Banerji v Minister for Immigration and Border Protection & Ors

[2017] HCATrans 101

[2017] HCATrans 101

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Canberra  No C2 of 2017

B e t w e e n -

MICHAELA BARLOW BANERJI

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

SECRETARY, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Second Defendant

PUBLIC INTEREST ADVOCACY CENTRE LTD (ACN 002 773 524)

Third Defendant

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO SYDNEY

ON WEDNESDAY, 10 MAY 2017, AT 2.14 PM

Copyright in the High Court of Australia

____________________

MS M.B. BANERJI appeared in person.

MS Z.C. HEGER:   I appear for the first and second defendants.  (instructed by Ashurst Australia)

MS K.M. RICHARDSON, SC:   May it please the Court, I appear with my learned friend, MS J.T. BUNCLE, for the Public Interest Advocacy Centre Ltd, the third defendant.  (instructed by Herbert Smith Freehills)

HIS HONOUR:   Yes, Ms Banerji.

MS BANERJI:   Your Honour, what I would like as the outcome of today’s hearing is for the Court to accept my matter and to set down a schedule of return documents.

HIS HONOUR:   Yes.  The hearing, as you obviously appreciate, is on your summons for an application to show cause.  I have read your summons and all of your affidavit and annexed documents.

MS BANERJI:   Yes.

HIS HONOUR:   I appreciate the relief and all of the matters of relief that you are seeking and cause that you are seeking that the respondents show.  Have you had the opportunity of reading the submissions that the respondents have filed?

MS BANERJI:   Yes, and I have prepared notes in response to those submissions.

HIS HONOUR:   Yes.  I would be very happy to hear your submissions – your oral submissions in response.

MS BANERJI:   Okay. 

MS HEGER:   Your Honour, I am sorry for interrupting.  May I just raise one preliminary matter because it may affect the conduct of today’s hearing?

HIS HONOUR:   Yes.  Ms Banerji, if you just have a seat for the moment.

MS HEGER:   I am sorry; this should only take a short time.  You will have seen that the deed of settlement is in evidence before your Honour and that there is under clause 9 a confidentiality clause which essentially prohibits both parties from disclosing the contents of the deed.

HIS HONOUR:   Yes.

MS HEGER:   Obviously it will be necessary today to refer to some clauses of the deed in particular the bar to future proceedings, but what it should not be necessary to refer to today, in my respectful submission, is the settlement sum that was paid by the Commonwealth to the plaintiff.  So I would respectfully request that any reference to the amount be avoided in today’s hearing.

HIS HONOUR:   All right.  Well, I am aware of the amount.  I have read the deed, and so I am sure there is no other reason why Ms Banerji needs specifically to refer to it but I am aware of that amount.  Thank you very much ‑ ‑ ‑

MS HEGER:   There is a further issue that that amount has unfortunately been expressly referred to in some court documents.  I do have a proposal for dealing with that but I can deal with that at the conclusion of the hearing rather than right now.

HIS HONOUR:   Those court documents can always be marked not to be inspected without prior leave.

MS HEGER:   Yes.  What I was proposing is that my instructors could uplift the documents and redact those references just so that they – to avoid the need for any general prohibition on inspection or the like.

HIS HONOUR:   Yes, all right.  Unless there is any reason that Ms Banerji seeks but just for those amounts to be redacted from the documents then I would grant that leave.  Yes, Ms Banerji.

MS BANERJI:   Your Honour, just in response to the question of the deed, my argument would be, although I would not specifically state it, that the deed is void or voidable.  Now ‑ ‑ ‑

HIS HONOUR:   This is for duress?  This is your argument, that is for the duress – duress as the circumstances at the time of entry.

MS BANERJI:   Yes, and also failure of the third defendant to properly act in my interest.

HIS HONOUR:   Yes.

MS BANERJI:   This matter was – still is a highly political matter.  I am probably going to say things that people are not going to like to hear, but my view is that there was conspiracy between the Minister, the Department and PIAC to achieve a political end that avoided the real question at heart of the matter.  The real question at heart of the matter was whether the Public Service Act trumped the implied freedom of political communication arising out of our Constitution. In my view, the second defendant acted ultra vires by claiming that I had breached the Public Service Act. It was not entitled to arrive at that finding given the implied Constitution freedom.

HIS HONOUR:   It was not the second defendant; it was the Commonwealth by the Department of Immigration and Border Protection, was it not?

MS BANERJI:   The Minister ‑ ‑ ‑

HIS HONOUR:   The Commonwealth by the Department was your employer.

MS BANERJI:   Yes, yes, that is right.  I am not entirely clear on that background of the relationship or whether these terms are interchangeable, but as far as I see what happened was under dictation by the Minister – the Department acted under dictation of the Minister.  PIAC had an undisclosed relationship with the Department ‑ ‑ ‑

HIS HONOUR:   Ms Banerji, before you get into all of the factual detail, some of which is not contained in the evidence anyway, what the real issues are that the defendants have raised in this hearing concerns, first of all, whether the first defendant is a proper party, and secondly, whether any of the nature of the relief that you seek against the second defendant is relief which is available, and thirdly, whether this Court has any jurisdiction in relation to the third defendant.  Now, I realise these are fairly arid or technical issues, but they are the issues that have been raised against you by the respondent rather than the substance of any of the matters that you are referring to at the moment.

