now.
MS NAICKER (through interpreter): I will be seeing my solicitor about this matter and then I will decide.
HIS HONOUR: Could you be good enough to tell her that I am going to decide today whether to send her case. Is there any reason she has for not sending her case to the Federal Court? Could you also tell her I am not deciding whether her case wins or loses. The only thing I am deciding is which court will hear it.
MS NAICKER (through interpreter): Will you tell me which one?
HIS HONOUR: Yes. Mr Horan, is there any reason not to remit it?
MR HORAN: No, your Honour.
HIS HONOUR: There will be an order for remitter. Would you tell the applicant that her case will be sent to the Federal Court and they will tell her when she has to come back to court again. There will be an order made of that kind. Tell her that she may stay, but she does not have to stay any longer today.
MS NAICKER (through interpreter): I will receive the letter?
HIS HONOUR: Yes.
MS NAICKER (through interpreter): At my home, or here I will receive it?
HIS HONOUR: If she has given her home address, that is where the letter will be sent.
MS NAICKER (through interpreter): I have given that address.
HIS HONOUR: She will receive a letter. Thank you very much, Mr Interpreter.
At 12.25 pm - Block 18 + M106/2002 and M212/2002
HIS HONOUR: Now, Mr Horan, can we draw breath a moment before we go on with the other litigants in person. I am, in effect, now going to have to do a census to work out who we have here, who we have not here, and work out how precisely we are going to deal with these people in a way that will try to convey to them what is happening. Now, I believe that we have the applicants in M68, M75, M84 and M106. Is that right?
MR HORAN: That is right.
HIS HONOUR: Now, thanks to the legislation which forbids me from using names, Mr Horan, we confront this difficulty, that I am forbidden from, firstly, addressing these people with the courtesy that they deserve, but, secondly, I am forbidden from ordering the affairs in my Court in the way in which I would ordinarily order them, by calling them by name. How are we going to tackle this, Mr Horan? You appear for the Minister. You are the nearest thing to a messenger I have.
MR HORAN: Might I suggest that the applicants be referred to in the manner that they have been referred to throughout today, which is by reference to their proceeding numbers, your Honour.
HIS HONOUR: And I should follow Justice Gaudron's lead and refer to you hereafter as Mr H7 perhaps, Mr Horan?
MR HORAN: I am not sure whether there is a - - -
HIS HONOUR: I believe there is a relative also here in M212.
MR HORAN: The Minister's position is that what would be permissible and consistent with section 91X would be for the - the prohibition is on publication by the Court of the names of the - - -
HIS HONOUR: Yes, and it is a prohibition directed to the Court. Not directed to the Minister or anyone else, but we are subject to this prohibition.
MR HORAN: Yes, your Honour. It appears to be centrally directed at publication of names in connection with - - -
HIS HONOUR: We will not debate the legislative purposes of it, Mr Horan. That may take a little time.
MR HORAN: The position that the Minister wishes to advance in relation to the section is that it would be permissible within this courtroom to refer to the applicants by name if necessary, provided that a direction is made that those names not appear on the transcript which is made publicly available, and that a further direction is made that any persons in the courtroom not disclose - - -
HIS HONOUR: I am not going through those hoops, Mr Horan. It is an absurdity which is foisted on the Court and we will deal with it in other ways.
MR HORAN: Yes.
HIS HONOUR: Now, Ms Liu, my associate, was good enough to identify the applicants in person as they came through. Perhaps Ms Liu would be good enough to assist and, if she can, get the litigants in person to come forward.
There is, I think, a relative of someone who is involved in M212 here; a daughter of the applicant is present, I think. Ladies and gentlemen, you have now heard me tell others what we are doing today. We are deciding whether to send your cases to the Federal Court rather than leave them here. We are not deciding whether your case wins or loses; we are simply deciding whether it is this Court or the Federal Court that will hear it. If you do not want me to send your case to the Federal Court, you should tell me now. Now is the chance you have to tell me why not send it to the Federal Court. Do all of you understand what is happening today?
THE APPLICANTS: Yes, your Honour.
HIS HONOUR: Does any of you wish to tell me why I should not send the case to the Federal Court?
THE APPLICANTS: No, your Honour.
HIS HONOUR: Thank you for coming in today. In matters M68, M75, M84, M106 and M212, Mr Horan, is there any reason not to make an order for remitter?
MR HORAN: No, your Honour.
HIS HONOUR: Then I will make orders for remitter in M68, M75, M84, M106 and M212. Your cases will go to the Federal Court. That court will write to you telling you when next you have to come back to court. Thank you for coming in today. You can stay if you want but you do not have to stay.
