Austal Ships Pty Ltd v King & Anor

[2009] HCATrans 192

[2009] HCATrans 192

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S160 of 2009

B e t w e e n -

AUSTAL SHIPS PTY LTD [ABN 80 089 160 679]

Plaintiff

and

SERENA KING DELEGATE OF THE SECOND DEFENDANT AND AN OFFICER OF THE DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

First Defendant

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Defendant

Application for order to show cause

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 12 AUGUST 2009, AT 10.25 AM

Copyright in the High Court of Australia

MR S.B. LLOYD, SC:   May it please the Court, I appear in this matter with my learned friend, MR J.O. HMELNITSKY, for the plaintiff.  (instructed by Fragomen Lawyers)

MR N.J. WILLIAMS, SC:   May it please the Court, I appear with MR G.R. KENNETT for the respondents.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Lloyd.

MR LLOYD:   Your Honour, I think one thing which is common ground between the parties is that the decision from which an application for judicial review is sought is one which falls within the part of the Migration Act which precludes judicial review in any court other than this Court.

HIS HONOUR:   Yes, that is right.  That is my understanding too, unfortunately.

MR LLOYD:   Indeed.

HIS HONOUR:   There is no power of remitter.

MR LLOYD:   That is so.  There are two – perhaps if I indicate, your Honour ‑ ‑ ‑

HIS HONOUR:   Has nothing been done to remedy that situation?  The Court has been complaining about it for years.  Is there no proposal?  Do you know of any proposal, Mr Williams?

MR WILLIAMS:   No, your Honour.  It, of course, only applies to primary decisions.

HIS HONOUR:   That is right.

MR WILLIAMS:   And once there is a merit review decision by the MRT, which is to hear the matter within nine days, that is judicially reviewable in the Federal Magistrates Court and with referral to the Federal Court.

HIS HONOUR:   Yes.  Yes, Mr Lloyd.

MR LLOYD:   There are two – I should tell you we are prepared if the Court is prepared to have the matter argued today, that there are, broadly speaking, two issues.  There is one, a question of discretion, that whether or not the Migration Review Tribunal provides an adequate alternative remedy and secondly, there is the substantive question of law.  The substantive question of law, if I just introduce it, is, in essence, my client is a ship ‑ ‑ ‑

HIS HONOUR:   Just explain to me how this litigation arises.

MR LLOYD:   My client is a shipbuilder who sponsors many business skills people.  They have to give undertakings when they sponsor them.  The Department of Immigration monitors compliance with those undertakings and they form the view that my client breached the undertaking.  The relevant undertaking that we are found to have breached is the undertaking to pay a salary at a particular level which is specified or calculated according to exempt notice and the way the delegate formed the view as to how much my client paid is they said, “Although nominally you paid this amount, in fact you made” – what they refer to as deductions from the amount we paid, being amounts paid for rent, accommodation and health insurance which are paid out of the post‑tax income of the employees on their written instructions.

So we simply say that does not affect the salary at all.  Salary is not affected because we offer a service to make payments on behalf of our employees, both the sponsored and the non‑sponsored employees.  So we say you cannot say because we have agreed to pay somebody’s rent, make a regular rent payment for them that they are getting less salary.

Now, the facts as found by the delegate are but for these deductions my client would not be in breach, but because of those deductions and because of the view that they reduce the salary that we pay the applicant, that means that we pay it below the so‑called gazetted salary, gazetted minimum salary, we are then in breach.

HIS HONOUR:   What was the power being exercised by the delegate of the Minister?

MR LLOYD:   Section 140, a little bit complicated, your Honour.  Does your Honour have the plaintiff’s bundle of authorities?

HIS HONOUR:   Yes.

MR LLOYD:   Can I take your Honour to tab 3.  This is the relevant provisions relating to sponsorship and I notice 140A and 140B(1) allow for regulations to make provisions in respect of sponsorship.  Section 140D says who an approved sponsor is and I note 140D(d) excludes somebody in respect of whom a “bar” mentioned in 140L(c) or (d) is in force.  Then subject to 140D being complied with, the “Minister must approve a person as a sponsor” in 140E(1).  Section140H empowers the Governor‑General to make regulations which prescribe undertakings.  Then we come to 140J. 