MS BANERJI:   Yes, I understand, your Honour.  May I then please just go to the third defendant?  I can see that the third defendant is not a Commonwealth officer, I understand their argument.  I could sue them separately in another court in another circumstance, but there are aspects of their behaviour that are relevant to this case.

HIS HONOUR:   That may be so, and it may also be the case that if your claims against the second defendant were to remain in this Court, there would then arguably be jurisdiction for this Court to consider claims against the third defendant.  But it may be that convenient for you to focus then on the claims against the second defendant, given your concession in relation to the third defendant.

MS BANERJI:   Yes, I will do that. May I please just mention that there is provision under section 75(iv) of the Constitution for the High Court to have original jurisdiction in matters where the parties live in separate States. I am not sure if that will be of any assistance to us.

HIS HONOUR:   But you do not rely on the diversity jurisdiction, that is the jurisdiction where parties are resident in different States in relation to the third defendant?

MS BANERJI:   I am suggesting that it may be a clause to give us permission to retain the third defendant in the proceedings.

HIS HONOUR:   What is the evidence in relation to that?

MS BANERJI:   Well, PIAC is based in Sydney and I am based in Canberra.

HIS HONOUR:   Yes.

MS BANERJI:   If I were to sue them separately, the matter could be brought to the High Court on that particular reason.  There is so much to say about this that I really do not know where to start.  Let me – perhaps, as you suggest, it is the second defendant’s actions that are the most relevant.

HIS HONOUR:   Well, as I understand the submissions made against you in relation to the second defendant, is that the deed of settlement is a bar to any of the claims that you seek to bring because they all effectively arise out of the circumstances that are described in the deed.

MS BANERJI:   Yes.

HIS HONOUR:   As I understand your submissions, one of the grounds that you rely upon is a writ of certiorari to quash the deed so that it no longer operates as a bar.  What the second defendant says in relation to that is that a writ of certiorari is not available to quash the deed in circumstances in which the deed is effectively a contract that was entered into between two parties involving the consent of both of the parties. 

They point to the unlikelihood on the evidence before the Court of any finding of duress and the absence of availability of the writ of certiorari against the second defendant as well as the fact that the contract was concluded with the Commonwealth rather than with the second defendant.  I think that is in summary the points that are made by the second defendant.

MS BANERJI:   Yes, your Honour.  So, perhaps going to the second limb of your statement, being perhaps I simply need to redraft the documents.  As far as the deed of settlement is concerned, my view is that it is void or voidable because of the circumstances under which it was created, and that would be the evidence that I would bring and that evidence would include evidence from PIAC as well as evidence of the Department’s actions and evidence of the Minister’s actions.

The plaintiff had not been properly represented in that the third defendant had refused to run the implied freedom argument even though it had been the implied freedom argument which the plaintiff had expressed when contacting the third defendant.  The plaintiff was not in a proper ‑ ‑ ‑

HIS HONOUR:   I think once again we are straying into the substantive matters that the action is about ‑ ‑ ‑

MS BANERJI:   Yes, yes, okay.  I do find that difficult ‑ ‑ ‑

HIS HONOUR:    ‑ ‑ ‑ about which we do not have any evidence, yes.

MS BANERJI:   I do find that difficult as to – my view is that the deed should be set aside because of the circumstances in which it was created.  In a way the deed is almost even separate to the implied freedom argument because the implied freedom argument could be run on its own without even talking about the deed, and the way that would go, as I see it, is that the second defendant wrongly terminated the plaintiff’s appointment.  That is basically at the heart of this action. 

Now, we can leave the PIAC aside, we can leave the Minister aside if we were to choose to do so, because the real argument is that the Department wrongly terminated my employment using the Public Service Act, which does not trump the implied freedom as arising out of the Constitution, that I spoke using social media and I spoke in support of the Refugee Convention and the Department, because of the political circumstances of the time, used that to punish me so as to give a very strong message to all the other public servants.

Now, the Minister has form in respect of using one particular circumstance to punish another situation in the way that it has stated – the Minister himself has stated that the offshore processing on Manus Island is actually designed to prevent other people from making the journey.  So it is that same principle.  We will punish this Ms Banerji for tweeting about the Refugee Convention.

HIS HONOUR:   I think we are getting into the substance again rather than the basis upon which this action can be brought. 

MS BANERJI:   I am sorry, your Honour.  In other words, what I would simply say about that is that we could simply just rely on that aspect of my proceedings.

HIS HONOUR:   I understand, yes.

MS BANERJI:   The other thing was that the deed – I am sorry, may I say ‑ ‑ ‑

HIS HONOUR:   Yes.

MS BANERJI:   The second defendant treated the payment as an eligible termination payment and that was totally wrong, totally wrong.  It beggars belief that the Department would not have proper advice on that.  There had been a separate eligible termination payment simply on the basis ‑ ‑ ‑

HIS HONOUR:   I think once again this is not addressing any of the points that are made against you.  This is simply going to points that you might ultimately make on any substantive proceedings involving issues that are raised on evidence.

MS BANERJI:   I reiterate that the deed is flawed and should be set aside.  I am rather distressed by the patronising tone of the second defendant’s submissions when he says the plaintiff is admitted as a legal practitioner in the ACT, she should reasonably be expected to appreciate the difficulties with the application, at least when pointed out to her.  That is the kind of patronising behaviour that I have encountered throughout the whole of these proceedings.  I do not have anything more to say about the second defendant.  In respect of the first defendant, I can submit, your Honour, that it was only yesterday that we had a response from the Minister’s office.  There have been no substantive submissions by the Minister’s office.

