Alexander v Minister for Home Affairs & Anor

[2021] HCATrans 159

[2021] HCATrans 159

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S103 of 2021

B e t w e e n -

DELIL ALEXANDER

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO MELBOURNE

ON MONDAY, 11 OCTOBER 2021, AT 2.15 PM

Copyright in the High Court of Australia

HIS HONOUR:   In accordance with the COVID protocol of the Court I will announce the appearances.

MR D.J. HOOKE, SC appears with MR S.H. HARTFORD DAVIS for the plaintiff.  (instructed by Australian Criminal and Family Lawyers)

MR P.D. HERZFELD, SC appears with MR L.G. MORETTI for the first and second defendants.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Mr Hooke.

MR HOOKE:   Thank you, your Honour.  Your Honour has, I trust, received two sets of proposed orders over which the parties have had some discussions over the last few days.  Your Honour will have seen that one set of orders is predicated on a December date and the other a February date.

HIS HONOUR:   Well, perhaps before you get to that could I indicate to you both that I have two present concerns, one significant, the other perhaps illusory, and I have some questions for you, Mr Hooke, if I could, before we get to the minutes.  Could I first of all ask you is there any other relief being sought in the case of Mr Alexander?  For example, are you seeking review in the AAT of the qualifying security assessment or seeking judicial review of the…..decision or seeking revocation under the Act?

MR HOOKE:   Your Honour, we are in relation to both matters.

HIS HONOUR:   So you are seeking review in the AAT?

MR HOOKE:   Yes.

HIS HONOUR:   And revocation?

MR HOOKE:   There is an application for revocation before the Minister.

HIS HONOUR:   The Minister is yet to make his decision under the Act?

MR HOOKE:   She is yet to acknowledge receipt of the application, as I apprehend it, your Honour.

HIS HONOUR:   Thank you for that, Mr Hooke.  Any other form of relief being pursued at the moment?

MR HOOKE:   No, your Honour.

HIS HONOUR:   All right.  Then let me tell you about the two concerns, neither of which I hope will be an impediment to you.  The most important

one is that as things appear in the agreed statement you cannot contact Mr Alexander ‑ ‑ ‑

MR HOOKE:   No, your Honour.

HIS HONOUR:   ‑ ‑ ‑ and that means you cannot get instructions from him, and I do not think I can permit this to go forward without there being someone from whom you may obtain instructions right up until the day of the hearing.  So if the other members of the Court have questions requiring you to get instructions there will need to be someone there to do that.  Now, at the moment, subject to what you say and what Mr Herzfeld says and subject to the consent of the sister, I would be content for her to be appointed the litigation guardian.

I acknowledge what the Commonwealth has said about the fact that there do not appear to be any authorities that address this situation but the rules of this Court simply say are you under a disability and I take that as really referring to an inability to give instructions for whatever reason, whether physical impairment, mental impairment or because you are too young.  So I would not have any difficulty, if this is what the parties wanted to do, in appointing the sister as a litigation guardian so that you have someone from who you may obtain instructions.  What do you think about that, Mr Hooke?

MR HOOKE:   Your Honour, that was our initial take on the matter.  We were dissuaded from it by the Commonwealth ‑ ‑ ‑

HIS HONOUR:   Well, there was some evidence that he was permitting the proceeding to commence.  We are now dealing with the ongoing nature of it.

MR HOOKE:   Yes.  Your Honour, I do not apprehend that there would be any difficulty in obtaining that consent and, indeed, I apprehend that consent was given in the sister’s affidavit filed in support of the…..application.

HIS HONOUR:   All right.  Mr Herzfeld, what would you like to say about that?

MR HERZFELD:   I apprehend your Honour has already read what we had to say about this in the response.

HIS HONOUR:   Yes.

MR HERZFELD:   As we said there, we did not take any position on the interim relief and were really just assisting the Court, and unless someone sends me a message between now and the end of this directions hearing suggesting that our position has changed I think that remains our position, that is not to take a position on any of this.

HIS HONOUR:   Thank you for that.  I am not going to leave it so that you only have until the end of this directions hearing.  What I was going to suggest is I was going to adjourn this for a week to permit a litigation guardian to be appointed, that is, to redo what was originally proposed, and that would mean that at the next directions hearing ‑ I was thinking of hearing it perhaps next Monday at 9.30 or something like that, subject to the convenience of you both – that would mean that that direction would proceed on the basis that Mr Hooke has someone from whom he can get instructions.  Is that convenient to you, Mr Herzfeld?

MR HERZFELD:   Yes, certainly by next Monday someone will have sent me a message ‑ ‑ ‑

HIS HONOUR:   Yes.

MR HERZFELD:   ‑ ‑ ‑ but I suspect that, in any event, someone will send me a message in the next five minutes ‑ ‑ ‑

HIS HONOUR:   I can only imagine all sorts of potential difficulties if you do not have someone from whom Mr Hooke can get instructions at the hearing and for filing written submissions as well.

MR HERZFELD:   Yes.  It seemed to us on the basis of the affidavit evidence that the plaintiff’s instruction was probably broad enough to cover the ongoing conduct of the pleadings but, as I say, we are not opposed to the course your Honour has foreshadowed, so I do not think there is a difficulty with the course your Honour has proposed.  The week’s delay might impact on a December hearing but there may, in any event, be things that your Honour wants to canvass about that topic.  In any event, I should say I have received a message, our position has not changed, which is that we do not take a position in opposition to your Honour’s proposal.

