Behrooz & Ors v Secretary DIMIA

[2003] HCATrans 306

[2003] HCATrans 306

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A367 of 2002

B e t w e e n -

MAHRAN BEHROOZ

First Applicant

MAHMOOD GHOLANI MOGGADDAM

Second Applicant

DAVOOD AMIRI

Third Applicant

and

THE SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

THE ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA

Second Respondent

AUSTRALASIAN CORRECTIONAL MANAGEMENT PTY LTD

Third Respondent

AUSTRALASIAN CORRECTIONAL SERVICES PTY LTD

Fourth Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 14 AUGUST 2003, AT 11.12 AM

Copyright in the High Court of Australia

__________________

MR J.W.K. BURNSIDE, QC:   If the Court please, I appear with my learned friends, MR J.P. MANETTA, for the applicants.  (instructed by Jeremy Moore & Associates)

MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth of Australia:   If the Court pleases, I appear with my learned friend, MS M.A. PERRY, for the respondent.  (instructed by Australian Government Solicitor)

GUMMOW J:   I should indicate before we proceed that the Court holds a certificate from the Deputy Registrar that she has been informed by the solicitors for the third and fourth respondents that they submit to any order of the Court save as to costs.  Yes, Mr Burnside.

MR BURNSIDE:   If the Court please, the question in this matter is whether detention which is authorised by section 196 can be imposed with conditions which are needlessly harsh.

GUMMOW J:   That is not quite the question, is it?  It all arises at an interlocutory level in an awkward fashion, but it arises in an awkward fashion partly because the Commonwealth chose to have upset the initial decision by the magistrate.

HAYNE J:   On an interlocutory decision in a criminal proceeding by appealing to a superior court, thus interrupting the ordinary processes of the criminal law.

MR BURNSIDE:   Indeed, but they had in tandem with that an application for certiorari, although we must take some responsibility.  We wanted the question decided efficiently rather than taking points on the way through ‑ ‑ ‑

HAYNE J:   This Court has repeatedly said that the interruption of criminal process by interlocutory appeals is to be avoided wherever possible.

MR BURNSIDE:   I understand that, your Honour, and I think it is fair to say that his Honour Justice Gray was aware of that proposition.  The Commonwealth made it plain that, by one path or the other, they were going to test the point, including testing it in the High Court. 

Now, the difficulty arises if the Court dismisses the application on that basis is that the trial will go ahead without the benefit of the documents which were sought, although we agree that his Honour should not have been called in aid in the course of the trial.

KIRBY J:   That is the problem.  The course of the trial was interrupted, an order was made and then it started its journey towards us.

MR BURNSIDE:   Yes.

KIRBY J:   But the consequence is that unless we intervene the trial will be conducted without the relevant evidence.  It is a sort of catch‑22 situation.

MR BURNSIDE:   It is.

KIRBY J:   One of the reasons for restraint in interlocutory applications in criminal appeals is to allow the trial to proceed and the facts to be elucidated, the matter to be then dealt with in the whole, but now, because of what has happened, the facts will not be elucidated unless you can have Justice Gray’s orders overturned.

MR BURNSIDE:   That is right, and the trial is presently fixed to start on Monday of next week.  Now, I think it is fair to say that at the time the Crown brought their appeal before Justice Gray it was thought that the whole process would be concluded before the trial began, but that is the way things are.  Whilst the principle that the course of a criminal trial should not be interrupted is designed to make sure the trial is run properly, to refuse leave now would guarantee that the trial does not run properly.

HAYNE J:   In part, it is also to ensure that questions are tendered with a sufficient factual base to permit the proper application of law to known and ascertained facts.  What is the factual base on which you would invite the Court to determine a question?

MR BURNSIDE:   There was a factual base concerning conditions put in the material before his Honour.  The documents which were sought are directed to identifying the precise conditions of detention in Woomera.

