Plaintiff S333/2011 v Minister for Immigration and Citizenship & Anor [2012] HCATrans 327 (3 December 2012)

Last Updated: 11 December 2012

[2012] HCATrans 327

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S333 of 2011

B e t w e e n -

PLAINTIFF S333/2011

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Application for order to show cause

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 3 DECEMBER 2012, AT 12.18 PM

Copyright in the High Court of Australia

HIS HONOUR: Please call the plaintiff outside Court.

COURT OFFICER: No appearance, your Honour.

MS L.B. BUCHANAN: May it please the Court, I appear for the defendants. (instructed by Australian Government Solicitor)

HIS HONOUR: Yes, Ms Buchanan. Ms Buchanan, have you seen a fax addressed to the Registry on 27 September 2012 from the plaintiff?

MS BUCHANAN: I have not seen a letter addressed to the Registry, although I suspect I received a fax dated 27 November in similar terms. I have an affidavit annexing correspondence between the parties.

HIS HONOUR: Very well.

MS BUCHANAN: So as a consequence of that I also have an affidavit of service, if I might seek leave to file those in Court?

HIS HONOUR: Yes. Perhaps, while I am reading them you might just give thought to this question – on the assumption that the plaintiff is applying for an adjournment, is there any reason why he should not have that adjournment?

MS BUCHANAN: Your Honour, the defendants still seek dismissal today. The plaintiff has not otherwise expanded upon why he requires eight weeks, aside from referring to wanting to get legal advice. The plaintiff has been, according to the material before this Court, on notice as to the effect of the judgment of S10 since sometime in September, according to the affidavit filed by Parish Patience, although no response was received to that. He has now received our submissions which submit that there is no arguable case in light of the judgment of S10. We submit that a further adjournment, and in light of the plaintiff’s failure to attend today and further information as to the need for that adjournment, the application should still be dismissed.

HIS HONOUR: Yes, thank you. It should be noted that there is on the Court’s file a letter from the plaintiff to the Registry, High Court of Australia, Sydney. Its material parts are in identical terms to those appearing in exhibit LBB2 of an affidavit of 2 December 2012 affirmed by Louise Bernadette Buchanan. I grant leave to file that affidavit in Court. I also grant leave to file in Court an affidavit sworn on 27 November 2012 by Naomi Cherie Boyce.

On 29 September 2011, 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 s 48B 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 officials refused to refer to the first defendant the plaintiff’s requestion under s 48B and the first defendant refused to exercise his powers under section 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 S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 86 ALJR 1019; 290 ALR 616. Those cases dealt with provisions which included ss 48B and 417, 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 this 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 have received no response to their letter. Leave to withdraw was granted on 19 November 2012.

On 15 November 2012, the defendants filed written submissions contending that the plaintiff’s application should be dismissed with costs because of the decision in the four cases referred to.

On 26 November 2012, at 5.58 pm Naomi Cherie Boyce served on the plaintiff a letter enclosing the defendants’ outline of submissions. That covering letter referred to the fact that Parish Patience had written to the plaintiff about the High Court’s judgment of 7 September. It also referred to the listing of the matter before the Court on 19 November and the grant of leave to Parish Patience to withdraw. It pointed out that unless the plaintiff found a new lawyer to act for him in the proceedings, he would need to represent himself. It stated that the matter had been listed for further hearing today. It indicated that at that hearing today the defendants would ask the Court to make orders dismissing the application with costs on the basis that the judgment of 7 September had determined the legal issues raised in the plaintiff’s application. As already indicated, it enclosed a sealed copy of the defendants’ outline of submissions. It said this, in addition:

Please also note that if you wish to proceed with your matter it is essential that you, or a lawyer acting for you, appear before the Court on 3 December 2012 at the time and address indicated at paragraph 4 above.

I interpolate to say that that is 11.00 am on 3 December, High Court of Australia, Level 23 of the Law Courts Building. The letter continues:

Should you or a lawyer acting on your behalf . . . not appear at the hearing on 3 December 2012 . . . the Court may make orders in your absence dismissing your application with costs.

The letter concluded with the words:

Please contact the writer if you wish to discuss the matter.

The following day, 27 November, the writer, namely, Louise Bernadette Buchanan received a letter in which the plaintiff said, among other things, that he could not represent himself as he did not have, “legal knowledge to back myself up”. He also said:

However, I plead to you to grant me eight weeks to enable me to find a legal representative because I live in Perth, Western Australia.

On 30 November, Ms Buchanan replied to the plaintiff’s letter of 27 November. In substance, the letter indicated that the defendants did not consent to any adjournment. It also repeated the defendants’ indication of desire to have the Court make orders dismissing the application with costs. It said that if the plaintiff, or a lawyer acting on his behalf, did not appear on 3 December the Court could make orders in the plaintiff’s absence, dismissing the application with costs. The letter concluded with an indication that the plaintiff was at liberty to contact Ms Buchanan if he wished to discuss the matter.

The first question is whether the adjournment requested should be granted. The plaintiff in his communications, written and oral, has not explained the following things. The first is why he needs an eight-week adjournment. The second is why he needs any adjournment at all in view of the fact that he has probably been on notice of the fate of Plaintiff S10 and the other three plaintiffs in the judgment of this Court in September 2012 from the time of receipt of the letter from Parish Patience. There is no reason to suppose that the plaintiff did not get that letter.

The plaintiff has for some days had the defendants’ submissions and for some days has had an indication of the defendants’ attitude. The plaintiff has not indicated that he has any money with which to hire a lawyer. He has not put on any evidence of any attempt to get a lawyer. He has not put on any evidence which would support a belief that a lawyer will act for him without money. In the circumstances to grant an adjournment would be futile. On the merits of the matter, there is no answer to the arguments advanced in the defendant’s written submissions.

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

AT 12.30 PM THE MATTER WAS CONCLUDED