Now, I have to say, your Honour, this is a very curious provision because if your Honour reads the first subsection it says “This section applies if”.  Now, relevantly “an approved sponsor” or “person for a temporary visa breaches an undertaking”.  That is what they say is the present case.  The curious thing about it is that the rest of the section actually is just about making the regulations.  So one already needs the first jump in the legislative logic to say well there is actually nothing that it says the Minister can do under this provision other than under the sections made under the regulations.  So to make any sense of it, 140J(1) has to be construed as sort of somehow embracing what is made under the regulations.  Then one gets to 140L and these are the actions, the so‑called actions under 140J ‑ ‑ ‑

HIS HONOUR:   When it says “may (or must)”, what is the distinction?

MR LLOYD:   I think there is an ability in 140J(3) to “prescribe circumstances in which the Minister must take” action.

HIS HONOUR:   But this was a discretionary situation, was it not?

MR LLOYD:   This was, yes, your Honour.

HIS HONOUR:   Where do we find the – I am sorry, I should not have interrupted you.  You have taken me to 140L.

MR LLOYD:   Section 140L – so the bars that were imposed in this case were bars under (c), (e) and (g), the effect of which is it prevents my client “from sponsoring more people under the terms” of any existing approval.  They had an existing approval so that, in effect, cancels that.  It is the effective nature.  We cannot rely upon it.  Subsection (e) prevents my client “from making future applications for approval” and (g) prevents my client “from nominating” a particular person and the way it ‑ ‑ ‑

HIS HONOUR:   For one year.

MR LLOYD:   For one year.  I note, because I suspect my friend will make reference to it, there is some capacity for applying for a waiver of a bar under 140O.

HIS HONOUR:   That is by the Minister.

MR LLOYD:   That is a kind of discretionary power by the Minister which takes it – it is not premised upon there being a mistake or an error but it has its own criteria for the exercise of that.

HIS HONOUR:   Where are those prescribed circumstances?  Do you have those?

MR LLOYD:   I am not sure if they are in the bundle – 1.20HC, so it is on the penultimate page of the bundle – sub‑item (3).

HIS HONOUR:   Yes, that is right:

whether Australia’s interests would be significantly affected if the bar were not waived; and

(b)whether a substantial trade opportunity would be lost if the bar were not waived –

and your client says certainly yes to (b), does it not?

MR LLOYD:   We have made an application and what the evidence will ultimately show was that ‑ ‑ ‑

HIS HONOUR:   Made an application to the Minister?

MR LLOYD:   We have and the nub of it was that we made some inquiries before making an application as to whether they would accept a waiver would have a certain effect which would be useful to us.  We were satisfied with the response and made an application.  The Minister undertook to make a decision within 14 days, which would have expired yesterday, and yesterday they sent us a letter indicating that they were not going to make a decision because they had some adverse – or what they perceived to be adverse information which they want us to comment upon and they are giving us natural justice so there is no decision on the waiver.

HIS HONOUR:   How soon are you required to comment?

MR LLOYD:   I think it is 28 days, your Honour. 

HIS HONOUR:   What is the situation in the MRT, the Tribunal?

MR LLOYD:   The situation with the MRT was that an application was made there on around about 7, 8 July and an application for expedition was sought and in fact a bundle of material, the same bundle of material that was sent to this Court was sent to the Tribunal to support expedition.  We did not hear anything about it until yesterday when we received an invitation to a hearing to be held on 21 August.

HIS HONOUR:   In Perth?

MR LLOYD:   I think that the Principal Member will be in Sydney, but it will be by video link to Perth where our client is.

HIS HONOUR:   Will this be a multi‑party member Tribunal?

MR LLOYD:   It is the Principal Member who will be hearing in person.

HIS HONOUR:   The Principal Member?

MR LLOYD:   Denis O’Brien.

HIS HONOUR:   And the powers of the MRT – where do we find them?  It would be merits review, would it not?

MR LLOYD:   It is full merits review, so they can look at the legal issues as well as all the factual issues.  We accept that, although I should indicate that in the letter in which they invited us to a hearing it indicates, as it is required to do, that the member has looked at our material which includes our legal argument on this point and he does not accept that, at least on the papers.  So there is an opportunity for a hearing ‑ ‑ ‑

HIS HONOUR:   Does not accept what?

MR LLOYD:   Does not accept our legal argument about the error made and while no doubt my friend will say that is before ‑ ‑ ‑

HIS HONOUR:   I imagine you have agitated Mr Williams by saying that.

MR LLOYD:   No doubt it will be put against me that – that is before we have had the chance for a full hearing in the MRT and that should be enough, but I note that unlike in this Court in the MRT I, for example, have no right to appear.  I cannot make submissions and, in fact, it is a criminal offence for me to make submissions or to assist my client in the MRT because I am not a migration agent and that is true of anybody who is not a migration agent.  So we say that in circumstances where the Tribunal has already expressed something of a disinclination for the point ‑ ‑ ‑

HIS HONOUR:   That must really imperil the ability of the Tribunal to decide any questions of legal construction of these provisions.