At 12.32 pm - Block 19
HIS HONOUR: Mr Horan, there are two matters in which I hold certificates from the Registrar indicating that the applicants do not seek to appear. In M122, I have a certificate that the applicant does not intend to appear. That is not one on your list, I understand, of cases in which there may be some difficulty.
MR HORAN: I think it is on my - I am sorry, I am confusing the years, your Honour. There was the matter earlier, M122 of 2001.
HIS HONOUR: M122 of 2002, sorry.
MR HORAN: There is no objection.
HIS HONOUR: There will be an order for remitter in matter M122 of 2002. Now, M182, Mr Horan, I also hold a certificate that the Deputy Registrar has been advised by the solicitor for the applicant that the solicitor does not intend to appear in the matter and the applicant does not intend to appear. That is on your list of queries, I understand.
MR HORAN: Yes.
HIS HONOUR: I am minded for the moment to stand that down until we have some emerging common view on how we are going to tackle these problems.
That, according to my reckoning, Mr Horan, leaves undealt with six matters. They are M189, M54, M121, M133, M186 and I think I have just demonstrated I am innumerate, have I not?
At 12.34 pm - Block 20 (less M106/2002 and M212/2002) + M189/2002
MR HORAN: The two in respect of which an issue is raised concerning the non-compellable discretion are 121 and 186.
HIS HONOUR: If I stand those down again to the end of the list and we will see where the emerging view would take us on those.
Can I deal with M189 of 2002, M54 of 2002 and M133 of 2002. Can I make orders for remitter in those matters?
MR HORAN: Yes, your Honour, the respondent consents to remitter.
HIS HONOUR: There will be orders in M189, M54 and M133 in common form for remitter.
At the risk of delaying things unnecessarily, can I just do a stocktake, because the risk of cases falling into the cracks is quite large. By my reckoning the following cases are stood down: M209 and 210 of 2002; M407, M414 of 2002; M122 of 2001; M188 of 2002; M169 and M174 of 2002; M52 and M53 of 2002; M140 of 2002; M142 and M201 of 2002; M207 and M208 of 2002; M5 of 2003; M231 of 2002; M182 of 2002; M121 of 2002 and M186 of 2002. Is there any representative here, either professional or in person, who believes they have a case waiting to be dealt with that I have not dealt with in this fashion?
MR KROHN: Yes, your Honour, M99 of 2002. That is one that was, I believe, stood down because the applicant seeks leave to amend, and M107 of 2002.
HIS HONOUR: Thank you.
MS MORTIMER: My matter, your Honour, M215.
HIS HONOUR: I am not only innumerate but unable to read, Ms Mortimer. It does not give you much faith, does it?
MR HORAN: I think I also had a note that M484 was one of the unrepresented. I am not sure what year.
HIS HONOUR: It would be 2002, I suspect. M484 really has got under my guard then, Mr Horan. Who is the applicant? Is it an unrepresented?
MR HORAN: Unless I have written down something incorrectly.
HIS HONOUR: There was M84.
MR HORAN: It might be I have written down that instead of 414, which your Honour mentioned.
HIS HONOUR: I am sorry to conduct the stocktake but I rather think that, unless we keep track of them, we are going to get into trouble.
MR HORAN: I do not think there is a 484.
HIS HONOUR: There are no cases then that we have not accounted for? We have a large number stood down yet. Means of proceeding. We are at 12.40. My inclination is to say I will adjourn until 2.15 to allow counsel to draw breath, see how we are going to solve this, come back at 2.15 and attack the problem. Subject to what counsel may say, I propose simply to take them in order of seniority as a means of assigning an order to it. Do counsel wish to suggest some other means of proceeding as more efficient than that? Counsel still do remember that there is a telephone that exists and that there can be communications between counsel, do they, to resolve these problems? I will take silence as complete assent from the Bar.
If I adjourn over till 2.15, is that going to give counsel time enough to do some useful work? Is it better that I stand it over till 2.30? I am in counsel's hands. I would rather between you that you hammered out a solution to this if you can so that we are left debating real and live issues rather than issues that on examination just fall away. That does not seem a particularly productive way of spending time.
MR DEAN: From our point of view - that is myself, Mr Gilbert and Mr Hurley, your Honour - it appears to us that there are two applicants who are unrepresented and not present. They are 121 and 186. So it is difficult for us to provide any meaningful assistance.
HIS HONOUR: I expect nothing from you and, as I say, I have stood them to the bottom of the list. Let us see what common view emerges or is imposed on people by a decision of mine and that, I think, will perhaps lead to an apparent solution to the two unrepresenteds. So let us deal with those where there are people present personally or by counsel, work out what we do with these 417 issues or those two or three where there are questions of amendment to be hammered out.
