CZA19 v Commonwealth of Australia & Anor; DBD24 v Minister for Immigration, Citizenship and Multicultural Affairs & Anor; DBD24 v Minister for Immigration, Citizenship and Multicultural Affairs & Anor

[2024] HCATrans 75

[2024] HCATrans 075

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M66 of 2024

B e t w e e n -

CZA19

Applicant

and

COMMONWEALTH OF AUSTRALIA

First Respondent

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Second Respondent

Office of the Registry
  Perth  No P29 of 2024

B e t w e e n -

DBD24

Applicant

and

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

Office of the Registry
  Perth  No P34 of 2024

B e t w e e n -

DBD24

Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

GAGELER CJ

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON TUESDAY, 29 OCTOBER 2024, AT 10.00 AM

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.

MR D.J. HOOKE, SC appears with MR J.D. DONNELLY for the applicants in matters M66/2024 and P29/2024, and for the plaintiff in matter P34/2024.  (instructed by Zarifi Lawyers)

MR P.M. KNOWLES, SC appears for the respondents in matters M66/2024 and P29/2024, and for the defendants in matter P34/2024.  (instructed by Australian Government Solicitor)

HIS HONOUR:   I have received, Mr Hooke, some short submissions from you, and I have also received – about a minute ago – some proposed consent orders.  I understand that in substance what is to occur is that the new matter in DBD24, in the original jurisdiction of this Court, is to supersede the matter removed from the Federal Court, and the proposal is that it goes ahead with the hearing of CZA19 on 14 November.  In short compass, that is what I think is occurring.

MR HOOKE:   Yes, your Honour, that is an accurate summary of the matter, subject to the Court’s convenience.

HIS HONOUR:   All right.  Is there a difficulty about the special case in the new DBD24 matter?  It seems a very straightforward exercise.

MR HOOKE:   Your Honour, we apprehend not, and we are well advanced in discussions in relation to the special case.  There are some matters in relation to which instructions are being sought at the moment and we apprehend, as your Honour sees from the proposed consent orders, that there will be a special case agreed in the next day or so and able to be progressed fairly rapidly from there.  Neither party anticipates any need for any further written submissions, so it would simply be a matter of the special case book being filed and the special case being referred into the Full Court.

HIS HONOUR:   Is there agreement at this stage as to the form of the question that would be asked of the Full Court?

MR HOOKE:   Not entirely, but the difference between us is something we are working on at the moment, your Honour.

HIS HONOUR:   Mr Knowles, did you want to say anything?

MR KNOWLES:   Nothing other than to say that I agree with my learned friend’s optimism that a special case should be able to be agreed, but it has not yet and there are still discussions about the form of the question.

HIS HONOUR:   In matter P34/2024, which is the newly‑filed matter in the original jurisdiction of this Court, I am prepared to make the orders that have been proposed by consent.

The orders that I make are:

1.The name of the first defendant be amended to the Minister for Immigration and Multicultural Affairs; and

2.The first and second defendants are to file any special case agreed between the parties on or before 31 October 2024.

In relation to that special case, I will need to see the form of it before I make any directions that would have it listed for 14 November.  When the special case is filed, assuming that it is filed, I would be assisted by a short submission – a joint submission, preferably – on the proper course to take.  In relation to matter P29/2024, I understand that the proposed consent order is intended to terminate the proceeding in this Court.  Is that correct?

MR HOOKE:   That is so, your Honour.  The parties are in agreement in relation to the disposition of the remaining proceedings in the Federal Court to deal with the balance.

HIS HONOUR:   In your proposed order 3, so there is no ambiguity, I would prefer to commence it by saying:  the applicant have leave to discontinue the proceeding insofar as it has been removed into this Court.

MR HOOKE:   We would be content with that form of order, if your Honour pleases.

HIS HONOUR:   Mr Knowles?

MR KNOWLES:   If the Court please, there is no difficulty with that one.

HIS HONOUR:   Then, in matter P29/2024 the orders I make are as follows:

1.The name of the first respondent be amended to the Minister for Immigration and Multicultural Affairs.

2.The applicant has leave to withdraw the claim for relief in prayer 1 of the amended originating application filed in the Federal Court on 7 June 2024, being that part of the proceeding that was removed into this Court by order 2 made by me on 31 July 2024.

3.The applicant has leave to discontinue the proceeding insofar as it has been removed into this Court, and the requirement for a notice of discontinuance is dispensed with.

4.The respondents are to pay the applicant’s costs of the proceeding removed as agreed or as assessed.

Those are the orders I make.  Mr Knowles, there is just one other question I wanted to ask you.  There is an application for intervention in the matter.  I am not sure that has been addressed in your submissions, it may have been I have not seen it.  What is your attitude to that?

MR KNOWLES:   I will have to take instructions.  In our written submissions, we did address some of the substance of the matter raised by the intervenor but not the question of intervention generally.  I am sorry, your Honour, that I do not have instructions on that this morning.

HIS HONOUR:   When you file the special case, you might include a sentence that states your position in the note that will accompany.

MR KNOWLES:   If the Court please.

HIS HONOUR:   Thank you.  On that basis, unless there is something further to raise, gentlemen, I will adjourn.

AT 10.09 AM THE MATTER WAS ADJOURNED