Wilson v Minister for Immigration and Citizenship & Anor [2012] HCATrans 95 (24 April 2012)

Last Updated: 27 April 2012

[2012] HCATrans 095

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S41 of 2012

B e t w e e n -

THOMAS HUDSON WILSON

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

Application for an order to show cause

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 24 APRIL 2012, AT 10.00 AM

Copyright in the High Court of Australia

MR T.H. WILSON appeared in person.

MR P.R.D. GRAY, SC: May it please your Honour, I appear for the first defendant. (instructed by Australian Government Solicitor)

HER HONOUR: Mr Wilson, I am just going to ask you, if you can, when you speak make sure you speak audibly into the microphone. We had some difficulties on the last occasion. It is not just a question of the problems on the last occasion because Mr Gray was appearing in Melbourne via video link, but it is necessary that the transcript record all that each of the parties has to say. Do you understand?

MR WILSON: Yes.

HER HONOUR: Thank you. Yes, Mr Gray.

MR GRAY: Your Honour, the matter was last before you on 11 April and on that day I relied upon an affidavit of Emily Jane Nance of 3 April 2012 and the Court asked if that affidavit had been served and, on instructions, I said yes and I later read from the purported letter of service of the AGS and, as I think has been conveyed to the Court, that information was incorrect. That document had not been served and it appears a number of other documents had not been served on Mr Wilson at the time of the last mention before your Honour. What in fact occurred appears from an affidavit, which has been prepared by Christopher Michael McDermott and I wish to draw the Court’s attention to that affidavit. It should have reached the file.

HER HONOUR: Yes, there is an affidavit on the court file by Christopher Michael McDermott affirmed by Mr McDermott on 13 April 2012. I will just inquire whether Mr Wilson has seen a copy of that affidavit.

MR WILSON: Yes, I have.

HER HONOUR: Now, do you have any objection to any part of that affidavit, Mr Wilson?

MR WILSON: Sorry, your Honour, I know it is a run on from the last time and I am not too familiar with what is going on here, but I did receive a bit of help from somebody at the detention centre and it turns out I was not aware of the non-delivery until it was brought to my attention by my case officer, Graham Campbell. It was the day after we were last here and I thought the matter was over. I was sort of considering appealing and it was still up in the air. Anyway, it was brought to my attention by Mr Graham Campbell that, you know, there was some outstanding material. He did not tell me what it was. I was told it was High Court stuff. So I was given a big package of material and at that stage I was involved with my case officer, there was a few other things going on, and I did not get around to it until the next day and it took me about a day and a half to realise exactly what it was.

HER HONOUR: Mr Wilson - - -

MR WILSON: Sorry.

HER HONOUR: No. What I was just going to raise with you was this. At this point Mr Gray has directed my attention to an affidavit that has been filed. I am not sure what precisely I have before me in the way of an application today. What I am seeking to do is to establish, firstly, whether you have seen Mr McDermott’s affidavit and since my attention was being directed to the affidavit, whether you have any objection to any part of the affidavit. I take it, Mr Gray, you are reading the affidavit?

MR GRAY: Yes, I do seek to read the affidavit, your Honour. I will just explain what is in it.

HER HONOUR: You seek to read it. I just want to see if there is any objection.

MR WILSON: I do believe there are two copies. I think the second one is an expansion of the first one, am I correct?

HER HONOUR: Mr Wilson, the only document that appears on the court file by way of affidavit by Christopher Michael McDermott is the one affidavit affirmed on 13 April 2012. Do you have that document?

MR WILSON: I believe I do.

HER HONOUR: Yes, all right. Now, Mr Wilson, Mr Gray wishes to read that affidavit, that is, place it formally before the Court, and I am simply seeking to ascertain at this stage whether you have any formal objection to this?

MR WILSON: No.

HER HONOUR: Yes, all right. Yes, thank you, Mr Gray.

MR GRAY: Your Honour, the Court will have received the Australian Government Solicitor’s letter expressing regret and also my own personal apology for conveying mistaken instructions about service.

HER HONOUR: Mr Gray, I do not have a letter before me, but I do not know that anything really turns on that. I understand from what you have just conveyed that you apologise to the Court for having misinformed the Court on the last occasion. I think the circumstances are as set out in Mr McDermott’s affidavit. Is there some other matter in a letter that you wish to draw to attention?