Could I say this to you. In Sydney yesterday there were several matters where, in light of what was decided in 134 or for other reasons, counsel reformulated their draft orders nisi and said, "We want leave to amend to prosecute the application in that form in Sydney". The Minister raised no objection to those amendments being made. The amendments were made, then the case was remitted in that form. If that is an available course in these matters, let us do it. If it is not an available course, then let us hammer out whatever has to be hammered out. What do you say to 2.15 or 2.30, Mr Horan? You are the one who is going to have to really carry the heat of this.
MR HORAN: I do not think it will take all that long. I may be being optimistic. Perhaps 2.30 is - it is always better to err on the side of caution.
HIS HONOUR: I will come back in at 2.30, ladies and gentlemen. It is Friday and my ancient memories of the commercial list have all been revived and if the Judge does not appear on the Bench at the appointed time, the negotiations take forever. So 2.30 is the adjournment time and if counsel would be good enough to be here then.
MR DEAN: Your Honour, could I just clarify one matter. As we understand it, the position is that there are no unrepresented applicants present now.
HIS HONOUR: I believe that is right.
MR DEAN: The balance of the list, excluding 121 and 186 of 2002, are all - - -
HIS HONOUR: Have been dealt with.
MR DEAN: Yes, are all represented. That is, they have legal advisers here.
HIS HONOUR: I have three in the unrepresented category stood down: 182, 121 and 186. Is that right, Mr Horan?
MR DEAN: And each of them are not here, is that right?
HIS HONOUR: That is my understanding. Therefore, I do not see how whatever good officers you are kind enough to bring to the occasion, we can do anything through your good offices in those cases. That is simply going to be my decision.
MR DEAN: Yes. If we could therefore be excused, your Honour.
HIS HONOUR: Mr Dean, I am grateful for the assistance you have given. Yes, of course you may be excused but excused with my thanks. You too, Mr Gilbert.
MR DEAN: I will be in my chambers this afternoon if necessary, your Honour.
HIS HONOUR: Thank you.
AT 12.45 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.31 PM:
HIS HONOUR: Now, ladies and gentlemen, the way in which I suggest we might most conveniently proceed is to deal first with any consent matters that have now emerged.
At 2.31 pm - M209/2002 and M210/2002
MR HURLEY: Your Honour, I have two unopposed matters, your Honour, in the sense that consent might not be the right word, but I do not resist my friend's - an application that these matters that I am in - - -
HIS HONOUR: These are M209 and M210, are they?
MR HURLEY: Yes, your Honour. I do not have anything further to say. I apprehend there is an application that they not be remitted and they go no further.
HIS HONOUR: So, what, stand dismissed or what?
MR HURLEY: It is an application for an order nisi - yes, your Honour, be dismissed in each case.
HIS HONOUR: Mr Horan, what do you say I should do?
MR HORAN: I would seek orders either for dismissal or discontinuance, but it would seem in light of what my learned friend has said that an order that the application be dismissed and we would seek an order that the applicant pay the respondent's costs.
HIS HONOUR: Mr Hurley, do I understand you to have nothing to say in answer to that application in either of M209 or M210 of 2002?
MR HURLEY: Except costs, your Honour. We submit costs should lie where they fall. Apart from that, no, your Honour.
HIS HONOUR: In each of those matters, the order will be application dismissed with costs. That, I think, completes your matters, does it not, Mr Hurley?
MR HURLEY: It does, your Honour.
HIS HONOUR: Now, are there any other consent or unopposed matters with which I can deal?
At 2.33 pm - M52/2002, M53/2002 and M140/2002
MR QUINLAN: Your Honour, I rise somewhat in optimism. I have given my learned friend amended order nisi applications in M52, M53 and M140, all of 2002. I understand that would cure the defect, in my submission.
HIS HONOUR: Have you had an opportunity yet, Mr Horan, to look at M52, M53 and M140?
MR HORAN: I have them in front of me and I have only just started looking at them.
HIS HONOUR: Rather than me sitting here glaring balefully at you while you try to read them, I had better give you a bit of time to read them.
MR HORAN: It would not take that long. They do look to be in order.
HIS HONOUR: Do you feel you can do it while I wait?
MR HORAN: Yes.
HIS HONOUR: Then by all means let us do that.
MR HORAN: I might just ask a question.
HIS HONOUR: Yes, of course.
MR HORAN: They appear to now be in a form which is capable of remittal. On the question of whether the amendment should be made, the respondent does not oppose the amendment but reserving rights in relation to enlargement of time because, of course, the decision which is now sought to be reviewed is the Tribunal decision made earlier than the decision of the Minister which initially was sought to be reviewed.
HIS HONOUR: So your failure to oppose the application for leave to amend the draft order nisi is not to be understood as thereby conceding either the validity of the complaints or their arguability or the unavailability of some time bar?
MR HORAN: Yes, so we would reserve that. The Minister would reserve his right to raise all - - -
HIS HONOUR: All or any objection?
