Callover of 16 Immigration Matters - Melbourne [2004] HCATrans 253 (29 July 2004)

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Callover of 16 Immigration Matters - Melbourne [2004] HCATrans 253 (29 July 2004)

Last Updated: 6 August 2004

[2004] HCATrans 253

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne

CALLOVER OF 16 IMMIGRATION

MATTERS

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 29 JULY 2004, AT 9.33 AM

Copyright in the High Court of Australia

HIS HONOUR: Before I call any of the cases that are to be mentioned this morning I should indicate the course that I would propose to follow, subject, of course, to anything that counsel may later say. Cases in this morning’s list can be divided into two classes: those in which there has been no previous directions hearing or return of any application and consistent with what has been done previously in those cases, unless cause is shown to the contrary, I would propose to order that those proceedings be remitted to the Federal Court, thus the question that will have to be addressed initially in each of those cases is why an order for remitter should not be made. In those cases where the Refugee Review Tribunal or, if there be any, the Migration Review Tribunal, or a member of one of those bodies is named as a party, the Registrar has certified that the relevant respondent has indicated in each case that it will abide by any order of the Court save as to costs. Although I think we have no litigants in person present, if there were any, it would be desirable that they notify the staff of their presence.

Now, the order in which I will deal with cases is to deal first with those which have not previously been dealt with in the Court, then deal with those which have previously been before me. I will deal with them substantially in the order of filing. So we begin with matter M21/2004.

At 9.36 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicants M21/2004 was called.

MR S.P. DONAGHUE: May it please the Court, I appear for the Minister. (instructed by Clayton Utz)

HIS HONOUR: Are you conscious of any appearance on behalf of the litigant in person?

MR DONAGHUE: No, your Honour, I am not.

HIS HONOUR: What do you say I should do with it?

MR DONAGHUE: I say this is a straightforward matter that should be remitted to the Federal Court, your Honour. We have some draft orders we can hand up, if that would assist.

HIS HONOUR: Yes. Do those orders follow the form that previously has been adopted where it is for the Minister’s side to prepare the necessary copies of papers?

MR DONAGHUE: They do not provide for that in terms. Normally, as I understand it, your Honour, those orders are made at the Federal Court - - -

HIS HONOUR: Yes. What I have done in previous matters is to give as a direction, in addition to the ordinary form of remitter, a direction that the relevant copies of the papers be prepared by the Minister’s side for transmission to the Federal Court. That, quite frankly, simply obviates a problem that otherwise would arise when we have litigants in person without ready access to copying facilities and general administrative backup. So subject to that, if we make an order for remitter in the ordinary form together with a direction of the kind I have mentioned, is there anything you want to say against that?

MR DONAGHUE: No, your Honour, there is not. The one other matter is that I am instructed to seek the Minister’s costs of today because the applicant had been invited to consent to the remittal of this matter and had - - -

HIS HONOUR: If I make an ordinary form of order for costs, that is, that they be in the cause effectively, if the Minister ultimately wins, she will have her costs, will she not?

MR DONAGHUE: I accept that.

HIS HONOUR: If she loses, then perhaps the costs of this might be the subject of some separate argument at the time. I understand why the application is made, Dr Donaghue, and I do not wish by making an order in the ordinary form to preclude later argument when the matter comes either before the Federal Court, perhaps before the Federal Magistrates Court, that you should have your costs of this step in any event. But for the moment, I will simply make the order in the ordinary form. There will be an order for remitter of the kind I have described.

At 9.38 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicant M28/2004 was called.

MR C.G. FAIRFIELD: May it please the Court, I appear for the Minister. (instructed by Australian Government Solicitor)

HIS HONOUR: Now, again, do we know anything of the litigant in person?

MR FAIRFIELD: I do not, your Honour.

HIS HONOUR: Not present?

MR FAIRFIELD: Not present, your Honour, as far as I can tell. Again, your Honour, I have an order pretty much in the standard terms without the direction that your Honour has foreshadowed.

HIS HONOUR: Well, the form of order for remitter will be an order for remitter in the terms previously adopted at earlier callovers. That contains the direction that it is the Minister’s side who should prepare the necessary copy documents for transmission to the Federal Court.

MR FAIRFIELD: As your Honour pleases.

HIS HONOUR: Yes. Though perhaps unnecessary, Mr Fairfield, I repeat in this and in subsequent cases that though I make an order effectively making the costs costs in the cause, that is not to preclude argument at some later time about whether in any event the Minister might have her costs of appearance today on the basis that the application was unnecessary and could have been dealt with without need of appearance. Those are arguments that may take place at another time and before another court.

MR FAIRFIELD: As your Honour pleases.

At 9.40 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicants M31/2004 was called.

MR S.P. DONAGHUE: May it please the Court, I appear for the Minister. (instructed by Clayton Utz)

HIS HONOUR: Yes.

MR DONAGHUE: This one is the only one of the matters in which I appear this morning where I propose to attempt to convince your Honour to depart from the indication that you gave as to an inclination to remit matters that had not come here before. The reason for that is this, your Honour. This matter involves an attempt to challenge a decision of the Refugee Review Tribunal that has already been challenged in the Federal Magistrates Court. The challenge was dismissed in June of last year and the applicant chose not to appeal against that order.

The context in which the request that I am making this morning arises is that there are now starting to be a great many of these cases which are dismissed below, particularly as a result of the Muin and Lie class action, where applicants are then commencing again. My submission is that it is undesirable to create a procedural incentive for people to come to this Court rather than to the Federal Court, and that there is such an incentive if they get months of time by commencing here rather than there.

HIS HONOUR: Can I cut across that? Is this an issue which will, so far as you know, arise in any of the matters with which I have dealt earlier which will come on later in the list this morning? The reason I ask is this. What I have in mind in such cases, conscious, as I am, of the emergence of this question, is that we should soon gather together some cases which present this kind of problem or allied kinds of problem, such, for example, as questions about Anshun estoppel and questions about issue estoppel, which I think are hovering around in at least some of these cases, and bring them on for consideration, whether for final hearing and determination or for consideration of stating a case for the opinion of a Full Court or for reference into a Full Court to get a final authoritative decision on issues of this kind in as efficient a way as we can.

Can I just foreshadow one other aspect of the problem? If I deal with it, the decision, whichever way it goes, is, of course, open to appeal. Is that - - -

MR DONAGHUE: Only with leave, your Honour, is my submission, yes.

HIS HONOUR: I understand that, but is it going to be more efficient either to refer one or several cases into a Full Court to dispose of once for all? Is it going to be more efficient to state a case? Is it going to be more efficient to just hear and determine these issues after full argument as a single Justice? This is a set of debates that I want to try to join together, at least with a sufficiently representative sample of the cases where this kind of question is emerging, so that we can as efficiently as we may dispose of it.