HIS HONOUR:   I thank your instructors for their prompt answer and, thus, illustrating the need for the utility of having instructors.  The other concern – and this may be not such a big problem – but at paragraph 65 of the current agreed facts the Commonwealth and your client explain as to what the practical effect of having power is from the Commonwealth’s perspective.  I wondered whether there is any possibility of having some agreed facts dealing with what the practical effect will be on Mr Alexander having had his citizenship cancelled.  For example, some of the judges at the hearing might want to know, well, why has not he gone to Turkey? 

What does this mean for him given that his passport was cancelled, in any event, I think in 2013 without challenge?  That sort of thing.

They may want to know what practically this means, and your answer to me might be sufficient, namely, to say, Mr Hooke, well, it is enough that his citizenship has been cancelled and he wants it back, and for whatever reason that is for him to say.  But if some thought could be given to that issue I think it might be a good thing.  I do not think it is in any way fatal but it might illuminate matters for some of the judges hearing the case when we get there.

MR HOOKE:   Your Honour, we think that the Court would be assisted by some illumination of those practical consequences for Mr Alexander.  We do not think they should be difficult to identify.

HIS HONOUR:   They need not be put on the basis that Mr Alexander claims about the Commonwealth having to acknowledge whether the claim is true or not.

MR HOOKE:   Yes, indeed, your Honour, and there may be some material in the affidavits that we have provided on information and belief that ‑ ‑ ‑

HIS HONOUR:   Well, I do not think they are going to classed as a special case though.

MR HOOKE:   No, no, I do not suggest that, your Honour, simply that they might provide the foundation for some agreement and some suitably expressed facts.

HIS HONOUR:   All right.  Mr Herzfeld, will you give that some consideration please?

MR HERZFELD:   Yes, I will not otherwise comment until we have seen whatever has been proposed by the plaintiff.

HIS HONOUR:   Now, what I had in mind is if you are going to agree upon an amended special case if that could be ready for me to look at by Friday.  Is that sufficient time, Mr Hooke?

MR HOOKE:   I would certainly think so, for our part, your Honour, yes.

HIS HONOUR:   Then the next thing is to tell you that I think we can put aside for the moment the proposed draft orders for a December hearing.  We are just not going to make it.  But you certainly can have a February hearing and I have been advised to let you know that and that we can accommodate you then.  Are there any dates in February that either of you are aware of ‑ and in Mr Herzfeld’s case I assume you would include the Solicitor‑General in this – that would not be convenient?  What about you, Mr Hooke, do you have any dates in February?

MR HOOKE:   I do, your Honour.  We will meet the Court’s convenience in February.

HIS HONOUR:   All right.  Mr Herzfeld, can you give that some consideration?

MR HERZFELD:   Yes, I do not think we have any difficulties for February but we can make sure that we know the position by the time of the next directions hearing.

HIS HONOUR:   You will let the Registry know if there are any issues.

MR HERZFELD:   Yes.

HIS HONOUR:   So then, whilst I am not going to make the orders today for the February sitting, do I take it that the only thing that is in dispute between you is the length of the submissions on this timetable?

MR HOOKE:   Yes.  Well, your Honour, it is probably more accurate to say that it is not the subject of agreement rather than necessarily being a matter of dispute.  We would ask the Court to grant us the indulgence of 30 pages in‑chief and 10 in reply.  I do not apprehend that to be opposed by the Commonwealth parties but rather not the subject of agreement, as it were.

HIS HONOUR:   Mr Herzfeld, is that right?

MR HERZFELD:   Yes, it is not opposed.  We, for our part, would be content with the usual page limits but if your Honour is persuaded to give the plaintiff lengthier submissions then obviously we will need lengthier submissions in response, but we do not oppose the extended timetable – the extended page limits, we are just content with the ordinary ones.

HIS HONOUR:   All right, thank you, Mr Herzfeld.  Mr Hooke, if on Monday I make these orders is the second order something that can still be achieved?  Sorry, I should ask you, Mr Herzfeld, I do beg your pardon.  Is the second order something you can still achieve?

MR HERZFELD:   I think the answer should be yes, but again I will make direct contact with those more responsible than me for achieving that order and I will let your Honour know on Monday if there is a difficulty with it.

HIS HONOUR:   Well, it might be the better thing to do is if there is a difficulty with it if you could – you and Mr Hooke or those who instruct you can get together and just rejig the timetable with a view to a February hearing, that way I can just rubber stamp the orders, as it were, on Monday once we have got the litigation guardian in place.

MR HERZFELD:   Yes.

HIS HONOUR:   I should let you know, Mr Hooke, I will have no difficulty in allowing you to have 30 pages.

MR HOOKE:   Thank you, your Honour, I appreciate that.

HIS HONOUR:   You are allowed 30 pages, Mr Herzfeld, and 10 pages, and all I would say in anticipation of me making that order is that, of course, you are encouraged to use less pages.  Brevity is always best in this game, as you both know.  Are there any other matters that you need to raise with me?

MR HOOKE:   Not for our part, your Honour.

HIS HONOUR:   Mr Hooke, is 9.30 Monday convenient?

MR HOOKE:   Yes, it is, your Honour.

HIS HONOUR:   Mr Herzfeld?

MR HERZFELD:   Yes, that is convenient.  Thank you, your Honour.

HIS HONOUR:   Well, I propose to adjourn this directions hearing until 9.30 next Monday.  Adjourn the Court.

AT 2.28 PM THE MATTER WAS ADJOURNED