MR LLOYD:   That is why we say it is not an adequate alternative remedy, or one of the reasons.  I mean, no doubt we could send in submissions which we have prepared for this Court but we were not allowed to prepare separate submissions for the MRT, I should say unless you are a migration agent.  My instructing solicitor is not only a solicitor but a migration agent but we still say there is prejudice and it is not an adequate remedy.  I was going through the legislation, your Honour.

HIS HONOUR:   Yes.

MR LLOYD:   I think I had finished with the Act and so I would ask your Honour to go to tab 4.  Tab 4 starts with Division 1.4.  Nothing turns on it, but if your Honour turns a couple of pages forward – I am sorry that they are not numbered – but starting with Division 1.4A at the top of the page on the left there is 1.4A ‑ ‑ ‑

HIS HONOUR:   Tab?

MR LLOYD:   Sorry, it is under tab 4.  The provision is 1.20A and Division 1.4A.  This deals with sponsorship and nomination in respect of temporary business entry.

HIS HONOUR:   Yes.

MR LLOYD:   The first point to note is in 1.20B.  There is a definition of an expression called “minimum salary level” and it means:

a level of salary worked out in the way specified in a Gazette Notice for the purposes of this definition.

Now, we say that what that is about is working out a level of salary which is to say a dollar amount and I will take your Honour in due course to that gazette notice, but there is a formula in it which allows you to take, as it were, a base minimum amount which is premised upon a yearly salary and to vary it according to the length of the period being assessed and also the number of hours being worked.  So what it does is allow the Minister to make a gazette notice which specifies an amount of salary, we say.  A level of salary means an amount of salary, but salary, we say, has its ordinary English meaning.

The next provision, over the page, is 1.20CB.  It provides that for the purpose of 140H:

an applicant for approval as a standard business sponsor must make the following undertakings –

There are only four undertakings which I will mention – (g)(i) is an obligation to comply with:

laws relating to workplace relations that are applicable to the applicant –

I draw the Court’s attention to that because one of the things which the delegate posited and which my friends appear to rely upon in their written submissions is that the purpose of a different undertaking is to stop employers from, as it were, sucking back salary by making payments in kind or some other such thing.

HIS HONOUR:   Yes.

MR LLOYD:   We would say that to the extent that is covered, that is covered by (g)(i) and there is no suggestion that we breached (g)(i) or no finding that we breached (g)(i).  The next provision, and this is the critical one, is (i), that is “to ensure that” and then there is a conditional statement:

if there is a gazetted minimum salary in force in relation to the nominated position occupied by a sponsored person, the person will be paid at least that salary –

So we say what that means is and what it is about is a requirement that if there is a relevant gazetted minimum salary which is an amount you have to pay that amount of salary.  But it does not change the meaning of “salary”.  “Salary” continues to have its ordinary meaning, we say.  In relation to “gazetted minimum salary” I should say there is no definition of “gazetted minimum salary” but one is left to infer that it is referring to the minimum salary level, which is defined.

HIS HONOUR:   Where do we see that?

MR LLOYD:   That is in 1.20B, which I took your Honour to.

HIS HONOUR:   Yes, that is right.  All right.

MR LLOYD:   Perhaps I will just take your Honour to one further undertaking because it has an appearance in my friend’s submissions, that is (k)(ii).  I say (ii) because the particular people involved fall under (ii) because their applications were made after “1 November 2005”.  The obligation is:

to pay all medical or hospital expenses for a sponsored person arising from treatment administered in a public hospital (other than expenses that are met by health insurance or reciprocal health care arrangements) –

Now, my friends in their submissions say we should never have asked our employees to pay for private health care because this undertaking obliges us to pay for it ourselves and we say it is clear on its terms that it does not have that effect whatsoever, that what it does is require us to save the public purse.  If someone ends up in a public hospital and they do not have insurance then we have to foot the bill.  There is nothing in there which says we have to pay private health insurance.

HIS HONOUR:   Does the decision of the delegate appear in exhibit AB1 to Mr Bellamy’s affidavit?

MR LLOYD:   No, your Honour, it appears in exhibit FV1 in Mr Varess’ affidavit.  That is the largest bound exhibit.  It might be convenient, your Honour, if I were to take you first to the gazette notice.

HIS HONOUR:   I just want to ‑ ‑ ‑

MR LLOYD:   The decision starts on page 72.

