Plaintiff M69/2005 v MIMIA & Anor [2005] HCATrans 984 (23 November 2005)

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Plaintiff M69/2005 v MIMIA & Anor [2005] HCATrans 984 (23 November 2005)

Last Updated: 25 November 2005

[2005] HCATrans 984

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M69 of 2005

B e t w e e n -

PLAINTIFF M69/2005

Plaintiff

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

Summons

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 23 NOVEMBER 2005, AT 10.40 AM

Copyright in the High Court of Australia

MR C.J. HORAN: If the Court pleases, I appear for the first respondent. (instructed by Clayton Utz)

HIS HONOUR: Yes, Mr Horan.

MR HORAN: It appears the applicant is not in attendance today. I have an affidavit of attempted service, if I could hand that up.

HIS HONOUR: Yes, perhaps if I might see that. What form did the attempt take?

MR HORAN: It was a process server attempting to serve the summons and affidavit at the address given in the order nisi application. The applicant was not at the premises and, although in hearsay form, the server was informed that the occupants of that residence had moved out.

HIS HONOUR: Why did he not just push it under the door, Mr Horan? I mean, that would have constituted service – or post it. What do you say I should do? There has been an attempt at service but no service. Service can be effected by posting to the address for service given by the plaintiff on his originating process, can it not?

MR HORAN: Yes.

HIS HONOUR: If it comes rattling back unclaimed, no doubt the deponent deposing to the service would disclose that to the Court. Would it not then be served?

MR HORAN: Perhaps, your Honour. That may be the case and it may be that the summons can be re-served in that fashion, but in one sense there is perhaps little to be gained from adjourning the matter and dealing with it again in circumstances where it appears that the applicant is not at the address given.

HIS HONOUR: Well, was not there when the process server came to call. I know there was no furniture and it all looked bereft, but that is the address he or she has given.

MR HORAN: The other matter, your Honour, is that the proceeding has been listed by the Court for directions this morning and the applicant has failed to appear, and it is the applicant’s application.

HIS HONOUR: How do we demonstrate – I am happy to bring this to an end. I do not want to bring this thing back unless I feel I have to, Mr Horan, but how am I to be satisfied that the plaintiff knows this is on or has been
given a notice that it is on today in a way that I can safely act on saying, “Yes, it’s been served”?

MR HORAN: I assume that some attempt to notify the applicant of today’s hearing was made by this Court.

HIS HONOUR: Yes, and we could not get hold of him because we did not have a phone number.

MR HORAN: I am told that the phone number that I think is the only phone number that the Minister has is either disconnected or not answering. If a letter, for example, were sent by the Court – I am not aware whether or not that was done.

HIS HONOUR: I do not think so. Let me make some inquiries? I think the Registrar tells me that a letter has been sent. I have before me a letter signed by the Deputy Registrar addressed to the plaintiff at the address given for service. The letter was of 15 November and it was a letter fixing today’s date as the day for return of the summons. In those circumstances I would consider dismissing the matter for want of prosecution.

MR HORAN: I could only rely on the notice posted by the Court of today’s hearing and perhaps to the extent it is possible to rely on anything drawn from the evidence in the affidavit of attempted service which might at least give rise to some inference concerning the whereabouts of the applicant.

HIS HONOUR: If I were to make orders in this form:

1. Dismiss the application for want of prosecution.

2. Plaintiff to pay defendant’s costs.

Would you wish to be heard against that?

MR HORAN: No, your Honour.

HIS HONOUR: I will make those orders. Can I just say this so that those instructing you may consider it for whatever it may be worth. A problem of this kind is generally solved by the Rules. Service can be effected in a manner prescribed by the Rules and judges who prove difficult like me can have the Rules read to them and their difficulty is assuaged in that way.

MR HORAN: I think the only thing I might say in response to that, your Honour, is that given the time that the defendant had in which to effect service between when this matter was listed for hearing and the intervening period, that may have affected - - -

HIS HONOUR: That is a very dismal view of the service provided by Australia Post, Mr Horan. You may be right, you may be wrong. Far be it from me to comment on that.

MR HORAN: I do not seek to say any more.

HIS HONOUR: I will adjourn the Court.

AT 10.47 AM THE MATTER WAS CONCLUDED