Would it, in light of that, be convenient to you if I were to simply stand this matter over in the list today until we see what other cases we have in today’s list where these kinds of issue arise and then consider this case and any others in which it arises and debate what the more efficient method of dealing with them is?

MR DONAGHUE: Your Honour, I have spoken to my friend Mr Fairfield about the extent to which this problem does arise in his matters. The answer is, somewhat surprisingly, that it does not, apparently mainly because those cases are old cases. Most of Mr Fairfield’s cases are older cases. But it does arise potentially in two of the other matters in which I appear, depending on the attitude that the applicant takes. I understand they are moving towards possible agreement in that matter. So, subject to those two matters, this would be the only case that would squarely raise the question - - -

HIS HONOUR: How common a problem is this?

MR DONAGHUE: Increasingly common.

HIS HONOUR: I understand that. Is it coming out only in one form? That is, am I wise or am I not wise to try to group cases where different ways of putting the problem might fall for consideration?

MR DONAGHUE: In my submission, that is not necessary, your Honour. The reason is this - - -

HIS HONOUR: Not necessary, but is it wise?

MR DONAGHUE: Well, in my submission not, your Honour, because the context in which it usually arises is an unparticularised application in the Federal Court, often under the old Part 8, followed sometimes by Muin and Lie proceedings, sometimes not, followed then by a new application in this Court and, again, alleging all of the range of judicial review grounds. Sometimes the case is put on a narrower basis actually in the course of the hearing in the Federal Court, and that is never reflected in the application. Sometimes it is just one of these matters where really no legal ground is identified.

The law as it has developed in the Federal Court about these matters is clear. Depending on how your Honour chooses to deal with it, I propose to take your Honour quickly to that. But, in my submission, it is obvious that if this matter is remitted it will fail for res judicata or Anshun estoppel reasons.

HIS HONOUR: Are those questions ones which are being challenged by appeal? Is the problem coming into the system – in particular, is it coming towards this Court via the appellate path?

MR DONAGHUE: Not to my knowledge, your Honour, because, as far as I am aware, all of the leading authorities in the Federal Court are single judges in the Federal Court and ordinarily the applicants appear to be giving up at that point and perhaps starting a new proceeding rather than choosing to appeal the matter up. But, in my submission, it is not clear or it does not seem to be the case that there is any real debate about the legal principles involved, which is why I submitted that it may not be wise to refer the matter into a Full Court. The legal principles appear fairly clear. There has been some debate in some of the cases about whether or not Anshun estoppel and res judicata properly apply in public law proceedings.

HIS HONOUR: Yes. Just so.

MR DONAGHUE: The Federal Court’s answer to that is yes. I am not conscious of that having been tested, even in the Full Federal Court, in recent years. There are Full Federal Court cases that have suggested that the answer is yes, and those cases are being applied by single judges in the migration context. But that legal question really strikes me as the only one that might warrant the attention of the Full Court of this Court.

HIS HONOUR: But it is a question of no little importance - - -

MR DONAGHUE: Indeed.

HIS HONOUR: - - - were it to be understood as a principle of general application. That would be at least a development of the law as presently understood, I think.

MR DONAGHUE: Well, certainly if this Court said that it did not apply in that area, then that would be changing the position markedly. If it took the other view, then it would probably just be confirming a fairly settled Federal Court view. But the difficulty, in my submission, your Honour, really caused by this case is the procedural one. If this Court presents an opportunity to purchase six months or more of time, then the Registry of this Court will be flooded with applications.

If the applicants commenced in the Federal Court, it would be easier to strike them out on Anshun or res judicata grounds. It is hard to see why on an order nisi application they should be any better off. If your Honour were to refuse to grant the order nisi, true, that could be appealed, but only if a Judge of this Court gave leave, and it is difficult to see why a Judge of this Court would give leave in relation to a clear case where the decision has been challenged, the challenge has been determined against the applicant and they have not appealed in the ordinary way.

In terms of your Honour’s questions about whether you need a group of cases, I probably should add that you do get some variations caused by the shifts in the legislative regime. So there is a difference between an original case under the old Part 8 and the new Part 8 and whether the first case commences here and is remitted. So there are some variations in terms of what grounds were available when sometimes it is said in the cases that a pre-Yusuf decision is different from a post-Yusuf because people did not really know what the scope of the old Part 8 was.

Now, the Federal Court has not given much credence to that particular line of argument. So, in my submission, really the principles do boil down to the same ones regardless, but if your Honour was minded to group matters together there probably are some variations that could be found but, in my submission, that is not necessary.

HIS HONOUR: Well, I think that the most efficient method of proceeding is to stand this matter, M31/2004, over to the end of the list and we will look at it then and see what is to be done and it will enable you to advance fuller argument, but let us deal with those other matters in which there may not be problems of such complexity.

At 9.51 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicant M37/2004 was called.

MR C.G. FAIRFIELD: May it please the Court, I appear for the Minister. (instructed by Australian Government Solicitor)

HIS HONOUR: Yes.

MR FAIRFIELD: Can I indicate to your Honour that in this matter the first respondent seeks the application dismissed as an abuse of process. In view of what my learned friend has said to your Honour just now, I should indicate to your Honour that I am briefed in three matters in the list this morning in which previous applications have been filed in this Court and in the Federal Court which have been discontinued. This one was ultimately dismissed in the Federal Court; the applicant filed fresh application which was discontinued. Therefore what is put is in those matters they ought to be dismissed as an abuse of process, but I accept that perhaps in one of them there might also arguably be a res judicata issue in respect of the first matter where the application was dismissed in the Federal Court.

Essentially what is put today in each of those matters is that what is before your Honour constitutes an abuse of process in view of the one discontinuance in one matter and an application dismissed, and in the other two matters previous discontinuances. That is just by way of general observation, if that assists your Honour and assists my learned friend in the matters your Honour raised earlier.

HIS HONOUR: Yes.

MR FAIRFIELD: In this particular matter, your Honour, there is an affidavit on file of my instructor, Ms Jacqueline Davis. Has your Honour read the affidavit?

HIS HONOUR: Yes, I have. That is recounting the quite complicated procedural history of various applications, if I put it in those terms.

MR FAIRFIELD: Indeed, your Honour. Yes, your Honour. Can I just indicate to your Honour that what happened in this matter was that the applicant filed an application in the Federal Court seeking judicial review of the Tribunal decision and did not comply with the orders of the judge in the Federal Court and did not file any contentions. The Federal Court judge then brought the matter on and subsequently the applicant purported to discontinue the matter. However, his Honour found that in the circumstances the notice of discontinuance was not in proper form and his Honour then dismissed the application.

Now, it appears that on or about the same day that that occurred the applicant filed in this Court an application for an order nisi. That was on 8 May 2002. That was remitted to the Federal Court and, again, the respondent filed a motion to seek to have the matter dismissed as an abuse of process in that court. As soon as that was done, the applicant filed a notice of discontinuance. Here we are again, third time round, again seeking to review the decision of the Tribunal which was handed down in December 2001.

