Plaintiff M137/2005 v MIMIA & Anor [2006] HCATrans 207 (27 April 2006)

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Plaintiff M137/2005 v MIMIA & Anor [2006] HCATrans 207 (27 April 2006)

Last Updated: 5 May 2006

[2006] HCATrans 207

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M137 of 2005

B e t w e e n -

PLAINTIFF M137/2005

Plaintiff

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

Application for order to show cause

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 27 APRIL 2006, AT 10.20 AM

Copyright in the High Court of Australia

MR C.J. HORAN: If your Honour pleases, I appear for the first defendant. (instructed by Australian Government Solicitor)

HIS HONOUR: Yes. Perhaps we should have the plaintiff called again.

COURT OFFICER: No appearance, your Honour.

HIS HONOUR: Yes. Mr Horan, what is the position in this matter?

MR HORAN: There has not been a summons filed in this matter. I have an affidavit of Emily Nance affirmed on 26 April 2006, if I could file that? Your Honour, I do not think it has been filed to date.

HIS HONOUR: Yes. What does that reveal?

MR HORAN: That sets out the history of the matter but there has not been any service on the plaintiff of a summons seeking dismissal of the application.

HIS HONOUR: Would it be open to form the view that the proceedings should be dismissed for want of prosecution?

MR HORAN: In my submission, it would, your Honour, or, alternatively, on the basis that the applicant has not established an arguable case for relief on the papers or for the exercise of discretion to enlarge time. However, those two matters have not been, as I noted, the subject of any summons to date.

HIS HONOUR: What would I need, if anything, to demonstrate the want of prosecution? Do I need to have affidavits of service of process on the plaintiff or does it suffice that the matter is listed, there is no appearance? They are questions, not interrogative statements, Mr Horan.

MR HORAN: If the Court is comfortable with the fact that the plaintiff has notice of the date on which this matter was listed for directions, it being essentially the plaintiff’s application for relief or for an order to show cause, the plaintiff’s failure to appear of itself demonstrates a want of prosecution.

HIS HONOUR: What I am minded to do, Mr Horan, is make an order that the application be dismissed for want of prosecution. What, if anything, then would follow if the plaintiff sought to take the matter further is something that would await another day, if that were to prove to be necessary, but would you seek to be heard against my doing that?

MR HORAN: No, your Honour.

HIS HONOUR: What do you say about costs?

MR HORAN: I say that costs should follow the event.

HIS HONOUR: The application is dismissed for want of prosecution. The plaintiff will pay the Minister’s costs.

Is there anything else I need to do in this matter do you say, Mr Horan?

MR HORAN: I do not think so, your Honour.

AT 10.25 AM THE MATTER WAS CONCLUDED