GUMMOW J:   Is there any indication in Justice Gray’s reasons of the factual base you just mentioned?

MR BURNSIDE:   Yes, he sets out at some length various aspects of the evidence which were adduced in relation to that, beginning at page 32 of the application book.  Of course, the decision of the magistrate, which is also in the application book, contains a more lengthy discussion of those conditions and ‑ ‑ ‑

KIRBY J:   Can you not establish the evidentiary matters by subpoenas ad test to get witnesses who can depose?  I saw somewhere here an opinion of Professor Richard Harding of the University of Western Australia.  Is that not another way that you could prove these matters?

MR BURNSIDE:   That material was placed before the magistrate by way of an affidavit of the instructing solicitor who also adduced evidence from various other sources about conditions at Woomera and concern about conditions at Woomera.  That was the factual base and it is spelt out in more detail at 44 to 49.

KIRBY J:   Was that to sustain the subpoena and to show that it was not a pure fishing expedition and that you had a justifiable course of inquiry that you were pursuing?

MR BURNSIDE:   Exactly so, yes, exactly.

KIRBY J:   But it did not exhaust the evidence and it did not produce it from the source that would be most authoritative and probative.

MR BURNSIDE:   That is so, and the subpoenas in question were subpoenas for documents directed to the Department and ACM.  It happened that they were the subpoenas first issued and first challenged; it is not necessarily the full extent of subpoenas possible.  But given the point on which Justice Gray decided the matter, the facts in one sense do not matter very much because his Honour said that no matter what evidence you might call about conditions, it would not be legally relevant.

GUMMOW J:   Yes, where does his Honour say that?

MR BURNSIDE:   Application book 52, paragraphs 72 and 73.  Now, the effect of that is, and taken with the reasoning that precedes it, that no imaginable conditions of detention would invalidate the detention, that is to say, would prevent it from being lawful immigration detention as authorised by section 196, and that is the question which we seek to agitate if leave is given.

GUMMOW J:   That would cover any subpoenas ad test as well as his documents, that reasoning.

MR BURNSIDE:   Yes, it would.  Yes, it would because ‑ ‑ ‑

KIRBY J:   Could you just give me a sketch of the grand theory that you are propounding.  Is it one of that the detention does not fall within the federal Act or that, if it does, or in any case, the federal Act in this respect to this degree is invalid or that the infliction of punishment on a person to this extent and this degree in some way contravenes the requirements of Chapter III of the Constitution?  Are they the three bases or is there something different or more?

MR BURNSIDE:   That is essentially – we do not challenge the constitutional validity of section 196 which authorises detention.  Section 3A of the Act ‑ ‑ ‑

GUMMOW J:   Section 196 has a long history, does it not?

MR BURNSIDE:   It does, but may I say the validity of the section is not in question for this reason, that section 3A requires the Court to read down any section to remain within constitutional bounds.

GUMMOW J:   Just stopping there for a minute, 3A is in an unusual form, is it not?  It is also in the Workplace Relations Act, I think.

MR BURNSIDE:   I think that is right, your Honour, although I have not checked.

GUMMOW J:   But 3A itself gives rise to questions of construction and validity maybe.

MR BURNSIDE:   That may be so, but let it be supposed that 196 is to ‑ ‑ ‑

GUMMOW J:   But, anyhow, you do not challenge 3A?

MR BURNSIDE:   No, we do not.

GUMMOW J:   You live within it?

MR BURNSIDE:   Yes, we do.

KIRBY J:   You want it.

MR BURNSIDE:   We do because ‑ ‑ ‑

KIRBY J:   But even if it were not there, I mean, every Act of the Parliament has to be read subject to the Constitution.

