Abdel-Hady v Minister for Home Affairs & Anor

[2025] HCATrans 49

[2025] HCATrans 049

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S65 of 2021

B e t w e e n -

SAFWAT ABDEL-HADY

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

GAGELER CJ

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON WEDNESDAY, 18 JUNE 2025, AT 10.29 AM

Copyright in the High Court of Australia

HIS HONOUR:   I note the appearances as in the Court list.

MR A.M. KHADRA appears for the plaintiff.  (instructed by Slan Lawyers)

MR S.P. DONAGHUE, KC, Solicitor‑General of the Commonwealth of Australia, appears with MS O.J. RONAN for the defendants.  (instructed by Australian Government Solicitor)

HIS HONOUR:   I have received this morning a proposed form of consent order and also some submissions of the defendants.  Thank you for that.  Mr Khadra, did you want to add anything to those documents?

MR KHADRA:   Thank you, your Honour, no, we are grateful to our friends for preparing the submissions and agree the orders should be by consent, if your Honour is so minded.

HIS HONOUR:   Thank you, Mr Khadra.  Mr Donaghue, when this matter was before me on the papers some years ago, it seems that I was of the view that the matter could be remitted to the Federal Court if it got to this stage.  I understand the parties want to keep it in the High Court.  Is there any issue about my power to remit it, however?

MR DONAGHUE:   I do not think that there is, your Honour.  You were concerned with the intricacies of 476A and B of the Migration Act and as those provisions had been interpreted, they were – to put it briefly – read as confining the phrase “in relation to a migration decision” to judicial review proceedings in relation to such a decision.  That had the consequence that you could not remit to the Federal Circuit Court, but Justice Nettle had held in the decision your Honour cited that you could remit to the Federal Court, and in your Honour’s reasons you noted the Judiciary Act provision that would have the same consequence.  So, for my part, I am not contending that you cannot remit it to the Federal Court, but we are asking your Honour not to do so for the reasons we shortly stated.

HIS HONOUR:   Yes, I understand.  So, what you want to do is use this as a test case to determine the lawful justification defence, as you explain it in your submissions.  It strikes me that this is a common law claim that should proceed in the common law manner, that is, there should at least be pleadings before we move to examining the actual basis for the claim and the defence.  I think that your defence, Mr Solicitor, would best be pleaded and particularised in the first instance, so I am not for the moment minded to make the orders by consent until we have seen pleadings of a statement of claim, a defence and a reply.  Is there any reason that cannot be done rather quickly?  Mr Khadra, could you produce a statement of claim within a week?

MR KHADRA:   Yes, we could, your Honour.

HIS HONOUR:   Mr Solicitor, the pleading of the defence could be done by you, perhaps a week later?

MR DONAGHUE:   Your Honour, I expect that we could do that.  Accepting that it may be difficult to dissuade your Honour from this course, can I make a brief attempt to do so?

HIS HONOUR:   Please do.

MR DONAGHUE:   One issue that arises from the Commonwealth’s perspective is, as we noted in the short submission that we filed, this issue has also arisen in some existing proceedings in the lower courts, and in one of those proceedings it is proposed to hive off, as a separate question, the same legal question that we had proposed that the Full Court should decide.  And we were – if your Honour had been minded to allow this matter to proceed as a test case – then we were going to alert the Federal Court judge in question that that was happening and suggest that that might mean that it was undesirable to be running, in effect, the same test case in multiple different fora at the same time.

As we understand it, the reason that his Honour is proposing that in the Federal Court and the reason we were proposing it here is that, particularly in this case, one has the benefit of an order that has already been made determining that the plaintiff in this proceeding is a person who was NZYQ affected for the period that would be the subject of the test case.  So, that issue is resolved by that exercise of judicial power as between the parties, we know that the Migration Act did not authorise his detention for any part of the relevant period, and it therefore seemed to us that the only question was the legal question of whether or not, in circumstances where, at the time of the detention in question, Al‑Kateb was the binding authority, that provides a common law defence or not.

HIS HONOUR:   Yes.

MR DONAGHUE:   So, while, of course, we will proceed by way of pleadings if that is how your Honour wishes us to proceed, for my part, as at the present time, I am unsure that there is any factual question that the pleadings would crystallise in circumstances ‑ ‑ ‑ 

HIS HONOUR:   Yes.

