Applicant S384/2004, Ex parte - Re RRT & Anor [2004] HCATrans 435 (1 November 2004)

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Applicant S384/2004, Ex parte - Re RRT & Anor [2004] HCATrans 435 (1 November 2004)

Last Updated: 5 November 2004

[2004] HCATrans 435

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S384 of 2004

In the matter of -

An application for a Writ of Mandamus and a Writ of Certiorari and a Write of Prohibition against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Second Respondent

Ex parte –

APPLICANT S384/2004

Applicant/Prosecutor

HEYDON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 1 NOVEMBER 2004, AT 9.47 AM

Copyright in the High Court of Australia

APPLICANT S384/2004 appeared in person.

MR S.B. LLOYD: May it please the Court, I appear for the second respondent. (instructed by Clayton Utz)

HIS HONOUR: You are the applicant?

APPLICANT S384/2004: Yes, your Honour.

HIS HONOUR: Come forward if you would. Come up here near the microphone. Before we proceed, I should say that the Deputy Registrar has certified that he has been advised by the solicitor for the first respondent that the first respondent will submit to the order of the Court save as to costs. Now, what is your attitude, Mr Lloyd?

MR LLOYD: Your Honour, the Minister’s attitude is that this matter should not be remitted and should be dismissed.

HIS HONOUR: Yes, let us just pause there. You have been notified, have you, that that is the Minister’s position?

APPLICANT S384/2004: Good morning, your Honour. I would like to seek more time, because I was away from Sydney and I just came to know about this matter on Friday the 29^th. I spoke to Mr Matt Grey of your office.

HIS HONOUR: Yes.

APPLICANT S384/2004: I would request your Honour if you remit this case to Federal Court, I would then get a barrister, because my financial condition is strained, and I would enlarge the documentation as well.

HIS HONOUR: So you do not oppose the matter today being remitted to the Federal Court, but if anything else is to happen to it, or consideration is to be given to anything else happening to it, you want an adjournment. Is that the position you take?

APPLICANT S384/2004: Pardon, your Honour?

HIS HONOUR: Do you oppose the matter today being remitted to the Federal Court?

APPLICANT S384/2004: Yes, your Honour.

HIS HONOUR: You do oppose that? You want an adjournment in any event?

APPLICANT S384/2004: I would like the case to be remitted to the Federal Court - - -

HIS HONOUR: You would like that?

APPLICANT S384/2004: Yes.

HIS HONOUR: Very well. And the only reason you want an adjournment is if the Minister wants something else than remitter to the Federal Court? Is that the position?

APPLICANT S384/2004: Because I do not have enough time and I would like to engage a barrister.

HIS HONOUR: Yes, I understand. Mr Lloyd?

MR LLOYD: Your Honour, my client wrote, as your Honour will see from the affidavit, on 21 October to the applicant’s address for service on his order nisi, indicating that it would seek to have the matter dismissed today. If I might briefly say why, the draft order nisi has three stated grounds. The first and the third – really, none of them contain any particulars, but the second hints that the particular might be one of the errors found to exist in the Muin and Lie cases.

Your Honour will see that this is a challenge to a decision which is six years old, in which the applicant did not even turn up to his hearing. There is no equivalent to Muin and Lie in this case, because the Tribunal simply said, on the basis that he had not shown up, on the meagre evidence before it, it was not satisfied that he met any of the grounds.

Subsequently, the applicant says he joined a particular class action in 1998. My client’s records do not support that view. He certainly did join the Muin and Lie class action, but after that finished he did not commence these proceedings for in excess of a year, which totals to a delay of six years. In those circumstances, where there is absolutely no merit in the application and there has been a huge, unjustified delay, and, in my submission, his affidavits do not justify the delay, it is an appropriate case for dismissing.

Certainly, insofar as the order nisi seeks writs of mandamus and certiorari, it is outside of the time limit. The first order says it seeks an injunction prohibiting certain conduct. In my submission, there is no proper basis for that injunction on the basis of the fact that the grounds do not
justify it in light of the Tribunal’s reasons, which do not show any basis for a Muin and Lie type action.

HIS HONOUR: Let me just ask you this, Mr Lloyd. Mr Hawkes - - -

MR LLOYD: Ms Hawkes.

HIS HONOUR: Ms Hawkes, is it? Amber and Jordan I understand, but Graham? Anyway, Ms Hawkes on 22 October swore the affidavit which has been sworn and annexure B is a letter sent the previous day. Today is 1 November. Let us assume, for argument’s sake, that the applicant does want legal representation and might be able to get it. It is not very long.