HIS HONOUR:   Thank you.  I am trying to find out at the moment what course the Court should take as to dealing with this matter.  I am not entering onto the merits.  Page 72.

MR LLOYD:   That is the decision and then the reasons for the decision – the decision record starts at page 74 and runs for about 10 pages.  If I can indicate, the crux of it is on page 80.

HIS HONOUR:   This word “sanction”, where does this come from, in the legislation or the regulations?

MR LLOYD:   I do not think it comes from the legislation.  The legislation uses the word “bar”.

HIS HONOUR:   It is not used in the legislation, is it?

MR LLOYD:   I think the legislation uses the word “bar”.

HIS HONOUR:   The word “Sanction” - where does that come from?  It suggests something punitive.

MR LLOYD:   That is so, your Honour.  It is not in the legislation.  The legislation talks about a bar.  It does suggest something punitive.

HIS HONOUR:   Is there any consideration of the period of this so‑called “sanction”?

MR LLOYD:   I do not think in this document.  There is a separate document ‑ ‑ ‑

HIS HONOUR:   Why three months, why six months, why nine months, why one year?  Is there any consideration of that?

MR LLOYD:   I do not think there is in this document.  There is a separate document on the file which we have which I do not think has been filed where the delegate, I think, goes through and says ‑ ‑ ‑

HIS HONOUR:   Your client had previous difficulties with the authorities.

MR LLOYD:   There was one earlier sanction against us for three months.

HIS HONOUR:   Yes, all right.  Now, the relevant Rule of Court ‑ ‑ ‑

MR LLOYD:   It is 25.03 and then we say if your Honour were available and minded to do so then either under ‑ ‑ ‑

HIS HONOUR:   I can decide either to make an order to show cause before the Full Court, direct the application to show cause before the Full Court or give an absolute order in the first instance by myself.

MR LLOYD:   That is so.

HIS HONOUR:   That is right.  They are the options, are they not?  To what extent is there any evidentiary dispute?  I will ask Mr Williams what he says about that in a minute.

MR LLOYD:   I am not entirely sure.  Certainly from our part I think my friend wants to put on an affidavit.  We do not object to that affidavit but we do not think it is relevant – aspects of it, but we do not object to it.  I am not sure – now my friend is ‑ ‑ ‑

HIS HONOUR:   All right.  Yes, Mr Williams.  You had some query about the communication from the Tribunal, did you not?

MR WILLIAMS:   Your Honour, we do not know that it is precisely accurate to say that the Tribunal has rejected the submissions.  The Tribunal has said in the standard form reflecting the terminology of the section that on the papers it has not reached a favourable decision and therefore is inviting the applicant to a hearing.  That is not suggesting that it has reached an adverse decision on the papers.  It is simply that it has scheduled a hearing which, having regard to the request for urgency, is ‑ ‑ ‑

HIS HONOUR:   It undoubtedly is urgent, is it not?

MR WILLIAMS:   Your Honour, there is some question about how urgent.  Could I seek your Honour’s leave to file in Court an affidavit of Kristy Lee Alexander?

HIS HONOUR:   Have you seen this, Mr Lloyd?

MR LLOYD:   I have, your Honour, yes.

HIS HONOUR:   Any objections to it, Mr Lloyd?

MR LLOYD:   No, your Honour.

HIS HONOUR:   I will read it to myself.

MR WILLIAMS:   Yes, thank you, your Honour.

HIS HONOUR:   I am looking at the last two pages of the annexed materials.

MR WILLIAMS:   Yes, your Honour.

HIS HONOUR:   Is it the Minister’s position that that is an accurate statement by the spokesman for the Minister there?

MR WILLIAMS:   We just do not know, your Honour.  We became aware of this newspaper article, notwithstanding that it is from a date in mid‑July, we only became aware of it yesterday afternoon.  It is not completely consistent, to say the least, with the position that is put to the Court.  We do not wish to spend undue time on it, but your Honour will understand why the delegate being asked to waive the bar has sought clarification from the company.  The letter which is the previous document ‑ ‑ ‑

HIS HONOUR:   I am worried about third parties at the moment.  It says here that the Minister’s spokesman is saying that people currently employed can continue to be employed.  What does that mean?  Does it mean they have to go elsewhere within Australia?

MR WILLIAMS:   Is your Honour referring to page 28?

HIS HONOUR:   Page 27, about point 7.

MR WILLIAMS:   That is indeed the position at present, your Honour, in the sense that there are no employees whose visas expire prior to 21 October.  There are two or three whose visas have expired and who cannot be renewed by reason of the bar.

