Attorney-General of the Commonwealth v Thoms & Anor

[2021] HCATrans 157

[2021] HCATrans 157

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Canberra  No C14 of 2021

B e t w e e n -

ATTORNEY-GENERAL OF THE COMMONWEALTH

Applicant

and

BRENDAN CRAIG THOMS

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE

ON MONDAY, 11 OCTOBER 2021, AT 9.31 AM

Copyright in the High Court of Australia

HIS HONOUR:   In accordance with the Court’s protocol when sitting remotely I will mention the appearances for the parties.

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia, appears with MR P.M. KNOWLES for the Attorney‑General for the Commonwealth and for the second respondent.  (instructed by Australian Government Solicitor)

MR S.J. KEIM, SC appears with MR A.J. HARTNETT for the first respondent.  (instructed by Maurice Blackburn Lawyers)

HIS HONOUR:   Gentlemen, I have read the submissions.  I am, of course, prepared to make the order, Mr Solicitor, that is to be made as of right.  Can I just ask – although it is probably apparent from the agreed facts – in exhibit NLM‑8 to Ms Lenagh‑Maguire’s affidavit that this Court’s decision in Love and Thoms is the only reason why Ms Ellis or any other officer of the Commonwealth could not reasonably suspect that Mr Thoms was an unlawful non‑citizen?

MR DONAGHUE:   That is correct, your Honour, as I understand it.

HIS HONOUR:   Mr Keim?

MR KEIM:   In effect, that has not been conceded but it is accepted on the agreed facts that an opinion was formed at all relevant times pursuant to section 189, and section 189 has effect, and there is no substantive grounds on which the first respondent says that on the premises relied upon by the officers that that would not have been reasonable in those circumstances.  So that factual issue is not a problem that prevents the Court going on to determine the constitutional and legal questions, your Honour.

HIS HONOUR:   Yes, very well.  Rather than order that the parties seek to agree a special case for the purpose of raising the question, I am inclined to think that, having regard to what Mr Keim has said, it would be sufficient to order that the question be determined on the facts agreed in NLM‑8.  Does anyone have a different view?

MR DONAGHUE:   We do not, your Honour, no.

HIS HONOUR:   Mr Keim?

MR KEIM:   Nor us, your Honour.

HIS HONOUR:   Can I ask how long the parties think the matter will take to hear?  Mr Solicitor?

MR DONAGHUE:   I would estimate a day, your Honour.

HIS HONOUR:   Mr Keim?

MR KEIM:   I agree with that estimate, your Honour.

HIS HONOUR:   All right.  What I propose then to do is to order removal of the question that Justice Jagot has separated and that that be determined on the facts agreed in NLM‑8, and then make the directions for the further progression of the matter that are suggested in paragraph 18 of Mr Keim’s submissions and then make the orders for costs that the parties have agreed.  Is any of that controversial?

MR KEIM:   Your Honour, could I just suggest that – that the orders we suggested be supplemented by provision for submissions by any interveners?  What we would suggest is that after paragraph 18(a), the order in our outline to which your Honour referred, that there be an order that “On or before 2 November 2021, any interveners intervening in support of the first respondent file and serve a copy of their written submissions” and, correspondingly, an order after the existing paragraph 18(b) to “Any other intervener file and serve a copy of their written submissions on or before 19 November 2021”.  They are the two suggested additions, your Honour, we would make.

HIS HONOUR:   Yes.  Mr Keim, I am not really all that keen on making different directions depending upon whose side interveners might be disposed to come in on.

MR KEIM:   Yes, your Honour.

HIS HONOUR:   I would be more inclined just to make the order that “On or before 20 November 2021, any interveners file and serve written submissions, limited to 20 pages”.

MR KEIM:   I do not seek to say anything about that, your Honour.  I am happy with that.

HIS HONOUR:   Very well.  Mr Solicitor, do you have any issues with any of the directions?

MR DONAGHUE:   A couple of points, your Honour.  First, in 18(c), our friends have awarded themselves 10 pages for a reply.  We do not see any basis for that.  The normal rule is five and all the other page limits are the same as usual and, in our submission, the ordinary direction should be made in this matter.  That is the first point.

