CPCF and Ors v Minister for Immigration and Border Protection and Anor

[2014] HCATrans 152

[2014] HCATrans 152

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S169 of 2014

B e t w e e n -

CPCF

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S147 of 2014

B e t w e e n -

JARK

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S148 of 2014

B e t w e e n -

SAS

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S149 of 2014

B e t w e e n -

SWF

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S150 of 2014

B e t w e e n -

SV

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S151 of 2014

B e t w e e n -

SSC

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S152 of 2014

B e t w e e n -

SATL

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S153 of 2014

B e t w e e n -

SSSL

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S154 of 2014

B e t w e e n -

SARK

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S155 of 2014

B e t w e e n -

SAK

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S156 of 2014

B e t w e e n -

SMV

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S157 of 2014

B e t w e e n -

VN

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S158 of 2014

B e t w e e n -

WAF

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S159 of 2014

B e t w e e n -

WNSC

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S160 of 2014

B e t w e e n -

TM

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S161 of 2014

B e t w e e n -

WAZF

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S162 of 2014

B e t w e e n -

WEEF

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S163 of 2014

B e t w e e n -

ADR

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S164 of 2014

B e t w e e n -

ASRP

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S165 of 2014

B e t w e e n -

ADT

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S166 of 2014

B e t w e e n -

DRP

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S167 of 2014

B e t w e e n -

DTF

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S168 of 2014

B e t w e e n -

AEACC

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S170 of 2014

B e t w e e n -

DMF

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S171 of 2014

B e t w e e n -

DRF

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S172 of 2014

B e t w e e n -

EEF

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S173 of 2014

B e t w e e n -

GAAC

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S174 of 2014

B e t w e e n -

JDT

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S175 of 2014

B e t w e e n -

KRTF

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S176 of 2014

B e t w e e n -

FV

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S177 of 2014

B e t w e e n -

GSSC

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S178 of 2014

B e t w e e n -

JARK

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S179 of 2014

B e t w e e n -

KR

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S180 of 2014

B e t w e e n -

MSV

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S181 of 2014

B e t w e e n -

PPA

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S182 of 2014

B e t w e e n -

PP

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S183 of 2014

B e t w e e n -

PS

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S184 of 2014

B e t w e e n -

NVL

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S185 of 2014

B e t w e e n -

PD

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S186 of 2014

B e t w e e n -

PS

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S187 of 2014

B e t w e e n -

PCEF

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S188 of 2014

B e t w e e n -

RR

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S189 of 2014

B e t w e e n -

RK

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S190 of 2014

B e t w e e n -

RK

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S191 of 2014

B e t w e e n -

PV

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S192 of 2014

B e t w e e n -

JK

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S193 of 2014

B e t w e e n -

PM

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S194 of 2014

B e t w e e n -

AMC

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Sydney  No S195 of 2014

B e t w e e n -

ASRF

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Directions

HAYNE ACJ

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON TUESDAY, 22 JULY 2014, AT 12.00 PM

Copyright in the High Court of Australia

____________________

MR R. MERKEL, QC:   If your Honour pleases, I appear with my learned friends, MR C.L. LENEHAN, MR D.P. HUME and MR J. WILLIAMS, for the plaintiffs.  (instructed by Shine Lawyers)

MR S.P. DONAGHUE, QC:   If your Honour pleases, I appear with MR P.D. HERZFELD for the defendants.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, what is the position?

MR MERKEL:   Your Honour, we have had discussions between us and what we were going to suggest to your Honour is if we could have some time till, say, three o’clock to put to your Honour a proposed case stated by both parties.  As my learned friend gets instructions we would be able to identify areas of agreement or disagreement, and possibly if the matter could come back before your Honour at four?

Can I indicate this, that the defence has outlined the sufficient facts to raise what we would say are most of the questions of law that will be suitable for determination in a case stated and we see no difficulty with that procedure now that the facts that are admitted or not admitted are fairly clear.  Both sides are working on a case stated in light of the defence which we only received recently but we would expect to have a document to your Honour by three o’clock.

HIS HONOUR:   I will hear from Mr Donaghue about the proposal in a moment, but there is evident sense in that if we are going to get some progress today.  How confident are counsel that we are actually going to get some progress?  I know it is a piece of string and you are giving estimates, but I do not want to put it off unless there is a reasonably high degree of confidence among counsel that we are getting somewhere.

MR MERKEL:   Your Honour, from our part, we have that high degree of confidence.  Can I just indicate that we would expect that the case stated at three o’clock, to the extent that there may be any differences between us, would be able to be resolved by your Honour because the ‑ ‑ ‑

HIS HONOUR:   Yes.  Well, if it is going to be my case, it will be.

MR MERKEL:   Well, we will not invite your Honour to swap sides on the Bar table again, your Honour; you have done that so far.  But I think we are confident, your Honour, that we can get agreement on a case stated and on questions of law.  There may be just some disagreement on how far we can go down that line, but all the substantive questions seem to be in the ring as a result of the defence and the issues raised by the defence.