MR DONAGHUE:   ‑ ‑ ‑ there would be no – the detention in the period – we have narrowed the test case to the period that ends when NZYQ was handed down, so that there are not any factual questions about whether detention was justified afterwards, because that would, we would accept, not be an appropriate matter to be resolved in the Court.  But if one stops at 8 November, we submit that you could go straight to the question of law without pleadings.  But if your Honour is against us on that, then a further week would be fine for the defence.

HIS HONOUR:   Yes, thank you.  I should make clear, I am not at this stage opposed to the matter proceeding as a test case, I just want a clear definition of the unlawful justification defence upon which you rely, and I accept that there may well be no issues of fact between the parties.  But even if that is the case, a properly pleaded defence would be preferable before proceeding to a special case and the framing of questions then could be by reference to the asserted defence.

So, I am minded to make provision for the filing of a statement of claim by 27 June, the filing of a defence by 4 July and the filing of any reply by 11 July, and I am content, if the parties wish, to also make directions for the filing and service of any agreed special case.  I think sequentially, though, that should occur after the pleadings I have in mind.  The parties have proposed a fairly tight timetable in the consent orders, but if a reply took us out to 11 July, could we look at subsequent dates for your proposed consent directions 1 and 2?  What do you think, Mr Khadra – when could you serve a draft response to the special case?

MR KHADRA:   Your Honour, in an ideal world, 8 August would be our preference for the filing of the response to the special case, accepting that we may well be able to do it much earlier.  But if that timetable is too lengthy for your Honour, we understand.

HIS HONOUR:   Well, it is really not a matter for me.  This case has been some time in the Federal Circuit Court.  Understanding it to be desirable to be resolved as a test case earlier rather than later, I should hear from the Solicitor.  Mr Solicitor.

MR DONAGHUE:   Your Honour, in my submission, 8 August is too late.  That is almost a month after the pleadings will have closed on the orders your Honour has proposed.  At the moment, it is at the extremely uncontroversial end of the spectrum, as special cases go – the draft that we have provided, there are not really any controversial facts in it.  So, unless our friends have a very different conception of what this document should look like than we do, in my submission, 25 July still gives them two weeks after the reply and that should be sufficient.  We could respond, so that would be 25 July; we could file an agreed document, if there is one, two weeks after that, which would be 8 August.  We would like to keep it moving if we can, given the other proceedings that will be affected by it.

HIS HONOUR:   Yes.

MR KHADRA:   We accept the position of our friends, and those dates would be convenient.

HIS HONOUR:   Yes, thank you.  Then, perhaps the matter could be brought back before me, say, 9.30 on Tuesday, 19 August.

MR DONAGHUE:   Sorry, your Honour.  Thank you, your Honour.  That would be suitable for us.

HIS HONOUR:   Mr Khadra?

MR KHADRA:   Thank you, your Honour.  That is suitable to us as well.

HIS HONOUR:   All right.  Thank you.  So, the orders and directions that I will make are as follows:

1.The plaintiff file and serve a statement of claim on or before 27 June 2025;

2.The defendants file and serve a defence on or before 4 July 2025;

3.The plaintiff file and serve any reply on or before 11 July 2025;

4.On or before 4.00 pm on 25 July 2025, the plaintiff serve on the defendants a response to the draft special case that was served upon them by the defendants on 23 May 2025;

5.On or before 4.00 pm on 8 August 2025, the defendants file and serve any agreed special case; and

6.List the matter before me for further directions at 9.30 on Tuesday, 19 August 2025.

Is there anything else, Mr Khadra?

MR KHADRA:   No.  May it please your Honour.

HIS HONOUR:   Mr Solicitor?

MR DONAGHUE:   Your Honour, one matter.  I thought I heard, in order 5, your Honour say “4 August”.

HIS HONOUR:   Did I?

MR DONAGHUE:   The date I intended to propose was 8 August, if that is suitable to your Honour.

HIS HONOUR:   Yes.  I thought I said 8 August – that would be fine.

MR DONAGHUE:   I may have misheard.

HIS HONOUR:   Order 5 should be 8 August, certainly.

MR DONAGHUE:   Thank you.  Nothing else.

HIS HONOUR:   Thank you.  All right.  The Court will adjourn.

AT 10.43 AM THE MATTER WAS ADJOURNED