Applicant A62/2003; Ex parte - Re MIMIA & Ors A62/2003 [2003] HCATrans 772 (11 June 2003)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A62 of 2003

In the matter of -

An application for a Writ of Mandamus, a Writ of Prohibition and a Writ of Certiorari against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

First Respondent

JANET DUCKMANTON MEMBER REFUGEE REVIEW TRIBUNAL

Second Respondent

THE PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Third Respondent

Ex parte -

APPLICANT A62/2003

Applicant/Prosecutor

(And 120 other matters)

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO MELBOURNE

ON WEDNESDAY, 11 JUNE 2003, AT 11.03 AM

Copyright in the High Court of Australia

__________________

MS E.F. NELSON, QC: If it please your Honour, I appear with MR M.W. CLISBY for the applicant. (instructed by Mark Clisby)

MS S.J. MAHARAJ: If it please your Honour, I appear for the Minister. (instructed by Sparke Helmore)

HIS HONOUR: Yes, Ms Maharaj.

MS MAHARAJ: Your Honour, if I could just first of all ensure that your Honour does have all the correct documents before yourself. The first document is the Minister's summons which is dated 29 May 2003, together with a summons of Ms Reed which was sworn on 15 May 2003, and the last document is an affidavit of Mr Leerdam which was sworn yesterday, 10 June 2003.

HIS HONOUR: Yes, I have those.

MS MAHARAJ: Yes, if it please your Honour. Your Honour will see from the summons that the Minister seeks three orders from the Court. The first one is that the Court finds that there has been an abuse of process by Mr Mark Clisby in relation to the 121 matters which is listed in the schedule annexed to the summons that I have taken your Honour to; secondly, that indemnity costs on a personal basis be awarded against Mr Clisby; and thirdly, your Honour, that all these matters be remitted to the Federal Court.

One housekeeping detail, your Honour, a matter that has been brought to our attention today in the morning is that in the schedule itself matter No 39, which is A102 of 2003, has been discontinued. What we will seek to do, your Honour, is replace that particular matter which has been discontinued with the matter No A114 of 2003, which has been left off the schedule by mistake. There is no opposition to that course, your Honour.

HIS HONOUR: Yes.

MS NELSON: That is correct, your Honour.

MS MAHARAJ: Now, your Honour, what I will do very briefly in the course of our submissions is first of all to take your Honour through our written submissions which were, I hope, faxed to your Honour yesterday.

HIS HONOUR: Yes, I have read those and I have read the affidavit, so you may proceed from that basis.

MS MAHARAJ: Yes, your Honour. Just by way of core legal propositions, if I could state them rather shortly, what the Minister respectfully submits to the Court is that as the proceedings in respect of the 121 matters have been instituted in a clearly inappropriate forum, it constitutes an abuse of process and, secondly, your Honour, and alternatively the Minister says that as delay is the purpose of instituting the proceedings, it constitutes an abuse of process and indemnity cost is sought against Mr Mark Clisby on the basis that there is an abuse of process and on the general principles which have been enunciated in Colgate Palmolive, the Federal Court decision which is in our written submissions.

Now, the relevant facts are noted in the affidavit, first of all, of Ms Reed which I have just mentioned to your Honour and your Honour will see that there were 408 matters instituted in the original jurisdiction of the High Court between the period 30 November 2001 to 6 February 2003. That is in paragraph 3 of Ms Reed's affidavit. Then your Honour will see that on 4 February the High Court handed its decisions down in matters S157 and S134.

The third relevant event, your Honour, is that on 6 February her Honour Justice Gaudron and on 7 February your Honour remitted bulk matters from the High Court to the Federal Court. Your Honour will recall that on 7 February your Honour remitted 365 Adelaide matters to the Federal Court in Adelaide and in the course of doing so your Honour quite clearly stated that the matters would be so remitted unless cause was shown to the contrary as to why the matters ought to remain in the High Court. Her Honour Justice Gaudron in Sydney on 6 February had made a similar comment.

Therefore, we say, your Honour, it was clearly evident after the High Court handed its decision down in matters S157 and S134 and the bulk remittals of these matters on 6 and 7 February with the observation that fell clearly from the Court that all these matters would be remitted, the High Court clearly became an inappropriate forum for filing these sorts of applications.

The other relevant event your Honour will notice is that on 19 February 2003, which is noted in paragraph 7 of Ms Reed's affidavit, a letter was sent by the Minister to Mr Clisby alerting him to the fact that the Minister was of the view that the filing of these proceedings in the High Court would constitute an abuse of process. If I could take your Honour rather quickly to the contents of the letter itself, which is annexure EMR to Ms Reed's affidavit.

