Applicant M188/2004 v MIMIA & Anor [2006] HCATrans 209 (27 April 2006)

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Applicant M188/2004 v MIMIA & Anor [2006] HCATrans 209 (27 April 2006)

Last Updated: 4 May 2006

[2006] HCATrans 209

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M16 of 2006

B e t w e e n -

APPLICANT M188/2004

Plaintiff

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Defendant

MS SYDELLE MULINGH IN HER CAPACITY AS MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Second Defendant

MR STEVE KARAS IN HIS CAPACITY AS THE PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Third Defendant

Application for order to show cause

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 27 APRIL 2006, AT 11.14 AM

Copyright in the High Court of Australia

__________________

MR C.J. HORAN: Your Honour, I appear for the first defendant. (instructed by Clayton Utz)

HIS HONOUR: Yes, Mr Horan.

MR HORAN: I do have an affidavit to file which sets out some recent communications between my instructors and the plaintiff.

HIS HONOUR: Revealing what in summary, Mr Horan?

MR HORAN: In summary that the plaintiff contacted my instructors, and I believe also the Registry of this Court, indicating an intention to discontinue the proceeding and has been advised to speak to the Minister’s solicitors regarding the costs implications of that. I think that is where the matter stands as of today.

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

COURT OFFICER: No appearance, your Honour.

HIS HONOUR: Yes. What do you say I should do with the matter, Mr Horan?

MR HORAN: The matter falls into the category of - it is governed by the Migration Litigation Reform Act provisions and falls into the category of proceeding commenced after the 28-day period but within the 84-day period. In order to continue, the plaintiff would require an extension of time to be granted by this Court under section 486A(2) and in circumstances where the applicant has commenced previous judicial review proceedings in this Court which after remittal and transfer were dismissed by the Federal Magistrates Court on 6 February 2006, Federal Magistrate Riethmuller that it is not in the interests of the administration of justice to grant an extension of time to the plaintiff.

HIS HONOUR: If I were to form the conclusion that the plaintiff making no application for extension of time within which to commence the proceedings without deciding what that time is or how that time is engaged, it would follow, would it not, that the proceeding should stand dismissed?

MR HORAN: Yes, your Honour.

HIS HONOUR: Do I have to consider how the time limit is engaged?

MR HORAN: No, your Honour, because on either view the plaintiff requires an extension of time, either pursuant to the Migration Act or pursuant to the High Court Rules. In either case, for the same reasons, there are no special circumstances to call for any such extension.

HIS HONOUR: Yes. The plaintiff in this matter informed the solicitor for the Minister and the Deputy Registrar that she did not wish to attend the hearing fixed for today. The solicitor for the Minister has deposed to the fact that he informed the plaintiff that if she did not appear today there was a risk that the Court would dismiss her application and order costs against her.

On any view of the matter, whether the provisions of the Migration Litigation Reform Act 2005 (Cth) are engaged in the fashion in which the Minister would contend or the provisions of the High Court Rules 2004 have relevant operation in the matter, the plaintiff requires an extension of time within which to commence the proceedings which she has instituted.

The plaintiff making no application for an extension of time within which to commence her proceedings, it follows that the proceedings must fail. That being so, the order is that application is dismissed with costs.

AT 11.21 AM THE MATTER WAS CONCLUDED