HIS HONOUR:   Can I say to both sides that ‑ it will come to them as no great and abiding shock, of course, I have been thinking about the case in the meantime – it occurs to me that it may be possible to be just a little more ambitious in the case stated than I had earlier thought, that is, it may be possible, I do not know, to deal with some of what – forgive me, Mr Merkel, if I describe as the administrative law type complaints.  Now, I know you say they are larger and more important than that, but you understand the kind of complaint I have in mind.

It occurs to me – and all I ask is that counsel and those instructing them give consideration to whether we could put into a case stated something along these lines:  “The plaintiff asserts and the defendants deny that the decision to take the plaintiff to a place outside Australia was beyond power, whether the power given by the Maritime Powers Act or non‑statutory executive power, on the ground that (a) the decision was not made for the purposes of investigating any contravention of any relevant law” ‑ query whether you add “or to prevent a contravention of any relevant law having regard to” what I understand to be the defence of the Commonwealth parties that the vessel was detained to prevent a contravention, but let me leave that uncertain – “(b) taking the plaintiff to a place outside Australia would take much longer than taking him to the nearest place in Australia”.

Stripped of some forensic embellishment, it seems to me that that is a part of one of the sets of allegations you make and I have tried to put it in as non‑tendentious terms as I can, or non‑conclusionary terms as I can – “(c) the decision was not made for a purpose or in a circumstance identified in” – and you then in your pleading, Mr Merkel, refer to various provisions of the Maritime Powers Act, 41(a) to (b), (b) to (e), (g) to (l) – “(d) the decision was made for the substantial purpose of deterring other persons from entering Australia by sea without a visa; (e) the decision was made

pursuant to an inflexible rule or policy that no person should enter Australia by sea without a visa”.

Now, I do not ask – in fact, I ask counsel not to offer comments on any of those idle suggestions immediately.  What I do say to counsel is that the intention is to try to strip out forensic flourishes and conclusions and try to pick out what is, or what seemed to me to be, an underlying allegation neutrally expressed.  Take, for example, the last one, “decision made pursuant to an inflexible rule or policy that no person should enter Australia by sea without a visa”.  At one level, that is simply restating the current state of the law, on one view – see, what is it ‑ Subdivision 12 of the Migration Act.  Maybe it is not.  Now, maybe those ideas are distracting, maybe they are ideas that the parties will conclude should not go into a stated case, but it seemed to me that the more that we can properly deal with in a stated case, the better for all parties concerned.

Now, I should say to you, Mr Donaghue, there are some questions I would have about what is said in the defence and how I should understand it.  I think it better ‑ unless you positively assert to the contrary – I think it better that those are left over until we see how things develop during the day, but is this a valuable exercise or am I just going to be wasting time by standing it over?

MR DONAGHUE:   I do not believe that you are, your Honour, but can I ‑ ‑ ‑

HIS HONOUR:   That I am what?

MR DONAGHUE:   That you are wasting time, your Honour.  Can I say, though, that I expect to be in a position to provide a draft of a possible stated case that the Commonwealth parties would consider ‑ your Honour might wish to entertain certainly by the 3.00 pm time that Mr Merkel suggested.  That document is in a very advanced state, indeed.

HIS HONOUR:   Yes.

MR DONAGHUE:   What I am much less confident about is that it will be possible to have some form of agreed position that we can put to your Honour at that time, but I did not understand that to be necessary having regard to the stated case.

HIS HONOUR:   No, no, on the contrary, my objective remains that if possible I will state a case.

MR DONAGHUE:   Yes.

HIS HONOUR:   Unless I am persuaded that that is not a productive method of resolving this litigation, I propose to state a case for the opinion of the Full Court.

MR DONAGHUE:   Yes.  So, your Honour, we would propose to provide by three o’clock, and earlier if I can, a document which endeavours in as much detail as we could to identify questions, some of which are along the lines of the questions that your Honour has just floated with Mr Merkel, not identical but addressed to similar – a similar endeavour to pull out the legal point, separated from any underlying factual controversy but to identify the legal limit.

HIS HONOUR:   Yes.

MR DONAGHUE:   So I am confident that we will be able to do that.  To the extent that Mr Merkel gives us a draft and we exchange drafts and we talk about it, I will do my best to have some indication of areas of consensus or otherwise, but I would not want your Honour to think that I will be able to say the Commonwealth accepts or does not accept particular things.

HIS HONOUR:   I understand that.  It seems to me that it is probably worthwhile in any event, regardless of the state of play, bringing you back at four o’clock to have you report in open court as to where you are at.

MR DONAGHUE:   I agree with that, your Honour.  In my submission, that would be appropriate.

HIS HONOUR:   Forgive me, but negotiations can expand to fill the time available.  I have to set a deadline.  Let me bring you back at 4.00 pm regardless, at which time I will want to know where you are up to.

MR DONAGHUE:   Yes, and what I understand Mr Merkel proposed is that by then both of us would have provided your Honour with a document so your Honour will at least see where we are thinking, even if your Honour does not know where we agree or disagree.

HIS HONOUR:   It would obviously be of assistance to me if by three o’clock I could have either a draft or competing drafts.  I do not say to you, either of you, that you must supply that by 3.00 pm.  It would be of assistance to me if by 3.00 pm I had either each side’s draft or something that is getting close to a single draft about which both sides are likely to seek some subsequent confirmation or instructions.