HIS HONOUR: Yes. Now, what notice has the applicant had of the contention that the proceeding should stand dismissed as an abuse?

MR FAIRFIELD: I am instructed that the affidavit was served on 28 July.

HIS HONOUR: Yesterday.

MR FAIRFIELD: Yes, your Honour.

HIS HONOUR: Although it records the various procedural steps, the affidavit I think may not in terms, may it, say, “Look out, we are about to say your proceedings should come to a grinding halt”?

MR FAIRFIELD: There was a covering letter, your Honour. I have the original of the letter which I can hand up to your Honour. The letter is from my instructor. It says relevantly that the first respondent intends to rely upon the affidavit at the mention on Thursday, 29 – I think it should be July 2004 – as a basis for seeking dismissal of this application.

HIS HONOUR: A couple of thoughts, Mr Fairfield, which I should share with you so that you can dissuade me from them. First, the applicant has been told that the case will be called over. Even if the applicant is to be treated as well-versed in Australian legal procedures, an assumption which might be thought to be particularly hard on an applicant, it is not self-evident that on such a proceeding the application might be summarily terminated. Second, though, of course, I accept that the letter has been sent and in the terms you have described, that is notice yesterday of what is to be done today which is, I think on any view, unduly short.

Third thought, not unrelated to matters of the kind I was discussing with Dr Donaghue, is we have an unrepresented applicant who does not appear. The point is, yes, important, of course, to this applicant and it is generally important to the Minister, but I cannot help but feel that there is lurking beneath it a point of more general importance to the development of the law. It should better be dealt with after argument with a possible proper contradictor.

Those thoughts, which, as I say, I share with you so that you may dissuade me from them, suggest that what I should do in this matter is to adjourn it for argument of a motion or summons which presumably the Minister would institute and serve in ample time accompanied by whatever outline of submissions might be appropriate to a date in the third week of August, that is, the week commencing 23 August, when we might argue the matter fully. What I have in mind is that it might be adjourned to 24 August.

Though I would give no direction, what I would have in mind is the Minister might issue appropriate process designed to give proper notice of the application to terminate the application summarily. The Minister might at the same time or very shortly thereafter serve an outline of argument that would reveal the legal bases on which the Minister would contend that the matter should be terminated summarily. At the same time the Minister might draw the attention of the litigant not only to the importance of the application, but also to the possibility that the litigant might seek pro bono assistance if the litigant in truth desires to prosecute the application.

If the litigant recognises what you say is the inevitability that these proceedings are to fail and wishes to terminate them, so be it. If, however, the litigant, contrary to the view that you will no doubt contend, wishes to say, “No, this application should continue”, there would be advantage, I think, if those instructing you had pointed out to the litigant the desirability of seeking at least pro bono assistance. In that regard, of course, no doubt the Deputy Registrar will point the litigant to those who in the past have been good enough to provide pro bono assistance to persons seeking relief of the kind which this litigant seeks.

Now, it is a long monologue, Mr Fairfield, in which you have been very good to remain silent. What do you want to say in answer?

MR FAIRFIELD: Well, your Honour, I say firstly the litigant did have the advantage of legal representation in the past, as the affidavit discloses. Secondly, the history of the matter clearly demonstrates that the litigant has made no attempt to prosecute the matter. It has discontinued or attempted to discontinue when challenged by the Minister. The litigant is not here in Court today. The litigant has received the letter from the Minister indicating what is to happen today.

HIS HONOUR: This may raise hopes in the breasts of all concerned that the litigant will see the inevitable rightness of that which you assert to be the position, Mr Fairfield. Should I act on that rising hope in the breast of those who advise the Minister?

MR FAIRFIELD: Well, I hear what your Honour says.

HIS HONOUR: Look, this is a serious step. I understand the force of what you say, but do it without sufficient notice, what does that provoke? An appeal. Not a useful employment of Court time. Let us do it once and do it right. If there is an answer, let us here it. If there is no answer, no doubt you will succeed then.

MR FAIRFIELD: I hear what your Honour says on the matter. Can I just then clarify what course your Honour proposes to do in terms of the orders?

HIS HONOUR: All I propose is that I will adjourn the matter for hearing to a date in that week of the 23^rd. I would propose Tuesday, 24 August. I would give you no direction about the intervening steps, but you have heard what I have said about the necessity, if you are going to move for summary termination, to have given more than adequate notice of it. In my view, it would be of advantage were you to accompany it with an outline of argument that will reveal the grounds on which summary termination is sought and no doubt that will then reach the file and I will have the advantage of it. Is 24 August satisfactory?

MR FAIRFIELD: Yes, that is satisfactory, your Honour. Can I ask your Honour to reserve the costs of today as well?

HIS HONOUR: Yes. So M37/2004 adjourned to 9.30 am, 24 August in Melbourne or such other time and place as may be directed, reserve the costs and certify for the attendance of counsel.

MR FAIRFIELD: If the Court pleases.

At 10.06 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicant M41/2004 was called.

MR S.P. DONAGHUE: May it please the Court, I appear for the Minister. (instructed by Clayton Utz)

HIS HONOUR: Yes.

MR DONAGHUE: As I understand it, your Honour should have before you some signed minutes of consent - - -

HIS HONOUR: Yes, it arrived late yesterday. There is, I think, some awkwardness about it in that it did not mention that the Tribunal is respondent, but if I make an order for remitter in the terms earlier indicated.

MR DONAGHUE: Yes, your Honour.

HIS HONOUR: Yes.

At 10.07 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicants M42/2004 was called.

MS D. RASHEVA: May it please your Honour, I appear on behalf of the applicants. (instructed by Sulaika Dhanapala)

MR S.P. DONAGHUE: May it please the Court, I appear for the Minister. (instructed by Clayton Utz)

HIS HONOUR: Yes, Ms Rasheva, what do we do? Why do we not remit?

MS RASHEVA: Your Honour, I suspect that this case is in the same class of cases as M31 that your Honour considered earlier in that it has been heard in the Federal Court and was also a party to the Lie class action.

HIS HONOUR: Yes.

MS RASHEVA: Given your Honour’s previous indication that - - -

HIS HONOUR: You say that despite those facts this application can still be made here – despite the earlier proceedings that have been brought that the proceeding can still be brought here?

MS RASHEVA: I recognise the issue of the two estoppels and the res judicata and the only basis on which I would seek to make any submissions is the indication given by your Honour earlier, from the jurisprudential perspective, if your Honour was minded to group a class of cases for consideration of the Full Court. But aside from that, I would have no further submissions to make.

HIS HONOUR: Dr Donaghue tells me that the received wisdom at first instance in the Federal Court is that cases in these circumstances necessarily must fail. I do not want to delay the matter further if your side of the record accepted that that is the true position that should be adopted. Are we going to have a real fight about the application if these principles or not is the basic question, I think.