HIS HONOUR: Sorry, which number?

MS MAHARAJ: EMR-5.

HIS HONOUR: Thank you. I have that.

MS MAHARAJ: The first paragraph, your Honour, refers to previous conversations that were had between Ms Reed and Mr Clisby requesting the ceasing of filing of the applications and the Minister alerting Mr Clisby to the fact that an abuse of process application may be brought in the High Court. But I would ask your Honour to note paragraph 5 where there were previous conservations between my instructors and Mr Clisby asking him to cease filing in the High Court in view of what had fallen from the High Court.

Then your Honour will see an important piece of evidence from our point of view which is the conversation between Ms Reed and Mr Clisby on 20 February 2003, which is contained in paragraph 8 of Ms Reed's affidavit, where upon receiving the 19 February letter Mr Clisby spoke to Ms Reed and said, as is noted on the third and the fourth lines in paragraph 8, that:

he would continue in filing in the High Court to prevent the new matters he was filing being listed in the Federal Court for hearing before the matters remitted to the Federal Court on 7 February 2003.

If I could take your Honour to the file note of the conversation, which is EMR-6. Your Honour will see from the handwritten note the first entry along the first cross where Mr Clisby said:

his position is he is not budging at the moment - until the matters are remitted he will continue to file in High Court.

At about point 5 your Honour will notice where the fourth asterisk is written that Mr Clisby stated that:

he doesn't want new matters listed before old matters.

That obviously, your Honour, is a reference to the matters that were remitted by your Honour, the 365 on 7 February.

HIS HONOUR: Now, assume that that is a part of his purpose. Why does that make his commencing proceedings in this Court an abuse of the process of this Court?

MS MAHARAJ: Two short answers, your Honour. The first is, as it has fallen from the High Court in Walton v Gardiner, that the High Court by that time had become clearly an inappropriate forum to institute such proceedings. Secondly, your Honour, that on the face of it proceedings being instituted in the High Court and being remitted to the Federal Court, or, for that matter, any other court, would not constitute an abuse, but if the purpose for instituting the proceedings in the High Court is to delay the listing of these matters or to manipulate the processes of the Court which is for an end otherwise than for an end to vindicate a legal right or to get an adjudication of the issues would amount to an abuse of process. Put another way, your Honour, the sole or the dominant purpose for instituting the proceedings in the High Court was to delay. To delay in itself we would say amounts to an abuse of process.

HIS HONOUR: But to delay what? To delay the resolution of his client's claim?

MS MAHARAJ: Yes, your Honour, to delay the ultimate resolution of these matters. When I say delay, your Honour, what we respectfully submit is that the ultimate resolution of these matters, of course, in the Federal Court is delayed but the reason why the matters have been filed in the High Court is not to get a resolution in the High Court. It is not for a proper purpose in the sense that the filing initially had to be done in the High Court; it is simply filed in the High Court for no good purpose at all but to seek delay.

The first indicia or sign when Mr Clisby stopped filing in the High Court is when it clearly fell from the Federal Court that it would list all subsequently filed matters in the High Court at the tail end of the earlier remitted matters. We say, your Honour, that that in itself is a manipulation or use of the Court's processes for an improper purpose. Put another way, your Honour, what the Minister says is that a party ought to file their proceedings in the proper forum, not an inappropriate one, and that it is for that particular court to lay down the proper procedures and timetables for the dealing of those matters as they fall for the court's consideration, but to use another court - and it is the High Court in this instance - to file proceedings in order to avoid these sorts of matters being considered by the Federal Court in a proper way is an abuse of the processes of the High Court.

I think I have brought to your Honour's attention what appears at point 5 of the file note dated 20 February 2002. If I could just complete reading that, your Honour, where the note goes on to say:

Your instructions are for the time being that the new matters go to the end of list so he file in the High Court, in order to prevent FC from listing them before the matters being remitted -

And these are the words which are noted by Ms Reed in her affidavit in paragraph 8. So the only purpose that was given by Mr Clisby on 20 February was that the filing of these matters in the High Court were for the sole reason - and it does not have to be the sole; it is sufficient if it is predominant, we respectfully say, your Honour - for the purposes of preventing the Federal Court from listing these matters prior to the remitted matters. So that is the use to which the machinery that is the processes of the High Court are being put and that is an improper purpose.