MR GRAY: No, your Honour. That is precisely what I did wish to convey and I do apologise.

HER HONOUR: Yes. Thank you, Mr Gray.

MR GRAY: The affidavit of Mr McDermott explains, to the best of Mr McDermott’s knowledge, how service miscarried and your Honour will see from paragraph 3 of the affidavit that it appears the envelope, in which the documents Mr McDermott intended to serve were placed, was, for reasons unknown to him, not addressed using Mr Wilson’s name but was merely addressed “C/O Case Management”, and that appears to have been at least a cause of what went wrong. Then, your Honour, there is further facts deposed to by Mr McDermott. Perhaps of chief importance for today, the day after the hearing on 11 April, Mr McDermott received a call from Mr Campbell, who I think we can infer must be the same man Mr Wilson was just referring to, and this is at paragraph 7, your Honour:

Mr Campbell stated to me words to the effect that he had that afternoon been provided by a work colleague the relevant documents, which were contained in an opened envelope . . . He also stated words to the effect that he had reason to believe that the relevant documents had not been provided to the Plaintiff –

that is Mr Wilson of course –

prior to the hearing of his application on 11 April 2011.

The basis for the belief conveyed by Mr Campbell is set out in the next paragraph and one of the points of importance appears to have been that:

the envelope was not marked to the direct attention of the Plaintiff.

Then steps were taken promptly and, relevantly, the Court was informed. I take it that the letter that I mentioned a moment ago might not have reached the chambers of your Honour, but, in any event, the Court, in a global sense, was informed about the situation so that steps could be taken to prevent orders being authenticated. Now, it is my understanding that orders have not been authenticated arising from the hearing on the 11th.

HER HONOUR: What is it that you seek to have me do?

MR GRAY: What I seek, your Honour, is to invite your Honour to exercise the power that your Honour has, in circumstances where orders have not been authenticated, to reconsider and, to the extent necessary, rehear any matter that has been before your Honour and, in particular, Mr Wilson might wish to advance further submissions now that he is seized with the documents that were annexed to Ms Nance’s affidavit. Might I add, your Honour, that the – I should just say that I do not believe it is at all controversial that the Court does have power to reconsider to the extent necessary, subject to granting the parties an opportunity to be heard, and unless your Honour wishes to hear authorities on that, I will move over that point.

HER HONOUR: Yes. That is, I do not need you to refer me to authority for that proposition at this point. Would it be convenient to just ascertain Mr Wilson’s attitude to your application, as I understand it, that the proceedings be, as it were, reopened in light of the history that is disclosed in Mr McDermott’s affidavit?

MR GRAY: Yes, your Honour. There was one thing I should have done and that is I should have said the letter of purported service from which I read on the last occasion is at annexure CM-2 of Mr McDermott’s affidavit. That enumerates the documents which were intended to have been served and which were not served on the last occasion but which, it is my understanding, Mr Wilson now has. Perhaps Mr Wilson can confirm that. But, in any event, your Honour can see there what the documents were. With respect to the affidavit of Emily Jane Nance, it is the case that I will be submitting that the annexures to Ms Nance’s affidavit were material that Mr Wilson should have had in any event. That is not to make any sort of excuse for the documents not having been served again, but they were documents going essentially and in the main to the Federal Court proceedings and Mr Wilson should have had those documents in any event.

HER HONOUR: I think some of the documents that were annexed to Ms Nance’s affidavit were documents that were annexed to the affidavit sworn by Mr Wilson in the proceedings, but there were some documents that were not evidence in his case, as it were, and those documents were the documents relating to the proceedings pending in the Federal Court that are presently the subject of the stay, is that so?

MR GRAY: That is so, your Honour, orders, transcript, things of that kind.

HER HONOUR: Yes, all right.

MR GRAY: Your Honour, of course, Mr Wilson should be and should now have an opportunity to make whatever submissions he wishes to make in relation to the points I advanced concerning those documents, but the nub of my argument on the last occasion was that the interests of justice were better served by allowing the matter to proceed in the Federal Court rather than in this Court. If your Honour pleases.

