Plaintiff S494/2008 v MIAC & Anor [2009] HCATrans 66 (14 April 2009)

Last Updated: 22 April 2009

[2009] HCATrans 066

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S494 of 2008

B e t w e e n -

PLAINTIFF S494/2008

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

Application for an order to show cause

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 14 APRIL 2009, AT 9.36 AM

Copyright in the High Court of Australia

MR P.D. REYNOLDS: May it please the Court, I appear for the plaintiff. (instructed by Fragomen Global)

MR A. MARKUS: If your Honour pleases, I appear for the first defendant. (instruction by Australian Government Solicitor)

HER HONOUR: Mr Reynolds.

MR REYNOLDS: Yes, your Honour. This is a matter that was commenced in the High Court at a point in time where at that time the High Court was the only place that the plaintiff could go. Previously he had commenced proceedings in the Federal Magistrates Court out of time and subsequently commenced present proceedings and discontinued the Federal Magistrates Court proceedings. After commencing the present proceedings there have been amendments to the Migration Act such that the Federal Magistrates Court now has jurisdiction in respect of applications filed after 15 March 2009. The plaintiff accepts that the Federal Magistrates Court is the appropriate place for the matter to be heard and seeks for the matter to be remitted to the Federal Magistrates Court.

My friend raises a point concerning the power of the Court to remit the matter to the Federal Magistrates Court and, accepting that to be the case, but I will address your Honour on that later if required, even if that be the case the plaintiff would seek leave to discontinue the present proceedings and recommence in the Federal Magistrates Court. However, my instructions at this stage are that the plaintiff is only prepared to discontinue the present matter if the costs of the present proceedings are either borne by the parties or there be an order that the costs of the present proceedings be costs in the Federal Magistrates Court proceedings. I have spoken with my learned friend about this but we have been unable to come to an agreement on the question of costs.

HER HONOUR: What is your application before me, Mr Reynolds?

MR REYNOLDS: To discontinue the present proceedings, your Honour, with an order that there be no order as to costs.

HER HONOUR: Yes. Mr Markus, what is your attitude to that application?

MR MARKUS: Obviously, your Honour, we do not oppose an application to discontinue the present proceedings. My client would seek a costs order, however.

HER HONOUR: Yes. Why would I make the order that you seek in terms of costs, Mr Reynolds?

MR REYNOLDS: When the present proceedings were commenced, your Honour, the High Court was the only place that could grant the relief sought by the plaintiff. The reason why the plaintiff would seek for the matter to be discontinued is solely because it is accepted that now that the Federal Magistrates Court has jurisdiction it would be more appropriate for the issues he seeks to raise to be dealt with in that court. This was a result of legislative amendments which occurred after the filing of the application in this Court and the plaintiff ought not bear the costs of the matter being transferred to the more appropriate forum.

The plaintiff, of course, could proceed in this Court and request that there be an order for show cause, but there is nothing in the present matter which justifies consideration by the High Court and it is simply to ensure that the matter is dealt with in the appropriate forum that the plaintiff seeks leave to discontinue the present proceedings.

HER HONOUR: Yes. Mr Markus, what do you say to that?

MR MARKUS: Thank you, your Honour. Your Honour, the first defendant’s position is this. The plaintiff commenced proceedings in this Court and could commence proceedings only in this Court, as is stated by my friend, for the sole reason that he did not commence proceedings within time in the Federal Magistrates Court. Therefore, all of the consequences of that failure follow from that initial failure to commence proceedings within time in the Federal Magistrates Court. In substance, the plaintiff faces the hurdle in this Court of satisfying your Honour that time ought to be extended for the commencement of the proceedings insofar as it seeks orders by way of certiorari. Your Honour, that hurdle does not present itself in the Federal Magistrates Court because the Federal Magistrates Court Rules do not provide for a time limit on applications of this nature.

Your Honour, in substance, the plaintiff has the benefit of the new legislation. I accept that it would be appropriate for the matter to be heard in the Federal Magistrates Court, but insofar as the plaintiff wishes to take advantage of that new opportunity, your Honour, he should be held liable for the costs of my client incurred in these proceedings. Your Honour, an additional consideration is that this new legislation commenced on 15 March. Although there is no evidence to this effect, this issue was not raised with us until last week.

HER HONOUR: I was going to ask that. When was this offer first raised?

MR MARKUS: Your Honour, my recollection is it was raised last Wednesday.

HER HONOUR: About last week?

MR MARKUS: Yes. Your Honour, there were some complications about communications of different approaches. I do not need to take your Honour’s time up with that, but there were some complications about exactly what was the nature of the offer, if I can put it that way, because there was some suggestion that the matter ought to be remitted and we had some difficulty with that proposition because we were not satisfied that in fact that was possible. Putting that issue to one side, your Honour, it was only raised last Wednesday. We certainly prepared draft submissions, although we have not filed them by the time that that first approach has been made, so significant costs have been incurred.