MS RASHEVA: Yes, your Honour. I recognise that the issue of res judicata and the two estoppels is a serious problem for this case and cases of this type - - -

HIS HONOUR: And is there an answer to it? I am sorry to put you on the spot, but there is no point my putting this over if at the end of the day it is going to be, “Well, really there is nothing we can say against it”. Do you follow the difficulty I have?

MS RASHEVA: Yes. Unfortunately, your Honour, I am not able to shed much further light on the matter.

HIS HONOUR: Well, Dr Donaghue, what do you say I should do?

MR DONAGHUE: In my submission, your Honour should approach this case in the same way as No 3. These are the other two – this one and the next one are identical and the same issue arises as in relation to M31. I should also note, your Honour, that there is an additional issue that presents a large hurdle which is a time limit question as well. There would need to be an extension of time for the certiorari and mandamus applications.

HIS HONOUR: In this one, that is in - - -

MR DONAGHUE: Yes, in M42 and M43 and also, in fact, in M31 because it is really a function of the fact that this is the third bite of the cherry. These decisions were made three or four years ago. So in order even to get the order nisi out of this Court the applicant needs to convince your Honour both to extend time for those remedies that they have an arguable case for prohibition where there is no time limit and to jump the Anshun and res judicata hurdles. They cannot do any of those things, in my submission. So, really, the efficient to deal with it, in my submission, is just to refuse to grant the order nisi in all three. I can take your Honour through dates and applications if that would help to clarify that.

HIS HONOUR: Is there any material, Dr Donaghue, other than whatever recitation of previous procedural history there is, which goes to the issue of why time should be extended? That is, is there more than the bare fact, “I have been approaching courts A, B and C by applications D, E, F at times X, Y, Z”?

MR DONAGHUE: It depends which matter we are talking about, your Honour.

HIS HONOUR: In M42?

MR DONAGHUE: In M42, I think that there is a request to the Minister for a favourable decision under – there is an application for an extension of time, but, no, there are no other reasons provided. There is an affidavit that does recognise the need to obtain an extension of time in paragraph 19, but no material in the affidavit that would support that extension.

HIS HONOUR: Yes, thank you, Dr Donaghue. Ms Rasheva, I have this decision to make: either I deal with this here and now or I adjourn it to 24 August with the others. I will adjourn it to 24 August, or there would be reason to adjourn it to 24 August, only if (a) your side wanted to put on some more material about why there should be some extension of time or if at that adjourned hearing you wanted to advance your side, that is, wanted to advance some argument against the estoppel arguments foreshadowed by Dr Donaghue. If you do not want an opportunity to put on more material about time, if you do not want to have an opportunity to put on argument about why the estoppel arguments should not run, there is no point in my adjourning it. If you want those times, then that is a different case. Now, what is the position from your side? What do you want to do?

MS RASHEVA: Yes, thank you, your Honour. I have made attempts over the last two days to try and get in touch with the client precisely to seek instructions on the issue of extension of time given the deficiency in the material, but I have been unable to do so. My instructor indicates that she will be making attempts throughout the day to contact the client. Given the difficulty that that poses on the first issue of more submissions for why an extension of time should be granted, I would submit that I am not currently in a position to indicate either way to your Honour because I have no instructions and, with respect to argument, I would submit that if your Honour were minded to adjourn this matter then such argument would be advanced in addition to any reasons for why an extension of time should be granted.

HIS HONOUR: Well, Ms Rasheva, I think the position is this. I will adjourn it over to 24 August. There is no polite way of saying this, but you should work on the assumption that that is it, 24 August is the time when this application has to come to the point of argument.

MS RASHEVA: Thank you, your Honour.

HIS HONOUR: Now, there is no point in my attempting to dress up that message, is there?

MS RASHEVA: No, it is well understood.

HIS HONOUR: I hope it is loud and clear. I understand the difficulties those instructing you face, but the position is clear, 24 August and basically that is it.

MS RASHEVA: As your Honour pleases.

HIS HONOUR: Yes. Now, Dr Donaghue, if I simply adjourn it in the same terms as the order for adjournment, namely, reserving costs, it will leave you to make any argument about costs on that date.

MR DONAGHUE: Yes, your Honour. Could I just ask - - -

HIS HONOUR: But, again, I would suggest, one, put on a notice of motion or summons or some process which will articulate precisely that it is the Minister’s contention this should come to an end and, secondly, put on an outline of argument that will disclose for all to see the legal bases on which this is asserted. There could then be less room for debate about whether there was sufficient notice of what was happening.

MR DONAGHUE: Certainly the outline of argument does not present any difficulties. When your Honour was speaking with my learned friend I was searching for the appropriate procedure – I do not know if your Honour has one in mind – because the reason we did not put something on before today was because we regarded this as an order nisi application - - -

HIS HONOUR: It is application for order nisi, application to commence proceeding in the - - -

MR DONAGHUE: Is that what has been adjourned?

HIS HONOUR: Yes.

MR DONAGHUE: Well, in that event, would your Honour be content if we file a summary of outline that explains why we say the order nisi should be refused? I cannot find a rule that would allow the Court to strike out an application for order nisi.

HIS HONOUR: All I had in mind was the irregularity rule and about the need to give notice of irregularity. I wanted to guard against the possibility that Order 64 rule 4 somehow had some engagement in this case, “application is made to set aside proceedings for irregularity”. Now, I can understand an argument that says there is no proceeding, it is simply an application to commence a proceeding in the Court, and Order 64 rule 4 is not engaged. All I am concerned with is that when we go back and look at the file there is not the slightest doubt that the applicant has been given adequate notice of what the Minister contends.

MR DONAGHUE: If the Court pleases.

HIS HONOUR: Thank you. Before dealing with M43/2004, may I call again matter M28/2004. I think the applicant in M28/2004 is now in Court, is that right?

At 10.20 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicant M28/2004 was recalled.

APPLICANT M28/2004 appeared in person.

HIS HONOUR: What has happened in your case is that I have made an order that your case should go to the Federal Court for that court to decide in the first instance whether it will hear it or the Federal Magistrates Court will hear it. Do you understand that? That is the only order I have made, that the proceedings be remitted to the Federal Court and that the Minister’s solicitors take the necessary steps to prepare the papers for that. But you will hear about the matter next from the Federal Court. Do you understand that? Yes. Yes, Mr Fairfield.

MR FAIRFIELD: Given that your Honour has called the matter on again, can I just seek a point of clarification in relation to the orders that your Honour proposes to make?

HIS HONOUR: Yes.

MR FAIRFIELD: The respondent seeks an order – and I am not sure whether or not this will be in your Honour’s order – that the further proceedings on the remitted application be governed by the relevant High Court Rules.

HIS HONOUR: Yes, because questions of time I assume intrude, do they?

MR FAIRFIELD: They do, indeed, your Honour, yes.

HIS HONOUR: Yes, the order for remitter would encompass that.