HER HONOUR: Yes. Thank you, Mr Gray. Mr Wilson, Mr Gray invites the Court to, as it were, reopen the proceedings because of his acknowledgement that - - -

MR WILSON: That he misled the Court the last time around.

HER HONOUR: I am sorry?

MR WILSON: That he misled the Court the last time around.

HER HONOUR: That may not be - - -

MR WILSON: Appropriate.

HER HONOUR: - - - the most appropriate way of describing what occurred on the last occasion in light of the contents - - -

MR WILSON: Well, that is a matter of opinion, your Honour.

HER HONOUR: Well, that may be, Mr Wilson. I am simply seeking at this stage to find out what your attitude is to the application that Mr Gray makes. Now, the first aspect of that is Mr Gray submits that since the order that I made on the last occasion has not been formally taken out, it is open to the Court to review the matter, and he invites the Court to do so since it is common ground that you were not in possession of the affidavit of Ms Nance or the other documents referred to in the annexure CM-2 to Mr McDermott’s affidavit when I heard the matter on 11 April. Now, what do you wish, Mr Wilson?

MR WILSON: Your Honour, I just wanted to bring your attention to a document that I had faxed to Mr Griffin yesterday which I asked to be supplied to you.

HER HONOUR: Yes. There is a document that was received in the Registry yesterday, that is 23 April 2012, which appears to come from you, Mr Wilson. It comprises - - -

MR WILSON: Seven pages, your Honour.

HER HONOUR: Yes. Four pages that I will describe as a submission and a three-page annexure described as a lost email.

MR WILSON: Yes.

HER HONOUR: Now, I will just inquire if Mr Gray has seen a copy of that document? Do you have it?

MR GRAY: No, your Honour, I do not have that.

HER HONOUR: Very well. Mr Wilson, do you - - -

MR WILSON: That basically contains all the submissions that I probably would be making today.

HER HONOUR: All right. What I think I will arrange to do is to have that document copied. You do not have a copy of it that you could give to Mr Gray, do you?

MR WILSON: I have the original here.

HER HONOUR: What I think I will do is get it photocopied so that you have your original and Mr Gray has the document available to him.

MR WILSON: Yes. I do not know, your Honour, if you have read that document at all or had a look through it.

HER HONOUR: I have.

MR WILSON: I raise all of the issues in there that I would like to have - - -

HER HONOUR: Am I right in my understanding, Mr Wilson, that your position is you did not seek to have me reopen - - -

MR WILSON: No.

HER HONOUR: - - - the matter that was the subject of the orders that I made on 11 April? You would like to proceed to explore the avenues open to you to appeal from the making of those orders. Is that the position?

MR WILSON: Yes, your Honour.

HER HONOUR: Now, the only matter that I wish to raise with you at this point arising out of that is whether you understand that the position taken by the Minister is recognising that you did not have access to materials that it was understood had been served on you.

MR WILSON: Yes.

HER HONOUR: The Minister submits that an appropriate course would be for the orders made on the last occasion not to be taken out and, rather, for the matter to be reopened with a view to you having that opportunity to put such submissions as you might in light of the submissions and the contents of Ms Nance’s affidavit.

MR WILSON: Here is the funny thing about Ms Nance’s affidavit, your Honour. When I received those documents, which I do not believe found their way to me late as an accident or as a result of an accident, and I go into that in the document that I supplied to you, I go into that in detail, because to understand why I feel that way, you have got to understand the way these detention centres run. There is a prescribed method of delivery of the mail that arrives. All of the mail that arrives at Villawood from Immigration, it goes through an actual process. There is an actual prescribed process. To claim that it was mislaid, I suspect that is a bit of a deception.

Now, the addresses that were supplied by Mr McDermott exist nowhere on any of the official contact points for me and it is not the same address that my friend over here supplied to the Court, and that is in the transcripts. So either he knew beforehand that I was not going to receive the documents or Mr McDermott is lying, because he is – your Honour, when I finally got those documents, Ms Nance’s affidavit is still not in it. I still do not have a copy - - -

HER HONOUR: Do you have Ms Nance’s now?