HIS HONOUR:   I think the point that was made in some of the communications that I had read was a suggestion early on that the Minister is not a proper party to the proceedings because no relief had been sought

against the Minister and it was suggested that you might substitute the Minister for the Commonwealth.

MS BANERJI:   Perhaps that is a reason for the Court to indulge me by giving me permission to redraft those pleadings, but there is evidence to show that the Minister was entirely involved in the Department’s actions.

HIS HONOUR:   All right.

MS BANERJI:   And now – there were a number of incidents in relation to PIAC and their representing me in all these matters.  They simply, although I was in touch with them because I needed help with the implied freedom argument, they simply refused.  They behaved in a number of ways that were wrong ‑ ‑ ‑

HIS HONOUR:   Ms Banerji, I just remind you in relation to the third defendant that the only issue is whether it has been raised against you, is whether this Court has got jurisdiction.

MS BANERJI:   I would submit that we do have jurisdiction on two grounds at least, one ground being that they were party to what was happening, and secondly, that they are in Sydney and I am in Canberra.

HIS HONOUR:   Thank you. 

MS BANERJI:   I am not sure that there is much more that you would like me to say, your Honour.

HIS HONOUR:   Thank you, Ms Banerji.  Yes, Ms Heger.

MS HEGER:   Yes.  I should just start by noting that the plaintiff today has made various allegations against the Minister and the Secretary, in particular that there has been some conspiracy between the various defendants ….. deny her certain rights or that the Secretary has acted in a punitive fashion towards the plaintiff.  Obviously those matters are denied but I do not think it is particularly relevant for today’s purposes to go into the detail of those allegations.  I just note that for the record.

First dealing with the Minister’s position, your Honour, with respect, has summarised that accurately.  His position is simply that since no relief is sought against him he is not a proper party to the proceedings and he otherwise does not comment on the substance of the application filed by the plaintiff.  Insofar as the Secretary is concerned, your Honour will have received our written submissions of 8 May, as well as an affidavit of Paul Vane‑Tempest dated 5 May 2017 and I read that affidavit. 

Again, your Honour has, with respect, accurately summarised the Secretary’s position insofar as it is submitted that the application is without any realistic prospect of success.  That is, of course, relevant to the extent your Honour is considering summary dismissal today but it is, of course, also relevant in terms of granting an extension of time, which is something the plaintiff certainly requires insofar as she seeks certiorari in respect of the deed and in respect of the decision to terminate her employment and the publication of that termination in the Commonwealth Gazette. 

In respect of the deed, she is over two and a half years out of time and in respect of the other decisions over three years out of time and obviously your Honour is familiar with rule 25.06.1 that sets a six month time period for the seeking of certiorari.

HIS HONOUR:   Do you wish to say anything about the submission that the plaintiff has made this afternoon – it may not have been made in written submissions – that the deed could not stand as a bar to the third matter of relief which is claimed which is the relief for seeking a declaration in that the decision to terminate employment was contrary to the implied freedom of political communication?

MS HEGER:   My submission is that the deed does impose a bar to a claim of that nature.  Specifically, the terms of the deed are broad in terms of defining the sorts of proceedings in respect of which the bar operates.  Obviously the bar lies, well, in several clauses.  The first is the plaintiff has obviously released the Department and each of its officers from all claims and liability arising in the proceedings, the employment and termination in clause 3.2 and similarly which appears in clause 7.2 which is the effective bar to any future proceedings.

HIS HONOUR:   I think the plaintiff’s point is slightly different from that. The point is that if there is a substantive right that is created by the implied freedom of political communication under the Constitution, then the parties could not on their contract exclude that right.

MS HEGER:   Yes.  Well, I understand that submission.  Of course, the implied freedom is not something that confers a substantive right on any individual.  Rather, it is a principle that limits the operation of at least legislative power, and so the claim that would be made by the plaintiff is obviously that the Public Service Act should be read in the light of that ….. and that is a claim that falls squarely within the terms of the bar to proceedings found in the deed.

Now, obviously I do not propose to canvas matters that have already been outlined in the written submissions.  I think your Honour appreciates our various arguments as to why the application does not have any

reasonable prospect of success.  In terms of the delay, you have seen from the written submissions that I say the delay is lengthy and no reasonable explanation has been provided for it and I have outline in the written submissions why the evidence which I presume the plaintiff proposes to tender today regarding the state of her health is not sufficient to explain that lengthy delay.  That is all adequately set out in the written submissions, I think.

In terms of the various rounds for seeking relief in the nature of certiorari in respect of the deed, your Honour has seen our submissions on duress.  The plaintiff has also raised in oral submissions today the claim that it was unlawful in the sense of an amount being withheld from the settlement amount.  The contention, I understand, is that somehow evidence is an error of law on the Commonwealth’s part in entering into the deed. 

I would simply note that it is actually a requirement under the Taxation Administration Act 1953 specially paragraph 12‑85(b) of subdivision 12‑C of Chapter 2 of Schedule 1 to that Act which relevantly provides that an employer “must withhold” a PAYG amount from an employment termination payment, so that provides the basis for the withholding of that amount. Otherwise, I rely on my written submissions and you will see that I also have an obligation ….. in terms of costs but obviously that will await the outcome of your Honour’s decision today.

HIS HONOUR:   Yes.  Thank you.  Yes, Ms Richardson.