The second point is that, as we understand the ordinary practice under Part 44 of the Rules, that the interveners would be separated in the way that Mr Keim had proposed, which would mean that any intervener in support of the first respondent would file before the Commonwealth which would mean we would respond to them. If all interveners file after the Commonwealth then we have no reply and so we have no opportunity to respond to anything that they might say.

HIS HONOUR:   The simple course might just be to let Part 44 apply without suggesting any variation.

MR DONAGHUE:   That would be my preference, your Honour.

HIS HONOUR:   Mr Keim, why not the ordinary rules just apply?

MR KEIM:   Yes, I am happy with that, your Honour.  I do not know why we thought we could get away with 10 pages.

HIS HONOUR:   You were just trying to be helpful.

MR KEIM:   We thought the Solicitor might not notice, your Honour, but we were foolish to think that.

HIS HONOUR:   It is good to see that the Bar is not losing heart, Mr Keim.

MR KEIM:   Thank you, your Honour.

HIS HONOUR:   Very well. Pursuant to section 40(1) of the Judiciary Act 1903 (Cth), that part of the cause between the first respondent, Brendan Craig Thoms, and the second respondent, the Commonwealth of Australia, now pending in the Federal Court of Australia in QUD 224 of 2020, being the question, “Was the detention of Mr Thoms between 28 September 2018 and 11 February 2020 unlawful”, be removed into this Court.

Next, the facts upon which the question is to be determined are set out in exhibit NLM‑8 to the affidavit of Niamh Lenagh‑Maguire, filed on 6 September 2021. On or before 22 October 2021, the first respondent file and serve a copy of his written submissions, limited to 20 pages. On or before 12 November 2021, the second respondent file and serve a copy of its written submissions, limited to 20 pages. On or before 26 November 2021, the first respondent file and serve a copy of his written submissions in reply, limited to five pages. On or before Wednesday, 1 December 2021, the second respondent file and serve the joint book of authorities in accordance with the High Court Practice Direction 1 of 2017. Subject to any further order, Part 44 of the High Court Rules 2004 (Cth) will apply with necessary adaptation to this proceeding. The hearing be listed on a date to be fixed by the Court.

The applicant, that is to say the Attorney‑General of the Commonwealth of Australia, pay the reasonable costs of this application on a party and party basis and the Attorney‑General for the Commonwealth of Australia pay the first respondent’s reasonable costs of the removed proceeding on a party and party basis.

I should mention that one cannot be sure about these matters, but it would be hoped that the matter would be heard in perhaps the first or second sittings in 2022, subject to the exigencies of the Court’s list.

MR DONAGHUE:   Your Honour, could I request one slight amendment to those orders?  The last costs order your Honour made, could you make it the Commonwealth of Australia rather than the Attorney‑General to pay the ‑ ‑ ‑

HIS HONOUR:   Indeed, we will.  So it is the Commonwealth of Australia pay the first respondent’s reasonable costs of the removed proceedings on a party and party basis.  Those will be the orders of the Court.

MR KEIM:   Your Honour, can I just mention – and I know listing is not done according to the conveniences of counsel – but can I just mention in case it can be factored in, I commence a resumed hearing of an inquest on 24 January which runs for three weeks ‑ ‑ ‑

HIS HONOUR:   Sorry, I did not catch the date, Mr Keim.

MR KEIM:   Sorry, 24 January for three weeks.

HIS HONOUR:   Yes.

MR KEIM:   That would run into the first sittings of the year, so the second sittings of the year would be more convenient.

HIS HONOUR:   We will certainly try to bear that in mind, Mr Keim.

MR KEIM:   Obviously, December would be capable for us – I think for all the parties in this matter in terms of the current ‑ ‑ ‑

HIS HONOUR:   I am not in a position to say that it is not possible, but it is certainly most unlikely that given the state of the list at the moment the matter will be able to be heard in December.

MR KEIM:   Yes, your Honour.  That is all I wanted to raise, your Honour, thank you.

HIS HONOUR:   Thanks, Mr Keim.  Very well, then, those will be the orders of the Court.

AT 9.42 AM THE MATTER WAS ADJOURNED