MR HORAN: Yes, but subject to that, if the Court does see fit to give leave to amend the application in the form that it is now filed, the respondent has no objection to those matters then being remitted for consideration by the Federal Court.
HIS HONOUR: Thank you. Now, Mr Quinlan, the proposed amended draft order nisi, has that been filed or is it available to be filed?
MR QUINLAN: It has been filed and served, your Honour, yes.
HIS HONOUR: Then if I were to order in each of M52, M53 and M140 of 2002 that the applicant have leave to amend the draft order nisi in the form filed this day and otherwise make orders for remitter in the common form, is there any further order that you would seek, Mr Quinlan?
MR QUINLAN: No, your Honour.
HIS HONOUR: Mr Horan, is there - - -
MR HORAN: No, your Honour.
HIS HONOUR: Thank you. In each of M52 and M53 of 2002 and M140 of 2002 the applicant will have leave to amend the draft order nisi in the form filed this day. Otherwise there will be an order for remitter in the common form. That, I think, deals, does it not, Mr Quinlan, with all of your matters?
MR QUINLAN: Yes, your Honour.
HIS HONOUR: Yes, thank you.
MR FAIRFIELD: There is one further consent matter, your Honour, of sorts, in matter M169 of 2002.
MR HORAN: I am sorry, your Honour, if Mr Quinlan could just - - -
HIS HONOUR: Not so fast, Mr Quinlan, not so fast.
MR HORAN: I am sorry to do this, your Honour. It is my mistake. There is in matter M140 - the amendment has been made to add the Tribunal as a respondent and review its decision, but there is still a reference seeking certiorari in relation to the Minister's decision.
HIS HONOUR: What I will do immediately is recall the order made in matter M140 of 2002. Perhaps in the meantime if you, Mr Quinlan, would be good enough to look at it and we will come back to it presently.
MR QUINLAN: If your Honour pleases.
At 2.39 pm - M169/2002
HIS HONOUR: Now, Mr Fairfield, we were about to deal, I think, with which matter?
MR FAIRFIELD: M169 of 2002, your Honour. I am instructed that the applicant/respondent does not press that part of the application which relates to the exercise or purported exercise of the Minister's power under section 417 and consents to the remitter of the remainder of the application in the terms of the draft order your Honour circulated this morning. If it assists your Honour, constitutional relief is sought in respect of the decision of the Refugee Review Tribunal and also in respect of the 417 - - -
HIS HONOUR: So by reference to your draft order nisi, what paragraphs go or what paragraphs stay, whichever is the more convenient means of identification?
MR FAIRFIELD: Yes, your Honour. Paragraph 2 would go and paragraph 5 - yes, paragraphs 2 and 5, your Honour, and - apologies to your Honour - paragraph 4 as well would not be needed. So paragraphs 2, 4 and 5 would be deleted.
HIS HONOUR: If then I were to order in M169 that the applicant's application insofar as it concerns the matters raised in paragraphs 2, 4 and 5 of the draft order nisi filed 25 September 2002 is dismissed, otherwise an order for remitter in common form, would that accommodate your understanding of what would be necessary, Mr Fairfield?
MR FAIRFIELD: Yes, your Honour.
HIS HONOUR: Mr Horan, if I were to make an order of that kind, would that meet the difficulties that you foresaw in that matter?
MR HORAN: Yes, your Honour.
HIS HONOUR: Very well, in matter M169 the orders will be that the applicant's application insofar as it concerns the matters raised in paragraphs 2, 4 and 5 of the draft order nisi filed 25 September 2002 is dismissed, otherwise there is an order for remitter in the common form.
At 2.46 pm - M140/2002
MR QUINLAN: Your Honour, if no one else is rising, may I mention again M140?
HIS HONOUR: Yes.
MR QUINLAN: My learned friend made a suggestion, which I agree with, to your Honour that certain words be excised from the draft amended order nisi filed this day, and those words I could specify, your Honour?
HIS HONOUR: No, Mr Quinlan. Take a copy, strike them out and let us end up with a document that can be filed, show it to Mr Horan, then we can deal with it. Otherwise we are going to have a debate happening, and that is the least efficient way of dealing with it.
MR QUINLAN: Certainly, your Honour. I will contact my instructor and get it retyped immediately, your Honour.
HIS HONOUR: No need to have it retyped. I think we can cope with a handwritten amendment on it, but I want a physical bit of paper that I can put on a file and that will record what has happened and, more importantly, that Mr Horan can sign off on. So sort that out amongst yourselves, then mention it once it is sorted out.
MR QUINLAN: I will attend to each copy, your Honour.
HIS HONOUR: Thank you, Mr Quinlan.
At 2.47 pm - M215/2002
MS MORTIMER: Your Honour, can I mention my matter, please, M215?