Now, your Honour, the next relevant event, if I could take your Honour to that rather quickly, is in paragraph 9 of Ms Reed's affidavit. She notes that another letter of warning was sent on behalf of the Minister to Mr Clisby, but your Honour will see from the content of the transcript of the proceedings before the Federal Court, which I will take your Honour to briefly, and the conversations had between my instructors and Mr Clisby that several matters - and there is a discussion in the transcripts of about 10 to 25 matters in some instances continuing to be filed in the High Court and after the second letter of warning was sent another matter was filed on 9 April 2003.

So all indications from Mr Clisby's conduct appear to be that the filing in the High Court would continue after the first letter of warning and he did in fact file one application after the second letter of warning was sent on behalf of the Minister and the discussion in the Federal Court proceedings were that substantial numbers of matters were being filed on a weekly basis in the High Court. Now, as I have said to your Honour earlier, that I will take your Honour rather quickly through the transcript of the proceedings - - -

HIS HONOUR: I have read that. So what are the points that you would wish to make about what occurred in those proceedings?

MS MAHARAJ: Essentially these points, your Honour, that from the transcript of 3 April 2003 your Honour will see that his Honour Justice von Doussa gave a clear indication that he would in fact list the subsequently filed matters in the High Court after the remitted matters were heard. So there is a clear signal from the Federal Court that it would fall in line with what Mr Clisby wanted to do insofar as the listing of these matters went.

Your Honour will see some discussion and some advice being given by his Honour Justice von Doussa about the obligation of the practitioners and how workload ought to be handled and him in fact counselling Mr Clisby about the number of matters that he had and how the court had in fact bent over backwards in order to accommodate all the parties, particularly Mr Clisby in his workload. So those are the quick issues that I want to take your Honour through the transcript.

The first transcript, your Honour, as I said, is 3 April 2003, which is annexure EMR-8 to Ms Reed's affidavit. If I could take your Honour first of all to page 5 of that annexure.

HIS HONOUR: As I say, I have read it, Ms Maharaj. If you could tell me whether there is some further point you would wish to make as emerging from this, that, I think, would be better than reading slabs to me.

MS MAHARAJ: I did not intend to read the slabs to your Honour.

HIS HONOUR: Yes. So what are the points you want to make?

MS MAHARAJ: If I could just note for your Honour's benefit that on page 5 was the warning given by Justice von Doussa at about line 36 about what the court would have done regarding the listing of the matters and the obligations of a practitioner to ensure proper progress of these matters. Page 6, your Honour, is the mention of the continuing numbers of matters which are being listed in the High Court at about point 1. The next point, your Honour, is on page 16 at about lines 6 and 7, particularly at line 8 if I could make good the submission that I made to your Honour earlier that the estimate was that "10 to 25 or something", or at least those sorts of matters were being filed in the High Court on a continuing basis, and page 17 at about lines 16 and 17 Justice von Doussa advising Mr Clisby that it was "unprofessional to take instructions in matters that you cannot process."

Page 18, your Honour, at about lines 16 and 17 is that critical issue that I mentioned to your Honour where Justice von Doussa said that the later filed matters would not be listed ahead of the earlier remitted matters. Page 18 at line 15 his Honour repeats that the newly filed matters would go to the end of the list, as was being sought by Mr Clisby. Again, on page 20 at about line 5 his Honour repeats that and also mentions that there are in excess of about 100 matters still in the High Court awaiting remittal.

These are the sorts of issues that emerge from the other transcripts, so I will not take your Honour to those, but in short the points that we make respectfully on behalf of the Minister are that, as has fallen from the High Court itself, that filing of proceedings in a clearly inappropriate forum on its own would constitute an abuse of process.

HIS HONOUR: What is the best authority you have for that proposition?

MS MAHARAJ: Your Honour, we have noted in our written submissions the authority of Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 at 393 point 3.

HIS HONOUR: Yes.

MS MAHARAJ: Secondly, your Honour, as we have noted in our written submissions in paragraph 8.2 on page 4, that where delay is the purpose of instituting proceedings, that on its own will constitute an abuse of process. The authorities that we have noted, your Honour, in our footnote 10 is the decision of the Full Court of the Federal Court which Flower and Hart v White Industries Pty Ltd [1999] FCA 773 at paragraph 64, which is the judgment of their Honours Justices Lee, Hill and Sundberg and also the decision of his Honour Justice Hill in Deputy Commissioner of Taxation v Levick [1999] FCA 1580 at paragraph 35.

Your Honour will recall from your involvement in some cases regarding the Deputy Commissioner of Taxation where arguments were being run in various courts, including the High Court, which were labelled by the High Court as untenable and spurious, and your Honour sat on some of those decisions. But Justice Hill looked at that same issue in the matter of Deputy Commissioner of Taxation v Levick where his Honour said that the only logical inference that could be deduced from the material that was before him that the proceedings were instituted and spurious arguments were advanced in order to delay the collection of the tax.

