Plaintiff M67/2005 v MIMIA & Anor [2005] HCATrans 769 (22 September 2005)

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Plaintiff M67/2005 v MIMIA & Anor [2005] HCATrans 769 (22 September 2005)

Last Updated: 28 September 2005

[2005] HCATrans 769

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M67 of 2005

B e t w e e n -

PLAINTIFF M67/2005

Plaintiff

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Defendant

MARGRET HOLMES (MEMBER CONSTITUTED THE REFUGEE REVIEW TRIBUNAL)

Second Defendant

Summons

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 22 SEPTEMBER 2005, AT 10.36 AM

Copyright in the High Court of Australia

PLAINTIFF M67/2005 appeared in person.

MR E.J.C. HEEREY: May it please the Court, I appear for the defendant. Your Honour, there is a problem in this case. (instructed by Clayton Utz)

KANAPATHIPILLAI SELVANAYAGAM, affirmed as interpreter:

HIS HONOUR: Mr Heerey, you said that there was a difficulty in the matter. What is the difficulty?

MR HEEREY: Your Honour, the summons was served correctly but unfortunately it was served with a wrong affidavit. It was served with an affidavit from another proceeding. To address that there has been a further attempt to serve the correct affidavit but that was not successful because the plaintiff was not found at that address. The corrected affidavit has now been provided to the plaintiff - - -

HIS HONOUR: But late.

MR HEEREY: Yes, so unfortunately, the present situation - - -

HIS HONOUR: It is a bit of a hurdle, is it not?

MR HEEREY: Yes, I acknowledge that, your Honour.

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

MR HEEREY: Your Honour, obviously the plaintiff - - -

HIS HONOUR: What do you say I should do rather than what you say you want me to do? The two may be very different, Mr Heerey.

MR HEEREY: I could hardly oppose an adjournment if sought by the plaintiff. If today is service, normal service is required within three days. An adjournment of three days is the obvious answer that I can think of, your Honour.

HIS HONOUR: Mr Interpreter, would you be good enough to tell the plaintiff these things. One, the Minister did not give the plaintiff all the papers that should have been given to the plaintiff. In particular, the Minister’s solicitors did not give the plaintiff the affidavit of Mr Mosby that has just been given to him. He, the plaintiff, should take some time to look at the affidavit and should seek some advice because what the Minister wants to do is to stop the plaintiff’s action at once.

What the Minister says is that there should be no hearing because the plaintiff’s case is started out of time – too late. I will not look at that question today, but I will fix another day when I will look at it and the plaintiff will receive a letter telling him when he has to come to Court again. When he has to come to Court he will have to answer what the Minister says. The Minister says this should be his last chance to make out his case. It will be important then that the plaintiff understands that and comes along knowing that is what is going to be said.

I cannot fix the day yet that I am going to adjourn it to, and who knows, it may come on before another member of the Court after 8 November, but we will see. So can the plaintiff make sure that the Minister’s solicitors and the Registry have his current address.

PLAINTIFF M67/2005 (through interpreter): It is the same address, he says.

HIS HONOUR: Very well. Now, I will simply adjourn today’s proceeding or the application to a date to be fixed. He will be told when it is coming back on. I will not decide any question of costs today; I will simply reserve the costs. Is there anything that the plaintiff wants to say?

PLAINTIFF M67/2005 (through interpreter): Nothing, your Honour.

HIS HONOUR: Thank you, Mr Interpreter. I will make those orders, Mr Heerey. I cannot give you a date yet. I am sorry, but we just have to work out what is happening. There are a few other things happening in the Court at the moment.

MR HEEREY: Obviously, your Honour.

HIS HONOUR: It may came to you as a great and abiding surprise.

MR HEEREY: I appreciate that, your Honour.

HIS HONOUR: Yes. Just one minor detail, just before you go, I noticed in my copy of the affidavit, Mr Heerey – and you might just check this again – exhibit - - -

MR HEEREY: Is this today’s affidavit, your Honour?

HIS HONOUR: Of Mr Mosby?

MR HEEREY: Yes.

HIS HONOUR: Yes. Exhibit TBM6 seemed to me to be incomplete. I thought the copying had gone awry. You can sort that out. Do not sort it out with me now, but just be aware of it.

MR HEEREY: Thank you, your Honour.

HIS HONOUR: Yes, thank you.

AT 10.44 AM THE MATTER WAS ADJOURNED