HIS HONOUR: Yes, Ms Mortimer. My best laid plans of dealing with this in order of seniority have just crumbled before my eyes.
MS MORTIMER: Your Honour, my powers of persuasion appear to be crumbling too, because I cannot persuade my learned friend that he ought to agree to the course I suggest and I understand that he presses his application that my matter be dismissed. My submission to your Honour is - - -
HIS HONOUR: Now, Ms Mortimer, can I just pull the file so that I can see what we are dealing with. It is matter M215 of 2002?
MS MORTIMER: Yes, your Honour.
HIS HONOUR: The draft order nisi is exhibit 6, I believe.
MS MORTIMER: Yes.
HIS HONOUR: And at least on its face appears to be directed wholly and solely to 417 decisions.
MS MORTIMER: It is, your Honour. We seek relief against the Minister only by way of certiorari. We seek mandamus against his officer. That is why we say it is distinguishable. It concerns, your Honour, the way that the - - -
HIS HONOUR: Who is the officer of the Commonwealth "responsible for assessing the applicant's section 417"?
MS MORTIMER: We do not know his or her identity at the moment, your Honour, and that is a matter that we need to attend to, but we cannot name the officer because the officer has not been disclosed in any of the documents in our possession.
HIS HONOUR: My present inclination, Ms Mortimer, is not to embark on a debate about whether the point is tenable or not but simply to leave the matter in the Court.
MS MORTIMER: Your Honour, we are content with that and, of course, all that has occurred this morning will be passed on to my clients and it may be that the matter resolves, but if it does not, it ought to come back before your Honour, in my submission.
HIS HONOUR: We will simply have to deal with it as a contested application for an order nisi at a convenient time. That may be, I suspect, a month or more away the way the list of business is looming.
MS MORTIMER: Thank you, your Honour.
HIS HONOUR: Well, now, Mr Horan, if I simply make no order for remitter in this one but leave it in the Court for later debate, what do you say?
MR HORAN: My instructions were to seek dismissal but if it is more convenient to the Court to deal with it on another day, then there is little the respondent can say to oppose that course.
HIS HONOUR: Yes. There will be no order made in matter M215 of 2002 other than that the costs of today will be the costs in the application and I will certify for the attendance of counsel.
MS MORTIMER: Thank you very much, your Honour.
HIS HONOUR: The matter will stand out of the list generally.
At 2.50 pm - M188/2002, M107/2002, M122/2001 and M99/2002
MR KROHN: Your Honour, may I mention - I have four matters remaining.
HIS HONOUR: Yes.
MR KROHN: Three are, as I perceive them, in the same category as that last matter of Ms Mortimer.
HIS HONOUR: Yes.
MR KROHN: They are M107 of 2002.
HIS HONOUR: Just a moment, yes.
MR KROHN: That at present as framed is an application in respect of a 351 decision, but the supporting affidavit deposes to not yet having a body of the material and I would anticipate that it is possible the applicant might seek to amend but he is not in a position to do so today, or it will otherwise be resolved, your Honour.
HIS HONOUR: Yes. Is it convenient to deal with 107 now? If I were to stand it out of the list, the costs of today being costs in the application and certify for the attendance of counsel, what would you say?
MR KROHN: I would submit, respectfully, that is a convenient and appropriate course, your Honour.
HIS HONOUR: Mr Horan?
MR HORAN: Your Honour, I again take the position which is similar to that on the last application, but in this particular instance there does not appear to be identified any distinguishing factor from the decisions in S134. It is more a foreshadowed amendment to change the application into one challenging a different decision. In that regard, I would simply observe that if the matter was dealt with today in relation to the current form of the application, there is nothing to prevent the applicant from commencing a fresh application in relation to any other decision he seeks to challenge. So, on that basis, if there is no argument put on the other side in support of the application continuing as currently framed, then I would seek an order that it be dismissed today.
MR KROHN: If there is a need, your Honour, I would wish to say something in reply to this. If not, I am - - -
HIS HONOUR: I understand that, Mr Krohn. I will stand it out of the list, Mr Horan.
MR HORAN: Yes, your Honour.
HIS HONOUR: I suspect that this is starting to look as though we are going to end up with about 10 or a dozen stood out which will mean I will have to have another festal day dealing with them.
MR HORAN: By that stage, of course, if an amendment is forthcoming soon, it would be in a state, presumably, which is likely to be capable of being remitted - - -
HIS HONOUR: Yes.
MR HORAN: - - - if an amendment is made. So my opposition to the matter being adjourned or stood out of the list is solely on the basis that that amendment is not ready to be dealt with today and the application should be dealt with - - -
HIS HONOUR: It seems to me that if the applicant were to present an amendment, it should not be beyond the wit to devise a consent order that would largely, perhaps entirely, mirror one of the kinds of orders I have made today.