MR DONAGHUE:   Thank you, your Honour, we will certainly do our best to meet that time.  Can I say one other thing, your Honour, with respect to the question of limits relating to the purpose for which statutory powers might be being exercised because they have presented something of a challenge for our side of the record having regard to the way your Honour will have seen that we have pleaded the decision that was made?  So we will give that further thought in light of what your Honour said, but it may be that certain purposes, for example, to say that powers were exercised for the purpose of preventing an unauthorised maritime arrival from reaching Australia may not present a problem, but purposes directed to particular statutory provisions in the Act would cut across the public interest immunity claim that is foreshadowed in the defence.  We are seeking to identify these questions in a way that might allow the limits to be identified without that controversy needing to be resolved and it seemed to me that it may be useful to flag that to your Honour.

HIS HONOUR:   Each party knows more about its case than I do.

MR DONAGHUE:   Yes.  Well, perhaps, your Honour, we will provide a draft and we can progress from there.  Can I also say, your Honour, can I apologise to the Court for our failure to file the defence by 4.00 pm yesterday?  I do not know – I can go into the details of why, your Honour, if that would assist your Honour, but I think the parties are ‑ ‑ ‑

HIS HONOUR:   Well, you should say whatever you wish to say, Mr Donaghue.  I do not press you to say anything.  I simply note ‑ ‑ ‑

MR DONAGHUE:   Well, if I can apologise on behalf of the Commonwealth for the fact that we were not able to file the defence within that timeframe, but the parties have been working over the weekend in tandem – in relation to various matters and it was not possible for us to do it earlier.

HIS HONOUR:   I had not assumed that people were doing nothing.

MR DONAGHUE:   Thank you, your Honour.

HIS HONOUR:   Yes, 4.00 pm then appropriate?  Yes, 4.00 pm.

AT 12.16 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.01 PM:

HIS HONOUR:   I have received a draft case stated from the Commonwealth parties at about three this afternoon and at about two or three minutes to four I received a draft case stated from the plaintiff.  Mr Merkel, my first impression, subject to anything that you may say, was that the case stated in a form generally to the effect of the draft you tender is not appropriate to identify with any clarity the questions which emerge in this case let alone the footing on which those questions emerge.

MR MERKEL:   Your Honour, unfortunately in the rush to deal with the defence and incorporate the facts that were admitted in the defence to try and make the questions arise in a context of those admitted facts we thought the appropriate way is to set those out by reference to admissions but we can convert those into facts stated.  The main point is we sought to make the questions - your Honour asked the questions based upon the decision alleged by the Commonwealth to have been made and to have been acted upon.  Unfortunately we have a logistical problem as well with the juniors working on the matter in Sydney and me having to settle it here in Melbourne and possibly, your Honour, if we can have overnight to try and ‑ ‑ ‑

HIS HONOUR:   Mr Merkel, there has to be an end to this, there has to be an end to this very, very soon.  I have tried repeatedly to emphasise to the parties that there must be an end to this.  Why should I not go down the path suggested by the Commonwealth parties for the purposes of drafting the stated case?

MR MERKEL:   We do not have a problem using that as the pro forma, but we would seek, your Honour, to try and add to that draft the matters that we say are appropriate and not covered by it.  We just would wish at some time, your Honour, to be able to do that.  We are happy to use that format, your Honour, rather than ours as your Honour has indicated that is the preferable format and we accept that, but we just do need that time to make sure that the matters that have emerged in the defence are raised.  For example, your Honour, some very substantial matters are raised in the defence such as the Refugees Convention does not carry obligations for Australia outside the migration zone, any obligation.  That is a matter of some considerable significance, your Honour.  There are other aspects that emerge ‑ ‑ ‑

HIS HONOUR:   There is a deal of writing about it, Mr Merkel.

MR MERKEL:   Yes, of course there is, your Honour, and it is an assertion made, we understand.  It is not part of conventional or international customary law and the other thing that is unusual in the present case is that the decisions relevantly made in the present case were made by marine officers on the high seas in circumstances where the common law of Australia would usually only extend to the territorial waters and therefore a very significant question arises as to the extent to which conventional and customary international law might govern the exercise of the power in these circumstances.

HIS HONOUR:   Mr Merkel, I have now been trying for days to get your side to identify with some clarity exactly what is the point of law which you identify as limiting power.  It is no good now standing here and telling me that you want to put some new formula.

MR MERKEL:   Your Honour, with respect, we have sought to do it, your Honour, on that very point in paragraph 7.  We would understand that the orthodoxy of international law would be that Australia is bound by its conventional obligations, putting aside the decisions as to what it is required to do in respect of decisions made in Australia but on the high seas we would say it is axiomatic it would be bound to comply with customary international law and there is a significant question as to whether non‑refoulement is part of customary international law. 

The common law only becomes relevant, your Honour, to the extent that the decision would have to be made in conformity with common law which is the third fall‑back position on the basis that the customary law forms part of common law.  Now, we have, with respect, sought to set that out with a degree of precision in paragraph 7, your Honour.

