Plaintiff S215/2012 v Minister for Immigration and Citizenship & Anor [2012] HCATrans 310 (3 December 2012)

Last Updated: 10 December 2012

[2012] HCATrans 310

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S215 of 2012

B e t w e e n -

PLAINTIFF S215/2012

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Application for an order to show cause

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 3 DECEMBER 2012, AT 11.05 AM

Copyright in the High Court of Australia

MR I.L. TEMBY: May it please the Court, I appear for the defendants. (instructed by Minter Ellison)

COURT OFFICER: No appearance, your Honour.

HIS HONOUR: Thank you. I need not trouble you, Mr Temby, unless you have anything in particular to say. I think I am correct in saying there is no evidence of actual service but there is evidence of various attempts of service.

MR TEMBY: Yes, your Honour, that is correct.

HIS HONOUR: On 10 August 2012, the plaintiff filed an application for an order to show cause why prerogative writs and other relief should not run. It complained that the first defendant, the second defendant and its officers had failed to observe natural justice in relation to ss48B and 417 of the Migration Act 1958 (Cth). Those are provisions the plaintiff wishes to take advantage of with a view to overturning a prohibition against applying for a visa.

The relevant authorities refused to refer to the first defendant the plaintiff’s request for a notice under s 48B and the first defendant refused to exercise his powers under s 417.

On 7 September 2012, the High Court of Australia dismissed the applications in four representative actions being run by Parish Patience with a view to settling the position of numerous persons, including the plaintiff: Plaintiff S10 of 2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 86 ALJR 1019, 290 ALR 616. Those cases dealt with ss 48B and 417, among other provisions, and they held that those provisions were not conditional on observing the principles of natural justice.

The solicitors for the plaintiff sent a letter asking the plaintiff to sign a document of instructions to discontinue the litigation in view of its lack of utility and in view of the need to avoid further costs. The letter also said that if the plaintiff did not give those instructions the solicitors would seek to withdraw. The solicitors received no response to their letter. Leave was granted for them to withdraw on 19 November 2012.

There is evidence that the plaintiff’s mobile was disconnected before the High Court decisions. The first defendant has sent to the plaintiff documents notifying the plaintiff of the defendants’ intention to have the plaintiff’s application dismissed today. They were sent to the plaintiff’s last-known address. There has been no reply recorded in the evidence. There is, therefore, no evidence that the plaintiff was served personally with the defendant’s submissions. However, 9.05.1 of the High Court Rules provides that the address for service of a party commencing a proceeding in the Court shall be the address stated on the originating process as that party’s address for service. That address is the solicitors’ address. The defendants’ submissions were served at the solicitors’ address before leave was granted to them to withdraw on 19 November 2012.

The lack of success by the solicitors in obtaining a response to their letter concerning discontinuance and withdrawal suggests that any further attempt to serve the defendants’ submissions personally, or notify the plaintiff of them, would have been futile. It is the duty of plaintiffs to keep in touch with their solicitors in relation to the conduct of litigation and this duty the plaintiff has not fulfilled. It is to be inferred that the plaintiff would have been aware of the decision of the four cases referred to above on 7 September 2012.

I order that the plaintiff’s application for an order to show cause be dismissed with costs.

AT 11.10 AM THE MATTER WAS CONCLUDED