MR HORAN: Certainly it would, your Honour, yes.
HIS HONOUR: As you have heard me say before, Mr Horan, and those instructing you are well aware, there is evident advantage if the parties can arrive at that sort of accommodation because the demands on us are very large at the moment. They always are, but particularly at the moment. We are under a deal of pressure.
MR HORAN: Yes. Well speaking in advance, I am sure I can say that if and when an amendment is made that removes the particular jurisdictional difficulty to remitter at the moment that the respondent would certainly be willing to consent on the papers to the remitter of the application as amended, but in any event that cannot be done until such time as an amendment is produced.
HIS HONOUR: And formulated. Yes, I understand that. Well, in M107 the matter will be stood out of the list. The costs of today will be costs in the application. I will certify for the attendance of counsel.
MR KROHN: May it please the Court.
HIS HONOUR: Now, Mr Krohn, of the others of yours - - -
MR KROHN: Two others are broadly in the same situation, your Honour. One is M122 of 2001.
HIS HONOUR: Yes.
MR KROHN: And I envisage - I am not certain, but I envisage that what may well be done is that the applicant may seek to add the Tribunal as a respondent and it may be dealt with in the way my learned friend has foreshadowed. The other is M188 of 2002. That is one which is, perhaps, a little more like that case of Ms Mortimer where an error of an official is complained about, but it is also a case where, on my instructions, the applicant may desire to amend by adding the relevant Tribunal, in this case the Migration Review Tribunal.
In both of those cases I submit, your Honour, the appropriate course is for them to stand out of the list and for the applicant to see in what way he would propose to recast the draft order and it can be dealt with then. I understand if there is then any matter of dispute, it can be brought back before your Honour.
HIS HONOUR: Yes.
MR KROHN: So I would submit that in both those cases there should be the same order. May it please the Court.
HIS HONOUR: Yes. Is your attitude the same, Mr Horan, that you would prefer me to dismiss them today, failing that stand them out of the list on the terms I have indicated?
MR HORAN: Yes, your Honour.
HIS HONOUR: In each of M122 of 2001 and M188 of 2002 the order is stood out of the list, costs of today are costs in the application, certify for the attendance of counsel.
MR KROHN: May it please the Court. Then, your Honour, it leaves me with only one where I have provided the draft of a proposed amendment to my learned friend. I do not know if he has had an opportunity to consider that.
HIS HONOUR: That is 174, is it?
MR KROHN: No, your Honour, I beg your Honour's pardon. It is M99 of 2002.
HIS HONOUR: Yes.
MR KROHN: If that amendment is made, then the applicant consents to the standard order for remitter.
HIS HONOUR: Yes.
MR KROHN: May it please the Court.
HIS HONOUR: Mr Horan, M99 of 2002, have you had an opportunity to look at the proposed amendment?
MR HORAN: I have, your Honour, and the respondent consents to that amendment, subject to the qualifications.
HIS HONOUR: Reserving its position in the fashion previously described.
MR HORAN: Yes, so perhaps it is best expressed as does not oppose leave being given to amend it.
HIS HONOUR: Yes, then in M99 of 2002 the applicant will have leave to amend draft order nisi in the form filed this day, otherwise remitter in accordance with the standard order.
MR KROHN: I might just mention one thing, your Honour. I have prepared the draft of the additional ground. The whole order has not yet been redrawn, but I could undertake to have that done - I can file the addition today and I can have the amended draft order filed on Monday, your Honour.
HIS HONOUR: If you would be good enough to take both those steps, Mr Krohn.
MR KROHN: If your Honour please.
HIS HONOUR: Thank you.
At 3.00 pm - M140/2002
HIS HONOUR: Yes, Mr Quinlan.
MR QUINLAN: Your Honour, I rise again in optimism. I have discussed with my learned friend - - -
HIS HONOUR: I am not trying to put you off, Mr Quinlan.
MR QUINLAN: No, I am resilient to it, your Honour, I hope, at this age.
HIS HONOUR: Mr Quinlan, I fear at my age I am less so than once, if I ever was. Yes.
MR QUINLAN: I think I have the original of the document filed today with the amendment made, and each of us has a copy.
HIS HONOUR: So which number are we at, Mr Quinlan?
MR QUINLAN: It is M140, your Honour. Perhaps if I just tender this document, that would become the draft order nisi, your Honour.
HIS HONOUR: Yes. Now, have you seen this one, Mr Horan?
MR HORAN: I have.
HIS HONOUR: Are you content if there is leave to amend the draft order nisi in the form now filed?
MR HORAN: Yes, that appears to remove any suggestion that the decision of the Minister is the subject of the application, so it now becomes capable of remitter in full.