MS RICHARDSON:   Thank you, your Honour.  Could I note one matter of housekeeping?  The application to show cause filed by Ms Banerji names my client as being the Public Interest Advocacy Centre Sydney which is not my client’s correct name.  The correct corporate name of my client is Public Interest Advocacy Centre Ltd.  We have entered a conditional appearance in this proceeding and that conditional appearance reflects our correct name.  We are happy to proceed. 

It is clear that Ms Banerji is seeking to join us, so we accept we have entered a conditional appearance by reference to our correct name.  The record should record that.  For completeness, the ASIC search showing our correct name is at page 5 of the affidavit served at paginated page 5 of that affidavit and I read that affidavit of Mr Theo Varvaressos ‑ ‑ ‑

HIS HONOUR:   Yes, thank you.  That will also be taken as read.

MS RICHARDSON: ‑ ‑ ‑ which is an affidavit affirmed 8 May 2017. Your Honour will have seen in a list of authorities that we served this morning referring to three cases which stand broadly for the proposition that where the original jurisdiction in a proceeding arises by reference to certain matters under section 75, in contradistinction, for example, to section 76(i) of the Constitution, that that thereby confers on the Court original jurisdiction in the entire matter by reference to the identity of a particular party being sued, for example, the Commonwealth, and not just jurisdiction visa vie the particular person referred to in section 75(iii).

HIS HONOUR:   That is just the Re Wakim point, is it not?  That jurisdiction in relation to one carries with it the jurisdiction in relation to the others.

MS RICHARDSON: Yes, your Honour. So we – I know that the second defendant has not addressed expressly whether or not it accepts jurisdiction exists in respect of it under either section 75(iii) or 75(v) of the Constitution. But, if it is the case that that is either conceded or your Honour finds that there is just jurisdiction under either of those subsections of 75, then we would accept by reference to the three authorities cited on our list of authorities today that that would carry with it original jurisdiction over the entire matter.

So what my client submits – and while I am dealing with the question of original jurisdiction, Ms Banerji has referred to diversity jurisdiction of this Court under section 75(iv) of the Constitution. We would say there is no diversity jurisdiction in this case for two reasons. Firstly, PIAC cannot be relevantly a resident within section 75(iv) because it is a corporation. I have not come armed with authorities for that proposition because I did not know it would be advanced, but that is a well‑accepted proposition, in my submission.

Secondly, there is no diversity jurisdiction because Ms Banerji lives in the ACT, which is a Territory and which is not relevantly referred to in section 75(iv). So there is no diversity jurisdiction in this matter, in my submission. So, next, my client submits that even if it is the case that there is jurisdiction over the entire proceeding because of jurisdiction over the Commonwealth or a Commonwealth officer under section 75 ‑ ‑ ‑

HIS HONOUR:   As I understand your submission, that is, that if there is jurisdiction over the second defendant and if the second defendant’s claim – or the claim against the second defendant is not granted summary judgment against it, then you accept that there would be jurisdiction in relation to the third defendant?  But you say that, for the reasons advanced by the second defendant, there is no basis for a claim against the second defendant, so the jurisdiction falls away against the third defendant?  Is that right?

MS RICHARDSON: Yes, we would accept that if the Court were to dismiss the claim summarily as against the second defendant, then jurisdiction would necessarily fall away against my client. We separately argue that the Court would dismiss the claims against my client under rule 25.03.3(a) of the High Court Rules today on the basis advanced in our submissions, which is also a basis we have advanced by correspondence with Ms Banerji on 27 April, and that is that her application does not raise an arguable case necessary for the grant of relief against PIAC.

Firstly, in relation to the application for certiorari, which is at prayer 14 of the application to show cause, the Court would be aware certiorari is only available to quash a decision of an inferior court or tribunal and, where a body is a purely domestic body, certiorari will not lie.

Here Ms Banerji is seeking a writ of certiorari to quash a contract between her and PIAC.  So not only is it a contract she is seeking to quash; it is a contract between her, a private citizen, and a private body.  And we have given your Honour the references in the submissions to ASIC and other searches proving what type of corporate body my client is.

So, in my client’s submission, the Court would exercise its discretion under rule 25.03.3(a) to dismiss prayer 14 against PIAC seeking certiorari on the basis that there is no arguable basis for the granting of any relief, and I refer in particular to our written submissions at paragraphs 15 to 18 in that respect.

In relation to prayer 15, which is the application for mandamus against my client, it is axiomatic that a writ of mandamus would only compel an administrative authority to perform a public duty and it will not issue for a private purpose or to enforce a private right, and we have given your Honour the citation to the decision of Belcaro v Brisbane City Council (1963) 110 CLR 253 at 260.

That case concerned an agreement and the Court there held that the agreement lacked the public character necessary for the remedy of mandamus. Here, again, Ms Banerji is seeking a writ of mandamus compelling my client, PIAC, a private body, to repay moneys to her under a contract. Thus, my client submits that this Court would dismiss prayer 15, again under rule 25.03.3(a), as having no arguable basis for the grant of that relief.

The final prayer sought against my client is the declaration in paragraph 13 of the application to show cause. Ms Banerji has not identified any basis upon which such a declaration should be made. Your Honour will see at page 4 of her application that no basis is put forward for that declaration. Rather, she just cross‑refers to the costs agreement which she entered into with my client. I note in that respect rule 25.04 of the High Court Rules that Ms Banerji is limited to the grounds stated in her application at the hearing of the show cause. So she is bound by the absence of any basis for that declaration set out in her application.