MR WILSON: No, I do not. Now, that did not arrive – I was not handed those documents in their original packaging, your Honour. It was repackaged and the affidavit – there is nothing in there that is an affidavit that was put together by - - -

HER HONOUR: Mr Wilson, the matter that I am raising with you at the moment is directed to your understanding of the options that are presently open to you. You make in the seven-page document that you sent to the Court’s Registry by facsimile yesterday various allegations.

MR WILSON: Yes.

HER HONOUR: It is not appropriate for me to go into those on the hearing of this application. What I do wish to draw to your attention is that the application that is brought by the Minister is an application that would afford you the opportunity of having, as it were, a fresh hearing of the matter. In the event you were not content with whatever order may result at the conclusion of that hearing, you would have such rights as are available to you to appeal. On the other hand, it may be that your position is, as you indicate in your seven-page submission, that you do not wish to have the orders made on 11 April disturbed; you would rather pursue your avenue of appeal. It is a matter for you, Mr Wilson. I need to know what it is you seek to have me do today, if anything. I have before me an application by the Minister inviting me to reopen the proceedings that were determined by me on 11 April.

MR WILSON: Your Honour, if you had read that document, you would find in the document I have asked you to disqualify yourself from any further involvement with the case considering what transpired here on the 11th. You guys, yourself, your Honour, and our friend over here, you guys are fully aware of the fact that to proceed without me in possession of those documents would have been, and it was, a breach of procedural fairness, but you decided to proceed with it anyway. Now, as the sacrificial lamb, I am saying that I do not believe that I should have any more faith in your running of this matter and I am asking you to stand aside.

HER HONOUR: Well, at the moment, Mr Wilson, the position is this. I made orders on 11 April last dismissing the application that you had filed.

MR WILSON: Yes.

HER HONOUR: I have before me today an application from the Minister, supported by the affidavit of Mr McDermott, drawing to attention that documents that were understood by those acting for the Minister to have been served on you before the last hearing had, in fact, not been served on you and in those circumstances - - -

MR WILSON: And are still not served upon me.

HER HONOUR: Well, we will come to that in a moment. In those circumstances, inviting me to rehear the matter, the orders that I made not having been formally taken out. I would not do that unless you wished me to adopt that course, that is, I have an application by the Minister drawing to my attention the irregularity that occurred and the possible disadvantage that that occasioned to you. In the event you wish me to reopen the proceedings, I would be disposed to do so, but if you do not wish me to do so, then no question arises of me disqualifying myself. The fact is I have heard proceedings and I have made orders in them and those orders would stand and you could proceed, as you indicate in your submission, to pursue your rights arising out of the making of those orders.

MR WILSON: Your Honour, what I cannot understand is this and it has confused me. Now, in an email that I received from, I think it is Mr Brown – I think it is Mr Gray’s senior or something – it took them all of about 12 hours to organise this but they cannot get a document in? One document. Now, arising from all of that is this. Someone lied. Either Graham Campbell lied, Mr Gray lied, Mr Brown lied or Mr McDermott lied. One of them lied because none of their stories fit, your Honour. Now, this – sorry. But this has been repetitively happening since before my visa got cancelled in my case.

Now, when I appeared here the last time on the 11th, as I said – your Honour, you are a High Court Judge. You did not just parachute out of the sky yesterday, neither did Mr Gray – both of you would have been aware that to continue without me in possession of the documents is a breach of procedural fairness, but you guys continued anyway. Now, that is why I am feeling a little bit concerned about your Honour continuing to be in charge of this case, and I understand what you said previously a few minutes ago. Now, I am objecting to this case – to his last submission. I prefer to appeal the decision that you made the last time. I am asking that the judgment stands.

HER HONOUR: Thank you, Mr Wilson. Well, Mr Gray, is there anything you wish to put to me in light of that exchange?

MR GRAY: Your Honour, the first thing I should say is that I personally had not received the document that appears to have been filed on the 23rd by Mr Wilson in the Court. It does contain a lot of material, including allegations against me personally, but I have not had an opportunity to digest those points and cannot respond to them now, but I hear from what Mr Wilson is saying, and I infer from those things, that there will be an explanation of the basis of his application to your Honour for disqualification explained somewhere in those seven pages. At present, and subject to the qualification that I have not digested those seven pages, I am failing to understand any proper foundation for Mr Wilson’s application that your Honour should disqualify yourself.