MR FAIRFIELD: If your Honour pleases.

HIS HONOUR: But the only order made today is an order sending the case to the Federal Court. Yes, thank you for coming, but you may go.

At 10.21 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicant M43/2004 was called.

MS D. RASHEVA: May it please the Court, I appear for the applicant. (instructed by Sulaika Dhanapala)

MR S.P. DONAGHUE: May it please the Court, I appear for the Minister. (instructed by Clayton Utz)

HIS HONOUR: Now, Dr Donaghue, Ms Rasheva, are we in the same position?

MR DONAGHUE: Exactly the same position - - -

HIS HONOUR: Then if I make the same orders, adjourn to 24 August in Melbourne at 9.30 am or such other time is directed, reserve costs and certify. Again, Ms Rasheva, the same message I fear must be conveyed: 24 August is it.

MS RASHEVA: As your Honour pleases. May I be excused, your Honour?

HIS HONOUR: Yes, of course, thank you.

At 10.23 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicants M31/2004 was recalled.

MR DONAGHUE: Your Honour, might I ask, in light of the approach your Honour has just taken, does that answer M31, which was adjourned from the list as well? I ask simply because that is my last case in the list, so if the same order is going to be made - - -

HIS HONOUR: Well, is there any reason not to adopt the same approach, Dr Donaghue? We have the two there. A third - - -

MR DONAGHUE: I cannot see any reason to attempt to convince your Honour to make the argument today when the same will be made on 24 August.

HIS HONOUR: Can I say generally in respect of the three cases, they are going to be much easier from my point of view if there is a contradictor. If there is no contradictor, try as counsel may to present the arguments, it is nonetheless much easier from my end if there is a true contradiction.

MR DONAGHUE: Well, there will be Ms Rasheva in two of those matters, which should be - - -

HIS HONOUR: Yes. Well, then in M31 there will be the order for adjournment to 24 August, reserving costs. Thank you, Dr Donaghue.

MR DONAGHUE: May I be excused, your Honour?

HIS HONOUR: Yes, of course.

At 10.24 am Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant M57/2004 was called.

MR C.G. FAIRFIELD: May it please the Court, I appear for the Minister. (instructed by Australian Government Solicitor)

HIS HONOUR: Yes, Mr Fairfield.

MR FAIRFIELD: Your Honour, this matter is somewhat similar to M37. It is a matter in which the applicant commenced proceedings in the Federal Court which were dismissed, then commenced proceedings in this Court which were remitted and then discontinued, and now we have a further application in this Court seeking review of the same Tribunal decision. In the circumstances I would ask your Honour perhaps to make the orders that your Honour made in - - -

HIS HONOUR: Again, have we an affidavit on or notice given to the applicant?

MR FAIRFIELD: I must confess in this matter, your Honour, no affidavit has yet been served.

HIS HONOUR: Again, let us make sure that adequate notice is given in ample time. The reasons for my concern are perhaps obvious. Terminating proceedings which you say are the last throw of the dice, or a throw that is not even permitted I suspect you would wish to say, is a large step and I am anxious that it be done with adequate notice.

MR FAIRFIELD: As your Honour pleases.

HIS HONOUR: Yes, we will adjourn to 24 August in Melbourne at 9.30 am or such other time as is directed and reserve costs.

At 10.25 am Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant M58/2004 was called.

MR C.G. FAIRFIELD: May it please the Court, I appear for the Minister. (instructed by Australian Government Solicitor)

HIS HONOUR: Yes.

MR FAIRFIELD: Again, your Honour, factually very similar to the last matter and I would invite your Honour to make the same orders your Honour made in the previous matter.

HIS HONOUR: Those orders are made in M58.

At 10.26 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicant M60/2004 was called.

MR C.G. FAIRFIELD: May it please the Court, I appear for the Minister. (instructed by Australian Government Solicitor)

HIS HONOUR: Now, this one I think is different in that there is material which would reveal that the applicant has left the country.

MR FAIRFIELD: That is correct, your Honour. There is evidence that the applicant left the country on a bridging visa, that the applicant does not currently hold a valid visa, that the applicant is not in Australia, and obviously the applicant has not prosecuted the application.

HIS HONOUR: If the application stands dismissed, what other order do you seek?

MR FAIRFIELD: I seek an order for costs, your Honour.

HIS HONOUR: The application is dismissed with costs and I certify for the attendance of counsel.

MR FAIRFIELD: If the Court pleases.

At 10.26 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Somanader and Others was called.

MR A.F.L. KROHN: May it please the Court, I appear for the applicants. (instructed by Ravi James & Associates)

MR C.G. FAIRFIELD: May it please the Court, I appear for the Minister. (instructed by Australian Government Solicitor)

HIS HONOUR: Now, Mr Krohn, M59/1999. One of your matters, I think, where directions were given, were they, about filing submissions? I think that those directions required the submissions to be filed by 26 March, is that right?

MR KROHN: I do not know the exact date of those directions, I am sorry - - -

HIS HONOUR: No, it is so long ago that perhaps we have all forgotten, Mr Krohn. I not having a go at you personally.

MR KROHN: I understand, your Honour. I understand that there were directions and that they did require submissions to be filed some time ago and that submissions have been filed but they are beyond the date of those directions. I accept that, your Honour. I am not able to inform your Honour of the circumstances of that. I can seek instructions about it if your Honour desires. This is one matter which I have picked up in this morning’s callover on the run, your Honour.

HIS HONOUR: Yes.

MR KROHN: But I am able to indicate, your Honour, that the basis of the application as expressed in the submissions that have been filed is that there are arguments under the general headings of relevant/irrelevant considerations, unreasonableness and procedural fairness. The last two of those certainly would not, in my submission, be capable of being remitted because this relates to an old Part 8 – effectively that the old Part 8 would bind the Federal Court were it remitted.

HIS HONOUR: Yes, and there was a partial remitter.

MR KROHN: There was, your Honour.

HIS HONOUR: The remitter concerned failure to observe procedures, no jurisdiction, not authorised and error of law. I think that the question that will perhaps emerge – perhaps I am wrong – is those issues having been resolved against the applicant, what can be left even though the different rubrics are put above the argument?

MR KROHN: There may be that argument, your Honour, which – not perhaps to traverse the whole area in detail now, but certainly there would be at least an Anshun estoppel point raised concerning the relevant/irrelevant considerations, although there may be an answer to that given the state of the authorities at the time of remitter, but I accept the determination by the Federal Court was 15 March 2002, so I cannot say further about that.

HIS HONOUR: But at least a problem that may be thought to emerge is, having lost a claim that the Tribunal had no jurisdiction, how does 75(v) relief go for jurisdictional error?

MR KROHN: Your Honour, how that question arises. It is not addressed in the submissions which have been filed but it, in my submission, ought to be at some stage before this matter is determined one way or the other.

