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Cowgill, Ex parte - Re MIMIA P100/2002 [ 2002] HCATrans 507  (22 October 2002)

Perth No P100 of 2002

In the matter of -

An application for a Writ of Mandamus against THE HONOURABLE PHILIP RUDDOCK, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND INDIGENOUS AFFAIRS

Respondent

Ex parte -

SCOTT ERIC COWGILL

Applicant/Prosecutor

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON TUESDAY, 22 OCTOBER 2002, AT 11.01 AM

Copyright in the High Court of Australia

MR M.J. HAWKINS: If it please the Court, I appear for Mr Cowgill. (instructed by Law Access)

MR D.M.J. BENNETT, QC: Solicitor-General of the Commonwealth of Australia: If your Honour pleases, I appear for the respondent with my learned friend, MR P.R. MACLIVER. (instructed by the Australian Government Solicitor)

HIS HONOUR: Perhaps I should ask the Solicitor-General: what do you see as the appropriate steps now to be taken?

MR BENNETT: Your Honour, to grant an order nisi in relation to the constitutional issue. We have prepared a draft case stated and, as normally happens where these are prepared, there are some minors problems with it and some matters my learned friend is concerned about. So, we are happy for some arrangement to be made for that to be amended before it is signed, if your Honour is prepared to do that.

HIS HONOUR: Yes. We would need to know a little about the New Zealand citizenship more, I suppose. There, it is a sort.....problem, really, what they say about their relationship to Britain, I guess.

MR BENNETT: Yes. Their Royal Style and Titles Act was 1974 which was before Mr Cowgill came to Australia. They also amended their Citizenship Act in a similar sort of way in general terms. That was done after he came to Australia.

We are investigating at the moment the precise visa which was deemed to have been granted when he came to Australia. It was a time when there was a special procedure involving New Zealanders but there is some difficulty we are finding in getting the information collated. That will take a few days.

We are not aware of any argument which would make the position in relation to the New Zealander arriving when Mr Cowgill arrived different from a citizen of the United Kingdom arriving at the same time. There may be arguments. I do not know if they will be put but we are not aware at this stage of any and we have tried to think of them.

The main purpose of stating the case is this, that your Honour has indicated that a case will be stated in the next few days in the matter of Shaw.

HIS HONOUR: Yes, that is right.

MR BENNETT: There are a number of cases pending around Australia which involve the issue. It is an important issue to be determined. We would not wish, if anything happens to the Shaw Case, to lose the priority and that is the advantage in having two cases going up.

HIS HONOUR: Yes. No, I understand.

MR BENNETT: There is a further problem in this case and that is that the applicant is outside the 35-day time limit.

HIS HONOUR: Yes, I understand. They are also outside the six months too, for certiorari under the Court Rules.

MR BENNETT: Yes. Now, your Honour, the effect of the first of those will depend upon the decision of this Court in S127.

HIS HONOUR: Yes, but insofar as he has a constitutional ground, he may be in a different position.

MR BENNETT: Yes. Well, your Honour, that will have to be determined but at this stage I am instructed to make it clear that the 35-day point is taken. But we do not depose to stating of a case, bearing in mind the fact that there is currently reserved in this Court a challenge to that.

HIS HONOUR: This decision was in January 2002, was it not?

MR BENNETT: Yes, 9 January 2002, yes, your Honour.

HIS HONOUR: Yes, and the application was made in September. So, quite apart from anything under the Migration Act 1958 , Order 55 rule 17 would impose a 6 month limit subject to the Court enlarging, which can be after the event, under Order 60 rule 6. Would I have to deal with that first before I granted the order nisi?

MR BENNETT: Yes. Would your Honour pardon me a moment?

HIS HONOUR: I guess. I can enlarge it so far as was necessary to grant the order nisi on the constitutional question, reserving it as to otherwise.

MR BENNETT: Yes. I would ask your Honour to take that course.

HIS HONOUR: What is the reason for the delay, can I just ask Mr Hawkins?