HIS HONOUR:   Question 7.

MR MERKEL:   Question 7, yes, your Honour, and also in respect of the opportunity to be heard we have sought to identify that in the earlier paragraphs by reference to what now is the admitted decision that is alleged by the Commonwealth to have been made and we have sought to identify again in our questions, your Honour, the limitations of the non‑executive power – sorry, the non‑statutory power in paragraph 5 and could I ask your Honour to note the paragraph in 5bi should be paragraph 52 of the amended statement of claim and we have made some errors, your Honour, by referring to 74 of the defence which should be 47 in some of the later paragraphs, but 52 is where we have set out the limitations which was precisely the document your Honour asked for prior to the first directions hearing before your Honour. 

So we have sought to incorporate in these questions, your Honour, the matters raised by your Honour this morning and really raise what we see as the three very substantial questions.  One is procedural fairness; two, your Honour, is the limitations on power by reason of conventional international law, customary international law and if it applies to the common law in respect of non‑refoulement; and, three, your Honour, the series of questions relating to the purposes and circumstances of this decision which was made pursuant to a Cabinet direction on 1 July and then implemented by a maritime officer.

We say in paragraph 6 we have tried to set out the substantial purposes which seem to be in mind with what your Honour had perceived to be raised by the defence with the refinement, your Honour, and again it does not seem to be in dispute that these are substantial questions which may be determinative of the case at all three levels – procedural fairness, limitation under international law, and, thirdly, the purposes and circumstances of this decision based upon a defence, your Honour, that said they are still detained on the boat for an uncertain period of time and indefinitely because the process is not complete.

HIS HONOUR:   The defence says explicitly they are not detained indefinitely, but let us not trouble with such minor accuracies as that.

MR MERKEL:   So, with respect, we have tried to do that, your Honour, and also raise if the detention is unlawful then we say that entitles us to a habeas because there is nothing unlawful about their entry into Australia because of section 42 of the Migration Act which specifically anticipates lawful entry without a visa under section 74 – taking under section 74. 

We say the time has been exhausted for the Commonwealth to have a place to take the plaintiff and the others on the boat and I should say, your Honour, we have asked our learned friends to seek to supplement the detail by which the process is incomplete without intruding on public interest immunity which we do not see as a problem that needs to beset the case stated but we have taken it as far as we can from the wording in their defence to raise that issue as an issue before the Court.

With respect, we have also set out if there are any further facts that are relevant, again so that if the matter cannot be resolved by the Full Court on the case stated, if there are any further facts and limited facts identified, any further hearing before a single judge of this Court or another court, your Honour, would be a matter within a very narrow confine because we would, with respect, say that our questions have covered the field of issues between the parties and are questions of law and to the extent any may be mixed law in fact they are based on the facts that were admitted in the pleadings.

Now, your Honour, there is some typing up about the reference to the decision but we would say, your Honour, on maybe a proper – a further consideration of those questions may raise the issues – all of the issues of law that can be determined on the admitted facts.  Insofar as the processes

adopted a formula of not setting out the admitted facts but referring to those in the pleading, we have no difficulty, your Honour.  We have delivered a reply to admit further facts in the defence so that there is no difficulty whatsoever of extracting for the case stated the facts that are admitted and they can be set out in the case stated, your Honour.

HIS HONOUR:   What proposal do you make?  What do you say I should do?

MR MERKEL:   Your Honour, what we would hope to be able to do is to discuss the two forms that have been put forward with our learned friends to try and get as much common ground as we can and if your Honour would permit the matter to be mentioned before your Honour in the morning to then ask your Honour to be advised/informed about any area of disagreement and then your Honour could ascertain how that should be resolved because ultimately it is your Honour’s case not ours, but we do not see why there should be any disagreement in principle. 

To the extent there are added questions or questions that should not be put, ultimately your Honour will no doubt be able to determine that after hearing from both sides as to why they should or should not be put.  But we see those matters as very resolvable.  There is not really a substantial dispute between the parties, your Honour, that would not be capable of being resolved by your Honour first thing in the morning if that is open to your Honour to do.

HIS HONOUR:   Yes, Mr Donaghue, what do you say?

MR DONAGHUE:   Your Honour has heard nothing from Mr Merkel as to why the proposal that we have advanced to your Honour as to a case stated is not an appropriate way in which to proceed.  We have sought to understand the approach that your Honour had in mind and have sought to identify, based on the pleadings, the particular limitations that are said to exist with respect to both the Maritime Powers Act power and the non‑statutory executive power and to identify them in a way that would allow a legal answer to be given subject to then further factual application.

We are strenuously opposed to questions of the form that Mr Merkel has just given to your Honour.  Like your Honour we received them only a couple of minutes before Court so I have not had an opportunity to fully absorb them, but almost invariably it seems to us that the questions that are posed turn upon a factual substratum that would on this hypothesis not have been determined and so does not provide a stable foundation for an answer to be given.  That is so both in relation to questions that ask, for example, looking at question 4:

Is the exercise of power . . . in the present matter subject to all or some of the limitations -

A question like that necessarily brings in the facts of the present matter, some of which will have been found and some of which will not. 