Your Honour proceeded on the last occasion on the basis of information provided by me which has turned out to have been incorrect. I have apologised for that and I have explained, to the best of my instructor’s ability, how that arose. Your Honour was very properly proceeding on the basis of the material that your Honour had and on the question of whether your Honour should have been imputed with some knowledge that Mr Wilson had not received the documents, in the strongest possible terms I resist that submission by Mr Wilson. Your Honour was told by me that the document had been received, or had been served at any rate, and when I read from the purported letter of service, your Honour gave Mr Wilson an opportunity to say anything he wished about that. For example, it would have been open to Mr Wilson to emphatically say that he had not received the documents once I had read from that letter. He did not say so. He just said, “I have nothing.” I do not know if your Honour has the transcript.

HER HONOUR: Yes, I do.

MR GRAY: Your Honour, I read from the purported letter of service of 4 April at line 334 to line 343 and your Honour said at line 345:

Thank you. Now, Mr Wilson, you have heard that. Do you wish to say anything in response?

Mr Wilson said:

I have nothing.

In those circumstances and given the less than emphatic terms in which Mr Wilson had referred to his recollection or his view that he had not received the affidavit, it was open to your Honour, it was reasonable for your Honour to proceed in the circumstances and the reasonable lay observer would not draw a conclusion that your Honour might not bring an impartial mind to the resolution of the matters in the case. Your Honour, Mr Wilson, to be fair to him, did say that he did not recall seeing the affidavit. Your Honour has, I think line 312 in that regard:

I do not recall seeing it, your Honour. I do not have a copy of it.

Your Honour then referred to the information that I provided to your Honour that it had been served, but Mr Wilson was not emphatic about not having been served and when given an opportunity to respond to my reading out of contents from the purported letter of service, Mr Wilson said he had nothing. So in those circumstances, it was understandable that the Court ended up proceeding on the basis that the document had been served.

HER HONOUR: I would add to that, Mr Gray, a further circumstance which was the discussion commenced with me inquiring if Mr Wilson had a copy of the submissions filed on your behalf at transcript 262 to which Mr Wilson replied:

I suspect I may have them somewhere.

MR GRAY: Yes, your Honour.

HER HONOUR: The submissions were part of the material that is said to have been the subject of the failed service in the materials annexed to the letter of 4 April.

MR GRAY: Yes, your Honour. It was all a mistake and your Honour asked me had they been furnished and I said that they were and that must have been a mistake as well.

HER HONOUR: Mr Gray, can I raise this with you. It seems to me that at the moment I have before me an application by the Minister to give consideration to reopening the hearing of the matter the subject of the orders that I made on the last occasion in light of the information disclosed in Mr McDermott’s affidavit. Mr Wilson tells me that he does not wish me to do that; he wishes to pursue his rights of appeal. There is, as it were, no basis for me to disqualify myself since I have nothing before me. I made the orders on the last occasion. I understand, for good reason, no endeavour has been made to take those orders out formally in light of what has happened. Mr Wilson does not wish to take up the possibility of the matter being reopened. In those circumstances, it is not clear to me that there is any requirement for me to consider whether or not I should disqualify myself. There is nothing before me except, as it were – I am not sure whether to characterise yours as an application so much as an invitation for me to consider reopening the matter, presumably, in the event Mr Wilson wished that to take place.

MR GRAY: Yes, your Honour. It may be that the Minister will be, in effect, forced in a position whereby he does apply to the Court to take out the orders and Mr Wilson can pursue whatever rights he considers he has in respect of an appeal, but today’s mention will be a relevant factor on the issue of whether he has, as he alleges, been denied procedural fairness because he has the opportunity today to reopen his case.

HER HONOUR: Yes.

MR GRAY: Be that as it may, I do not wish to demur from your Honour’s analysis. Your Honour has nothing save for a suggestion or invitation from the Minister to reopen the case if it is Mr Wilson’s intention that he wishes to put further submissions to the Court, but we would not put it any higher than that. We would not say that there is an application before your Honour that the case should be reopened irrespective of Mr Wilson’s position. It is only if Mr Wilson has matters of utility that he wishes to place before the Court that there be any utility in reopening the matter.