In this particular case, your Honour, we say that taking the facts at its highest - and we have looked at Mr Clisby's affidavit which has been filed in these proceedings and we have no objection to that being used without cross-examination - that he admits on his own evidence that he in fact filed in the High Court at least for the predominant purpose of delay. So, in short, your Honour, because it is clearly an inappropriate forum on the purpose on his own admission to my instructors and in his affidavit was to delay, we would say that the abuse of process finding ought to be made against Mr Clisby and we respectfully submit that indemnity costs ought to be ordered against Mr Clisby as sought by the Minister on the basis of abuse of process or the Colgate Palmolive - - -

HIS HONOUR: The costs of what? What costs do you say should be the subject of that order?

MS MAHARAJ: If it please your Honour - - -

HIS HONOUR: A possible point of view, Ms Maharaj, is that by issuing in this Court rather than in the Federal Court, what has been caused is an unnecessary application for remitter and that the costs which have been incurred, you would say inappropriately, are the costs of this application. So what are the costs that you say should be paid by Mr Clisby personally?

MS MAHARAJ: Your Honour, the costs of the remitter, the costs of this application and we would further submit respectfully that costs of and incidental to the proceedings being instituted in the High Court itself. We would say that all those costs were unnecessarily incurred.

HIS HONOUR: Yes.

MS MAHARAJ: If it please your Honour, those are our submissions.

HIS HONOUR: Yes, thank you. Yes, Ms Nelson.

MS NELSON: May it please your Honour, may I begin by apologising that I have not filed a written outline of submissions. I was briefed in this matter very late in the day. I understand there was no direction but I do understand that it is common practice.

HIS HONOUR: No, that is perfectly all right. Yes.

MS NELSON: I do propose to be brief, your Honour. We submit that in this case your Honour cannot on the basis of the material before you reach the inferences sought by my learned friend. Alternatively, even if your Honour were to be prepared to draw those inferences, we submit that this is not an abuse of process. Alternatively, if your Honour is against me on both of those arguments, we would say that the question of costs is discretionary and in this case it is an unnecessary application for remitter because there was an agreement on 3 April before Justice von Doussa by counsel for the Minister at that time to send consent orders to Mr Clisby to be signed by Mr Clisby, so that it was not necessary to bring this application for remitter. Further, in the alternative, if your Honour is against me on all of those arguments, we would say quite simply that the only costs that could be considered to be unnecessary would be the costs of the application for remitter.

May it please your Honour, there is clearly a factual dispute here and, with respect, I do not think that your Honour could possibly resolve that on the papers and this is not an appropriate case where the Court should be put to the trouble of deciding whose interpretation of the relevant conversations and events is the correct one. It is quite clear from Mr Clisby's affidavit that his understanding of conversations and, indeed, his recording of conversations between himself and Ms Reed is different.

He says clearly in his affidavit that there was some discussion about how these matters might be dealt with and in what order. Her view was that it should be dealt with by groupings and his view was that in fairness it should be dealt with chronologically, and there is some considerable force in that approach, and there are other matters of factual dispute. I am not suggesting your Honour try to resolve them, but that is our first position, that the evidence is such that your Honour cannot draw an inference and certainly not the inference for which my learned friend contends.

HIS HONOUR: What business is it of a solicitor acting for a large number of clients to impose his or her view of the order in which those proceedings should be heard, either on the court or on the opposite party?

MS NELSON: I quite agree, your Honour. All I am saying is Ms Reed had a view. Mr Clisby had a view. They had different views. Ultimately it clearly had to be resolved by the court and, indeed, it was resolved in the Federal Court by his Honour Justice von Doussa.

HIS HONOUR: It seemed to me that a possible point of view of what was occurring was that the solicitor was seeking to impose his views regardless of the position of the individual clients for whom and in whose interests he was supposed to be acting.

MS NELSON: And I understand that that is a view that is urged by my learned friend. I simply put to your Honour that there is another view which is that Mr Clisby was acting for a large number of clients. He has to consider the interests of all of those clients. His view was that the justice of the matter merited the applications that were filed earlier being dealt with earlier. In other words, he was seeking to advocate a fairness in a regime which would not disadvantage applications that had been filed earlier.