HIS HONOUR:   Can I interrupt you to say this?  I remain of the view that it should be possible in a stated case to proceed on the footing that there are stated one party asserts X, the other party denies X, but that kind of formula can be adopted only where there is precision in the identification of the assertion.  What troubles me most about a general incorporation of pleadings, especially these pleadings, is that there may be no sufficient precision in what is asserted or denied. 

That is why, as at present advised, I will not state a case which takes the form of “Here are the pleadings, the following questions arise”.  That is, as at present advised, I will not state a case except in a form generally to the effect of the draft provided by the defendants.  I am not to be understood as blessing the particular draft provided by the defendants.  There are some particular aspects of it to which I will presently come, but I will not, as I say, subject to anything that counsel may later urge upon me, I will not state a case in a form which simply says “Here are the pleadings.  You, the Full Court, make of it what you will”.

MR DONAGHUE:   Your Honour will understand that we are not urging your Honour to do that.

HIS HONOUR:   I understand that.

MR DONAGHUE:   The facts presently set out in paragraphs 1 through 11 of the draft we provided all have a counterpart in the pleadings.  We could go through and point your Honour to particular - so we have pulled out the ones that we think that your Honour would need, or the Court would need.

HIS HONOUR:   At the moment I am not concerned that I am generating some hypothetical matter.  At the moment I am not concerned that I am going beyond the controversy between these parties.

MR DONAGHUE: Similarly, your Honour, if one comes to part B of our document to paragraph 18 but it is posed as seven questions, question (1) is limits on the Maritime Powers Act.  Question (2) is limits on the Maritime Powers Act save for procedural fairness.  Question (2) is limits on the non‑statutory executive power including the extent to which that power exists.  Questions (3) and (4) are procedural fairness – sorry ‑ ‑ ‑

HIS HONOUR:   Question (3) is not.

MR DONAGHUE:   No, (3) is not; (3) is added as a – the need for (3) is ‑ ‑ ‑

HIS HONOUR:   Not apparent to me.

MR DONAGHUE:   Well ‑ ‑ ‑

HIS HONOUR:   Not apparent to me.

MR DONAGHUE:   I do not press (3) in that event, your Honour.  We have sought – to the extent that that issue arises on the pleadings, we think it is covered by (1)(c) and (2)(c), so I would not press (3) but I did not want to ‑ ‑ ‑

HIS HONOUR:   Well, we will come to the drafting of those things in a minute, but yes.

MR DONAGHUE:   But the point that I am seeking to make, your Honour, is that it is not workable, in our submission, to say, as the plaintiff’s draft says, that one can proceed just on the basis of admitted facts, for example, because there may be disputed facts that should properly, when resolved, be taken together with the admitted facts to reach a conclusion about the operation of the legal principle and the Commonwealth would not wish to be deprived of the capacity to rely upon those facts in the event that they were to be found as the Commonwealth urges, and so the intermingling of the legal and factual questions in the plaintiff’s draft we submit is a fundamental barrier to the capacity to proceed in that way.  We submit that it would be far preferable to stating a case in that form to remit the matter to the Federal Court and if necessary to removal any appeal into this Court than to proceed in that way.  We have sought to ‑ ‑ ‑

HIS HONOUR:   I am not at the point of even contemplating remitter at the moment, Mr Donaghue.

MR DONAGHUE:   I know, your Honour.

HIS HONOUR:   Let us not trouble about that.  Go on.

MR DONAGHUE:   In an effort to avoid that, we have sought to analyse the critical paragraphs of the pleading and to identify the limits that they assert.  Insofar as a limit is not asserted in the pleadings, it is not reflected in our documents.  So, for example, Mr Merkel’s question 7 asserts a limit that is not there in the statement of claim.  His paragraph 51 simply does not make that allegation so it is not reflected in our document, but we submit that the way forward is either for your Honour to make a decision at this point about what questions should be stated, or to permit Mr Merkel to identify specific amendments that are needed to the defendant’s draft to address issues that are not identified and to debate those, but not to send the parties away to seek to reach agreement between the documents because that seems unlikely to occur.

HIS HONOUR:   Yes.  Mr Donaghue, there are some particular aspects of your draft to which I draw attention.  They are matters in respect of which it may be that you wish to proffer no answer.  Do not take my questions as requiring you to proffer an answer.  If an answer is available I would be glad of it.  Paragraph 11 is, I think, ambiguous.  I had read the defendant’s defence as saying that a decision had been made about the place to which.  The first part of the relevant provision of the defence was, I thought, if I may say so, ambiguous but I thought the ambiguity was resolved in the second part of it.  Let me just find it.

MR DONAGHUE:   Yes, probably paragraph 47 – I suspect your Honour is referring to 47(b).

HIS HONOUR:   Yes. 

MR DONAGHUE:   I accept your Honour’s point, we should be clearer.

HIS HONOUR:   It has to be, I think, one or tother.

MR DONAGHUE:   Yes.

HIS HONOUR:   I think it has to be clear which it is.

MR DONAGHUE:   I understand that.  Your Honour has, with respect, read our defence correctly and we just are ambiguous in our drafting in paragraph 11.

