CPCF v Minister for Immigration and Border Protection and Anor

[2014] HCATrans 184

[2014] HCATrans 184

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

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON THURSDAY, 21 AUGUST 2014, AT 9.00 AM

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 MS R. MANSTED, for the applicant.  (instructed by Shine Lawyers)

MR S.P. DONAGHUE, QC:   If your Honour pleases, I appear with my learned friend, MR C.J. HORAN, for the defendants.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   I have received from the parties a draft special case.  Is there anything that the parties wish to add or say about that draft special case?

MR MERKEL:   Not from our point of view, your Honour.

MR DONAGHUE:   Nor ours, your Honour.  Our understanding is the parties are prepared to sign a special case in those terms.

HIS HONOUR:   Yes, then I will have made available to the parties orders and directions that seem to me to follow.  The case will be fixed on 14 and 15 October and two days will be sufficient, will it not, for the hearing of the argument?

MR MERKEL:   I think so, your Honour.

MR DONAGHUE:   Yes, your Honour.

HIS HONOUR:   Counsel have to, if necessary, divide the time.  The directions I propose are:

1.The questions stated be referred for consideration by a Full Court and, subject to any further or other direction, the matter be fixed for hearing on Tuesday, 14 October and Wednesday, 15 October in Canberra.

2.Subject to any further or other direction, Part 44 of the High Court Rules relating to written and oral submissions, including the annotated form of submissions with any necessary variations or adaptations, apply to the proceeding.

3.On or before 4.00 pm, Tuesday, 2 September 2014, the plaintiff file 12 copies including one unbound, unperforated copy and serve on the defendants three copies of a special case book. 

4.On or before 4.00 pm, Thursday, 11 September 2014, the plaintiff and any party intervening or seeking to intervene in support of the plaintiff file and serve written submissions of no more than 20 pages and a chronology annotated to refer to the pages of the special case book that contain relevant documents and agreed facts and evidence, together with a list of authorities in accordance with Practice Direction No 1 of 2013.

5.On or before 4.00 pm, Tuesday, 30 September 2014, the defendants and any party intervening or seeking to intervene in support of the defendants file and serve written submissions of no more than 20 pages and a chronology annotated to refer to the pages of the special case book that contain relevant documents and agreed facts and evidence, together with a list of authorities in accordance with Practice Direction No 1 of 2013.

6.On or before 4.00 pm, Wednesday, 8 October 2014, the plaintiff file and serve written submissions in reply of no more than five pages annotated to refer to the pages of the special case book that contain relevant documents and agreed facts and evidence.

7.Costs reserved.

Before asking counsel whether they have anything to say about the form of those orders, two questions.  Is there any indication to either side of whether there is likely to be any intervention in the case?

MR MERKEL:   Your Honour, we believe the United Nations High Commission of Refugees will be seeking to intervene and the Human Rights Commission.

HIS HONOUR:   Yes.

MR MERKEL:   I cannot say that that will be the case, but that is our understanding in answer to your Honour’s question.

HIS HONOUR:   Yes.  It will be observed then that the directions I propose are directed to any party seeking to intervene and if either side is in contact with any proposed intervener it would be useful if attention was drawn, not only to the fact of the directions but also the need to comply with the directions.  Mr Donaghue, is there any question about a 78B notice in this case?  It is not immediately apparent to me that it calls for one, but is it one where it would be prudent, or not prudent?

MR DONAGHUE:   I think probably it would be, your Honour.  I thought one had been issued, in fact, in respect of the section 61 non‑statutory executive power point, but if there has not been one it should be, in my submission.

HIS HONOUR:   Then do I need to give any time for that?

MR DONAGHUE:   I would not think so, your Honour, no.

MR MERKEL:   I think we have already served notices, your Honour, so we will have another look at them in the light of the special case but we understand it relates to the ‑ ‑ ‑

HIS HONOUR:   Non‑statutory executive ‑ ‑ ‑

MR MERKEL:   ‑ ‑ ‑ non‑statutory executive power issue.

HIS HONOUR:   If in doubt, serve one.  If in doubt, serve it again with a copy of the directions so that the recipients of the notice recognise that times are fixed and that decisions about intervention have to be made within particular timeframes.

MR MERKEL:   Yes, we will do that, your Honour.

HIS HONOUR:   Yes.  Do counsel seek to be heard about the form or content of the directions?

MR MERKEL:   Not from our point of view, your Honour.

MR DONAGHUE:   Nor us, your Honour.

HIS HONOUR:   Do you have a copy of the draft?  One can be made available.  There will be directions in the terms I have indicated.  Can I say to counsel, I am grateful for the evident effort that lies behind the fact that a special case has been agreed.  I am not blind to the fact that the presentation of a document is not always achieved easily.  So, as I say, for that, thank you.

Adjourn the Court.

AT 9.06 AM THE MATTER WAS ADJOURNED