MR LLOYD: From 21 October to today. Well, I suppose, your Honour, it is a week and a half or something in that order.

HIS HONOUR: Yes.

MR LLOYD: I think your Honour would be entitled, on the basis of the Evidence Act, to assume that it arrived four days later - - -

HIS HONOUR: Yes.

MR LLOYD: - - - which would then be the 25^th. So it is around about a week or thereabouts.

HIS HONOUR: Right. Now, what steps have you taken to get legal representation? What steps have you taken to get a lawyer?

APPLICANT S384/2004: Because I did not have time, just on Friday, 29 October I came to see this letter.

HIS HONOUR: I see. You say the letter arrived on 29 October?

APPLICANT S384/2004: It has arrived, but I was not home. I was away from home.

HIS HONOUR: I see.

APPLICANT S384/2004: And soon after I got the letter, I spoke to Mr Grey and informed that I just happened to see the letter and I seek more time and get a barrister. I seek legal advice, and, because of my financial constraint, I could not do it immediately, and the time factor. If your Honour permit me some more time, I would like to engage a barrister to represent me.

HIS HONOUR: Very well. Thank you. Just take a seat.

The applicant says that he only received notification of the Minister’s opposition to remitter of this matter to the Federal Court on Friday. The solicitors for the Minister sent a letter on 21 October 2004 indicating that that was her position, but the applicant says that he was not at the address to which the letter was sent until Friday. The Minister has advanced various considerations highly critical of the merits of the applicant’s case and the applicant would be well advised to draw those considerations to the attention of any lawyer he is able to brief.

In all the circumstances, it is more satisfactory, I think, that the matter be remitted to the Federal Court for the strength and weaknesses of the competing cases to be assessed there. Accordingly, I make the following orders:

1. The further proceedings in this application, including any application for the enlargement of time, be remitted to the Federal Court of Australia (“the Federal Court”);

2. The application proceed in the Federal Court as if the steps already taken in this Court had been taken in the Federal Court;

3. The Registrar of this Court forward to the proper officer of the Federal Court copies of all documents filed in this Court;

4. The costs of the application to the date of remission are to be according to the scale applicable to proceedings in this Court, and thereafter according to the scale applicable to the Federal Court and in the discretion of that court.

It is certified that this was a proper matter for the attendance of counsel in chambers. Thank you.

MR LLOYD: Your Honour, might I ask for a further order, that the time limits in the High Court Rules be taken to apply to the Federal Court proceedings, because there is an issue in the Federal Court about whether they do or do not - - -

HIS HONOUR: You mean the time limits for certiorari and mandamus?

MR LLOYD: Indeed. The general thinking is that unless this Court makes an order, they do not apply.

HIS HONOUR: The precise order you would like is, order 5, “That the time limits relating to prerogative writs in this Court apply to these proceedings in the Federal Court”?

MR LLOYD: Indeed.

HIS HONOUR: You say I have power to do that?

MR LLOYD: Well, I think your Honour has power to remit it under such directions as your Honour sees fit, and, if that is not the case, then the applicant in fact benefits. It is better being remitted, because then he has no time limits that he has to meet.

HIS HONOUR: But even in a world without time limits, the points you have been making are powerful points.

MR LLOYD: I accept that, your Honour. It is a matter for your Honour.

HIS HONOUR: Yes. The problem is, that order does not say anything about the power to extend the time.

MR LLOYD: That is true, your Honour.

HIS HONOUR: I think we would have to put something in about that. I mean, the Federal Court has power to extend time under the Federal Court Rules, but not under the High Court Rules.

MR LLOYD: That is so. Well, I would not object to it being remitted on the basis that the rules that, in effect, effect a time limit and permit the amendment of a time limit – well, with a direction that those rules apply to this proceeding as if the matter remained in the High Court.

HIS HONOUR: Just give me that slowly again.

MR LLOYD: That the time limits in Order 55 that relate to the bringing of an action for a writ of certiorari and a writ of mandamus apply to these proceedings as remitted and enlargement order – I will just find what that is - - -

HIS HONOUR: Yes, to be perfectly frank, Mr Lloyd, I am not very happy about this order. I might be prepared to devote some hours with you to working out its legitimacy, but - - -

MR LLOYD: It may be best to leave it on this occasion and my client can come with a draft.

HIS HONOUR: Yes, for this reason, that - - -

MR LLOYD: I agree with your Honour that, in the end, it is unlikely anything is going to change as a result of it.

HIS HONOUR: Mr Lloyd applied for a further order in relation to the time limits in this Court, but after debate between counsel and the Court that application has been withdrawn.

AT 10.01 AM THE MATTER WAS CONCLUDED