HIS HONOUR:   That is right.

MR WILLIAMS:   But the next person to come up, I will have to take your Honour to the detail of it in a moment, but 21 October is, I apprehend, the next person to come up apart from those two or three who are presently affected.  But your Honour sees – I am sorry, I referred a moment ago to the statements of the company’s chief operating officer on the following page which are not completely consistent with the case that is put to this Court as regards urgency.

HIS HONOUR:   Yes.

MR WILLIAMS:   It is those matters that the delegate has sought to have clarification on.  Admittedly the delegate is given 28 days but if there is a straightforward answer as to whether these matters are accurate, then presumably that could be given quite quickly and the waiver application determined on its merits within days consistently with the attitude that the Department had indicated that it would deal with it urgently.  As to the sufficiency of the alternative remedy, Mr O’Brien’s curriculum vitae is at page 22, your Honour.

HIS HONOUR:   One has the impression from the material that Austal Ships is a fairly well‑known business entity in Perth, is it not?  These boats that it makes are sold internationally and so on.

MR WILLIAMS:   Yes.

HIS HONOUR:   It says it has some pending contracts.

MR WILLIAMS:   Yes.  There could be no doubt, your Honour, that in the medium term going into next year a case has been made out that there is some significant issue.  As regards the adequacy of the remedy in the course of the next one, two or three months there is a very large issue, your Honour.  The MRT has constituted the matter before its Principal Member who is a qualified and very experienced legal practitioner well able to assess – his curriculum vitae is at page 22, your Honour – the legal merits of the submissions that are put, well able to appreciate any urgency said to attach to the matter.  There is nothing in our submission to suggest that a timely decision will not be made given that it has been constituted for an urgent hearing.

HIS HONOUR:   But hearings are one thing and decisions are another.

MR WILLIAMS:   In every forum, in every forum, but given that Mr O’Brien has constituted the matter to himself for urgent hearing one might expect that he would give some priority to the matter and may have some ability to do so.

HIS HONOUR:   He may be able to indicate when he hears it when he expects to be in a position to give a decision, I suppose.

MR WILLIAMS:   Yes, that is certainly so.  But the facts, to answer your Honour’s question, are in dispute to at least some degree.  Your Honour has been taken to FV1 ‑ ‑ ‑

HIS HONOUR:   However, he is handicapped to some extent that he does not have either you or Mr Lloyd appearing before him.

MR WILLIAMS:   He has our submissions, your Honour, or he can have our submissions and that will provide at least a substantial assistance.  He has his own legal abilities and this is indeed the form of merit review that the Parliament has prescribed, no doubt balancing expedition with other considerations.  Whether Mr Lloyd or I or persons in our position would be available on the 21st might be one of the questions of expedition that lead the Parliament to say that these matters should be decided by the Tribunal in the manner that is prescribed.  But, as Mr Lloyd has indicated, there are practitioners who are registered migration agents as well as lawyers who are well able to take up the issue.

HIS HONOUR:   Yes, all right.  Now, do you say that there are disputed matters of fact, apart from what you have just been indicating - further disputed issues?

MR WILLIAMS:   Your Honour, there are.  Our friends identify in their submissions what they regard as the centrally important fact which is that these are said to be payments to third parties at the direction of the employees.  We had understood that the delegate’s findings were not to be contested in this Court, but from the submissions in reply it is clear that some of them are.  If your Honour were to go to page 74 of FV1 at about line 20 under “BACKGROUND” this is in a sense reciting Austal Ships’ reply:

they had authorisations to deduct for Austal transport, linked Austal house rental payments and visa holder’s personal medical insurance.

That is indeed the subject of a finding then at page 80 at about line 15 in the sentence beginning “I have determined”.

HIS HONOUR:   It is the conclusion that this was done as a means to ensure that they “paid monies directly or indirectly back to Austal Ships”.

MR WILLIAMS:   Yes.  Now, your Honour, it is the Minister’s submission that the gazette notice is entirely valid in specifying a way of working out – and that is the phrase – “a way of working out” a minimum salary and that there is no invalidity at all.  But if we were to fail on that primary contention then in the reading down that our friends seek in their second and third fallback positions in their submissions, we would say that it is relevant whether these are payments to Austal or the linked entities or to related entities.  It is potentially relevant at least to one form of reading down as to whether or not these are deductions.  But those are questions of fact that would arise.