Given that Ms Banerji has not set out any basis upon which a declaration ought to be made, we submit that the Court would also exercise its discretion to dismiss prayer 13 of the application, noting that if summary dismissal occurred without any trial on the merits that Ms Banerji would be free to commence a different application – an application in a different court agitating that matter. 

Next, and I will not go into this in detail, we submit, for the same reasons the second defendant has submitted, that the Court would dismiss the claims against PIAC on the basis of the significant and unexplained delay contrary to the High Court Rules, and that the Court would not grant an extension either in respect of certiorari – that is, there requires to be exceptional ‑ ‑ ‑

HIS HONOUR:   That assumes that certiorari or mandamus is available.

MS RICHARDSON:   Yes, your Honour.  In circumstances where, in my submission, it is unarguable that it does not run, I will not delay making submissions about the significant delay but an additional hurdle is the delay.  Next, your Honour will see at paragraph 24 ‑ ‑ ‑

HIS HONOUR:   Your primary submission though, essentially, is that without any claim against the first or second defendants there is no jurisdiction against the third defendant. So that is not – one would not even then get to the question of dismissal under 25.03 of the High Court Rules because in the absence of jurisdiction, then an adjudication of the merits of the claim would not take place for the purposes of summary judgment.

MS RICHARDSON: Yes, your Honour. Finally, in relation to remitter, we have submitted at paragraph 24 of our written submissions that there was no power to remit this proceeding on the basis that the power to remit under section 44 is only enlivened if the Court has jurisdiction in respect of the proceeding that is sought to be remitted. I seek to adjust that submission slightly on the basis of the three authorities we brought to your Honour’s attention in the list of authorities that if your Honour were to not summarily dismiss the matter against the second defendant and thus – and if your Honour were to find that there is jurisdiction in respect of the second defendant and it was not summarily dismissed, then there would be jurisdiction in respect of the third defendant and in that scenario we would accept that there would be a power of remitter.

If your Honour got to the stage of considering remitter we would submit – firstly, our primary case is the entire claim against us ought to be dismissed on the basis of no cause of action disclosed. If your Honour is against us in relation to that we submit that the natural forum that this case would be remitted to is the Supreme Court of New South Wales for three reasons and that your Honour would have power in those circumstances under section 44(1) of the Judiciary Act because the Supreme Court of New South Wales would have jurisdiction with respect to the subject matter and the parties of the claims against PIAC.  Firstly, the Supreme Court of New South Wales is the natural forum because, firstly, your Honour will see from the costs agreement that Ms Banerji signed with my client that the governing law of the costs agreement is New South Wales. 

Secondly, the ASIC search which is at paginated page 5 of the exhibit to the affidavit read by me establishes that PIAC is a body based in Sydney and Ms Banerji has accepted in her opening submissions today that PIAC is based in Sydney.  Thirdly, the Federal Court case that PIAC represented Ms Banerji in was heard in the Sydney Registry of the Federal Court.  That was in the Fair Work Division of the Federal Court before Justice Rares and your Honour sees that in Appendix B to Ms Banerji’s affidavit at Recital C of the settlement deed records the Federal Court proceeding numbers as NSD 21/2014.

Thus, in my submission, those connections to New South Wales would make the Supreme Court of New South Wales the natural forum for the PIAC claims to be remitted to and in that respect if your Honour was minded to remit the part of the matter relating to PIAC we would submit that your Honour has the power to separately remit the proceeding as it relates to PIAC to the New South Wales Supreme Court and if your Honour were minded to remit the claims against the second defendant separately that they would be either remitted to a different court, and the second defendant has submitted they should be remitted to the Federal Court of Australia either to a different court or remitted separately such that they are separate proceedings. 

The basis for that, your Honour, is that we submit that the claims against PIAC in relation to the cost agreement and PIAC’s representation of Ms Banerji are separate to the claims in relation to the second defendant.  I note in that respect that Ms Banerji has made a claim of a conflict of interest between the second defendant and PIAC, but in the application that is only made in support of a writ of certiorari to quash the deed of settlement and we would submit that the writ of certiorari would not run to quash a private deed between parties.  So, in my submission, any connection between PIAC and the second defendant falls away and your Honour – and if your Honour is minded to remit matters, remit the PIAC claim separately to the rest of the matter.  Unless I can assist your Honour further, those are my submissions.

HIS HONOUR:   Yes, thank you, Ms Richardson.  Ms Banerji, is there anything that you would like to say in reply to those submissions?  You will appreciate that the essence again of the submissions against you does not go to any of the – what I might describe as the factual substratum of the case.  The point that the third defendant is making is that this Court does not have any jurisdiction essentially that the matter was brought in the wrong court and the point that the second defendant is making were the obstacles that I referred you to at the start.

MS BANERJI:   Yes, your Honour, I understand.  Sadly, I can see the logic in that.  I guess my hope would be that this Court has the power to sever that aspect of the matter somehow, so as to simply address the question of whether the termination was unlawful.  So if – I can understand all the arguments that PIAC has put forward.  My reason for including PIAC, and I thought about this a great deal before writing the documents, was that without bringing them into the matter as a party then it would not be possible to bring forward evidence about the larger aspect of the whole matter which was essentially to use that experience of a public servant to impact upon the behaviour of other public servants in the matter.  So that was the reason essentially – I mean, my allegations about the agreement stand.  I do think they were wrong to not go ahead with the implied freedom argument.  They refused to and, in fact, threatened me.