HIS HONOUR:   Yes.  Paragraph 17 of the draft is, I think, too lax.

The plaintiff asserts limits based upon –

the various international instruments, et cetera, there identified may not sufficiently capture what I had understood to be the plaintiff’s case.  I had understood the plaintiff’s case to be that among other things the plaintiff asserts that 72(4) of the Maritime Powers Act, and any non‑statutory executive power of the Commonwealth, may not be exercised to take the plaintiff to a place where, by the law of that place, the plaintiff would not have the benefit of obligations under or to the effect of the obligations of parties under Article 33(1) Refugees; obligations of parties, Articles 7 and 9, ICCPR; Article 3, Torture.

Now, no doubt your junior can point to some parts of the statement of claim where he says there is enough flex in it to be read in one way rather than another, but unless the plaintiff is saying that there is a positive limit of that kind I am not sure quite what the plaintiff’s case is.

MR DONAGHUE:   I think, your Honour, we can again probably address it with drafting.  The “based upon” language, I think, captures at least – was intended to capture at least two things:  one, that the plaintiff seeks to reserve some room for manoeuvre about the content of customary international law so that they do not assert ‑ ‑ ‑

HIS HONOUR:   That is why I have fastened upon the ultimate upshot, that the plaintiff cannot be taken.  Now, the source of that obligation, the way in which it is built in, whether it is common law, customary law, treaty obligation, or there may be some other method in play, I am not sure if there is, does not matter, I think, to the stated case.  It will matter vitally at argument of the stated case I am sure.

MR DONAGHUE:   But it may also be that it is thought – well, we thought that it may be said that the content of the limit itself, accepting that their case must be that there is actually a limit, “cannot be taken” idea, that the content of the limit might be said to be different as between the conventional obligation and customary international law.

HIS HONOUR:   Sure, but under or to the effect of was the ‑ ‑ ‑

MR DONAGHUE:   Indeed, was the thrust of it.

HIS HONOUR:   ‑ ‑ ‑ was the twist in which I tried to reflect that kind of idea.

MR DONAGHUE:   Well, we accept that, your Honour.  The other thing we were trying to capture was that one of the asserted limits is that it is said that these matters must be taken into account as mandatory relevant considerations, so we thought that was a limit based upon the obligations rather than itself of their content, but, as I say, we ‑ ‑ ‑

HIS HONOUR:   Is there really going to be said to be that sort of middle ground?  I know the statement of claim may be read as allowing for belt/braces, bits of string around the middle, et cetera, but, as I have said more than once to the parties, can we get down to what this case is about.

MR DONAGHUE:   Your Honour, for our part, we would happy to strip that away.  We were reflecting what was pled against us is all we were seeking to do, but in no way – it does not seem to us to be essential that your Honour state a question as a question for the Full Court every limit the plaintiff might assert as a possible limit.  Your Honour might choose to state a case focused only on the stronger of their asserted limits and leave any residual matters, but at the moment it is there, it is pleaded against us, but I understand, I think, what your Honour says about the need to tighten that paragraph somewhat and ‑ ‑ ‑

HIS HONOUR:   Because I think that the source of the obligation is less important than the content of the asserted limit.

MR DONAGHUE:   Yes, your Honour.

HIS HONOUR:   Sure, at argument argument will be entirely about source but not otherwise.  The questions as framed read like interrogatories.  The Full Court is not going to be best pleased with a set of interrogatories.  Is not question (1):   whether 72(4) of the Maritime Powers Act, triggered in the events set out, authorises a maritime officer to take a person to whom 72 of that Act applies to a place outside Australia - then shell them out:  (a) for the purpose of preventing; (b) whether or not the person would be entitled by the law of that place to the benefit of obligations referred to in paragraph 17; (c) whether or not that place is or is in a regional processing country, as defined; (d) in implementation of a decision by the government that the person should be taken to a place outside Australia without independent consideration by the maritime officer.  I think that captures most of it.

MR DONAGHUE:   Your Honour has gone a bit quickly for me then, but I hope my junior has caught all of that.

HIS HONOUR:   Could I go back then – does 72(4), triggered in the events set out, authorise a maritime officer to take a person to whom 72 applies to a place outside Australia - that is the rubric in (a) – for the purpose of preventing the person from entering the migration zone.

MR DONAGHUE:   So that is our (1)(a)?

HIS HONOUR:   Yes.  Forgive me if I say I wondered whether that was a bit clever.  Do we need to have in “for the purpose of preventing” contravention?  The reason I say “a bit clever” – let me show you a little of the knife that is resting in that napkin, Mr Donaghue.  You can prevent somebody entering the migration zone by stopping the boat, taking someone elsewhere may, may not be something different from stopping.  Now, hours of innocent amusement lie before us all in looking at issues of that kind.

MR DONAGHUE:   Yes.

HIS HONOUR:   I just wondered whether the statement of purpose might be a bit – forgive the derogatory term “clever” - it might be limiting it a little much.  Now, (b) whether or not the person would be entitled by the law of that place - that is the place to which the person is to be taken - to the benefit of the obligations and link back to the earlier specification of them; (c) whether or not the place is or is in a regional processing country; and (d) this question of in implementation of a decision by the government that the person should be taken to a place, et cetera, your 18(1)(f).