If there is contest, and it is apparent that there is contest from the submissions and from, I think, a sworn affidavit that your Honour has not been given – a further affidavit of Mr Bellamy – there is a contest as to whether these were payments to linked entities or not.  So there is a factual dispute in that respect.  In particular, your Honour, the Minister would obviously wish to contend with some vigour that the Tribunal that the Parliament has provided ‑ ‑ ‑

HIS HONOUR:   You say that the Tribunal is the place to sort that out.

MR WILLIAMS:   It is an adequate remedy and one of the issues that your Honour would need to be satisfied of before granting relief, and perhaps before embarking on a hearing in that respect, is that it is not an adequate remedy.  In that respect, first, if I can put it in this way, the jury is still out.  The Tribunal is to hear the matter on the 21st.  If your Honour were to go to the letter from the Tribunal, which is at pages 7 to 8 – this is a letter in reply to my solicitor ‑ ‑ ‑

HIS HONOUR:   This is to the affidavit of ‑ ‑ ‑

MR WILLIAMS:   Yes, I am sorry, to Ms Alexander.

HIS HONOUR:   Ms Alexander’s affidavit sworn?

MR WILLIAMS:   Sworn yesterday, your Honour.

HIS HONOUR:   Yes.

MR WILLIAMS:   Your Honour sees that the application was made on 7 July after the application to this Court.  A departmental file was received by the Tribunal on the 17th.  It was constituted to a tribunal member on the 21st.  The Principal Member has decided he is unable to decide the review in the applicant’s favour on the basis of the material before him.  It includes some material supplied.  This was the first transcript material, of course, your Honour, prior to the affidavit of Mr Bellamy or the recent submissions of our friends of late last week.  The Tribunal has arranged a video hearing dated 21 August and then over the page ‑ ‑ ‑

HIS HONOUR:   Now, yes, I see what the registrar is saying.  I was going to ask you this, what is the situation with the supply of the Department’s documents to the Tribunal?

MR WILLIAMS:   They have been supplied.

HIS HONOUR:   That has been done, has it?

MR WILLIAMS:   Yes, that was done, your Honour – that is referred to on page 7.  That was done on 17 July.  No doubt there was some delay, your Honour.

HIS HONOUR:   Yes, I see.

MR WILLIAMS:   The degree of activity in the matter.

HIS HONOUR:   So, so far as one knows, the material that would be before the Tribunal is complete, is it?  Subject to this factual debate that may break out?

MR WILLIAMS:   Subject to what the applicant wishes to put on, your Honour, yes.  It is complete.  So there is an early hearing.  It is full merit review.  It is by a lawyer who can determine all of those matters.  Your Honour, I did indicate that I would wish to say something about the urgency of the matter.  The affidavit of Mr Bellamy has an annexure that has a table from pages 70 and following.  This sets out – pages 70 and 71 – it is in landscape format, your Honour.

HIS HONOUR:   Yes, I have it.

MR WILLIAMS:   Your Honour sees that there have been visa expiries.  The first two pages are the relevant ones, your Honour.  The visa expiry dates 30 June, 17 August.  The visa application – the second of those has been withdrawn but if the bars are waived or set aside it would be pursued.  The following one, No 3, is in the same category.  Apart from those, your Honour, the next relevant one is No 4 which falls due on 27 October.

HIS HONOUR:   What is going to happen to Mr Johnson, Mr Roach and Mr Rosandic?

MR WILLIAMS:   Well, they intend to resume the employment relationship once a visa is granted, your Honour, but at present they are the subject of the bar.  So there are three employees who are in that position. 

HIS HONOUR:   Yes.

MR WILLIAMS:   So the position is, your Honour, that in this Court there is a dispute at present as to the adequacy of the remedy.  In light of the newspaper article from yesterday, we would wish to investigate which of the accounts given by the company is the correct one - that given to the Court or that stated in the newspaper article, assuming it to be accurately reported.  There is a consistency in the quotations that suggest a particular line being taken by the chief operating officer.  That is an issue that does not directly arise in the Tribunal.

If indeed there is a short answer to that, then the company’s assertion that there is a national interest of some kind in the matter being determined quickly would equally support waiver of the bar.  So if there is an easy answer to the matter raised in the letter yesterday – and there may well be – then one would expect the waiver application to be determined very quickly, which will remove all the urgency from this case.  In any event, in the Tribunal the legal point can be taken unimpeded by any question of whether the facts are fully found and presumably will be determined quickly.

So for those reasons, in our submission, your Honour, no case for an order to show cause is made out.  But, in any event, the highest, in our submission, that the plaintiff’s case could rise is that the application should be stood over for a period to await the hearing in the MRT and an indication thereafter of when judgment is likely.  If it were to be stood to the middle of September, for example, it may well be that by then there is no decision that has been taken.