HIS HONOUR:   Once again, this is the facts or the substratum of the case that is not relevant today.

MS BANERJI: Yes, okay. There was just one thing that was mentioned that I wanted to say. The High Court Rules in some ways by referring to time limits, in fact, tend to fetter section 75(v). This Court has the power to avoid those rules about the time limits and I would appeal to the Court that it do so on the grounds that I have been very ill and I have not been able to ‑ ‑ ‑

HIS HONOUR:   Yes, I have read that evidence.  Yes, I understand that.  I will adjourn briefly to consider the course that I will take.

AT 3.02 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.27 PM:

HIS HONOUR:   This matter comes before me by a summons in which the plaintiff seeks orders that the defendants show cause why writs claiming various relief should not issue. The plaintiff, Ms Banerji, seeks orders that the defendant show cause why relief should not issue including constitutional writs, writs of certiorari, declarations, damages and punitive damages. The defendants seek orders under rule 25.03.3(a) of the High Court Rules 2004 (Cth) dismissing the plaintiff’s application.

From 2006, the plaintiff was employed by the Commonwealth of Australia, Department of Immigration Border Protection.  On 27 September 2013, the Commonwealth terminated the plaintiff’s employment.  The plaintiff has provided evidence that the termination related to tweeting by her that the Department was not abiding by the Refugee Convention.  The plaintiff commenced a proceeding in the Federal Court of Australia against her employer, the Commonwealth of Australia. 

The proceeding was settled by a deed between the parties dated 28 March 2014.  The terms of settlement included a money payment less a withholding for tax purposes.  In the deed, the plaintiff agreed to discontinue the proceeding and released the Commonwealth represented by the Department of Immigration and Border Protection and each of its officers, employees and agents from all claims and liability arising out of the proceedings, the employment and the termination. 

The proceedings were defined as “legal proceedings against the employer in the Federal Court of Australia in matter number NSD 21/2014”.  The release covered claims and liability that arise in the future and all claims, whether or not such claims are presently within the contemplation of any party, and whether or not the facts or law giving rise to any such claim are presently within the belief or knowledge of any party.

The plaintiff also agreed in the deed not to make any further claim or bring any further legal or other proceedings against the Department or its officers, employees or agents in respect of any matter arising out of the proceedings, the employment and the termination.  The plaintiff also acknowledged and agreed that she had a reasonable opportunity to obtain legal advice about the deed and that the terms of the deed were fair and reasonable. 

The plaintiff was represented by the third defendant, the Public Interest Advocacy Centre Ltd.  She entered into a conditional costs agreement with the third defendant on 29 January 2014. 

Pursuant to the costs agreement, an amount was paid from the settlement sum for the third defendant’s fees and counsel fees.  I also note that although the plaintiff alleged this afternoon that the withholding deduction from the settlement was unlawful, presumably as contrary to the provisions of the Taxation Administration Act 1953, Schedule 1, subdivision 12‑C, provision 12-85(b), she did not refer to any basis for that conclusion.

By summons for directions dated 28 March 2017, the plaintiff brings this application for the defendants to show cause filed in this Court in January 2017.  She seeks extensions of time where applicable and seeks the following relief.  As against the second defendant, the Secretary of the Department of Immigration and Border Protection:

(1)Writs of certiorari to quash:

(a)the deed of settlement between the plaintiff and the second defendant;

(b)the second defendant’s decision to terminate the plaintiff’s employment; and

(c)the second defendant’s decision to publish the reason for termination in the Commonwealth Gazette.

(2)Declarations that:

(a)the second defendant’s decision to terminate the plaintiff’s employment on 23 September 2013 was ultra vires and contrary to the implied freedom of political communication arising out of the Australian Constitution and, therefore, unlawful; and

(b)the second defendant’s decision to publish the unlawful termination in the Commonwealth Gazette was wrong and in so doing defamatory to the plaintiff.

(3)Writs of mandamus directed to the second defendant to:

(a)reinstate the plaintiff’s employment;

(b)correct the entry in the Commonwealth Gazette;

(c)pay damages for unlawful termination of employment; and

(d)pay damages for defamation caused to the plaintiff with consequent loss of reputation and loss of chance.

(4)An order to the second defendant to pay damages to the plaintiff for damages caused, both material and non‑material; and

(5)An order to the second defendant to pay punitive damages to the plaintiff for acting contrary to law.

As against the third defendant:

(1)a declaration the third defendant failed properly to represent the plaintiff causing detriment;

(2)a writ of certiorari to set aside the costs agreement; and

(3)a writ of mandamus to reimburse the payment made by the plaintiff.

No relief is sought against the first defendant, the Minister for Immigration and Border Protection.  Although the plaintiff asserted the Minister was involved in the Department’s actions, the Commonwealth by the Department is not a party to this proceeding.  The Minister is not a necessary and proper party to this proceeding.

Turning to the claims against the second defendant, none of the plaintiff’s evidence or submissions reveals any arguable basis for any of the relief sought against the second defendant.  Unless the deed of settlement is set aside its terms operate as a bar to any claim arising out of the proceedings, the employment or the termination.  The plaintiff faces four insurmountable obstacles in her claim for a writ of certiorari against the second defendant to quash the deed of settlement. 

First, the most obvious obstacle pointed out to the plaintiff in correspondence on 24 January 2017, is that the second defendant is not a party to the deed of settlement. 