MR BURNSIDE:   So far as it can, indeed, and so when there is a broad mandate for detention, the question is, if one imagined the harshest possible conditions of detention and imagined that section 196 were amended so as to say, “You will be kept in detention with the following characteristics”, then would that specific mandate be valid?  By extension of the reasoning in Lim’s Case and the separation of powers, we would submit that such a provision would not be valid.  You could not validly authorise that unauthorised non-citizens be held in a darkened dungeon in the middle of the desert without ‑ ‑ ‑

KIRBY J:   Or in shackles moved about from place to place, half naked or naked, and in front of media and so on. That surely would not valid in our Constitution.

MR BURNSIDE:   Yes, the conditions which are acknowledge in the US Supreme Court by the majority as going beyond what would be proper referable to their due process clause.  So imagine that specific statutory authority were given for such detention, in our submission, that would plainly be beyond constitutional power as being self-evidently punitive beyond what is legitimately necessary for the administrative purpose served.

Then the question is, if conditions of that sort are in fact imposed under the current terms of section 196, are they within the power which 196 gives?  In our submission, by exactly the same reasoning, the answer must be no.  Accordingly, if people are kept in conditions of detention which could not be validly authorised by the Act, then they are being held in conditions which are not authorised by the Act and, to that extent, their detention in those conditions is unlawful.  It is not any longer immigration detention of the sort the Act speaks of and to escape it is not to escape from immigration detention. 

Now, it does not follow from this that they would, on being found in conditions like this, be entitled to be released into the community.  Of course that does not follow.  They would be entitled and liable to be held in continued detention of a sort authorised by the Act.  I mention that because in the reply submission the Commonwealth seemed to attribute to us an argument that if the conditions go beyond what is proper and it ceases to be lawful immigration detention, they are therefore no longer entitled to be held.  It does not follow and we do not contend for that result. 

What does follow, in our submission, is that they would be entitled by one order or another to be removed into the form of detention which the Act does authorise and if they escape from conditions which are not authorised, they have not escaped from immigration detention.  That is the grand theory, if we want to call it that.

KIRBY J:   What is your answer to this proposition: one can imagine that somebody who is kept in perfectly reasonable conditions which you would not complain of as being contrary to the requirements of the Act or the Constitution would come to a court and in defence of a trial put up a completely spurious defence of that kind seeking to delay the trial, to disrupt the detention and so on. Now, is there some threshold that you have to get to in order to establish that there is an arguable point that you are now being denied the opportunity of getting evidence to present at your trial in the District Court? Surely there would have to be some threshold, would there not, and is that established in this case?

MR BURNSIDE:   In our submission, it plainly is and the threshold, if I may say so, would be a question for the court which is invited to issue a subpoena.  There was no part of the Commonwealth’s argument to say, “You never got to the threshold”.  They simply said, no matter how bad the conditions might be, all of this is directed to an argument which is legally irrelevant.  That is their answer.  It is not ‑ ‑ ‑

KIRBY J:   What, that we could have in an immigration detention centre here the apparent conditions that we see on the television in Guantanamo Bay?

MR BURNSIDE:   They would certainly contend for that and they would contend ‑ ‑ ‑

KIRBY J:   I would need to be persuaded of that.  There does seem to be a matter to be argued at least.

MR BURNSIDE:   The Commonwealth, as we understand it, would also contend that you could impose conditions far worse than Guantanamo Bay.

GUMMOW J:   We will hear what the Solicitor says about that, rather than what you say about it.

MR BURNSIDE:   Yes.  Can I finish dealing with your Honour Justice Kirby’s question.  In our submission, whether there is a threshold issue made out on a defence would be a question for the court hearing the trial.  The learned magistrate had no difficulty that the threshold had been made out and therefore issued the subpoena.  The subpoena only goes with leave.  He gave that leave having heard argument on these points – or, rather, he gave that leave with this evidence and was then challenged on it and maintained the subpoenas.

KIRBY J:   Was he conducting a committal, was he?  Was that his role in the proceedings?

MR BURNSIDE:   No, our instructing solicitors sought to issue subpoenas.  The subpoenas which were propounded were supported by affidavit evidence ‑ ‑ ‑

HAYNE J:   But subpoenas in what process?  What was the proceeding?