HIS HONOUR: Given that we are to have a series of arguments which may raise at least closely allied questions on 24 August, why should we not argue this one on 24 August as well and argue it finally?

MR KROHN: I have no reason to advance against that course, your Honour.

HIS HONOUR: Yes. Let us hear what Mr Fairfield has to say. Mr Fairfield, what do you say the position should be?

MR FAIRFIELD: Your Honour, the respondent’s position is that your Honour ought to deal with this matter on 24 August and hear why the matter should not then stand dismissed.

HIS HONOUR: How soon can you put on submissions that will reveal the foundation for that argument do you think, Mr Fairfield?

MR FAIRFIELD: Probably, your Honour, three weeks, to be on the safe side, from today.

HIS HONOUR: That is running pretty close. I would not want them on any later than noon on Monday, 16 August, I think, to give the opposite party time. Given that these are issues that are going to be dealt with in a number of cases, that both makes the task easier but also harder, does it not? It makes it easier in that the legal issues are present to the mind; harder because you have a disparate set of factual circumstances in which to see how those principles engage. Do you think it would be possible to have sufficiently considered submissions by 12 noon, Monday, 16 August?

MR FAIRFIELD: Yes, your Honour.

HIS HONOUR: Mr Krohn, do you want to heard against that as the time by which the Minister’s submissions - - -

MR KROHN: No, your Honour. Perhaps simply some clarification about the course you desire the prosecutor to take in relation to that res judicata and estoppel point. Does your Honour desire then submissions in reply?

HIS HONOUR: Yes, and those I would want in no later than 12 noon, 23 August.

MR KROHN: May it please the Court, I have no difficulty - - -

HIS HONOUR: If I direct that submissions in answer by the Minister be filed and served on or before 12 noon, 16 August 2004, and any submissions in reply by the applicant be filed on or before 12 noon, 23 August, and adjourn the matter for hearing on 24 August at 9.30 am or such other time as may be directed here in Melbourne and reserve costs, do the counsel wish to be heard further?

MR KROHN: Just to clarify, your Honour, adjourned for hearing on that date?

HIS HONOUR: Yes.

MR KROHN: Is that for full hearing of the application?

HIS HONOUR: Counsel will have to be prepared as on full hearing. Whether, in light of what then has emerged, it is preferable to state cases or refer cases into the Full Court may be matters for argument, but counsel are to be prepared to deal with the matter as on full argument.

MR KROHN: May it please the Court.

MR FAIRFIELD: There is nothing further from the respondent, your Honour. We are content with the orders your Honour proposes.

HIS HONOUR: Yes.

At 10.34 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Vedamanikkam was called.

MR A.F.L. KROHN: May it please the Court, I appear for the applicant. (instructed by Ravi James & Associates)

MR C.G. FAIRFIELD: May it please the Court, I appear for the Minister. (instructed by Australian Government Solicitor)

HIS HONOUR: Again the submissions are filed by the prosecutor I think well and truly outside the time fixed.

MR KROHN: They are, your Honour.

HIS HONOUR: Is it again a partial remitter matter?

MR KROHN: This was a matter with a history involving challenge to the response by the Minister to requests under section 417 – I beg your Honour’s pardon. No, your Honour. This, your Honour, raises a simple confined point of procedural fairness - - -

HIS HONOUR: Procedural fairness by whom, the Minister or the Tribunal?

MR KROHN: No, your Honour, this one by the Tribunal. There is no submission made in support of any argument against the Minister’s second decision, your Honour. In fact, I think that your Honour previously made orders that effectively disposed of that part of the application anyway.

HIS HONOUR: So that then brings you slap bang up against questions of Anshun, res judicata, issue estoppel and the like. I see that there is some discussion of such questions, is there not, in the written submissions?

MR KROHN: Yes, your Honour. I must apologise, your Honour. I beg your Honour’s pardon. I cannot find my copy of the written submissions. But it is addressed, your Honour.

HIS HONOUR: Yes, it is asserted in paragraph 15 that there is no issue because the remitter did not permit arguments based on denial of procedural fairness.

MR KROHN: Yes, your Honour, it is put on that basis. So it may be if the Minister contests that proposition then perhaps this also is a 24 August case, but if not then it just requires to be heard and determined, your Honour.

HIS HONOUR: Yes. What do you say, Mr Fairfield? Do you contend Anshun, res judicata, issue estoppel or like principles of preclusion?

MR FAIRFIELD: Your Honour, I would not wish to make that concession to your Honour at this stage - - -

HIS HONOUR: No, do you contend that those principles apply?

MR FAIRFIELD: Your Honour, can I just indicate that it appears that the only ground relied upon is natural justice, which at the time could not have been raised in the Federal Court. That point is conceded by the respondent. Can I also indicate to your Honour that at paragraph 14 of the prosecutor’s outline it foreshadows the provision of further evidence on affidavit as to what the prosecutor would have said had he been invited to comment on the timing of a particular claim. That is at paragraph 14.

If the prosecutor intends to file further material in support of the application, it is submitted that your Honour ought to make an order setting out a timeframe for that and also for the respondent to file her outline of submissions and any answering material and also, your Honour, that the matter ought to be listed for hearing.

HIS HONOUR: Now, I think there is then a difficulty about bringing this one on on 24 August, is there not, if we are taking those steps?

MR FAIRFIELD: That is probably correct, your Honour, yes.

HIS HONOUR: If I direct any further affidavits by the applicant by 16 August, affidavits in answer by 30 August – I do not want to simply adjourn this into limbo - - -

MR FAIRFIELD: Can I say something, your Honour?

HIS HONOUR: Yes.

MR FAIRFIELD: Your Honour, would it be possible for your Honour to make an order that the respondent file and serve its material four weeks after the applicant’s material? We have to file our outline of submissions as well as any affidavit material relied upon.

HIS HONOUR: The timetable, I think, may be then further affidavits by the applicant by 16 August, affidavits in answer and outline of submissions by the Minister by 13 September, adjourn matter to 21 September at 9.30 am in Melbourne or such other time as may be directed. Is that course convenient for you, Mr Fairfield?

MR FAIRFIELD: It is convenient, your Honour. Your Honour intends on 21 September to hear the application at that point?

HIS HONOUR: Much will turn on what has emerged in the papers. Put it this way, it is a long time since this Court has tried a single Justice matter, a dispute of fact. Much as I would enjoy the prospect, I do not know that it is the most efficient use of Court time.

MR FAIRFIELD: I hear what your Honour says on the matter.

HIS HONOUR: Let us see how the affidavit material turns out. I will confess to a lingering hankering for trying a witness action again, Mr Fairfield, but there we are, I should not reveal such things, should I? Mr Krohn, if I fix a timetable of 16 August, 13 September and return on 21 September, do you want to heard against that?

MR KROHN: No, indeed, your Honour. May it please the Court.

