Plaintiff M83/2009 v The Honourable Justice Ryan & Anor [2010] HCATrans 68 (17 March 2010)

Last Updated: 18 March 2010

[2010] HCATrans 068

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M83 of 2009

B e t w e e n -

PLAINTIFF M83/2009

Plaintiff

and

THE HONOURABLE JUSTICE RYAN OF THE FEDERAL COURT OF AUSTRALIA

Defendant

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Defendant

Application for an order to show cause

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 17 MARCH 2010, AT 10.39 AM

Copyright in the High Court of Australia

PLAINTIFF M83/2009 appeared in person.

MR R.C. KNOWLES: If it pleases the Court, I appear for the second defendant. (instructed by Australian Government Solicitor)

VINITHA JAYASINGHE, affirmed as interpreter.

HIS HONOUR: Madam Interpreter, thank you. Now, the gentleman beside you is the plaintiff in the present application, is that right?

THE INTERPRETER: Yes, your Honour.

HIS HONOUR: Would you be good enough to explain to him that the law requires that I not use his proper name in the course of these proceedings? My failure to do so is not from any wish to be discourteous. It is simply what the law requires. Now, the plaintiff has filed an affidavit affirmed on 11 March 2010. Will you ask him about that, please?

PLAINTIFF M83/2009 (through interpreter): Yes, your Honour, I have submitted an affidavit.

HIS HONOUR: And he wishes to rely on that?

PLAINTIFF M83/2009 (through interpreter): Yes, your Honour.

HIS HONOUR: Mr Knowles, is there any reason why that affidavit should not be read?

MR KNOWLES: No, your Honour.

HIS HONOUR: Yes, thank you. Now, in it the plaintiff says that he has applied for legal aid and expects a decision in the next few days and that he is not able to continue with his case without legal assistance.

PLAINTIFF M83/2009 (through interpreter): Your Honour, Legal Aid sent me a letter, so I can submit that as well, if you wish.

HIS HONOUR: Yes. Perhaps if you would be good enough to show it first to Mr Knowles and then I will have a look at it. Perhaps if you could show it to counsel at the other end, Mr Knowles. Is there any reason I should not receive the letter, Mr Knowles?

MR KNOWLES: No, your Honour.

HIS HONOUR: Yes. Perhaps if you would be good enough to hand it up. Thank you. This is a letter from Victoria Legal Aid writing with reference to his application for legal assistance. It asks him to complete the application and return it to the grants division for processing. That letter is dated 2 March 2010. In light of that letter, Mr Knowles, what do you say I should do? There is an active application for legal aid. So far as we know, there is no response to it.

MR KNOWLES: No, your Honour. I take it that your Honour has had regard to the second defendant’s outline of submissions?

HIS HONOUR: And I recognise that this matter has a long history.

MR KNOWLES: Yes, indeed, your Honour.

HIS HONOUR: Accepting that to be so, we have here a plaintiff who has applied for legal aid whose application has not yet been dealt with fully, what should I do?

MR KNOWLES: Well, in my submission, your Honour, the circumstances of this case are in a somewhat exceptional category in the sense that they present a fairly clear-cut case for there being no reasonable prospect of success in this particular case for the plaintiff and that is certainly - - -

HIS HONOUR: I would understand that you say that and I would understand, if I may say so, why you would say that, but should I not take account of the fact that the papers were prepared by a litigant in person who now seeks advice about the application that he has made which you say is hopeless?

MR KNOWLES: Yes.

HIS HONOUR: It becomes, what do you say I should do, Mr Knowles?

MR KNOWLES: Yes, I understand, your Honour. Perhaps if I might just briefly seek some instructions on that.

HIS HONOUR: Of course.

MR KNOWLES: Your Honour is obviously mindful of what I have just submitted to your Honour about my client’s view in respect of the plaintiff’s prospects in this case. It is submitted that if there were to be any further delays in the proceeding, that they would be hopefully relatively brief and that the matter would return before your Honour relatively promptly if there were to be any further delays.

HIS HONOUR: Can I tell you something about my future calendar, Mr Knowles, which may or may not assist you. It would be likely that I would be able to provide a day for the further hearing of this application somewhere in the week commencing 27 April or the week commencing 3 May. I cannot yet give you a more precise date because, it may come as a great shock to you, there seem to be a few other things happening in the life of the Court at the moment.