MR BURNSIDE:   In the trial.

HAYNE J:   At trial?

MR BURNSIDE:   At trial in the Magistrates Court.

KIRBY J:   The trial is in the Magistrates Court.  Is this the Federal Magistrates Court or State ‑ ‑ ‑

MR BURNSIDE:   No, in the State Magistrates Court.

KIRBY J:   Exercising federal jurisdiction?

MR BURNSIDE:   Yes.  His Honour was satisfied that the subpoenas should issue.  They were issued.  The Crown then brought ‑ ‑ ‑

GUMMOW J:   There is a process for the issue of subpoenas in advance of commencement of a trial, is there?

MR BURNSIDE:   Yes, it is, well in advance and it has to be supported by affidavit evidence, to avoid exactly the problem that your Honour Justice Kirby adverts to.  But that affidavit evidence set out in great detail concerns about conditions there, including of course a recommendation by the Commonwealth’s independent advisory group that Woomera should be shut down.  None of that has been answered or questioned in the least degree.  The answer has always been, “It doesn’t matter.  No matter how harsh the conditions, it makes no difference.”

GUMMOW J:   Can we get to this specific:  the Full Court refused leave to appeal from Justice Gray’s decision, did it not?  Is not the usual course then to seek special leave from us in respect of that refusal by an intermediate court of appeal?

KIRBY J:   You have to do so, do you not, because the appeal lies to us from the last order which is the order governing the outcome?  It was a majority order in the Full Court and ‑ ‑ ‑

MR BURNSIDE:   Yes, your Honours, that is probably right and the Crown have foreshadowed their position on that, which is that they would not oppose it.  We would seek such leave as necessary to treat it as an appeal against that refusal of leave.  But may I say, with respect, although that converts it into an application in relation to a discretionary order, the clear basis for their order was the same legal point.  There were no discretionary considerations involved except that they held that the defence proposed could not be legally effective.  So, whilst it is a change of form, in our submission, it is no change in substance.

GUMMOW J:   Yes, they said:

we do not think it is reasonably arguable that [Justice Gray] erred in concluding that the applicants had not identified a defence known to law.

MR BURNSIDE:   Yes.

KIRBY J:   Justice Bleby dissented.  He said he did think it was reasonably arguable.

MR BURNSIDE:   Yes.  Either way, the same question arises identically and, in our submission, if the Court considered that the question of conditions being relevant to the legality of the particular form of detention,

then special leave should be granted.  Unless I can assist further, those are our submissions.

GUMMOW J:   Thank you, Mr Burnside.  We will hear from the Solicitor.

MR BENNETT:   Your Honours, the first major problem with this application is that it would result in the Court deciding an issue on unascertained facts.

HAYNE J:   You started it, Mr Solicitor.  The moment the Commonwealth sought to intervene in the interlocutory process by appealing to the Supreme Court, you set upon a path where these issues were to be determined in a factual vacuum.  That is inevitable, is it not, Mr Solicitor?

MR BENNETT:   It is inevitable up to that stage, your Honour, yes.

GUMMOW J:   Yes, you wanted it one way when it was going your way and when it did not go your way, you tried to make it go the other way.  It is called approbation and reprobation.

HAYNE J:   What counsel are paid to do.

MR BENNETT:   Yes.  Of course, part of the problem is that – I mean, we submit, of course, it has now gone the correct way.  But that is the first problem.  The material which was referred to as the evidentiary basis was described by his Honour at page 33 as being:

The documents included considerable political commentary from sources of doubtful independence.  The content of much of the material was non specific as to time.  None of the material related directly to the immigration detention of the defendants.

When the material itself is analysed at pages 44 and following, his Honour described it as being:

Material . . . of a general nature and primarily detailed matters related to other detainees at other immigration detention centres.