HIS HONOUR: Then there will be directions: (1) direct any further affidavit to be relied on by the applicant be filed and served on or before 12 noon, 16 August; any affidavit in answer by the Minister together with an outline of the Minister’s submissions on or before 12 noon, 13 September; adjourn the matter to 9.30 am, 21 September 2004 in Melbourne or such other time as may be directed; reserve costs and certify.

MR KROHN: May it please the Court.

At 10.43 am Re Minister for Immigration and Multicultural Affairs and Another; Ex parte Hassen was called.

MR A.F.L. KROHN: May it please the Court, I appear for the applicant. (instructed by Ravi James & Associates)

MR C.G. FAIRFIELD: May it please the Court, I appear for the respondent. (instructed by Australian Government Solicitor)

HIS HONOUR: Yes, Mr Krohn.

MR KROHN: This is also a procedural fairness argument. There was a partial remitter and a dismissal of the remitted part, your Honour, and this was also an old application, so that there is the same question about remitter of a procedural fairness point.

HIS HONOUR: Yes. Now, no suggestion here, is there, of further affidavit material?

MR KROHN: No, your Honour.

HIS HONOUR: Yes. Therefore - - -

MR KROHN: I beg your Honour’s pardon, there is – does your Honour have the submissions?

HIS HONOUR: Yes.

MR KROHN: If your Honour turns to page 7 - - -

HIS HONOUR: Yes, footnotes 12 and 13.

MR KROHN: Yes, your Honour. The procedural fairness argument goes to whether there was fairly put before the applicant the Tribunal’s concerns about whether she was indeed Tamil Muslim or Tamil Hindu and related to the person she said to be her uncle. Affidavit evidence would go to that issue and her willingness, for example, to have undergone DNA testing. So there is further affidavit material here, your Honour.

HIS HONOUR: DNA testing?

MR KROHN: Yes. Surprisingly, your Honour - - -

HIS HONOUR: About?

MR KROHN: - - - going potentially to the question of relationship between her and the person she claimed to be her uncle.

HIS HONOUR: I see, yes.

MR KROHN: I am sorry, your Honour.

HIS HONOUR: No, no, there we are. Well, then, if I make a timetable similar to that in M128, that is, further affidavits by 16 August, affidavits in answer and outline of argument by 13 September, and adjourned to 21 September. Do you want to be heard against that?

MR FAIRFIELD: The respondent is content with those orders, your Honour.

HIS HONOUR: Yes. Can I say this to both counsel in both matters? Departure from the timetable – at least, any significant departure from the timetable – will not be greeted with any enthusiasm by me. These are old matters. There must come a time when this litigation comes to its end, whatever that end is. These orders are there to be met.

MR KROHN: Yes, your Honour. I acknowledge that and I will make sure that that is understood, may it please the Court.

HIS HONOUR: Yes. What I have in mind, Mr Krohn, is that departure from the timetable might ordinarily be expected to elicit an application to dismiss for want of prosecution, which, if brought on, would be brought on, I would have thought, inevitably at the expense of the applicant, perhaps on an unusual scale of costs, whatever the outcome. These are old cases. They have to be - - -

MR KROHN: They have to be determined, your Honour.

HIS HONOUR: - - - prosecuted promptly, and better I say that to the parties now rather than later.

MR KROHN: Indeed, your Honour. I am grateful for that indication. May it please the Court.

MR FAIRFIELD: May it please the Court.

At 10.47 am Re Minister for Immigration and Multicultural Affairs and Another; Ex parte Sithamparapillai and Another was called.

MR A.F.L. KROHN: May it please the Court, I appear for the applicants. (instructed by Ravi James & Associates)

MR C.G. FAIRFIELD: May it please the Court, I appear for the respondent. (instructed by Australian Government Solicitor)

HIS HONOUR: Yes, Mr Krohn.

MR KROHN: This is again similar, your Honour, a procedural fairness point. It would be an old Part 8 matter were it remitted, and it would appear, your Honour, if your Honour is so minded, that similar orders would be appropriate, may it please the Court.

HIS HONOUR: Have we more affidavits to come on here?

MR KROHN: May I just check that, your Honour. There would also be a further affidavit, your Honour, relating to – yes, indeed, your Honour, there would be.

HIS HONOUR: Where do I find that in the outline?

MR FAIRFIELD: If it assists your Honour, it is paragraph 14.

HIS HONOUR: Thank you.

MR KROHN: I am indebted to my learned friend.

HIS HONOUR: Yes. Well, same directions as in M111, the same strictures are issued about compliance with the timetable.

MR KROHN: May it please the Court. They are noted, your Honour.

HIS HONOUR: Yes. You, I take it, do not wish to be heard against that, do you, Mr Fairfield?

MR FAIRFIELD: No, your Honour.

HIS HONOUR: No. I was so presumptuous as simply to indicate that without even giving you the courtesy of asking you. I am sorry for that.

At 10.48 am Re Minister for Immigration and Multicultural Affairs and Another; Ex parte Hari Das and Another was called.

MR A.F.L. KROHN: May it please the Court, I appear for the applicants. (instructed by Allens Arthur Robinson)

MR C.G. FAIRFIELD: May it please the Court, I appear for the respondent. (instructed by Australian Government Solicitor)

HIS HONOUR: Yes, Mr Krohn.

MR KROHN: Your Honour, if I might, in that matter, mention a matter of Allens Arthur Hedderwicks.

HIS HONOUR: Robinson.

MR KROHN: Robinson. I beg my instructors’ pardon and your Honour’s.

HIS HONOUR: I remember Hedderwicks Fookes & Alston, Mr Krohn. You should not.

MR KROHN: No, your Honour. My instructors are assisting the applicant pro bono. They are not at this stage on the Court record, so I cannot formally make submissions to your Honour, but it may be of assistance to the Court to know that it is likely, but not certain, that it will soon be known whether it may be resolved by the applicant seeking to withdraw the application. The answer to that question will be known certainly within the next two or three weeks, your Honour. There are some, perhaps, difficulties of communication involved.

HIS HONOUR: If I were to adjourn to 24 August in Melbourne?

MR KROHN: If your Honour were to do that, then it would certainly be clarified by that stage and one of two things would have occurred. Either the matter will be resolved and disposed of, or my present instructors would then be on the Court record as acting pro bono and it would proceed.

HIS HONOUR: Yes. If I adjourn it, Mr Fairfield, to 24 August, reserving costs, is that appropriate?

MR FAIRFIELD: It is, your Honour.

HIS HONOUR: Yes. Adjourned to 24 August at 9.30 in Melbourne. Yes, Mr Krohn?

MR KROHN: Perhaps, if I may just indicate, your Honour, I am instructed that there was an indication given by my instructors that there was a desire to have the matter adjourned today and that that was not done. So I am instructed to mention that if it should later be of relevance to the question of costs. May it please the Court.

HIS HONOUR: I understand that, thank you.

At 10.51 am Re Minister for Immigration and Multicultural and Others; Ex parte Thayananthan and Others was called.

