Plaintiffs S147/2013 v Minister for Immigration and Citizenship and Anor [2013] HCATrans 288 (14 November 2013)

Last Updated: 19 November 2013

[2013] HCATrans 288

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S147 of 2013

B e t w e e n -

PLAINTIFFS S147/2013

Plaintiffs

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

K. WATSON

Second Defendant

Summons

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 14 NOVEMBER 2013, AT 9.29 AM

Copyright in the High Court of Australia

MR A.P. JOEL: Your Honour, I appear for the plaintiff. (instructed by Adrian Joel & Co)

MR T. REILLY: May it please, I appear for the first defendant. (instructed by Sparke Helmore Lawyers)

HER HONOUR: Yes, Mr Joel.

MR JOEL: We would seek a timetable in answer to the summons.

HER HONOUR: Mr Joel, I think there is some controversy about what is before me today and what are the appropriate orders to be made. As I understand it, the first defendant opposes the grant of the extension of time that you seek and would have me deal with the application today.

MR JOEL: If that is the case, your Honour, the situation that we find ourselves is that the barrister who has had the conduct of this matter from the commencement of proceedings is in America and could not avoid being in America. That, of course, does not excuse the opportunity to look elsewhere but, of course, the difficulty is that the plaintiff is financially destitute.

HER HONOUR: Mr Joel, I wonder if I could interrupt you for a moment. I have had the opportunity to look at the material that has been filed, including an affidavit affirmed by you and filed yesterday. In the circumstances I might take a matter up with Mr Reilly and then return to you.

MR JOEL: Thank you, your Honour.

HER HONOUR: I will note that a submitting appearance has been filed on the part of the second defendant. Mr Reilly, as I apprehend the situation, for the reasons set out in the affidavit affirmed by Mr Joel yesterday, what is sought is to have this matter, that is the application to enlarge time, stood over to a date that would enable counsel who has been retained in the matter to appear in circumstances in which it is suggested, based on counsel’s advice, that there is a need to consider amending the application to articulate a somewhat different ground of challenge.

MR REILLY: Well, yes, I think that is what the applicant is seeking, your Honour, but the matter has been listed for hearing for some time. The Court’s letter of 28 October 2013, which is attached to the affidavit that I think your Honour is referring to, explicitly states the summons is listed for hearing today at this time. My friend, Mr Joel, has been on notice since that time of the fact and it is up to him to ensure that he has counsel available. Now, this matter has had a long history. It is fully prepared. Both parties have filed written submissions. There does not seem to us to be any reason why Mr Joel cannot proceed on the basis of his written submissions today.

HER HONOUR: Well, you say it is fully prepared.

MR REILLY: Yes.

HER HONOUR: But there is evidence before the Court of a desire to consider amending the application to take into account counsel’s advice respecting the articulation of one of the bases of challenge. Now, Mr Reilly, in circumstances in which counsel has been retained – in circumstances in which counsel has shown some forbearance in the matter of fees and the plaintiffs’ financial position is as deposed by Mr Joel, what prejudice is there in a relatively short adjournment of the proceedings to enable counsel to present his clients’ case.

MR REILLY: Just costs on our side and a public interest in these matters being determined, having regard to the fact that the application is a year and two months out of time.

HER HONOUR: Mr Reilly, I am conscious of that, but equally, there are some circumstances here which seem to me to cast a somewhat different light on the question of the extent of the length of delay having regard to the commencement of the proceedings in the Federal Magistrates Court, albeit wrongly.

MR REILLY: And the application for removal of those proceedings to this Court, which is a separate application which has not yet been determined by the Court, and then finally, after repeated advice to the applicants’ lawyers by us, finally, the belated filing of properly constituted proceedings in this Court some months ago. But, your Honour, in terms of the desire to amend there seem to be two issues. One is the availability of counsel, the original counsel briefed. Well, as I said, my friend, Mr Joel, has been on notice since 28 October that the matter is listed for hearing today. It is up to him to arrange counsel.