HIS HONOUR:   I will ask you some more questions in a minute, Mr Lloyd. 

AT 11.07 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.09 AM:

MR LLOYD:   Your Honour, can I say a couple of things.

HIS HONOUR:   Yes.  Well, let me tell you what I propose to do.  Do you wish to reply to this affidavit of Ms Alexander?

MR LLOYD:   It only goes to, I suppose, the adequate alternative remedy point.  What we say in relation to that is that we ‑ ‑ ‑

HIS HONOUR:   What is the answer?  Do you want to reply to it, or not?

MR LLOYD:   If the matter is to be determined today, we do not need to reply it.

HIS HONOUR:   It is not going to be determined today.  The question is whether I now make an order that any response to this affidavit be made by further affidavit filed on a particular date.

MR LLOYD:   Then we would do that, your Honour.  We take issue with that press report ‑ ‑ ‑

HIS HONOUR:   How can these factual matters get fought out on a prohibition application?

MR LLOYD:   Those matters do not go to the substantive issue.  They all go to the discretionary point.

HIS HONOUR:   Yes.

MR LLOYD:   So my friend is asking the Court to exercise its discretion against it so we say why there is a problem and we say there is a problem for some individual staff members and we have put affidavits on from them which show that Mr Roach would need a decision, I think, admittedly within four days or five days and other people sooner.  But we have also put on Mr Bellamy’s affidavit to the effect that there is a need ‑ ‑ ‑

HIS HONOUR:   Anyhow, my view of the matter is that the dispute, one way or another, has to be resolved promptly.  Whether it is by the Minister or the Tribunal at the moment is not the Court’s concern, I suppose.  But on the other hand the matter in the Court has to be kept in a state of readiness and if there is not a prompt resolution by the other methods available, I will have to set it down for hearing before me.

MR LLOYD:   Certainly, your Honour.

HIS HONOUR:   I direct that any further affidavits by the applicant be filed and served on or before when?

MR LLOYD:   May I get some instructions?  Mr Hogan is currently overseas.  He is the person who is quoted, allegedly, in that report.

HIS HONOUR:   Yes, would you just take a minute to find out.

MR LLOYD:   We think a week would be sufficient, your Honour.

HIS HONOUR:   That would take us to the 20th.  Then I will stand the matter over to a date when I can expect some indication from both sides as to the progress, either in the ministerial application or the Tribunal application.  What is a convenient date for that?

MR LLOYD:   I suppose the Tribunal hearing is on the 21st.

HIS HONOUR:   Yes, but it may take the Tribunal member more than one day.  I have no idea.

MR LLOYD:   That is quite likely in these matters.  Also, we note from that letter in my friend’s affidavit that the Minister has made some, as yet, undisclosed submission to the Tribunal about our matter.  Presumably at some point someone will give that to us and we will have a chance to respond to that as well.

HIS HONOUR:   Yes.  Do you know anything about this ‑ ‑ ‑

MR LLOYD:   In this affidavit on page 7 it says:

This material includes the material supplied by you on 10 August 2009.

HIS HONOUR:   This is the affidavit of Ms Alexander?

MR LLOYD:   This is the affidavit of Ms Alexander, page 7.

MR WILLIAMS:   Your Honour, that is a reference to the material supplied by the applicant.

HIS HONOUR:   Yes.

MR LLOYD:   We did not provide any material on 10 August.

HIS HONOUR:   Mr Markus will sort it out.

MR WILLIAMS:   Your Honour, Mr Markus on 10 August sent to the Tribunal a copy of the affidavits and submissions.

HIS HONOUR:   That are now before this Court?

MR WILLIAMS:   Yes, that is so.  That were then before the Court on 10 August.

HIS HONOUR:   Yes.   

MR WILLIAMS:   Only the plaintiffs, your Honour.

HIS HONOUR:   I see.  No cause for alarm, I think, Mr Lloyd.  I will stand the matter over at the moment to Monday, the 31st.  How does that suit counsel?

MR LLOYD:   Your Honour, I am in an Alice Springs town camp dispute in Melbourne on that day.

HIS HONOUR:   How long does that go on for?

MR LLOYD:   I think that is the second of two days.  I could do it the next day.

HIS HONOUR:   What about you, Mr Williams?

MR WILLIAMS:   I am in some difficulty from the 28th, your Honour.  Mr Kennett is ‑ ‑ ‑

HIS HONOUR:   He is quite capable of doing anything that has to be done.