MR HAWKINS: Mr Cowgill, as I recall it, was in prison at the time that he received notice. He attempted to get legal assistance and it was not until August this year that he was able to obtain legal assistance. In the meantime, he had attempted to go via the Administrative Appeals Tribunal. It is not that he did not make attempts. Those attempts were ineffectual. Your Honour also notices that he is asking for prohibition. As I recall it, there is no 6 month limit on prohibition.

HIS HONOUR: That is right, but he needs certiorari as well, I think.

MR HAWKINS: Yes.

HIS HONOUR: Well, he wants it. He asked for it.

MR HAWKINS: He has asked for it.

HIS HONOUR: Now, if I granted the order nisi on the - if I extended the time so far as is necessary, granted the order nisi on the constitutional ground, namely, that section 501 had no valid application to Mr Hawkins' client, how would it then get to the Full Court?

MR BENNETT: On a stated case, your Honour.

HIS HONOUR: Yes, that is right.

MR BENNETT: Section 18. And, your Honour, the idea would be that - - -

HIS HONOUR: I am just thinking about the application of the order absolute. That would have to stand over, really - - -

MR BENNETT: It would have to stand over.

HIS HONOUR: - - - because the balance of the order nisi might collapse.

MR BENNETT: We would still have to determine the administrative law questions.

HIS HONOUR: That is right, yes.

MR BENNETT: Either by a single judge, or, if it were possible, depending on the decision on the other matters, by remitter.

HIS HONOUR: That is right.

MR BENNETT: It may or may not be possible, depending on the arguments.

HIS HONOUR: Yes, thank you. This is what I propose, gentlemen. I will read it out.

1. An order pursuant to Order 60 rule 6 that there be such extension of time as is necessary to render competent so much of the application for certiorari filed 19 September 2002 as is made on the ground that section 501 of the Migration Act (Cth) has no valid application to the applicant;

2. Order nisi for certiorari and prohibition on the ground specified in order 1 above;

3. Stand over all other issues arising with respect to the application before me at a date and place to be fixed, including the stating of a case under section 18 of the Judiciary Act 1903 (Cth) for the Full Court;

4. Liberty to restore on five days' written notice;

5. Certify for counsel;

6. Costs reserved.

MR BENNETT: Yes, the only issue, your Honour, is whether there should be some reference to the matter being heard with Shaw.

HIS HONOUR: Yes. I will say:

The stating of a case for the Full Court to be heard with that proposed in matter B18 of 2002.

Now, does that seem suitable?

MR HAWKINS: Yes.

HIS HONOUR: Well, the matter can be relisted once the stated case assumes an agreed form - or a disputed form, I suppose. It may have to be done by video link from Perth, I think, hereafter, Mr Hawkins.

MR HAWKINS: Yes.

MR BENNETT: Yes. Your Honour would require an appearance for that?

HIS HONOUR: Unless it is agreed. If it is agreed, I will make it in chambers.

MR BENNETT: Yes. I am indebted, your Honour.

HIS HONOUR: And if it is not, it will have to be relisted by video link.

MR HAWKINS: Thank you.

MR BENNETT: Yes.

HIS HONOUR: I will read the orders again:

1. An order pursuant to Order 60 rule 6 that there be -

Well, when I say "if it is agreed", if it is "agreed and acceptable", I suppose.

MR BENNETT: Yes.

HIS HONOUR:

1. An order pursuant to Order 60 rule 6 that there be such extension of time as is necessary to render competent so much of the application for certiorari filed 19 September 2002 as is made on the ground that section 501 of the Migration Act 1958 (Cth) has no valid application to the applicant;

2. Order nisi for certiorari and prohibition on the grounds specified under order 1 above;

3. Stand over all other issues arising with respect to the application before me at a date to be fixed, including the stating of a case under section 18 of the Judiciary Act 1903 (Cth) for the Full Court, to be heard with that proposed in matter B18 of 2002;

4. Liberty to restore on five days' written notice;

5. Certify for counsel;

6. Costs reserved.

Is there anything else? Yes, thank you, gentlemen. I will now adjourn.

AT 11.18 AM THE MATTER WAS ADJOURNED