HER HONOUR: Do you have a further copy of Ms Nance’s affidavit? It just seemed to me that it may be appropriate to make that available to Mr Wilson. He tells me that he still has not received it.

MR GRAY: Yes, and I am, of course, very concerned about that.

HER HONOUR: Yes.

MR GRAY: I will now hand that affidavit, that is, a photocopy, of the affidavit of Emily Jane Nance affirmed on 3 April 2012, it bears a High Court filed stamp dated 4 April 2012, and I will just hand that to Mr Wilson now. Those are the only matters which I wish to address, if your Honour pleases.

HER HONOUR: Thank you, Mr Gray. Well, Mr Wilson, you have heard what Mr Gray has to say. Is there something further you would wish to put? At this stage you understand there is nothing before me that would, as I see it, give rise to a determination of your application that I disqualify myself. That is because I have made orders in this matter. The matter has been brought back before me today because of the reasons disclosed in Mr McDermott’s affidavit.

MR WILSON: Yes. I am - - -

HER HONOUR: But there is nothing before me. Do you understand?

MR WILSON: Your Honour, the proceedings of the 11th are before you. The fact that you guys continued – I notified the Court twice, at least twice, there was some doubt raised as to my receipt of those documents. Now, despite that, you decided to proceed anyway. Now, Mr Gray is an officer of the Court by proxy or otherwise, he is. At the very least – I mean, he afforded me some fairness at the Federal Court. It suited his purpose then, but on the 11th he did not. So I got bundled up and tossed out. Your Honour saw fit to continue despite the fact that I had raised the issue twice and answered in the negative twice that I was not in possession of those documents. You know, I would almost be entitled to assume that your Honour may or may not have some interest in the case. I refer your Honour to the Crimes Act 1914 section 34 which I raised in the document that I put before you.

HER HONOUR: Mr Wilson, I will come back to the matter that I raised with you some minutes ago and that is at the present there is nothing before me. The Minister has very properly drawn to my attention that I was misinformed on the last occasion concerning the service of the documents on you. Nonetheless, it remains the position that I have made orders in this matter. The Minister has refrained from having those orders formally authenticated in order to afford the opportunity for the matter to be reheard. Now, whether I give consideration to that depends entirely on your attitude.

MR WILSON: I think your mind is already made up, your Honour, I believe.

HER HONOUR: Mr Wilson, I am not going to comment on that suggestion or a number of the suggestions that you have made both in your written submissions and orally. I just come back to the question of whether you remain of the view that you would wish to avail yourself of your rights of appeal and you do not seek to have the proceedings reopened in light of the material disclosed in Mr McDermott’s affidavit. Is that the position?

MR WILSON: Yes. Your Honour, there is one other thing. As you notice, I am here today representing myself. I asked the last time, I think it was four times, for an adjournment to resolve the legal aid situation and I am asking again for that adjournment to allow me to resolve the legal aid situation.

HER HONOUR: Mr Wilson, no question of an adjournment arises. Orders have been made dismissing your proceedings. You have such recourse as it available to you under the Act and rules in relation to the making of those orders. You have said in your written submissions and reiterated in oral submissions earlier today that you wish to have the orders authenticated so that you can pursue rights of appeal. Does that remain the position?

MR WILSON: Yes.

HER HONOUR: Very well. No question of an adjournment then arises, you understand, Mr Wilson. All right. Mr Gray, is there anything further that you wish to say arising out of the last exchange between myself and Mr Wilson?

MR GRAY: No, thank you, your Honour. The Minister understands the position in the sense that those whom I represent will understand that they have no option but to proceed to take the orders out and it will then be a matter for Mr Wilson to take whatever steps he wishes to take.

HER HONOUR: Yes, very well.

MR GRAY: There is no application for costs on the Minister’s part, your Honour, in respect of today’s mention. Those are the only matters on which I wish to address your Honour.

HER HONOUR: Very well. It seems to me there are no orders that it is requisite for me to make. I will adjourn.

AT 10.43 AM THE MATTER WAS CONCLUDED