MR WILLIAMS:   Mr Kennett is in difficulty from 28 August until 16 September.  If there were to be - for example, the 27th, without wishing to ‑ ‑ ‑

HIS HONOUR:   27 August.  What about you, Mr Lloyd?

MR LLOYD:   I think that is okay, your Honour.

HIS HONOUR:   Now, the Court is sitting in Canberra on that day in that water case we have.  But it can be done by video link from here.

MR LLOYD:   Can I just clarify that, your Honour.  On that day that would be just, as it were, an update.  We would not be ‑ ‑ ‑

HIS HONOUR:   Yes, I want to see what is happening and I may then fix it for hearing.

MR LLOYD:   Certainly, then the 27th by video ‑ ‑ ‑

HIS HONOUR:   Depending upon what is happening before the Minister and the Tribunal.  It is a question of – perhaps 9.30 on 27 August by video link.  Would that be convenient to you both?

MR LLOYD:   Yes, your Honour.

MR WILLIAMS:   Yes, your Honour.

HIS HONOUR:   I had better give a direction that the transcript of today be prepared as soon as possible so that it is available if either party wishes to draw it to the attention of either the Tribunal or the Minister as an indication of what the Court has embarked upon at the moment.

MR LLOYD:   Certainly.  Your Honour, I might be pushing my luck here – tell me if it is – but Mr Roach is in a position whereby the bar bites for him in five days time and I was wondering if your Honour would be prepared to entertain an application for a stay of the bar in respect of him pending the next hearing.

HIS HONOUR:   What do you say about that, Mr Williams?

MR WILLIAMS:   We have heard of it about two minutes ago, your Honour.  I have no instructions.

HIS HONOUR:   You need to get instructions, do you not?

MR WILLIAMS:   I would if an application were made, your Honour, yes.

HIS HONOUR:   How long would it take you to get those instructions?  I am not sure – what would be the source of the power to do that?  It would be an interlocutory injunction of some sort, would it?

MR LLOYD:   Indeed, to preserve the position for Mr Roach pending the possible success of my client.

HIS HONOUR:   But how long would the stay last?

MR LLOYD:   The stay could last either until 27 August or until – that is probably the most sensible thing.  It could either be continued then till the matter is set down for hearing or ‑ ‑ ‑

HIS HONOUR:   You will have to formulate an order, Mr Lloyd.  I think it is best if I take a short adjournment.  You formulate what you want and you show it to Mr Williams and then he can see how long it will take him to get instructions and then he can tell my associate and I will come back and see what has to be done.  We will take a short adjournment.

AT 11.20 AM SHORT ADJOURNMENT

UPON RESUMING AT 12.00 PM:

HIS HONOUR:   Yes, Mr Lloyd.

MR LLOYD:   Your Honour, it has proved more difficult than I had hoped to find a formula that I think the defendants would agree would work and so what we have agreed ‑ ‑ ‑

HIS HONOUR:   I am not sure one can be found, Mr Lloyd.

MR LLOYD:   That may be so, but what we have at least agreed between the parties, if it suits your Honour, is that we would by close of business today provide a draft order and any submissions are put and they would ‑ ‑ ‑

HIS HONOUR:   No, no, no.  It has to be done as soon as possible.  If you cannot do it in 45 minutes there is something wrong, I think myself.  You can come back at 2 o’clock if you want to.

MR LLOYD:   We will do that then, your Honour.

HIS HONOUR:   I do not want any submissions any writing.  It seems to me this is a last minute idea and I am not sure it is a very bright idea.

MR LLOYD:   I understand, your Honour.  If we do it in this way, your Honour.  We will either come back at 2 o’clock or we will notify your Honour that we do not press the matter.

HIS HONOUR:   Yes, all right.  I will make the orders at the moment then.  I direct that any further affidavits – do not forget, I should interrupt myself and say you would need an undertaking as to damages as well from your client, which is a serious matter not lightly undertaken, I imagine.  It is in the form of a mandatory injunction of some sort – well, maybe not mandatory, maybe sui generis but I think you would need an undertaking as to damages.

I direct that any further affidavits by the applicant be filed and served on or before 20 August 2009 and I stand the matter over for further directions at 9.30 am on 27 August 2009 by video link from Sydney to Canberra.  The costs of today will be costs in the cause.

The Court will now adjourn to 2.15 pm on Monday, 24 August 2009 in Canberra subject to any further communication in which you want me to sit again at 2.00 pm.  We will now adjourn.

AT 12.03 PM THE MATTER WAS ADJOURNED