BOE21 v Commonwealth of Australia

[2025] HCATrans 58

[2025] HCATrans 058

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S103 of 2025

B e t w e e n -

BOE21

Applicant

and

COMMONWEALTH OF AUSTRALIA

Respondent

GAGELER CJ

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON TUESDAY, 19 AUGUST 2025, AT 9.31 AM

Copyright in the High Court of Australia

HIS HONOUR:   In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MS L.G. DE FERRARI, SC appears with MR J.R.G. BLAKER for the applicant, the plaintiff in the proceedings in the Federal Court.  (instructed by Zarifi Lawyers)

MR S.P. DONAGHUE, KC, Solicitor‑General of the Commonwealth of Australia, appears with MS O.J. RONAN for the respondent.  (instructed by Australian Government Solicitor)

HIS HONOUR:   I have read the various submissions that have been filed in relation to the application.  Ms De Ferarri, have you seen the consent order that has been made in the Abdel‑Hady matter?  And the special case ‑ ‑ ‑

MS DE FERRARI:   I have not seen the special case, but we have seen the orders that were provided to us by the Australian Government Solicitor, I think, Friday afternoon.

HIS HONOUR:   And you see that the timetable there provides for submissions by the plaintiff in that matter, but also any intervenors in support of the plaintiff to be filed on 17 October.

MS DE FERRARI:   Yes, your Honour.

HIS HONOUR:   Ms De Ferrari, are you aware of whether the plaintiff in that matter proposes to present an argument of the kind that you are seeking to present in your case?

MS DE FERRARI:   I am not.  We have made some approaches, but I understood at the time the approaches were made that Mr Walker, who I understand is senior counsel, was overseas and so that did not progress.  I do not know what they are proposing to say.

I can say that I have seen submissions by a different plaintiff and by the Commonwealth in another matter in the Federal Court, which was set down for hearing a few weeks ago but then the hearing was vacated in light of Abdel‑Hady going to the High Court.  So, I am aware of the submissions that were made by a different plaintiff and I am aware of the way the Commonwealth puts its position, but we are not aware of precisely how the plaintiff in Abdel‑Hady would put it.

HIS HONOUR:   All right, thank you.  I think I do understand your position.  Obviously, this would be a very premature case for removal were it not for the Abdel‑Hady Case.  I think that is the way you put it, and you are concerned that the point of principle not be addressed in the High Court without arguments of the kind that you are seeking to agitate being raised and considered by the Court.  Is that essentially it?

MS DE FERRARI:   That is essentially it.  In a sense, your Honour now knows what the argument is, so we have done – we have taken our first step of making the Court aware, but that is it, yes.

HIS HONOUR:   And the essential response to that, as I see it, is to see what happens in the Abdel‑Hady matter.  The arguments may well be put, and if not put, could be raised appropriately by an intervenor – possibly – in those proceedings, but that would be a matter to be addressed in those proceedings.

MS DE FERRARI:   Yes, your Honour.  In a sense, there is this uncertainty because we are different plaintiffs or potential plaintiffs, but the other thing we would say in our matter, it is well‑progressed in the Federal Court in terms of the same steps – largely the same steps that I understand have occurred in the High Court.

That is, the pleadings are closed, there is a statement of agreed facts which might not go the whole distance, but it goes a fair way, we would say.  So, in that respect, it is very premature, it is very quick, but we do not think that we would not be able to fit in with the timetable that has been made in the other matter.

HIS HONOUR:   As I understand it, there is a dispute as to whether there was or was not a real prospect of removal during the relevant period.  Is that right?

MS DE FERRARI:   Yes, I understand, and the – there is.  I mean, there is two periods.  There is a period of about two years where nothing happens, and then there is the period that he makes the application and then that gets caught by the High Court’s decision in . . . . . but there is two previous years where nothing at all happens, but I accept the Commonwealth does not accede the fact removal was not possible, and so that is why they put their defence in the alternative.

HIS HONOUR:   All right.  Thank you.  Is there anything else you wish to say, Ms De Ferrari, in support of the application?

MS DE FERRARI:   I think we have said all we have to say, your Honour.

HIS HONOUR:   Yes, thank you.  Mr Solicitor, has a section 78B notice been issued in the Abdel‑Hady matter?

MR DONAGHUE:   I am reasonably confident it has not, your Honour.

HIS HONOUR:   All right.  Is there anything you wish to add to what you have put in writing here?

MR DONAGHUE:   Really, in very short compass, your Honour.  If it turns out, as your Honour has foreshadowed, that the argument is not going to be advanced in Abdel‑Hady and our friends wish to protect their position by advancing the argument that they now seek to run, then, in our submission, there is no reason an application to intervene could not be made in that proceeding at that time.

If the Court were to grant leave to intervene, there would be no relevant difference – from a procedural fairness perspective – in their capacity to have the Court consider the relevant issues, but we are very concerned that removal, while not improving the position from a procedural fairness perspective, will cause very considerable complexity and cost and risk of delay, partly because of concerns about the definition of the part of the cause that it has proposed to be removed.