MR KNOWLES: Well, I think your Honour has referred to various things, including, having heard the matter of Saeed, contending with that case, among many others. If that was the earliest date, well, we are in your Honour’s hands in that regard.

HIS HONOUR: Yes. I am out of Australia next week. We have a sitting immediately before Easter. We then have the Easter week followed by two weeks of sittings and that takes us really, effectively, over to the week of 27 April, Mr Knowles.

MR KNOWLES: Yes, your Honour. I do not know whether it would assist your Honour in terms of my own availability and I do not want to - - -

HIS HONOUR: It would.

MR KNOWLES: If I could just grab my diary?

HIS HONOUR: Of course.

MR KNOWLES: In terms of my own availability, your Honour, the only date at present that is unavailable is 5 May.

HIS HONOUR: Yes. If we were to take it, say, at 9.30 am on 29 April?

MR KNOWLES: Yes, your Honour, that would be satisfactory, certainly for my availability.

HIS HONOUR: I will, of course, have to say something to the plaintiff about this, but it would occur to me also, Mr Knowles, that while you are on your feet, it would be desirable to direct that the plaintiff tell Legal Aid that that is when it is coming back on.

MR KNOWLES: Yes, your Honour, and in addition to that, in my submission, it would be desirable if there were some indication, firstly, whether or not Legal Aid is going to assist the plaintiff and, secondly, if they are going to assist, some amended application if that is considered necessary in the circumstances and that those steps occur before the matter returns before your Honour on 29 April.

HIS HONOUR: Of course that would be desirable, but I do not feel in a position where I can offer any direction to Legal Aid they having not yet taken on the matter, but the evident sense of that – what might be the appropriate thing to do is, if I were to ask your solicitors, since they are perhaps more readily set up for this, to provide a copy of today’s transcript to Victoria Legal Aid in connection with this matter?

MR KNOWLES: Yes, that can certainly be done, your Honour.

HIS HONOUR: That, I think, is a step that can be readily done, does not cut across any confidentiality that the plaintiff necessarily must have with Legal Aid and yet puts them in the picture.

MR KNOWLES: Yes, your Honour, that certainly can be done. The only perhaps additional order that might be made is that the plaintiff file and serve any amended application by a particular date. That order, firstly, would not be directed towards Victoria Legal Aid and, secondly, would leave the plaintiff at liberty not to do anything further if there was no requirement for any amended application to be put in before the Court.

HIS HONOUR: There being no immediate prospect of amendment, Mr Knowles, I am not minded to do it. Again the transcript will record what you have said and, if I may say so, there is some force in what you say.

MR KNOWLES: Yes, if your Honour pleases.

HIS HONOUR: Yes. Madam Interpreter, would you be good enough to say to the plaintiff that I am thinking of adjourning the case to 9.30 am on 29 April, which is Thursday, 29 April.

PLAINTIFF M83/2009 (through interpreter): Yes, your Honour.

HIS HONOUR: I am going to ask the Minister’s solicitors to send a copy of today’s transcript to Legal Aid so that they know, Legal Aid know that is, that it is to come back on that day and that it would be my hope, indeed my expectation, that Legal Aid will have done everything within their power to make a decision about what Legal Aid intends to do in good time before 29 April. Now, Legal Aid is likely to need some material from the plaintiff. He will have to do everything in his power to put before Legal Aid anything that they need. Can I finish by saying this. There has been a very long history in this matter. We have got to get to an end of it as soon as we reasonably can, whatever that end is, but we have got to get to an end. So, is there anything he wants to say to me in answer to what I have said?

PLAINTIFF M83/2009 (through interpreter): No, your Honour.

HIS HONOUR: Thank you very much. The orders that will be made are:

1. Adjourn the application to 9.30 am, 29 April 2010 in Melbourne.
   
2. Costs of today should be costs in the application.
   

I do not think it is necessary, Mr Knowles, that I give your side any formal direction about making the transcript available. I am sure that those instructing you will simply do it and for that I am grateful. I shall return to the plaintiff the letter dated 2 March 2010 that he made available to me in the course of the hearing.

MR KNOWLES: If your Honour pleases.

HIS HONOUR: It is coming up 11 o’clock, if I adjourn until quarter past 11, would that be convenient to counsel?

MR KNOWLES: It would, certainly, your Honour. Thank you, your Honour.

HIS HONOUR: Yes. I will adjourn until 11.15.

AT 10.54 AM THE MATTER WAS ADJOURNED