HIS HONOUR: I will initial this draft. In matter M140 of 2002 there will be leave to amend the draft order nisi in the form filed today, otherwise there will be remitter in the common form.
MR QUINLAN: If your Honour pleases.
HIS HONOUR: Now, let me just pause one moment to marry that to the file.
At 3.02 pm - M174/2002
HIS HONOUR: Now, I think we still have one of yours left, have we not, Mr Fairfield, or have we?
MR FAIRFIELD: Yes, your Honour, that is M174. Your Honour, I would submit that the application should be taken out of the list. I am instructed that we resist an application to dismiss, but on present instructions, I am not in a position, at the moment, your Honour, to resist that application. I also envisage that an application for leave to amend may also be made but again, your Honour, I am not in a position today to inform your Honour of what that amendment would be.
HIS HONOUR: On its face, this is a challenge to a 351 decision. On its face, that appears to raise issues of a kind similar to those dealt with in connection with section 417 in matter S134. There seems, Mr Horan, to be no reason to treat this one differently from others of like kind. I take it, though, that your attitude is I should dismiss it now, failing which, stand it out of the list.
MR HORAN: Yes, your Honour, as the Court sees fit.
HIS HONOUR: Then in M174 the matter will be stood out of the list. Costs of today will be costs in the application. I will certify for the attendance of counsel.
MR FAIRFIELD: If the Court pleases.
HIS HONOUR: Thank you, Mr Fairfield.
At 3.04 pm - M142/2002 and M201/2002
HIS HONOUR: Next, I think we come to Mr Fernandez's matters, do we not?
MR FERNANDEZ: That is right, your Honour, Nos 142 and 201 of 2002.
HIS HONOUR: Yes.
MR FERNANDEZ: In both those matters I seek leave to file an amended draft order nisi, your Honour.
HIS HONOUR: And has Mr Horan seen these drafts?
MR FERNANDEZ: Yes, I have served it on my learned friend's instructor.
HIS HONOUR: Yes. Now, Mr Horan, have you had an opportunity yet to digest these?
MR HORAN: Yes, your Honour, and in each case the respondent does not oppose the amendment reserving rights in relation to any objection including relating to enlargement of time, and subject to that consents to remitter of any amended application.
HIS HONOUR: In matters M142 of 2002 and M201 of 2002 there will be leave to the applicant to amend the draft order nisi in the form filed this day, otherwise there will be orders for remitter.
MR FERNANDEZ: As the Court pleases.
HIS HONOUR: Thank you, Mr Fernandez.
At 3.05 pm - M207/2002, M208/2002 and M5/2003
HIS HONOUR: Next, I think we have Mr Vadivelu's matters, do we not?
MR VADIVELU: Yes, your Honour.
HIS HONOUR: Where are we up to with these matters, Mr Vadivelu?
MR VADIVELU: If it pleases, your Honour, I am in M207, M208 and M5 of 2003. An amended order nisi has already been served to the instructor of the Minister in the light of the recent High Court decision and I believe the respondent - - -
HIS HONOUR: Now, have we, on our files, got the amendments yet, Mr Vadivelu?
HIS HONOUR: No, your Honour, I have not filed it. I have it before me if it pleases.
HIS HONOUR: Yes, thank you. Now, Mr Horan, M207, M208 and No M5 of 2003.
MR HORAN: The Minister's position is the same as in the previous matters.
HIS HONOUR: Thank you. Leave to amend draft order nisi in form filed this day, otherwise remit. Those orders are made in matters M207 and M208 of 2002 and in matter M5 of 2003.
MR VADIVELU: Very well, your Honour, thank you.
HIS HONOUR: Thank you, Mr Vadivelu. Then we have Mr Weerakoon's matter, I believe, M231 of 2002.
At 3.07 pm - M231/2002
MR J.C. WEERAKOON appeared for the applicant. (instructed Chandra Weerakoon)
MR C.J. HORAN appeared for the respondent Minister. (instructed by Australian Government Solicitor)
MR WEERAKOON: May I mention that if the current form is in order, I would consent to stand over for remitter.
HIS HONOUR: Yes. Now, Mr Horan, where are we up to with this one?
MR HORAN: This one - the respondent consents to remitter in this matter, but it was stood down because of availability of - - -
HIS HONOUR: Of course - - -
MR WEERAKOON: Your Honour, there was another hearing set down.
HIS HONOUR: Yes, I understand, Mr Weerakoon. So if I simply make an order for remitter.
MR WEERAKOON: Yes, your Honour.
HIS HONOUR: There will be an order for remitter.
MR WEERAKOON: Thank you.
HIS HONOUR: Thank you, Mr Weerakoon.
At 3.08 pm - M182/2002, M121/2002 and M186/2002
HIS HONOUR: Then that leaves us, does it not, Mr Horan, with three matters in which there is no appearance? Those matters, by my reckoning, are matters M182, M121 and M186.