MR DONAGHUE:   Yes, so your Honour has dropped (c) and (d)?  Am I following that?

HIS HONOUR:   Yes.  It seemed to me they may or may not be necessary, but again let us see.  But then can I come to (g) and (g), I think, really is wrapping up a number of issues.  A way of dealing with it may be does 72(4), triggered in the events that have happened, et cetera, authorise a maritime officer to detain a person to whom 72 of the Act applies – then I am not sure about the order, I am certainly not sure about the content of what is about to follow - the present order would be (a) for the time reasonably required to travel to the place outside Australia to which that person is to be taken.  Notice I inject a “reasonably” in there.  Notice further that I identify that time, in effect, as just travel time.

MR DONAGHUE:   Yes.

HIS HONOUR:   And (b) – (b) is, I think, presently buried within this - for such further time beyond that travel time as is required.  Now, you talk about effect of reception.  I wonder whether the critical question may not be “as is required to determine whether the maritime officer may discharge that person from detention at that place”.  I do not know whether that is the end of the prism through which we have to be looking.  I do not know whether it is reception, reception on terms or, rather, it is bringing to an end the exercise of the power to take.

MR DONAGHUE:   Yes.  The thing that is presently agitating my mind, your Honour, on that formulation which I would wish to seek instructions on ‑ ‑ ‑

HIS HONOUR:   Of course.

MR DONAGHUE:   ‑ ‑ ‑ is whether in the event that the answer to that – to determine whether or not the person may discharge at that place contemplates the possibility that it will not be possible to discharge the person at that place.  So there may need to be a further question.

HIS HONOUR:   That is the sleeper in this issue.  Can you take - decide to take to a place not knowing whether the person can be discharged at the end of the journey?

MR DONAGHUE:   But if you can then consequences may follow and if the question is to ‑ ‑ ‑

HIS HONOUR:   But if (a) then certain consequences follow, if (b) other consequences follow as I say.

MR DONAGHUE:   I understand that, your Honour.

HIS HONOUR:   It is the sort of issue that, if I am going to state a case, I do not want limping out at about 12.30 on the morning of argument.

MR DONAGHUE:   No.  Your Honour, we were endeavouring to capture that idea and we can certainly break it out in the way your Honour suggested.  Right at the end of that question there is another issue in which we sought to raise one of the matters that your Honour had raised this morning about Australia being closer than any other place and the relevance of that.

HIS HONOUR:   Yes.

MR DONAGHUE:   We can break that out as well.

HIS HONOUR:   Yes, and again break that out.

MR DONAGHUE:   Yes.

HIS HONOUR:   Now, then (2) would follow whatever we have done with (1) substantially mutatis mutandis to take account of it being non‑statutory executive power which is said to be engaged.

MR DONAGHUE:   There are some differences in the way the case is pleaded as between those two possibilities.

HIS HONOUR:   Exactly so, exactly so – (3) goes out; (4) troubled me “ever subject to”.  I wonder whether the same idea is sufficiently captured “subject to an obligation to give that person a reasonable opportunity” or a “reasonably” is injected somewhere along the line.  Do not know.

MR DONAGHUE:   Our endeavour there, as your Honour will appreciate, was to separate the factual component of the question of natural justice from the legal question.

HIS HONOUR:   Yes.

MR DONAGHUE:   So one possibility is that as a matter of statutory construction the Maritime Powers Act excludes the rules of procedural fairness.

HIS HONOUR:   Yes.

MR DONAGHUE:   If so, we thought that would allow an answer to the “ever” question. 

HIS HONOUR:   Yes, well, again, I am not wedded to it.  Now, time is leaching away. 

MR DONAGHUE:   Your Honour, we would, your Honour having indicated an intention to go down this path, we would be content for your Honour to state a case based on those propositions today, tomorrow morning and then the timetable of the kind that your Honour foreshadowed that would involve submissions next week could be met.  I think it fair to indicate, your Honour, that I am not sure what estimated duration of hearing your Honour has in mind for this case.

HIS HONOUR:   That was the next question.  Why should it extend beyond a day?

MR DONAGHUE:   We, your Honour, will be responding to what the plaintiff seeks to do.  My understanding at the moment is that Mr Merkel seeks to run a case based, raising not just issues about the statutory construction of section 72 and about the non‑statutory executive power of the Commonwealth, but also about a significant international law case.  If those matters are all to be litigated, in my submission it will not be possible to do it in a day.

HIS HONOUR:   How long do you think - on the assumptions you have described, how long do you think?

MR DONAGHUE:   I think two, your Honour.  The other thing I should perhaps just note to your Honour so that it is on the Court’s radar is that there is a matter listed in the following week which is quite probably going to fall away in the sense that the plaintiff in that matter challenges a decision that has been overturned by the Refugee Review Tribunal and so the substance of the matter may have fallen away.  It has not been resolved.  The parties are talking about what they should say to your Honour, but there is a possibility that there will be one day in that week that might become – I cannot put it higher than that at the moment, but so your Honour is aware. 