HIS HONOUR: That, if I may say so, appears to reflect a view that there is no differentiation between the particular position of individual applicants, a fact which would be reinforced, at least to the level of impression, from the fact that there seems to be a standard form application with a form affidavit attached bearing little or no relationship to any individual circumstance of any individual applicant. It does not engender any great confidence in the process that is being adopted when coupled, especially, with a statement made to Justice von Doussa that it is expected that up to 80 per cent of these claims will not proceed. One begins to get a feeling, Ms Nelson, that the procedures of the Court may not be being employed quite as they should be.

MS NELSON: First of all, your Honour, I cannot comment on the nature of the summons or any supporting affidavit. My involvement in these matters has been confined to one procedural appearance before Justice von Doussa and this matter today. So I have no instructions and I have no knowledge of the substantive material before the Court. However, I do know this because I am instructed on this. There was an arrangement whereby the Minister would cause through his solicitor the green books and the relevant material to be submitted to Mr Clisby in order that he might consider each case on its respective merits and I understand that without that material - - -

HIS HONOUR: A step, Ms Nelson, if I may interject, which is ordinarily undertaken before process is issued, not a step that is ordinarily undertaken well after the issue of process.

MS NELSON: I understand that, your Honour. May I say this: in these particular cases there are certain time limits with which my instructing solicitor has to comply.

HIS HONOUR: And during which it might ordinarily be expected he would take sufficient instructions to know what the case is about and to know in what court the proceedings are to be issued. Your instructor says in his affidavit that there was difficulty obtaining instructions about what court these processes were to be instituted in. On its face that seems a most unsatisfactory position, that one should act for someone and have so little instruction that one cannot even know in what court the process should properly be issued.

There is much that has occurred in relation to these matters that excites close attention. In the end, however, Ms Nelson, it seems to me that it comes to this. Two points are made against you. First, it is said that Mr Clisby began the proceedings in what is clearly an inappropriate forum. Second, it is said that he began the proceedings in this Court in order, by manipulation of the Court's procedures, to effect delay. What answer do you make to those two propositions?

MS NELSON: First of all, your Honour, we say this was not at the time of institution of these proceedings an inappropriate forum. These matters relate to 121 applications that were filed between February and 9 April. There have been no applications filed since 9 April. Your Honour will see that it was not until April that his Honour Justice von Doussa finalised the manner in which material would be dealt with by the Federal Court. On that topic I cannot really say any more.

We say quite clearly that your Honour should not find that Mr Clisby had any improper motive. He sets out quite clearly and quite honestly in his affidavit what he had in mind, that at the time of filing he has an obligation to these people - and there are some difficulties in instructions. There are people who do not speak English. There are a large number of them.

HIS HONOUR: All the more reason, Ms Nelson, why professional persons acting for such individuals should be scrupulous to ensure that they both understand and accept what is to be done. Your instructor is dealing with people whom, if we are to group them together and stereotype them, might properly be regarded as in a vulnerable position. That requires scrupulous attention to detail. It is not an excuse for sloppy work.

MS NELSON: I do not advance it as such, your Honour, and I hope I did not put it in such a way. Your Honour, can I just suggest - I am having some difficulty hearing you and I think it may have to do with where you are in relation to the microphone.

HIS HONOUR: Yes.

MS NELSON: Your Honour, I do not suggest and I do not advocate anything to the contrary, but in order to protect his clients' interests - and they live all over Australia - until there was a protocol established in the Federal Court which was not going to disadvantage his clients, it was proper for him to file in the High Court to protect their respective interests. That is what he says and that does not give rise to an inference that delay was the purpose. Indeed, delay has not been the result, we say with respect. Wherever these applications had been filed, they would quite clearly have been heard in the chronological order which Justice von Doussa put in place in April 2003.

So it is clear from what has happened, firstly, that there was no improper purpose, secondly, that there was no manipulation of the Court and, thirdly, there was no manipulation of the Court processes and, fourthly, filing in the High Court was not filing in an inappropriate forum. Those are my submissions on that topic.

HIS HONOUR: Yes, thank you, Ms Nelson.

MS NELSON: Unless your Honour can reach the view, notwithstanding the factual disputes, that the dominant purpose for my instructing solicitor filing these applications in the High Court was to delay, to create an injustice or an unfairness consequent upon that delay, then this is not an abuse of process. I simply rely on the authority to which my learned friend has taken you of Walton v Gardiner.

