Camenzuli v Morrison & Ors

[2022] HCATrans 53

[2022] HCATrans 053

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S45 of 2022

B e t w e e n -

MATTHEW CAMENZULI

Applicant

and

THE HON. SCOTT MORRISON MP

First Respondent

CHRISTINE McDIVEN AM

Second Respondent

THE HON. DOMINIC PERROTTET MP

Third Respondent

THE HON. ALEX HAWKE MP

Fourth Respondent

THE HON. SUSSAN LEY MP

Fifth Respondent

TRENT ZIMMERMAN MP

Sixth Respondent

THE HON. PHILIP RUDDOCK AO

Seventh Respondent

THE HON. JOHN OLSEN AO

Eighth Respondent

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON THURSDAY, 7 APRIL 2022, AT 1.29 PM

Copyright in the High Court of Australia

____________________

HIS HONOUR:   In accordance with the protocol for remote hearings, I will announce the appearances of the parties.  I should record that Mr Robertson, Mr Tsacalos and Mr Duggan appear by video link, Mr Reynolds by telephone.

MR S. ROBERTSON appears with MR A.R. LANGSHAW for the applicant.  (instructed by Pryor, Tzannes and Wallis Solicitors and Notaries)

MR G.O’L. REYNOLDS, SC appears with MR D.A. WARD for the first, second, third and eighth respondents.  (instructed by Thomson Greer)

MR A.A. TSACALOS appears for the fourth, fifth and sixth respondents.  (instructed by Clayton Utz)

MR S.J.P. DUGGAN appears for the seventh respondent.  (instructed by Harpur Phillips)

HIS HONOUR:   Mr Robertson, I have before me your application filed yesterday.  I have read the two affidavits of Mr Nelson.  I understand the first order that you seek, which is for expedition of the application for special leave to appeal.  What are you seeking to do in respect of the second order?

MR ROBERTSON:   Your Honour will note from the second of the two affidavits to which your Honour has drawn attention that in the Court of Appeal below a notice of motion was filed to which the three proposed additional parties were respondents.  They were not formally joined as parties below, but they were respondents to the notice of motion.  What the notice of motion sought was that, in the event that my client was successful in obtaining declaratory relief, he sought further relief in aid of that declaratory relief by way of injunctive relief against the officers.

So it seemed to us that in circumstances where, pending before the Court of Appeal below, was a notice of motion in respect of which those three additional respondents were parties in circumstances where one of the orders that we seek, if special leave is granted and the appeal is allowed, is an order setting aside the order made by the Court of Appeal dismissing the notice of motion, it seemed to us that it was appropriate that those three respondents to the notice of motion below be treated as parties to the application for special leave before this Court.

HIS HONOUR:   Well, do you say that they are necessary parties to the application for special leave to appeal?

MR ROBERTSON:   They are at least proper parties in relation to the appeal proper, and for that reason, we think it appropriate that they be formally joined as parties in the application for special leave.

HIS HONOUR:   Do you have anything more to say about that?

MR ROBERTSON:   No, if your Honour pleases.

HIS HONOUR:   Mr Reynolds, what is your attitude to expedition?

MR REYNOLDS:   Your Honour, so far as expedition is concerned, my clients are happy with a measure of expedition consistent with both the degree of urgency of the case and, secondly, provided that they are given adequate time in the circumstances to prepare their written and oral submissions if oral submissions are necessary.

HIS HONOUR:   And, Mr Reynolds, what is your attitude to proposed order 2?

MR REYNOLDS:   We oppose it with some emphasis. We submit that it amounts to an abuse of process for a number of reasons. First, it is a new case; secondly, this case was never pleaded; thirdly, it was never argued; fourthly, it involves the joinder of new parties who never became parties to the proceedings below; fifthly, it seeks new relief, both interlocutory and final; sixthly, where the plaintiff as a result of his expulsion yesterday from the party will have no argument as to his standing; seventhly, where it requires an amendment to the statement of claim; and eighthly, where the respondents would want to adduce evidence to resist the orders sought, it will be apparent to your Honour that those matters that I have raised are apt to raise an issue under section 73 of the Constitution, so we say there is a 78B issue looming here.

The approach that we would respectfully raise with your Honour is that the written submissions for special leave could be put on a tight timetable – I will come back to that if I may – so as to put the Court in a position where it could say whether:  (a) it grants leave on the papers; (b) refuses leave on the papers; or (c) wants to have an oral hearing and the question of any joinder could be looked at later once your Honours have decided what you wanted to do with the special leave.  That is the suggestion that I would respectfully make.  If your Honour wanted to hear from me on a suggested timetable, I have something in mind.

HIS HONOUR:   Well, I have something in mind as well, Mr Reynolds.  There is a special leave list tomorrow.  It would be possible for this matter to be listed for oral exposition before two Justices of the Court at 4.00 pm tomorrow.  I note that the – I am told that Mr Tsacalos has dropped out.  Mr Tsacalos, can you hear me?  I will adjourn momentarily, but let me just complete, for the benefit of others, what I was partially saying, and that is, the applicant has already filed the application, which of course includes written submissions.