KIRBY J:   But that is not the basis on which his Honour rejected the application and if his Honour’s basis for rejecting it is wrong, then it is not for you to stand here and say that you will get between the applicant and proving his case as he thinks he has to prove it.  It is for him to decide how he presents his case, not you.  The point on which you won was that, whatever it said – whatever it said, it is just not admissible.

MR BENNETT:   Yes.  Your Honour, it is hard to see how evidence of the type subpoenaed is going to be of any value in relation to that sort of defence, but may I come ‑ ‑ ‑

HAYNE J:   In light of the Full Court, do you say, Mr Solicitor, that the magistrate could now consider it an open question whether the matters advanced constitute a defence at law?  Is the magistrate bound by what appears at paragraph 4 of the Full Court judgment?

MR BENNETT:   As a matter of precedent, yes, your Honour, and possibly as a matter of issue estoppel, yes.  But the other aspect of it is this, that the matters my learned friend seeks to ‑ ‑ ‑

GUMMOW J:   Well, Mr Solicitor, your side seems to have constructed this vehicle which has now produced paragraph 4 at page 92, as Justice Hayne just referred you to, which locks in a legal issue.

HAYNE J:   On no fact.

MR BENNETT:   Yes, your Honour.

HAYNE J:   So if it goes to trial, the evidence sought to be tendered is necessarily excluded.  It comes up to us in the same factual state as it now sits.

GUMMOW J:   That is the problem.

HAYNE J:   That is the vice.

MR BENNETT:   Yes, that is the problem.  But the other side to that is that the sort of matter which is sought to be alleged is not a matter which we would submit goes to the validity of the detention, and that is what his Honour found.

HAYNE J:   His Honour criticised the generality of the material.  Those criticisms may be well-founded, ill-founded.  But the consequence of paragraph 4 is that the most specific material about this applicant would be inadmissible, would it not?

MR BENNETT:   Yes, your Honour, because that material would not go to the validity of the detention.  It would go to tortious and perhaps criminal liability.  It might go to administrative remedy in relation to the conditions themselves, but it cannot justify an escape in the context where my learned friend concedes that the Act requires detention.  Even the American cases do not suggest that harsh conditions invalidate the detention itself.  The American authorities go to various orders remedying the conditions.

GUMMOW J:   We cannot really draw much sustenance from what they decide.

MR BENNETT:   Your Honour, we submit the English cases and the one Australian case on it make clear what we submit ‑ ‑ ‑

GUMMOW J:   They are not construing this section, as Mr Burnside seemed to agree.

MR BENNETT:   Your Honour, the section authorises detention.  If one does something which goes beyond the section, there are a range of administrative, civil and perhaps criminal remedies, but one of those remedies is not ‑ ‑ ‑

KIRBY J:   There are persons facing a trial next week.  I mean, that is of small comfort to them that they can sue the Commonwealth years later whilst they are perhaps suffering punishment for conviction on their trial.  That really is a most unpersuasive argument and a little hard of heart for you to put it.

MR BENNETT:   Woomera has been closed anyhow, your Honour, so that is not the – although if my learned friend were right, one would think they would prefer another form of imprisonment, but that is just a side-comment.  But we would submit that it is absolutely clear that conditions in a prison cannot go to the validity of detention.  They go to other forms of liability.

GUMMOW J:   That is a question on which the Full Court divided, is it not?

MR BENNETT:   Divided on the question of whether it was arguable, yes.

GUMMOW J:   Yes.

KIRBY J:   Justice Bleby made the point that it raised important questions.

GUMMOW J:   Now, you may turn out to be right in the end, but there does seem to be a question there.

MR BENNETT:   Well, your Honour, we submit there is not.  We submit no case in America, England or Australia has ever held that detention can be unlawful because of conditions.