MR A.F.L. KROHN: May it please the Court, I appear for the applicants. (instructed by Ghandi & Associates)

MR C.G. FAIRFIELD: May it please the Court, I appear for the respondent. (instructed by Australian Government Solicitor)

HIS HONOUR: Have we any submissions here?

MR KROHN: No, your Honour, and in this matter my instructions are simply to inform the Court that my instructor has been unable to obtain instructions from the prosecutor/applicant and, as I understand it, it is my instructing solicitor’s intention to withdraw as solicitor acting, but that has not yet been done.

HIS HONOUR: I understand that, but were Mr Fairfield to move now for dismissal, understanding you do not have instructions, your solicitor has been seeking and unable to obtain instructions; nonetheless would you wish to say anything about it?

MR KROHN: So far as it may be proper for me to say anything, your Honour, it might be appropriate in those circumstance and perhaps generally desirable that perhaps it stand over and that it be clear that the applicant be informed in advance of any step that the Minister desires to take. I do not know the details of why there has been difficulty. I understand difficulty establishing contact, but I do not understand why that may be, nor does my instructing solicitor.

HIS HONOUR: Do not answer this if it embarrasses you or your instructor in the slightest. I do not wish you to feel compelled to answer it, but are you able to tell me, do you feel able to tell me, whether there is any serious likelihood of this case going ahead? I understand your solicitors have tried to contact their client, they have not been able to contact their client and they feel in a cleft stick about it, I would have thought a very uncomfortable position for them, but realistically should I not just bring this to an end now?

MR KROHN: I do not know the answer to the question, your Honour, and also I do not know the answer to the question whether this is a case which is at the strong arguable end of the spectrum or not. I do not know that and it is because I do not know that that if it is proper for me to say anything, your Honour, I would suggest it be appropriate that it stand over for one further mention, but I cannot go beyond that, your Honour. May it please the Court.

HIS HONOUR: Now, Mr Fairfield, what do you say I should do?

MR FAIRFIELD: Can I indicate to your Honour that on 26 February this year when your Honour made orders there was no appearance for the applicant/prosecutors. The applicant/prosecutors were required to file their material by 26 March – that is over four months ago. My instructor did write to them informing them - - -

HIS HONOUR: To them or to their solicitor?

MR FAIRFIELD: To the solicitor, your Honour. To date we have received nothing. Can I also indicate to your Honour that the applicant/prosecutors have now filed a further proceeding in this Court, which is matter M71 of 2004.

HIS HONOUR: When was that filed?

MR FAIRFIELD: Your Honour, the affidavit was affirmed 5 April 2004. It does not have a stamp on it, your Honour, indicating when it was filed.

HIS HONOUR: Does that second proceeding suggest that I should bring both on on 24 August? Is that a way to deal with them? We have these two proceedings in the Court. It gives the solicitors of record on this matter an opportunity to consider their position and feel entirely comfortable about their having discharged their obligations. Is that a way through the problem, Mr Fairfield? What do you say?

MR FAIRFIELD: Your Honour, that may be the best course. There is nothing on the affidavit in M71 to suggest that there are solicitors on the record in that proceeding.

HIS HONOUR: No. The file will come in in a minute, but does it look as though it is professionally prepared or prepared without assistance?

MR FAIRFIELD: There is a two-page affidavit, your Honour, which does refer to exhibits to the document.

HIS HONOUR: Yes. It always hard to tell, I know, but - - -

MR FAIRFIELD: And there is also a substantial document for the statutory declaration, which I have not had a chance to read yet, your Honour.

HIS HONOUR: No. We are fairly certain, are we, that it is the same applicants, not simply applicants under the same or similar names?

MR FAIRFIELD: The maker of the affidavit, your Honour, the deponent, is the first-named applicant/prosecutor in the proceedings that are before your Honour at the moment. I will just check the draft order nisi, your Honour.

HIS HONOUR: Yes.

MR FAIRFIELD: Certainly it is to review the same decision of the Refugee Review Tribunal.

HIS HONOUR: Is it? Well, that rather concludes that question, does it not?

MR FAIRFIELD: Yes, your Honour, it is. In the draft order nisi in the new proceedings there are four applicant/prosecutors named and they correspond to the four applicant/prosecutors in M82 of 2001.

HIS HONOUR: Yes. Well, I think that the appropriate course is to list M82 of 2001 together with M71 of 2004 and bring them both on on 24 August 2004. Is the Minister in a position, Mr Fairfield, to know yet what attitude would be taken to both these proceedings? Are they ones where the Minister says, “Well, we simply need directions about further conduct”, or are they ones where the Minister says, “I have a knock-out blow which should lead to their summary termination”? Are you yet in a position to know that?

MR FAIRFIELD: Clearly in relation to the matter before your Honour today, nothing has been filed in the last four months and there is no indication there anything will be filed in that matter. For that reason, in that matter an application would be made for it to be dismissed.

HIS HONOUR: Yes.

MR FAIRFIELD: Again, in the other matter, your Honour, in the absence of any further material, an order should be made dismissing that proceeding as well.

HIS HONOUR: Yes. Where I am leading to, Mr Fairfield, is again, if that is going to be the Minister’s approach to these matters at that adjourned hearing, let us have ample notice given of it to the applicants so that they know what they are confronting. We can then argue out whether that should be done or not without any lingering uncertainties about adequacy of notice of the Minister’s attitude to the litigation. So if the Minister wishes to contend, for example, that no arguable ground is shown, or that it is an abuse, or that want of prosecution reveals that the proceedings should be terminated, so be it. All I am anxious about is that the applicants should be given due notice of what it is they are confronting and what arguments will be made against them.

MR FAIRFIELD: Is your Honour contemplating that perhaps the respondent ought to provide some sort of outline of argument or - - -

HIS HONOUR: How you do it I leave to you. Outline of argument may reveal to the unrepresented litigant both the importance and the formality of what is being done, but we are dealing with unrepresented litigants, at least in M71, query whether they continue to retain the services of their solicitor in M82. What I am anxious to do is to ensure that unrepresented parties have brought home to them with sufficient clarity what it is they are facing.

MR FAIRFIELD: I hear what your Honour says on those matters.

HIS HONOUR: If I adjourn M82 of 2001 to 24 August 2004 at 9.30 am in Melbourne or such other time as may be directed, reserving costs and indicate that at the same time M71 of 2004 will be listed and, as I say, give the indication I have about giving adequate notice of the Minister’s approach to the matter, that will perhaps suffice.

MR FAIRFIELD: If the Court pleases.

HIS HONOUR: Now, I think that has completed the list of matters before me, but do counsel think that it has completed their list of matters?

MR KROHN: Yes, may it please the Court.

MR FAIRFIELD: May it please the Court.

HIS HONOUR: Yes. I will adjourn.

AT 11.03 AM THE MATTERS WERE CONCLUDED