Mr Reynolds, I think you are the only active party.  If you were able to file any document you seek to file in response by, say, 1.00 pm tomorrow at the latest, earlier would be better, the matter could be heard at 4.00 pm tomorrow.  Now, I will need to pause, Mr Tsacalos needs to be reconnected, but that is what I am currently proffering as an accommodation that the Court can make, of the obvious urgency of the matter.

The Court will adjourn momentarily.

AT 1.38 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.41 PM:

HIS HONOUR:   I understand Mr Tsacalos has joined us by telephone, is that correct?

MR TSACALOS:   It is, your Honour.  Apologies.

HIS HONOUR:   Mr Reynolds, you heard what I was suggesting.  Can you accommodate that timetable?

MR REYNOLDS:   Pretty much, your Honour.  What I was going to ask for is a slight indulgence, given that Mr Ward and I are juggling a few things, and that is that we have a deadline of 2.00 pm, but having said that, I realise that it is in my client’s interests to have it filed earlier and I will be attempting to do so if your Honour were to extend the deadline to 2.00 pm.

HIS HONOUR:   You are not the only one who is juggling things, of course, Mr Reynolds.

MR REYNOLDS:   I appreciate that, your Honour.

HIS HONOUR:   It will affect the filing of reply, and of course that will be something you will just have to accommodate.  I will give you until 2.00 pm.

MR REYNOLDS:   Thank you, your Honour.

HIS HONOUR:   Mr Robertson, do you propose to file a document in reply?

MR ROBERTSON:   …..your Honour give my side leave to do so, but the practical difficulty, of course, is we will have no more than two hours in order to do so, but if your Honour might grant leave to file any reply it may be in the time available we can only produce a very short document and otherwise deal with what I will call the reply matters orally at 4.00 pm, if the Court has…..

HIS HONOUR:   Yes, I would expect that to be so.  Now, in relation to your proposed order 2, Mr Robertson, I am not minded to make an order, even assuming that procedural questions associated with its making had been addressed.  It does not appear ‑ ‑ ‑ 

MR ROBERTSON:   If your Honour wishes – I am sorry, your Honour.

HIS HONOUR:   I was about to say, it does not appear to me that the joinder of the persons named in order 2 is necessary for the purpose of the hearing of the application for special leave to appeal.  I will not formally dismiss order 2.  I understand why you may wish it to be before the Court on the hearing of the application, or at least the fact that you have sought such an order should be made known to the Court on the hearing of the application.

So what I propose to do is make orders in the following terms:

1.        The application for special leave to appeal is expedited.

I will say the respondents, recognising that not all respondents will wish to file a response:

2.The respondents are to file their response, or responses, at or before 2.00 pm tomorrow.

3.The applicant is to file any reply at or before 3.45 pm tomorrow.

4.The provision of rule 41.07 of the High Court Rules 2004 (Cth) concerning the preparation of an application book is dispensed with.

5.The application for special leave to appeal is listed for hearing at 4.00 pm tomorrow.

6.The costs of the application for expedition are costs in the application for special leave to appeal.

Does anyone have any comments on those orders?  Mr Robertson?

MR REYNOLDS:   Yes, your Honour.  Guy Reynolds here.

HIS HONOUR:   Yes, Mr Reynolds.

MR REYNOLDS:   If that is your Honour’s proposed timetable, I do not think – I think we had better file our submissions, if I may respectfully suggest, by 1.00 pm, with the reply by 2.45 pm, otherwise I do not know that Mr Ward and I will be able to digest it in 15 minutes.  May I suggest at 1.00 pm rather than 2.45 pm for the reply?

HIS HONOUR:   Yes.  Thank you, Mr Reynolds, I think that is constructive.  I will amend proposed order 2 to say 1.00 pm instead of 2.00 pm, and I will amend proposed order 3 to say 2.45 pm.

MR REYNOLDS:   Thank you, your Honour.

HIS HONOUR:   Are there any further ‑ ‑ ‑

MR ROBERTSON:   Would your Honour be prepared to give us a further 15 minutes – I am sorry to argue about such short periods of time, but your Honour will appreciate that it is going to be very difficult to draft a useful document in a short period of time.

HIS HONOUR:   All right.  This is like a Registrar’s list now, but 3.00 pm is what you get.

MR ROBERTSON:   May it please the Court.  I apologise for having to argue about such a small period of time.

HIS HONOUR:   All right, I will amend proposed order 3 to say 3.00 pm.  Are there any further comments?  Mr Tsacalos?

MR TSACALOS:   Not from me, your Honour.  Thank you.

HIS HONOUR:   Mr Duggan?

MR DUGGAN:   No, thank you, your Honour.

HIS HONOUR:   Very well, I make those orders, and the Court will now adjourn.

AT 1.47 PM THE MATTER WAS ADJOURNED