Now, that, of course, was dealing with the jurisdiction of the Court to order a stay of proceedings on the ground of abuse of process, but what it does say inter alia is that the procedures of the Court exist to administer justice with fairness and impartiality. One of the tests of an abuse of process is whether there has been a conversion of those instruments to injustice and unfairness. We say even if what is being advocated is correct, this does not constitute an abuse of process simply because there has been no delay; this was not an inappropriate forum; there has been no disobedience of a rule or order of the Court and there has been no resulting injustice or unfairness to anyone. These applications had to be filed somewhere vis-à-vis the Minister. At that level the Minister has to respond to the application. In a sense it is immaterial in which court that occurs in the context of the work that has to be done by the Minister in responding to the application.

That, your Honour, takes me to my third argument and it is this. We consent to the application for remitter. It was unnecessary to bring this application. Your Honour will see from the transcript of 3 April 2003 - and it is specifically referred to in Mr Clisby's affidavit - that before Justice von Doussa Mr Leerdam, who was then counsel for the Minister, agreed that what he would do was prepare the consent orders for remitter, send them to Mr Clisby and Mr Clisby agreed that he would sign those on the day that he received them. It was not necessary to bring a formal application before the court. Indeed, our understanding was that this would all happen by consent and the Minister had undertaken to prepare the necessary documents to remit the matters.

HIS HONOUR: Yes.

MS NELSON: My final argument, your Honour, is that if there are to be any costs orders, they need to be limited simply to the application for remitter. We say it was unnecessary. There should be no costs awarded in any event, for the reasons I have just advanced, but if your Honour is disposed so to do, then we would say respectfully that there is absolutely no basis to order costs, save and except those relating to this application. May it please your Honour.

HIS HONOUR: Yes. Thank you, Ms Nelson. Yes, Ms Maharaj.

MS MAHARAJ: If it please your Honour, a very short reply. First, in relation to my learned friend's submission that the state of evidence is unsatisfactory and therefore your Honour ought not to make the adverse findings regarding abuse of process requested by the Minister, we say in short that if your Honour looks at Mr Clisby's affidavit, which I gather that my friend asks your Honour to rely on, which was filed on 5 June 2003, if I could just bring to your Honour's attention a couple of paragraphs with a view to simply making this point, your Honour, that even on the material filed by Mr Clisby, he concedes the assertion of the Minister that he filed in the High Court in order to manipulate the processes of the Federal Court and in order to delay in the High Court.

That emerges from paragraph 2. The second line Mr Clisby talks about his telephone conversation with Ms Reed. He says that that conversation, on about the fourth line, is incorrect. Your Honour will see a couple of lines down Mr Clisby says:

I expressed a concern that, for example, applications issued in 2003 might otherwise be heard earlier than applications filed in 2001 which would be unfair.

Mr Clisby repeats his position at about point 6 that his position was that the later filed matters ought to be dealt with in the Federal Court subsequent to the 365 matters. He then looks at the suggestion made by Ms Reed where the Minister had an alternative position about disposing the matters by way of groupings other than chronological sequence and then your Honour will see in paragraph 8 on page 6 of the affidavit Mr Clisby mentions the 3 April 2003 directions hearing before Justice von Doussa and in fact repeats what I had earlier submitted to your Honour, which is the clear signal came from Justice von Doussa as noted in paragraph 8 at about point 7 that the later filed matters in the High Court would be listed at the end of the other remitted matters.

Page 7 paragraph 9, on top of that page your Honour will see that Mr Leerdam for the Minister repeats that these matters would be listed after the earlier remitted matters. The repetition of that again in paragraph 10 your Honour will see. Mr Clisby quite openly says in his affidavit:

I had advocated being that the new matters . . . go on to the end of the list -

after the earlier remitted matters. We say that that was his purpose. He quite openly admits that in his affidavit. He admits that that was his concern and he admits that he changed his tack regarding the filing of the matters after he got a clear signal from the Federal Court which fell in line with what Mr Clisby wanted regarding the listings. Page 8 paragraph 14, right at the bottom of the page, again he suggests that he continued filing because he was uncertain about what the Federal Court would do with these matters. Paragraph 15 on page 9, your Honour, reinforces, we respectfully say, the submission which has been made by the Minister respectfully to this Court in support of the abuse of process contention.

So we say, your Honour, that there is no lacuna in the evidence or an unsatisfactory state of evidence. Mr Clisby's affidavit in fact supports the contentions of the Minister in this case. As long as it is a dominant purpose, that would suffice, but we would say on a critical analysis of the material that appeared to be the sole purpose of Mr Clisby.

Finally, your Honour, I have just been instructed that I have asserted to your Honour that only one matter was filed on 9 April 2003 after the second letter of warning went from the Minister. I was incorrect, your Honour. In fact eight matters were filed on 9 April 2003 by Mr Clisby and between 20 February 2003 to 1 April 2003 83 matters were filed by Mr Clisby in the High Court.