KIRBY J:   Why does it not pass out of the definition?  If the conditions are highly punitive and, indeed, contrary to human dignity, then I can well imagine that there is a strong argument that it is no longer detention.  It is imprisonment; it is degrading; it is inhuman.  In that event, it is not detention – it is not immigration detention as our Act and our Parliament has contemplated.  I can well understand that argument.  There may be no case elsewhere, I do not care.

MR BENNETT:   The ambiguity, with respect to what your Honour has put to me, is inherent in the word “it” is not immigration detention.  The detention is still immigration detention.  Those conditions might not be.  In relation to those conditions, there might well be remedies of the kinds I have referred to.  But it would not invalidate the detention itself.  It would merely make the conditions themselves unlawful, tortious or administratively challengeable.  That is the reason why the defence that is sought to be raised cannot exist in law.

KIRBY J:   Let us look at the logic of that.  If a person is in a condition which does not answer to the statutory definition of detention and that person is charged for escaping from lawful detention, why is it not in logic open to argument ‑ I am not finally deciding this now – that what the person has escaped from is something degrading, inhuman, punishment, that it does not answer to the description in the statute of detention and that the escape was justifiable in the circumstances.

MR BENNETT:   Well, your Honour, that is the jump that one cannot make.  There are remedies.  It is not suggested a person does not have access to lawyers and the ability to seek remedies if remedies are appropriate, but escape is simply not one of the remedies that is provided by the law where the detention itself is lawful.  If habeas corpus were brought, it would fail in that situation.  In the American cases, of course, habeas corpus is used for a different purpose.  The American cases make orders of habeas corpus which are not what we call habeas corpus.  They are habeas corpus requiring certain things to be done in the prison system.  That is a different sort of thing.

KIRBY J:   That is why, as Justice Gummow said, some of the American cases and their ideas of remedies are rather different to ours and, therefore, really, we have to look at it within our own paradigm of what the Constitution and Chapter III envisage and what limits they put on the powers of the Federal Parliament and what this particular statute means read against that background.

MR BENNETT:   Yes, and, of course, the arguments would also be available, by extension of various things, in relation to almost any form of imprisonment.  Imprisonment for crime the argument would be available.  The point is that mere conditions ‑ ‑ ‑

GUMMOW J:   The line is said to be a line that arises by reason of detention as punishment for criminal liability established by the exercise of judicial power. 

MR BENNETT:   Your Honour, the line is that detention is authorised. 

GUMMOW J:   There are cases where you do not necessarily have to have that support and there are cases described in Lim of quarantine and insanity and so on and so forth.

MR BENNETT:   Yes, there are other examples, yes.  But, again, your Honour, if the conditions are in some way such as to – you see, my learned friend does not suggest that he has a defence of necessity.  It is not like the case referred to, the case in the 16^th century of a person escaping from a burning gaol.  It is not that sort of case. 

KIRBY J:   There must have been cases of slaves escaping from ships and reaching British ports.  Do I not hear some famous words in the back of my mind?

MR BENNETT:   Somerset’s Case, your Honour.

KIRBY J:   Yes.  I mean, our courts have been ready to respect human dignity and escape from inhuman conditions.

MR BENNETT:   Somerset’s Case was not about inhuman conditions, your Honour.  It was about the fact that he was in private custody and the custodian could not justify it, except by reference to the slave trade.

KIRBY J:   Yes, but he was a slave who escaped and came to English soil and the courts said, “Let him go free”.

MR BENNETT:   He was a slave who was brought to English soil, your Honour, in a ship – soil perhaps in a technical sense.  There was an order for habeas corpus because he was imprisoned and ‑ ‑ ‑

KIRBY J:   These are famous cases.  You are beginning to make this case more and more interesting, Mr Solicitor.

MR BENNETT:   Somerset’s Case had nothing to do with conditions, your Honour.

KIRBY J:   But it does show that ultimately the courts will look at the conditions from which a person has escaped.