Secondly, an obstacle to a writ of certiorari purportedly to quash the deed of settlement is that the deed has legal effect because of the plaintiff’s manifested consent to be bound by its terms and not merely from any actions of the Commonwealth, see Griffith University v Tang (2005) 221 CLR 99 at 129 at paragraph [82].

Thirdly, there is the absence of any identified error of law or jurisdictional error. 

Fourthly, there is a lack of any factual or legal foundation for setting aside the deed of settlement.  The plaintiff alleges that the deed of settlement can be set aside for duress.  The plaintiff was and is a qualified lawyer who was legally represented at the time of signing the deed.  She signed the deed containing an acknowledgement that she had a reasonable opportunity to obtain legal advice.  She has little or no prospect of successfully establishing her claim that the deed was executed under duress based upon her claim that she lacked the opportunity to obtain legal advice with the offer and the settlement being conducted within one half hour of the hearing to begin.

The plaintiff also submitted that she had a right to a declaration that termination of her employment was contrary to the implied freedom of political communication.  She did not refer to any authority which supports the existence of the implied freedom operating to confer such positive rights rather than operating as a constraint upon legislative power.  But even to the extent that the constitutional implication might be developed in future cases, there is no authority or basis for its extension to confer an individual right to continued employment particularly from a person who is not a party to the proceedings.

We appear to have lost the video link.  I will adjourn for a moment to allow the video link to be re‑established.

AT 3.35 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.41 PM:

HIS HONOUR:   I will continue with my reasons for decision, now that the video link is re‑established.  Even if the plaintiff’s application disclosed some arguable basis for certiorari to issue to quash the deed of settlement, it would not be appropriate to enlarge time to permit the issue of a writ of certiorari.  The plaintiff’s application was brought more than two and a half years after the deed of settlement upon which it is based. 

Rule 25.06.1 of the High Court Rules requires an application for an order to show cause why a writ of certiorari should not issue to be made within six months.  Although the Court has the power to extend the time limit under rule 4.02, in relation to properly constituted proceedings for certiorari, Justice McHugh observed in Re Commonwealth of Australia; Ex parte Marks (2000) 75 ALJR 470 at 474, paragraph [16], that:

“The time for seeking certiorari is six times, and the time for seeking mandamus is twice, the period in which an application for special leave to appeal to this Court can be brought against a judgment or decision.  The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this Court.  In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this Court.”

This is not an exceptional case.  The plaintiff relies upon a medical report concerning her health, including diagnosed depression and distress.  However, the medical report is dated more than a year before the plaintiff brought this application and although it observes that it takes the plaintiff a long time to prepare documents, the report does note that she has been able to engage in a voluntary legal capacity.  For these reasons, the claim against the second defendant must be dismissed.

There being no claim against the second defendant, I turn to the remaining party, the third defendant. The third defendant’s primary submission was that this Court has no jurisdiction to hear, or consequently to remit as a pending matter under section 44 of the Judiciary Act 1903, any of the claims for a declaration, a writ of mandamus, or a writ of certiorari that are made against the third defendant.

The third defendant is not the Commonwealth; it is a non‑governmental Australian company limited by guarantee. It did not exercise any governmental power in entering the costs agreement. Its entry into the costs agreement and obligations under that costs agreement were private matters which involve private rights of the plaintiff. The proceeding commenced is not between residents of different States and none of the plaintiff’s claims against the third defendant falls within the original jurisdiction of this Court under section 75 of the Constitution or laws conferring original jurisdiction enacted under section 76 of the Constitution.

It is, however, ultimately unnecessary to decide whether this Court could have original jurisdiction in relation to the third defendant by virtue of an untenable claim against the second defendant. This is because the matters to which I have just referred establish that there is no basis for any writ of mandamus or certiorari against the third defendant. As for the declaration sought by the plaintiff against the third defendant, no basis was identified in the application or evidence which could support that declaration. The claims against the third defendant should also be dismissed under rule 25.03.3(a) of the High Court Rules. 

I should record in conclusion that the plaintiff asserted that she may be able to amend her documents to bring a viable claim, potentially in a different court.  The conclusion that I reach dismisses these proceedings but, as senior counsel for the third defendant observes, it does not address the underlying merit of any of the plaintiff’s claims which is not the subject of evidence or argument before me. 

Yes, Ms Heger, do you have any further submissions you want to make?

MS HEGER:   Yes, your Honour.  The Secretary seeks his costs in relation to these proceedings on an indemnity basis.  Obviously costs are a matter within the court’s discretion under rule 50.01.  The Secretary’s primary position is that all of his costs in relation to these proceedings should be paid on an indemnity basis and that submission relies upon the terms of the deed.  You will have seen the clause ‑ ‑ ‑

HIS HONOUR:   The Secretary is not a party to the deed.

MS HEGER:   That is true, however, clause 3.3 of the deed is the clause under which Ms Banerji indemnifies the employer and each of its officers, employees and agents against any loss, damage or expense, including legal fees incurred by the employer or any of its officers, employees and agents arising directly or indirectly out of any breach by Ms Banerji of the deed.

So, while the Secretary is not a party to the deed and arguably may not be able to sue upon it, certainly the terms of that clause are, in my submission, a matter that this court can take into account in exercising its discretion with respect to costs.  Now, that indemnity is engaged because Ms Banerji has breached clause 7.1 of the deed, under which she agreed not to bring any further proceedings against the employer or any of its officers, employees or agents in respect of any matter arising out of the proceedings as defined in the employment and the termination as defined.