Now, there is a bit I wish to say about that, your Honour, if you are minded to go down that path about how the part of the cause to removed should be framed, but I will not detain your Honour with that unless that would assist you.  Really, our point is intervention is the appropriate way to deal with this issue, and I do not need to add to that unless your Honour is interested in details about the removal option.

HIS HONOUR:   Thank you, Mr Solicitor.  Ms De Ferrari, I am inclined to the view that the possibility of intervention is the appropriate way of dealing with your quite legitimate concern.  Is there anything you want to say further, in response to that?

MS DE FERRARI:   No, your Honour.  Your Honour understands we just wanted to inform the Court about everything, including our client’s case and where it is at, and what the argument is that we wish to put.  If I can say, it jumped out at us that the first question, in way that the Commonwealth seeks to advance, is to start from what this Court has said in Lange, and so that is why we want to put that argument before the Court, your Honour.

HIS HONOUR:   Yes.  Thank you.  I will give short reasons, but will dismiss the application.  On 13 August, in the matter of Abdel‑Hady v Commonwealth of Australia, in a proceeding in the original jurisdiction of the Court, I made orders by consent referring the special case to be heard by the Full Court in the November sittings of the Court.

The facts agreed in that special case include that the plaintiff was detained by officers of the Commonwealth, in purported compliance with sections 189(1) and 196(1) of the Migration Act 1958 (Cth), during a specified period before the decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 280 CLR 137, during which period there was no real prospect of the plaintiff’s removal from Australia becoming practicable in the reasonably foreseeable future.

The question of law stated for the opinion of the Full Court concerns whether the Commonwealth and its officers have what has been described as a common law defence to liability for the tort of false imprisonment with respect to the detention that occurred during that period, by reference to them having acted in conformity with sections 189(1) and 196(1) of the Migration Act as those provisions had previously been construed and held valid in Al‑Kateb v Goodwin (2004) 219 CLR 562.

Before me today is an application filed on 21 July for an order under section 40 of the Judiciary Act 1903 (Cth) removing into this Court part of a proceeding pending in the Federal Court of Australia in which the plaintiff claims, amongst other things, damages for false imprisonment during periods in which the plaintiff was detained by officers of the Commonwealth in purported compliance with those same provisions of the Migration Act before the decision in NZYQ and in respect of which, the Commonwealth – as defendant – has pleaded, amongst other things, the same common law defence.

The part of the proceeding sought to be removed into this Court is identified by the plaintiff in terms of questions as to whether the common law of Australia would conform with the Constitution were it to recognise a defence of the kind propounded by the Commonwealth.  The plaintiff seeks to have those questions heard by the Full Court concurrently with the hearing in Abdel-Hady.

The proceeding in the Federal Court has not progressed beyond the stage of discovery.  The plaintiff’s claim in that proceeding, that there was no real prospect of the plaintiff’s removal from Australia becoming practicable in the reasonably foreseeable future during periods of the plaintiff’s detention, is disputed by the Commonwealth.  Plainly, a trial of fact will be necessary.  Whether or not the common law defence needs to be reached in the proceeding in order to determine the rights of the parties is therefore far from clear.

Were it not for the pending hearing in Abdel‑Hady, the application for removal of questions about the constitutional viability of that defence would plainly be premature.  The evident and legitimate concern of the plaintiff is that the common law defence propounded by the Commonwealth should not be established as a matter precedent by any decision of this Court without such constitutional arguments as might properly be raised against its recognition being raised and considered in this Court.

The answer to that concern is that there is no reason why questions about the constitutional viability of the common law defence, as propounded by the Commonwealth, cannot be agitated on the hearing of the special case in Abdel‑Hady.  There is no reason to suppose that all viable arguments in opposition to recognition of the defence, constitutional or otherwise, will not be put on the hearing of that special case.

The timetable for submissions in relation to the special case currently provides for any intervenors in support of the plaintiff, to file submissions on or before 17 October.  If the plaintiff in this case – that is, the case for removal – is not satisfied that the arguments to be presented in opposition to recognition of the common law defence propounded by the Commonwealth are adequate to protect the plaintiff’s interests, it remains open to the plaintiff in the present case to apply for intervention in those other proceedings.

Given those circumstances, I am not persuaded that removal of the identified part of the proceeding pending in the Federal Court is appropriate.  The application for removal is therefore refused.  Mr Solicitor, do you press for costs in these circumstances?

MR DONAGHUE:   I do, your Honour.

HIS HONOUR:   Ms De Ferrari?

MS DE FERRARI:   Your Honour, we have said what we said in our reply, but your Honour has . . . . . the legitimate interest in bringing the matter to the Court in this way.  There are, in our submissions, special circumstances where that order should not be made.

HIS HONOUR:   This is a borderline case, but I think I it is appropriate, in these circumstances, that the usual order for costs prevail.  The application is refused with costs.  Thank you.  The Court will now adjourn.

AT 9.46 AM THE MATTER WAS CONCLUDED