Finally, your Honour, my learned friend is quite correct in saying that there is consent to the remitter but, as the application has been brought primarily for the abuse of process and indemnity costs, it was thought as prudent housekeeping practice to get it all done and over with today. Those are our submissions, if it please the Court.

HIS HONOUR: Thank you, Ms Maharaj.

On 4 February 2003 the Court gave judgment in two related matters: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex partes Applicants S134 of 2002 [2003] HCA 1; (2003) 77 ALJR 437 and [2003] HCA 1; 195 ALR 1 and Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 77 ALJR 454 and 195 ALR 24. In Plaintiff S157 of 2002 the Court held that the definition of "privative clause decision" in Part 8 of the Migration Act 1958 (Cth) refers to decisions involving neither a failure to exercise jurisdiction, nor an excess of the jurisdiction conferred by the Act.

The Court further held that the limitation upon the power of this Court under section 44 of the Judiciary Act 1903 (Cth) to remit proceedings to the Federal Court of Australia is controlled by the construction given to section 474 of the Act: see Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 77 ALJR 454 at 473 [94] and [95], 195 ALR 24 at 49 to 50.

On 7 February 2003 I called over a large number of matters which had been issued out of the Melbourne and Adelaide Registries of the Court and concerned decisions made under the Migration Act 1958 . Over 350 matters which had been issued in the Adelaide Registry of the Court by Mark Wallis Clisby, a solicitor, were remitted to the Federal Court of Australia. The orders for remitter in those matters were made in each case by consent.

Since the making of those orders Mr Clisby has instituted a number of other proceedings in the Adelaide Registry of the Court in which constitutional and other relief is sought against the Minister for Immigration and Multicultural and Indigenous Affairs of the Commonwealth in relation to decisions made under the Migration Act. The Minister now applies in those matters for orders which are described in the following terms:

1. the commencement of proceedings, in this matter . . . by the solicitor for the applicants/prosecutors constitutes an abuse of the process of this Honourable Court.

2. indemnity costs in respect of the one hundred and twenty one matters be awarded personally against the solicitor for the applicants/prosecutors.

3. the one hundred and twenty one matters be remitted to the Federal Court.

The Minister's application refers to 121 matters. One of those, matter No A102 of 2003, has been discontinued but by oversight one other matter issued by Mr Clisby, A114 of 2003, was omitted from the list of matters submitted by the Minister. The parties accept that I should deal with the 120 remaining matters identified in the schedule attached to the Minister's material together with the further matter, matter No A114 of 2003, that by oversight was omitted from that list.

Abuse of process connotes use of procedures of a court for purposes other than those intended. It would be futile and wrong to attempt any comprehensive definition of the circumstances in which the expression "abuse of process" might properly be applied to what has been done. It is clear, however, that the term may extend to a wide variety of circumstances. It is convenient in this regard to adopt what was said by the majority of the Court in Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 particularly at 392 to 393 per Chief Justice Mason and Justices Deane and Dawson:

The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail.

See, for example, Metropolitan Bank v Pooley (1885) 10 App Cas 210 at 220 to 221; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 128 to 130.

Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them.

See, generally, Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538.

Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.

See, for example, Reichel v Magrath (1889) 14 App Cas 665 at 668; Connelly v Director of Public Prosecutions [1964] AC 1254 at 1361 to 1362.

The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of West Midlands -

[1981] UKHL 13; [1982] AC 529 at 536 -

as "the inherent procedure which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people".

"Abuse of process" is a term therefore that has been applied to steps taken both at the beginning and at the completion of proceedings. So, for example, filing notice of discontinuance of proceedings in accordance with applicable rules of court was held in the particular circumstances of the case to be an abuse of process in Castanho v Brown and Root [1981] AC 557 and, as the passage which I have cited from the majority reasons in Walton v Gardiner demonstrates, there are various circumstances in which the commencement of proceedings in a court can constitute an abuse of process. Ordinarily the remedy for an abuse is to stay further proceedings in the action if the action itself is an abuse or to prevent reliance on a particular step which is found to constitute the abuse of which complaint is made. Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 is an example of the former kind of order.

In the present case the abuse was said to lie in the institution of proceedings in this Court rather than in the Federal Court of Australia for the purpose of delaying the disposition of the claims that were made. It was said on behalf of the Minister that the proceedings had been instituted in a clearly inappropriate forum and in order to manipulate the procedures of the courts so as to effect a delay.