In my respectful submission, in light of your Honour’s reasons today that these proceedings are of the kind contemplated by clause 7.2, i.e. any proceedings in respect of any matters arising out of employment or termination, it necessarily follows that Ms Banerji has breached clause 7.1 of the deed and that the indemnity is engaged.  So that is the basis upon which I submit all of the Secretary’s costs should be paid on an indemnity basis. 

The alternative submission is that they should be paid only an indemnity basis from certain points in time. The first is 27 January of this year and the Court will have seen in correspondence of that date the Secretary’s solicitors wrote to Ms Banerji and pointed out that insofar as

she seeks relief in respect of the deed, that cannot be sought against the Secretary who is not a party ‑ ‑ ‑

HIS HONOUR:   That is 27 January?

MS HEGER:   27 January, yes.  The Secretary is not a party to that deed.  The Commonwealth is obviously – sorry, I should have said 24 January 2017.  Obviously the Commonwealth is a proper party in respect of that claim.  Ms Banerji refused to amend the process in order to join the Commonwealth and so the Secretary seeks indemnity costs in respect of responding to the claims regarding the deed.

Furthermore, on 13 April 2017, the Secretary’s solicitors again wrote to Ms Banerji pointing out the issues with her claim generally.  You will have seen that is exhibit PBD6 to the affidavit of Paul Vane‑Tempest which I read earlier.  That letter pointed out the various problems with the application, including the fact that the relief sought was barred by the terms of the deed, the fact that the deed is merely a contractual agreement between the plaintiff and the Commonwealth and is not amenable to certiorari, the fact that the application was made out of time and that there are no particular circumstances that justify an extension, and again noted that the Commonwealth is the proper party to any relief claimed in respect of the deed.

Those are, with respect, all matters that your Honour has mentioned in your reasons for dismissing the claim today, and on that basis the alternative submission is that the Secretary should have his costs on an indemnity basis from 13 April, and I should note that that correspondence foreshadowed an intention to seek indemnity costs.

HIS HONOUR:   The Minister only seeks costs on the standard basis?

MS HEGER:   Yes, that is correct.

HIS HONOUR:   All right.  Yes, Ms Richardson, is there anything you want to say?

MS RICHARDSON:   My client, as foreshadowed in its written submissions, seeks its costs but on an ordinary basis.

HIS HONOUR:   Thank you.  Ms Banerji, is there anything you want to say in reply?  Usually costs would follow the event.  If there is anything you want to say in reply to the application for indemnity costs particularly, then I will hear your submissions.

MS BANERJI:   Yes, I understand that.  Unfortunately, your Honour, the public interest aspect of the matter appears to have been ignored.  You have made no comment in your judgment about that aspect of the matter.  The deed, in my view, is voidable because it was created under circumstances that render it voidable.  The Court may be lenient in relation to costs.  On the other hand, I understand the principle.

HIS HONOUR:   Yes, thank you, Ms Banerji.

The first, second and third defendants seek their costs of the proceeding.  It is appropriate that the plaintiff should pay the costs of the first and third defendants.  The usual rule of costs is that they are allowed only on a party/party basis.  However, the second defendant seeks orders that the application be dismissed with costs to be paid on an indemnity basis.

The second defendant relies on clauses 3.3 and 3.4 of the deed of settlement by which the plaintiff indemnified the Commonwealth represented by the Department, and all of its officers, including the second defendant, against loss, damage or expense, including legal fees arising directly or indirectly out of any breach by the plaintiff of the deed.  The second defendant submits that the plaintiff has breached clause 7.1 of the deed of settlement by bringing further legal proceedings in respect of a matter arising out of the proceedings, the employment or the termination.

This is no more than a background matter to the exercise of discretion in circumstances in which the second defendant is not a party and does not and cannot bring an action for breach of contract.  However, I take into account the clearly hopeless nature of the plaintiff’s claim against the second defendant on the basis of the matters I described rather than, as I have mentioned, the underlying merits or any public interest in them to which the plaintiff has referred.  I also take into account the fact that the plaintiff has qualified as a lawyer.

On 24 January 2017, the solicitors for the second defendant wrote to the plaintiff pointing out that the counterparty to the deed of settlement upon which she sought relief was the Commonwealth of Australia, Department of Immigration and Border Protection.  Neither the second defendant nor the Minister was a party to that deed.  The plaintiff was invited to discontinue her claim against the Minister and to join instead the counterparty to the contract.  She did not do so.

It is appropriate to order that the plaintiff pay the second defendant’s costs of this application on the standard basis until 23 January 2017 and on the indemnity basis from 24 January 2017.  For those reasons, the orders that I will make are:

1.Dismiss the plaintiff’s application against all defendants;

2.The plaintiff pay the second defendant’s costs of the application on the standard basis until 23 January 2017 and on an indemnity basis until 24 January 2017;

3.The plaintiff pay the first and third defendants’ costs of the application.

The second defendant has liberty, as I mentioned at the outset, to uplift the affidavit evidence and to redact the confidential amounts in the deed of settlement.

MS HEGER:   I should note, it is not merely the affidavit evidence; it is also the plaintiff’s application itself, paragraph 2 on page 4, and also the Secretary’s submissions and PIAC’s submissions.

HIS HONOUR:   You have leave in relation to each of those.

MS HEGER:   If the Court pleases.

HIS HONOUR:   The Court will adjourn.

AT 3.55 PM THE MATTER WAS CONCLUDED