MR BENNETT:   No, your Honour, Somerset’s Case was only concerned with habeas corpus to release a person who was held in unlawful custody.  The question of conditions was irrelevant to it and there was no question of escape, as I recall it.  It was, rather, he was in a ship in irons and an application was brought for habeas corpus.  That was, as I recall, the extent of it.  I say that subject to correction, but that is my recollection of it. 

Your Honour, there is no case where anyone has said that conditions invalidate detention, as opposed to being tortious, criminal or administratively reviewable in their own right.  There are cases the other way which we have cited in New South Wales and in England, and even in the United States where the remedies are different the courts have not suggested that it would go that far.

GUMMOW J:   But, anyhow, if these matters remain for decision at the State level in exercise of federal jurisdiction, there seem to be differing views at the moment.  It is going to come here sooner or later.

MR BENNETT:   Different views on whether it is arguable, your Honour.

GUMMOW J:   Yes.

KIRBY J:   Now there is a ruling binding on all courts in this State and because it is in federal jurisdiction likely to be followed in every court in this land that say there is no evidence that may be tendered against this detention.  That is the end of the matter and the evidence will never be received and this Court will never see a trial on the evidence, as Justice Hayne pointed out, because of the course you adopted.

MR BENNETT:   Well, your Honour, we were forced into that course, of course.  The subpoena was issued and a decision was made in relation to it which ‑ ‑ ‑

KIRBY J:   You make your decisions.  The Commonwealth is not likely to be forced into a position by these two applicants.

MR BENNETT:   No, your Honour, but we were faced with a decision which was ultimately held to be wrong which would have affected us at the time and no doubt extended the trial and caused all sorts of administrative problems.

I should say, your Honours – and I do not say this in terrorem, but it is one of the problems – that if leave is granted, we would probably issue a notice of contention in relation to the other aspect of his Honour’s decision concerning the fishing and the reasonableness of the subpoena and matters of that sort.

GUMMOW J:   No, we would be dealing with the Full Court decision.

MR BENNETT:   I am sorry, your Honour?

GUMMOW J:   We would be dealing with the Full Court decision.  If leave is to be granted, it is to be granted from the decision of the Full Court of the South Australian Supreme Court.

MR BENNETT:   Yes, your Honour.  Yes, the issue would then be the failure of that court to deal with that issue which it did not get to. 

GUMMOW J:   It could go back for them to fix that but ‑ ‑ ‑

MR BENNETT:   But that is another reason why it might be better to deal with the matter after a trial rather than before when one sees what the ‑ ‑ ‑

GUMMOW J:   Anyhow, all I am saying to you is that the terror is not very great because if it got to that stage, we would send it back for them to look at it again. 

KIRBY J:   We are not easily terrified.

MR BENNETT:   No.  The other issue is this, if direct evidence was sought to be given by the respondents, or by the applicants here, at the trial, it would be open to the trial judge to take the evidence subject to objection and then the matter could be dealt with, but that is a matter to be determined at the trial, of course.

KIRBY J:   But how can he do that in the face of a ruling of – the record stands at the ruling of the Full Court of the Supreme Court of South Australia and I cannot see how any trial judge can defy that ruling until it is lawfully set aside by this Court.  So that presents a problem, does it not, if special leave were granted, to the trial proceeding next week because the trial would then have to proceed on a footing that may ultimately prove to be erroneous?

MR BENNETT:   My understanding is, your Honour, that it has been indicated – and this is only my understanding ‑ that if special leave were granted, the trial would be adjourned. 

GUMMOW J:   Yes, that seems sensible.

MR BENNETT:   Yes.  If the Court pleases.

GUMMOW J:   Yes, thank you, Mr Solicitor.  We will take a short adjournment.

AT 11.47 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.51 AM:

GUMMOW J:   We would indicate to counsel that we are minded that there be a grant of special leave in this matter, but that the special leave be from the decision of the Full Court of the Supreme Court of South Australia.  There will therefore need to be, before we make the formal order, before us an appropriately redrafted notice of appeal.  When can that be provided to us, do you think, Mr Burnside?

