Plaintiff S51/2011 v Minister for Immigration and Citizenship & Anor [2011] HCATrans 289 (12 October 2011)

Last Updated: 13 October 2011

[2011] HCATrans 289

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S51 of 2011

B e t w e e n -

PLAINTIFF S51/2011

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Application for order to show cause

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 12 OCTOBER 2011, AT 9.33 AM

Copyright in the High Court of Australia

MR S.E.J. PRINCE: May it please the Court, I appear with my learned friend, MR Q.T. NGUYEN, for the plaintiff. (instructed by Parish Patience Immigration, Lawyers)

MS A.M. MITCHELMORE: If the Court pleases, I appear for the defendants. (instructed by Australian Government Solicitor)

HIS HONOUR: Yes, Mr Prince. There was some question of section 197AB, was there not?

MR PRINCE: There was. I do not think a decision has been made under 197AB. My friend might know more about that than I do, your Honour.

HIS HONOUR: Yes, Ms Mitchelmore.

MS MITCHELMORE: Your Honour, I am instructed that a decision has been made and a residence determination has been made for the plaintiff to be placed in the community, so a residence determination has been made.

HIS HONOUR: You had better show that to Mr Prince, I think. Made how recently?

MS MITCHELMORE: Yes, 6 October it was made. There was some discussion as to where he would be staying, but, as I understand it, that has now been worked out.

HIS HONOUR: Do you need a few minutes?

MR PRINCE: Your Honour, as I understand it, my client is in detention but in residence, so that would mean that some determination has obviously been made under 197. I have not seen any record of it, obviously. I do not think it ultimately makes any difference to the 195A case because it was a different power which was considered and not exercised and the 197AB leads to a residence detention rather than a visa, whereas 195A, as your Honour knows, leads to a substantive visa which means a person is no longer in detention. So, as it stands, I am content to press on because our main concern is the 195A and the substantive visa. So in terms of substance, I doubt it is going to make much of a difference.

In terms of the procedure, the parties have been working towards getting the books finished, which was another problem with this case. We have had some discussions this morning before your Honour came onto the Bench and we expect that that can be advanced. It has not been advanced as quickly as we had hoped, but it is in a state now where I think that my learned friend and I and the solicitors could have a conference to try to finalise things relatively soon. So I am still quite optimistic that the matter can catch up with the other matters. We have been preparing our submissions on the basis that it will catch up, so that hopefully will not slow things down.

I am in the Court’s hands as to what should happen next. I do not think it can be formally referred yet because obviously the books have not been finalised. I am conscious of coming back to Court too frequently and taking up everybody’s time with further directions. I would have thought that there are some things to do between now and when we have a conference. I would have thought, subject to my learned friend’s availability, that we should be able to confer late next week to try to finalise things and on past experience, that might mean that we would need about a week or two weeks after that meeting to get everything in order. I do not know what my friend’s attitude is to that, your Honour.

HIS HONOUR: The week of 21 November, would that be suitable?

MS MITCHELMORE: I am sorry, your Honour, I did not hear that?

HIS HONOUR: The week of 21 November.

MS MITCHELMORE: Your Honour, there may not be a need for so much time to go by before the books are filed. There is a question as to the index at the moment and its correspondence with the actual documents in the book and some other comments that my instructing solicitors have made which have not yet been folded into the book, but - - -

HIS HONOUR: I will stand it over to 9.30 on 11 November with liberty to apply from earlier re-listing on two days notice. So if you get finished earlier, you can come back earlier.

MS MITCHELMORE: Yes. Your Honour, the only issue I wanted to raise in relation to that, insofar as this matter folds in, as it were, to the other three matters - - -

HIS HONOUR: Yes, the timetable will not fit.

MS MITCHELMORE: No, because the submissions are due currently on 14 October.

HIS HONOUR: That is right.

MS MITCHELMORE: Yes. So I simply raise that as an issue, but I am content with the matter to be re-listed on 11 November.

HIS HONOUR: Is that suitable, Mr Prince?

MR PRINCE: Yes, it is, your Honour. I am just thinking about the timetable in the other matter because it was another issue which we had raised with our friends. When the timetable was set on the last occasion, I had not anticipated that my learned leader was away in the US for three weeks from 8 October – two weeks. He is back on the 21st which is when the submissions are due. There is an advance draft which - - -

HIS HONOUR: You do not need a leader for this matter, Mr Prince.

MR PRINCE: Thank you, your Honour. Mr Lloyd is briefed and I am grateful for his expertise in the matter. He is back on the 21st and we need a week from the 21st to finalise the draft submissions which have been prepared. So there is some slippage there, which we have raised with my learned friend. I had hoped that that could be accommodated. I do not think we have heard back. My friend was taking instructions the last I heard about that.

MS MITCHELMORE: Your Honour, my clients’ position is that provided that the timetable goes out in terms of the defendants’ submissions and the plaintiffs currently have four weeks for reply. They may not need that length of time for reply.

HIS HONOUR: That is right.

MS MITCHELMORE: So provided the timetable can be pushed out to accommodate the same period of time for my clients, then we do not oppose that request.

HIS HONOUR: What date does Mr Lloyd re-emerge?

MR PRINCE: On the 21st, your Honour. We do not need that much time for the reply submissions.

HIS HONOUR: Yes, 28 October and 25 November, and 16 December as is.

MR PRINCE: Thank you, your Honour. If the issue of.....we hope that it can be incorporated. If not, we can do some supplementary references to catch it up, your Honour.

HIS HONOUR: That is right.

MS MITCHELMORE: Your Honour, my solicitor can count better than I. Apparently in your Honour’s revised timetable, the defendants have lost a week.

HIS HONOUR: Yes, that is right. What date do you want instead of 25 November? I should not have to sit here haggling over these things.

MS MITCHELMORE: No, I apologise, your Honour. Yes, 2 December.

HIS HONOUR: That gives you 14 days. Is that enough for reply?

MR PRINCE: Yes, your Honour, it is.

HIS HONOUR: In matter No S51 of 2011, that is stood over before me to Friday, 11 November 2011 at 9.30 am with liberty to restore on two days written notice for an earlier resumed date. Costs of today will be costs in the cause.

In the matter of Kaur v Minister for Immigration and also in matters Plaintiff S10/2011 and Plaintiff S49/2011, the timetable fixed on 13 September 2011 is varied. So paragraph 3 will read:

3. The written submissions and chronology of the plaintiff be filed and served on or before 28 October 2011.
   
4. The written submissions and chronology of the defendant will be filed and served on or before 2 December 2011.
   

Any reply will stand as it is, on or before 16 December 2011.

MR PRINCE: If the Court pleases.

MS MITCHELMORE: If the Court pleases.

HIS HONOUR: Is there anything else?

MR PRINCE: No, thank you, your Honour.

HIS HONOUR: Very well. I will now adjourn.

AT 9.44 AM THE MATTER WAS ADJOURNED