The solicitor for the applicants/prosecutors, Mr Clisby, sought to explain his decision to institute proceedings in this Court rather than in the Federal Court on two bases. First, he said in effect that he was motivated by a desire to ensure that the matters in which he was retained were heard and determined in the order, or at least substantially in the order, in which they had been instituted. Secondly, he referred to some difficulties which he said existed in obtaining instructions sufficient to institute proceedings in the Federal Court rather than in this Court.

On its face, the second of these matters advanced by Mr Clisby presents many more difficulties and questions than it answers. If a solicitor has instructions to institute proceedings, there appears no valid reason why those instructions do not extend to identifying the court in which they are to be instituted. On its face, there appears to me to be no reason to think that difficulties in communicating with the lay client or with any principal solicitor from whom instructions are taken could legitimately constitute any answer to the proposition that a solicitor obtaining instructions to institute proceedings should have instructions about the court in which they are to be instituted.

As for the first of the matters mentioned by Mr Clisby, I would say only this. The order of disposition of proceedings pending in a court is primarily a matter for the court and for each of the individual parties to the particular proceeding concerned. Rarely, if ever, would it be appropriate in my view for the legal practitioner acting for a large number of parties to seek to impose his or her view about the proper order of hearing of matters either on the court or on the individual clients concerned.

As I have said, the Minister contended that the abuse in this case was constituted by instituting the proceedings in what the Minister said was a clearly inappropriate forum. In this regard reference was made to what was said in the passage from Walton v Gardiner which I quoted earlier. It is to be noted, however, that the reference to "clearly inappropriate forum" made by the majority of the Court in Walton v Gardiner was supported by reference to Voth v Manildra Flour Mills Pty Ltd, a case concerning the doctrine commonly known as forum non conveniens. That doctrine is not one having any application in the present case. Institution of proceedings in this Court was in the sense in which the expression is used in connection with forum non conveniens, not to institute proceedings in a clearly inappropriate forum.

As for the second matter, it may be right to describe an aspect of Mr Clisby's motivation as seeking to delay the disposition of claims made in the proceedings that were issued in this Court. It is, however, important to recall that if the result of delay was achieved - and it may be doubted that it has been - it is a delay that follows from the way in which this Court and the Federal Court respectively are able to order the disposition of their business. The delay that would be achieved would be delay in disposing of the individual and particular application that is instituted, not, as has been the case in some of the cases that were mentioned by the Minister in argument, a delay of a collateral kind.

There are circumstances in which the regular invocation of this Court's jurisdiction could be an abuse of process. The examples given in the passage from Walton v Gardiner which I have cited serve to demonstrate that possibility. In the present cases, however, the most that can be said is that instituting proceedings in this Court rather than in the Federal Court has required an additional, perhaps an unnecessary, step in each of the proceedings, namely the application for remitter of the proceedings from this Court to the Federal Court. The requirement for that additional unnecessary step is not such as could be described in the words used by Lord Diplock in Hunter v Chief Constable as being manifestly unfair to a party to the litigation or bringing the administration of justice into disrepute among right-thinking people.

For those reasons, I am of the view that it is not right to say that the institution of proceedings in this Court can properly be described as an abuse of process.

Before parting with this aspect of the subject, however, it as well to add that the first order which the Minister sought by his summons, namely that the commencement of proceedings constitutes an abuse of process, was an order which in form appeared to be couched in declaratory terms. It would be wholly inappropriate to make an order in those terms in a case where final determination of the proceedings was not sought. As has been pointed out elsewhere - see, for example, Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2003) 77 ALJR 183 at 208 [128], [2002] HCA 54; 194 ALR 337 at 370 to 371 - interim declaration is not a form of order known to the law.

The parties are agreed that each of the 121 matters now in question should be remitted to the Federal Court. An order remitting them will therefore be made. That leaves open, however, the question whether some special costs order should be made concerning the costs of the application for remitter. I am not persuaded that the solicitor should be ordered to pay those costs personally. Nonetheless, because the making of the application for remitter was an unnecessary step in these proceedings, I think that the appropriate order for costs that should be made is that the costs of today's application should in each of the 121 cases concerned be the Minister's costs in the cause. The purpose of that is that if the Minister succeeds in the principal proceeding instituted, the Minister should have the costs of the application for remitter. By contrast, if the Minister fails in the principal proceeding, the costs of the application for remitter should lie where they fall, each party bearing its own.

Accordingly, the orders that I will make are orders in common form remitting each of the 121 proceedings in issue to the Federal Court of Australia but ordering that the costs of today's application should be the Minister's costs in the cause in each case. I will certify for the attendance of counsel. I will adjourn.

AT 12.14 PM THE MATTER WAS CONCLUDED