MR BURNSIDE:   My junior says this afternoon.  For myself, I would have said tomorrow.

GUMMOW J:   Yes, we had in mind this afternoon.

MR BURNSIDE:   This afternoon.

GUMMOW J:   We would be minded to receive that at 2.15, along with the condition referred to in exchange with Mr Tilmouth in the other matters.  If there is any difficulty, let us know, but at the moment, we will deal with it at 2.15.  We will now adjourn to reconstitute.

AT 11.52 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.21 PM:

MR BURNSIDE:   If the Court please, we have provided a revised notice of appeal. 

GUMMOW J:   Where does order 2 come from? 

MR BURNSIDE:   It seems that we misheard – at one end, we heard that we were to introduce the Tilmouth orders ‑ ‑ ‑

GUMMOW J:   That was addressed to matters 2 and 3.  It had not been suggested to the Commonwealth, so we do not make orders against them without asking them about it. 

MR BURNSIDE:   I understand that, your Honour.  We accept that we must have misheard it and Ms Perry at first thought that we were right and then she thinks we did mishear it.  I accept that we did. 

KIRBY J:   The wish was affecting your auditory nerve. 

MR BURNSIDE:   As a matter of fact, no, your Honour, but I will not enlarge on that.  It is probably just age. 

GUMMOW J:   Well, the draft orders will just include order 1, unless someone persuades us to the contrary. 

MR BURNSIDE:   Yes. 

GUMMOW J:   Very well.  Now, order 1 speaks of the draft notice of appeal, which does not yet appear an entirely happy document, Mr Burnside. 

MR BURNSIDE:   I am sorry, I did not hear that, your Honour.  It does not appear ‑ ‑ ‑

GUMMOW J:   An entirely happy document.  It seems to be an adaptation of the notice of appeal proposed from Justice Gray. 

MR BURNSIDE:   It is. 

GUMMOW J:   Well, the Full Court was launched on a different enterprise to him.  They refused leave to appeal.  You have to say, have you not, that they erred in refusing leave to appeal and that they wrongly held that there could be no arguable case and so on?

MR BURNSIDE:   In our submission, they did in substance make the findings about which we complain ‑ ‑ ‑

GUMMOW J:   We are worried about form. 

MR BURNSIDE:   I am sorry? 

GUMMOW J:   We are worried about form.  Whilst we are fairly relaxed, some of our colleagues are not.  So it had better…..in the proper form later in the afternoon.

MR BURNSIDE:   We can do that shortly. 

GUMMOW J:   All right.  Mention it again when you are ready. 

MR BURNSIDE:   If your Honour please. 

GUMMOW J:   Thank you.  We will adjourn to reconstitute. 

AT 2.24 PM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 3.23 PM:

GUMMOW J:   Have you seen this draft, Ms Perry?

MS PERRY:   I have, your Honour.

GUMMOW J:   Is there anything you want to say?

MS PERRY:   No, your Honour.  I have read the draft notice of appeal against the reasons of the Full Court and it does appear to pluck out findings by the Full Court now and to refer to certain grounds where it is said it has failed to make findings.

HAYNE J:   I am sorry, Ms Perry, I am getting about one word in 10.

GUMMOW J:   We have a lot of interruption from this machine.

MS PERRY:   I am sorry, your Honour.  I was simply saying that I have read over it and we do not have any objection to it as it stands.

GUMMOW J:   Yes, thank you.  The order made earlier this afternoon granting special leave referred to a draft notice of appeal.  That draft notice will be in the form of a document which has now been handed up and which is initialled, dated and placed with the papers.  I should also indicate that any other procedural deficiencies in the special leave process by reason of the earlier identification of the trial judge rather than the Full Court are dispensed with.

AT 3.24 PM THE MATTER WAS CONCLUDED