HER HONOUR: Nonetheless, Mr Reynolds’ contention is that the plaintiff is proposing a course that has only become available to him by virtue of the legislative change and that it is the convenient and appropriate way for the matter to progress. In those circumstances, the plaintiff submits that it would be in the interests of justice that each party bear its own costs. This application to discontinue comes forward in a context that there has been an unanticipated change to the legislation.

MR MARKUS: I understand that, your Honour. We simply say that the reason why the plaintiff is in this Court in the first place is his failure to commence proceedings within time according to legislation as it was when he should have commenced proceedings, your Honour. I cannot take this any further, your Honour. Those are my submissions.

HER HONOUR: The order that you seek is, firstly, the plaintiff have leave to discontinue the proceedings, Mr Reynolds, and, secondly, that each party bear its own costs of the application?

MR REYNOLDS: Yes, your Honour. I would add that the applicant already has a costs order against him for having started the Federal Magistrates Court proceedings and discontinuing those.

HER HONOUR: I am not sure that I see the relevance of that.

MR REYNOLDS: No, your Honour.

HER HONOUR: I am concerned with the costs of these proceedings.

MR REYNOLDS: Certainly, your Honour.

HER HONOUR: The thing that troubles me, Mr Reynolds, is that the legislation took effect from 15 March 2009 and it is accepted, as I understand it, that the first communication of the plaintiff’s proposal to discontinue the present application was conveyed last Wednesday.

MR REYNOLDS: Yes, your Honour, but certainly the first defendant would be aware of the legislation. It is the first defendant’s Act.

HER HONOUR: That may be taken for granted, Mr Reynolds. What the first defendant was not aware of was the attitude that your client proposed taking in light of the legislation.

MR REYNOLDS: Your Honour, if I could put it this way. The plaintiff is content for the matter to be heard in this Court. However, given that the Federal Magistrates Court now has jurisdiction, it seems more appropriate for the matter to be heard in that court given that there is nothing in the matter that requires High Court consideration. It is simply for that reason that the plaintiff seeks for the matter to be transferred rather than for any other reason.

HER HONOUR: Two matters arising out of that. This is not an application that the proceedings be remitted to the Federal Magistrates Court, as I understood it. I understood that your application was to discontinue.

MR REYNOLDS: Yes, your Honour, but that is because an application to remit may face problems because the application to this Court was commenced prior to 15 March. Therefore the way to achieve the matter being heard in the Federal Magistrates Court is for a discontinuance.

HER HONOUR: All I am raising with you, Mr Reynolds, is I understand that I am now dealing with the costs of an application that the plaintiff discontinue the proceedings in this Court.

MR REYNOLDS: Yes, your Honour.

HER HONOUR: Mr Markus, unless there is anything further that you want to put to me, notwithstanding the relatively late notice of the position that the plaintiff takes, I am inclined in the circumstances, namely, the introduction of the amendment to section 477 of the Migration Act with the implications that it has, to consider that it is in the circumstances appropriate that an order not only be granted for leave to discontinue these proceedings, it is plainly more convenient that such avenues as are open to the plaintiff be pursued in the Federal Magistrates Court and in the circumstances that each party bear their own costs of this application.

MR MARKUS: Your Honour, the only comment I have is that your Honour, of course, has other options, that is, your Honour could make a limited costs order in relation to, for example, the preparation of the written submissions or outline of argument. But, your Honour, I do not want to take your Honour’s time up any further than necessary.

HER HONOUR: Proceedings were commenced in this Court for an order to show cause why certain of the constitutional writs and certiorari ought not issue. Subsequently, a summons was filed seeking that the show cause application be remitted to the Federal Magistrates Court. At the time the application and the summons were filed, this was the only court in which the plaintiff could seek relief. As the result of an amendment to the Migration Act 1958, it is accepted by the first defendant that it is open to the plaintiff to commence proceedings in the Federal Magistrates Court for judicial review of the determination of the Refugee Review Tribunal.

In these circumstances, the plaintiff seeks leave to discontinue the proceedings in this Court and seeks an order that each party bear his own costs of both the application and the summons. In the circumstances, given that the convenient course is that now proposed by the plaintiff and that it arises as the result of the amendment to the Migration Act, I am persuaded that it is appropriate not only to grant the leave that is sought to discontinue but to make the costs order that the plaintiff proposes. For these reasons I make the following orders:

1. I grant leave to the plaintiff to discontinue the application for an order to show cause filed on 26 November 2008 and order that each party bear his own costs of the application.
   
2. I grant the plaintiff leave to discontinue proceedings on the summons filed on 12 February 2009. I direct that each party pay his own costs of the proceedings on the summons.
   

Are there any further orders that are required?

MR MARKUS: Nothing further, if the Court pleases.

MR REYNOLDS: No, your Honour.

HER HONOUR: Yes, very well.

AT 9.52 AM THE MATTER WAS CONCLUDED