The case is S89 - is the case that I am referring to.  I do not know if that affects your Honour’s thinking, but I mention it.

HIS HONOUR:   What affects my thinking more than anything else is how long have these people been on board that ship.

MR DONAGHUE:   Yes.

HIS HONOUR:   How long, how many days?

MR DONAGHUE:   Since 29 June.

HIS HONOUR:   So, how long?

MR DONAGHUE:   I think, your Honour, that is 23 days or 24 days, I am not sure which.  But as I say, your Honour, we can reformulate those questions as best we can in light of what your Honour said and return it to the Court, probably today or certainly by early tomorrow.  We are in your Honour’s hands.

HIS HONOUR:   Yes, thank you, Mr Donaghue.  Yes, Mr Merkel, what do you say?

MR MERKEL:   Your Honour, we do not see any difficulty with the matter proceeding on the basis indicated by your Honour but we would like the opportunity to discuss some of the questions we have asked with our learned friend to ensure that the case that we believe we will be putting forward in argument is properly captured in the case stated and we would say if we could have the opportunity overnight to ‑ ‑ ‑

HIS HONOUR:   By what time do you propose to provide to the defendants’ solicitors your suggestions?

MR MERKEL:   We would endeavour to do it – or we will do it, your Honour ‑ ‑ ‑

HIS HONOUR:   No, by what time?

MR MERKEL:   We will do it prior to 6.30 tonight, but we would prefer 9.30 in the morning.  But we are in your Honour’s hands as to when it would come back. 

HIS HONOUR:   Not a question of when we come back, Mr Merkel.  It is a question of by what time will your side produce ‑ ‑ ‑

MR MERKEL:   By 9.30 in the morning, your Honour.

HIS HONOUR:   Mr Donaghue, assuming that – not by 9.30 but by 0900 tomorrow the plaintiff has had an opportunity to proffer suggestions to you, by what time would you anticipate being in a position to produce your final draft proposed stated case?

MR DONAGHUE:   Sorry, your Honour, I am reflecting on the logistics.  We can produce a document that incorporates the plaintiff’s suggestions as the plaintiff’s suggestions quite quickly.

HIS HONOUR:   Sure.

MR DONAGHUE:   The difficulty is that, for obvious reasons, the instructions in this matter are being given at a high level within the Commonwealth and there are some things happening at the moment which are putting pressure on those people, quite unrelated to this litigation, and so I do not want to give an indication to your Honour of an unduly long time, but I am not confident of a short time.  So I can reformulate and include a document reflecting what your Honour has said to me and then include, for the sake of the Court’s convenience, what the plaintiff has asked us to add to that document if that would be of assistance to the Court.

HIS HONOUR:   Yes, it would.

MR DONAGHUE:   We can probably do that by midday, maybe earlier if we need to, your Honour.

HIS HONOUR:   If we said “Plaintiff by 0900, defendant by 1200” and assemble again at 3.15 tomorrow?

MR MERKEL:   Yes, your Honour.

MR DONAGHUE:   Yes, your Honour.

HIS HONOUR:   Death by a thousand cuts, this has got to get to an end.  Enough.

MR MERKEL:   I could not agree more, your Honour.

HIS HONOUR:   Very well.  Mr Merkel, your side should by no later than 0900 tomorrow – and I mean no later than 0900 tomorrow – make such proposals, final proposals, as your side wishes to make in respect of the draft stated case produced by the defendants.  The defendants should produce their document incorporating such proposals as it desires to adopt, together with a note of such additional proposals as may be made by your side as to which it has not by then agreed by 12 noon tomorrow and it should be made available to the Court by 12 noon tomorrow so that at 3.15 I can tell the parties what I propose to do.

MR MERKEL:   Just to clarify, your Honour, we are to give our learned friends the document by 9 and then the combination will go to your Honour by noon.

HIS HONOUR:   Yes.

MR MERKEL:   Yes, thank you.

HIS HONOUR:   Yes.  Is that clear, counsel?  There is no difficulty about that?

MR DONAGHUE:   Yes, that is clear, your Honour.  There is no – Mr Herzfeld reminds me there is a separate question to do with the pleadings which – it is a minor point but your Honour granted leave to file an amended pleading to the plaintiff at the second hearing on Friday afternoon.

HIS HONOUR:   Yes.

MR DONAGHUE:   In a form that included changes necessary to incorporate the comments that your Honour had made at that hearing.  For the most part that is not problematic.  There are two paragraphs that were added subsequently on Sunday evening by the plaintiff which do not fall within the terms of that leave and which I am instructed to object to.  They are not reflected in the questions that are asked and they raise an issue in relation to – there is a pleading based on section 36(2)(aa) of the Migration Act which is the complementary protection visa criteria in the Migration Act.  We do not understand how it – by what mechanism it is said to relate to the Maritime Powers Act or what the legal issue is and it is not within the terms of the leave your Honour granted.  So I do not want to detain the Court on it unduly, but I am instructed to object to that.

HIS HONOUR:   Sort it out, counsel?

MR MERKEL:   Yes.

HIS HONOUR:   Sort it out, just fix it.  Three fifteen tomorrow.

AT 4.46 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 23 JULY 2014