MR HORAN: Yes.
HIS HONOUR: Are we in the right field?
MR HORAN: We are, your Honour. I have just been handed a note in relation to M182 - if your Honour would excuse me.
HIS HONOUR: Yes, the solicitor - you will recall I announced earlier that in M182 there was a certificate of the Registrar that the solicitor had indicated that there would be no appearance today.
MR HORAN: Yes. My instructions are that the applicant's representative had signed consent remitter orders, but which were not filed because of the impending mention of today's matter and I think at some cut-off point this Court's Registry had quite properly drawn a line under processing of further consent minutes and that yesterday my instructors rang the applicant's representatives to advise that the matter was being mentioned today, but we were only able to leave messages. Now, I am not sure whether - - -
HIS HONOUR: So are we simply to remit then?
MR HORAN: Yes, we have an original consent minute. Perhaps if I - - -
HIS HONOUR: Well, I would not act on the consent minute. I would simply remit.
MR HORAN: Yes.
HIS HONOUR: Then there is no difficulty about - - -
MR HORAN: I think, however, though, it is a category 2 case so it is probably one - I am not sure whether my instructors signed a consent minute which was not filed, but at least, as we stand today, there does appear to be an issue in relation to the jurisdiction of the Federal Court to deal with the entirety of the application. So it perhaps can be treated along with M121 which is in a similar position and M186 as ones which, if the same approach were to be taken as in the others, they would be stood out of the list, although in the other cases, of course, there are things in train which might progress the matter. It may be that an order - - -
HIS HONOUR: I think it better to stand it out. Looking at the draft, there is an explicit and direct challenge to a 351 decision.
MR HORAN: Combined with a challenge to a tribunal decision.
HIS HONOUR: I think we are better to deal with those as a block at a later time and, therefore, in each of M182, M121 and M186, simply stand them out of the list. I should still make orders for costs as in the application.
MR HORAN: Yes.
HIS HONOUR: The reason I would be minded to stand them out rather than dismiss them where there is no appearance is that what the parties have been told is that there will be a callover of cases and I think that the letter that went from the Court to the parties said, or could be taken as saying, the merits of your case will not be decided.
MR HORAN: Yes, I accept that, your Honour, and, in fact, it is perhaps more convenient, given that at some future occasion when these other matters are listed there will be argument and possibly some resolution of the prospects of success of challenge to these types of decisions, if these matters were listed at that time or afterwards. It would become clear then whether or not the prospects of success on those aspects of the application would be such as to allow them to be dismissed and then the balance remitted.
HIS HONOUR: Yes. Then in each of M182 of 2002, M121 of 2002 and M186 of 2002, the matter will be stood out of the list. The costs of today will be costs in the application. I will certify for the attendance of counsel. Now, does that complete our list?
At 3.14 pm - M100/2002 and M64/2002
MR HORAN: One would like to think so, your Honour, but there are two further matters which I think have been included in the schedule provided by the Registry. Your Honour will see on the final page there are a number of matters which have been dealt with by discontinuance or consent remitter.
HIS HONOUR: But there is also M100 and M64.
MR HORAN: So if I could mention those matters in the absence of representation for the applicant. It appears in one case from the annotation that the applicant has not received notice. Whether that is because of some difficulty in - - -
HIS HONOUR: There was an administrative glitch.
MR HORAN: Yes. I might say that each of these matters are what the respondent has designated as category 3 matters, so the respondent would consent to remitter of both applications, but I will leave it to your Honour as to whether or not it is appropriate to make an order in M100 in the absence of - - -
HIS HONOUR: You would not oppose an order in M64?
MR HORAN: If your Honour would excuse me, I might just get instructions.
HIS HONOUR: Yes.
MR HORAN: I was just debating with my instructor, in the second case where it appears that the applicant perhaps has changed address and that the respondent may want to ultimately seek the dismissal of the application, unless the applicant comes forward to prosecute it, and whether or not that should be done here or below - I can see your Honour's indication, and, as I said, the respondent has no objection to the remitter and so any issues as to the appearance of the applicant can be dealt with by the Federal Court.
HIS HONOUR: There will be an order for remitter in M64 of 2002. M100 will stand out of the list. Costs of today will be costs in the application. I will certify for the attendance of counsel.
MR HORAN: I am told that the curtains are able to be drawn.
HIS HONOUR: Well, I think that my schedule indicates that we have completed them all, but there we are. May I thank you, Mr Horan, and those instructing you for your assistance today. It has been invaluable. For that, I thank you.
MR HORAN: I appreciate that.
HIS HONOUR: I will adjourn.
AT 3.17 PM THE MATTERS WERE CONCLUDED
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