In terms of the application to amend, the affidavit says that Mr Joel on 11 November sought to instruct a third counsel. That is Monday of this week. Again, it has come at the very last minute. As I say, the matter is fully prepared and there is no reason why the applicants should now be permitted to change their case in circumstances – our costs are considerable and we have prepared the matter for hearing today and the applicants also have submissions prepared today. So we would ask that the matter be heard today, your Honour.

HER HONOUR: Thank you, Mr Reilly. Mr Reilly, I hear what you say but in light of the circumstance that there is, as I have indicated, some explanation for the delay, albeit it does not reflect well on aspects of the legal advice that the plaintiff has received, it remains that the plaintiff does not appear to be personally at fault in relation to those matters. In the circumstances, my inclination is, subject to anything further you want to put to me, to stand the matter over before me for a short period to accommodate counsel in order that the application can be properly ventilated on that occasion. What I had in mind would be standing it over to a date in the week commencing 9 December. Now, does that cause you any difficulty, Mr Reilly?

MR REILLY: I know I have matters on that week, your Honour, and I am sure I can find a time that week, however. So perhaps if we just communicate with the Registry to have a suitable date that week.

HER HONOUR: Yes. Mr Joel.

MR JOEL: Counsel is available on 10 December.

HER HONOUR: Well, Mr Joel, you can appreciate I propose to do everything I can to suit Mr Reilly’s convenience against - - -

MR JOEL: Of course, I am grateful for anything.

MR REILLY: I can make inquiries, just to check my dates that week.

HER HONOUR: Perhaps if I stand it down for now, Mr Reilly, and you make the inquiries and the matter might be mentioned in a short time.

MR REILLY: If the Court pleases.

HER HONOUR: Very well. I will stand the matter down for the moment.

AT 9.38 AM SHORT ADJOURNMENT

UPON RESUMING AT 9.52 AM:

HER HONOUR: Mr Reilly.

MR REILLY: Your Honour, thank you. I have made inquiries. The only date I am free in that week is Friday, 13 December.

HER HONOUR: My apologies, Mr Reilly. Friday, 13 December is set aside for special leave hearings. I had omitted to convey that.

MR REILLY: Yes. Your Honour, maybe I should go and get my diary so I can – I am sure I can get rid of some of these matters that I have on.

HER HONOUR: Mr Reilly, that is very good of you. The alternative, Mr Reilly, if you would prefer it, would be Monday the 16th, Tuesday the 17th or Wednesday, 18 December. If any of those dates suited you better.

MR REILLY: I do not think they do, your Honour.

HER HONOUR: In that case, Mr Reilly - - -

MR REILLY: Could I ask, would your Honour be prepared to sit in the afternoon on any of the days or - - -

HER HONOUR: Indeed, yes.

MR REILLY: In that case, your Honour, I think I could do quite a lot of them. Perhaps I should go and get my diary and come back in 15 minutes or so.

HER HONOUR: When you say the afternoon, Mr Reilly, what time did you have in mind?

MR REILLY: 2.15 or whatever would suit your Honour.

HER HONOUR: Mr Reilly, if I was to set the matter down for 2.15 on say 10 December and if that proved to be difficult, you might approach the Registrar, would that avoid the need for you to be further delayed this morning?

MR REILLY: That is suitable, your Honour.

HER HONOUR: I take it, Mr Joel, that is suitable to you?

MR JOEL: Yes, your Honour.

MR REILLY: Your Honour, I have one other matter to raise.

HER HONOUR: Yes.

MR REILLY: Costs.

HER HONOUR: Yes.

MR REILLY: In my submission, we should have our costs thrown away of today. My friend has been on notice since 28 October that the matter was listed for hearing today and, in my submission, it was incumbent on him to have arranged counsel for today.

HER HONOUR: Thank you, Mr Reilly. Mr Joel, can you resist that application?

MR JOEL: No, your Honour.

HER HONOUR: Very well. In matter S147/2013 v Minister for Immigration and Citizenship and Anor I make the following orders: I stand the proceeding over for hearing before me at 2.15 on Tuesday, 10 December 2013; the plaintiff is to pay the first defendant’s costs thrown away of the hearing listed today. Thank you both.

AT 9.55 AM THE MATTER WAS ADJOURNED