Sagita v Minister for Immigration and Citizenship [2011] HCATrans 38 (14 February 2011)

Last Updated: 16 February 2011

[2010] HCATrans 038

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S151 of 2010

B e t w e e n -

GRACIA SAGITA

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Defendant

Summons

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 14 FEBRUARY 2011, AT 9.42 AM

Copyright in the High Court of Australia

MR H.D. MURDOCH: If your Honour pleases, I appear for Parish Patience Lawyers, the instructing firm, originally. (instructed by Parish Patience Immigration Lawyers)

HIS HONOUR: The firm, not the client.

MR MURDOCH: For the client originally, but not now. We have received no instructions since around about 26 August.

MR R.J. WHITE: If the Court please, I appear for the Minister, your Honour. (instructed by Sparke Helmore Lawyers)

HIS HONOUR: This will be short I presume?

MR WHITE: Yes, your Honour.

HIS HONOUR: Mr White, you rely on the affidavit of Matthew David Alderton which was filed on 14 December 2010?

MR WHITE: Yes, your Honour. That is in support of a summons filed on the same date.

HIS HONOUR: Yes, thank you. You have no evidence you wish to rely on, Mr Murdoch?

MR MURDOCH: No, your Honour. We have just filed an affidavit just confirming that we have had no instructions from the client.

HIS HONOUR: Is that the affidavit that was filed on 10 February 2011?

MR MURDOCH: Yes, it is. There should be two; one from myself, and one from one of the secretaries in the office, which gives a detailed account of her attempts to contact the client for instructions.

HIS HONOUR: Asha Caroline D’Silva?

MR MURDOCH: Yes, D’Silva.

HIS HONOUR: I think if you would read those affidavits, I will take them as read.

MR MURDOCH: Right. Thank you.

HIS HONOUR: You have no objection to anything in Mr Alderton’s affidavit?

MR MURDOCH: Absolutely not.

HIS HONOUR: Mr White, you have no objection to the affidavits of Mr Murdoch or Ms D’Silva?

MR WHITE: No objection, your Honour.

HIS HONOUR: I do not think I need trouble you, Mr White, in view of the lack of opposition to your summons.

On 17 June 2010 the plaintiff filed an application for an order to show cause why certain relief should not be granted to her in relation to the decision of a delegate of the defendant refusing to grant her a student visa. The application listed as the plaintiff’s address for service the address of a firm of solicitors. She also filed an affidavit by her migration agent in support.

On 24 September 2010 the solicitors for the defendant sent a letter to the plaintiff notifying her that she had failed to file and serve an outline of submissions within 90 days of 17 June 2010 as required by rules 25.01(g) and 25.03.2 of the High Court Rules. The letter also said that if the plaintiff did not file documents seeking an extension of time by 1 October 2010 the defendant’s solicitors would file a summons seeking dismissal of the proceedings for want of prosecution. A similar threat was made by the defendant’s solicitors by letter of 12 October 2010.

On 14 December 2010 the defendant filed a summons which is before the Court. It seeks an order that the plaintiff’s application be dismissed for want of prosecution. There is evidence that from 21 July 2010 onwards the solicitors for the plaintiff have had difficulty in contacting her and that the defendant’s solicitors have so advised; that the plaintiff’s solicitors have ceased to act for her; and that towards the end of 2010 the plaintiff’s file was marked for closure by her solicitors.

On 15 September 2010 the solicitors for the plaintiff wrote to the solicitors for the defendant saying they no longer acted and were:

seeking to file necessary documents in the High Court shortly and we will forward the same to your office.

There is no evidence that either step has been taken. There is no evidence that the summons of 14 December 2010 has been served personally. However, it may be inferred from the filing of an affidavit on 10 February 2011 by a solicitor employed by the solicitors named on the application that the defendant’s summons was sent to those solicitors. The procedure set out in Rule 6.02.5 by which a solicitor may cease to act has not been complied with. In the absence of any evidence or contention by the plaintiff to the contrary, there is no reason not to make the orders sought by the defendant

Accordingly, I will make the first two of those orders:

1. The application for an extension of time pursuant to section 486A(2) of the Migration Act 1958 (Cth) filed on 17 June 2010 be dismissed for want of prosecution, and the purported application for an order to show cause also be dismissed for want of prosecution.
   
2. The plaintiff to pay the defendant’s costs.
   

Is there anything else, Mr White.

MR WHITE: No, thank you, your Honour.

AT 9.48 AM THE MATTER WAS CONCLUDED