Dang, Ex parte - Re MIMA

[2002] HCATrans 97

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Melbourne  No M118 of 2001

In the matter of -

An application for Declarations, Certiorari, a Writ of Prohibition and Injunction against THE HONOURABLE PHILIP RUDDOCK, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Ex parte –

DUNG CHI DANG

Applicant/Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 21 MARCH 2002, AT 9.59 AM

(Continued from 26/2/02)

Copyright in the High Court of Australia

MR P.G. NASH, QC:   If your Honour pleases, I appear with my learned friend, MR A.F.L. KROHN, for the plaintiff.  (instructed by Access Law)

MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth:  If your Honour pleases, I appear with my learned friend, MR P.R.D. GRAY, for the respondent.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Nash.

MR NASH:   Your Honour, this is an application to hive off the aliens power question with a view, if possible, to having it heard together with Meng Kok Te.

HIS HONOUR:   Why should I do that?  What advantage is there in my doing that, advantage whether to the parties or to the Court?  You speak of hiving it off.  That is, as I would understand it, you would seek to maintain other grounds than this question that is raised in Meng Kok Te.

MR NASH:   Yes, your Honour.

HIS HONOUR:   Then what is the advantage in my adopting this course?

MR NASH:   The advantage from the plaintiff’s point of view is that a decision on which his fate may well hang would be one in relation to which he would have some voice, some capacity to present argument.  It may well be, of course, that he could seek leave to intervene.  More importantly perhaps, the facts of his case, as well as the facts of Meng Kok Te, would be before the Full Court.

HIS HONOUR:   Are the facts in this case different from those in Meng Kok Te in some way which you would say has constitutional significance?

MR NASH:   In relation to the question of absorption, your Honour, the situation is that, unlike Mr Te, my client was educated here, went to school here, effectively all his relatives are Australians.  There is the educational question.  There is the involvement in the community through – in fact, as I say, all his relatives are Australian citizens.  I say all, I mean, there must be some cousins somewhere in Vietnam, but for all substantial purposes ‑ ‑ ‑

HIS HONOUR:   It was a long list of people related to him who are Australian citizens.

MR NASH:   We take the view that that creates a situation where the Full Court can really, for want of a better word, have the strong factual case before it to make the absorption decision in relation to “alien”.

HIS HONOUR:   But would your client advance some argument different from, or additional to, the arguments that will be advanced in Meng Kok Te, bearing in mind that Meng Kok Te is represented by the solicitor who instructs you?

MR NASH:   The answer to that, your Honour, is, frankly, almost certainly not because, apart from anything else, if Meng Kok Te goes ahead without us and if we do not intervene, counsel who are acting for my client will certainly have some input into the arguments that are put.  Of course, your Honour, they may not be put with the same fluency, verve and enthusiasm, but in reality we cannot say ‑ ‑ ‑

HIS HONOUR:   All those matters that sway the Court so often, Mr Nash, yes.

MR NASH:   Yes, your Honour.  The cold logic that meets enthusiasm is quite disappointing sometimes.  The only other aspect – and in some ways it is trivial – is that, of course, if Meng Kok Te gets up, we will still have to run our case in relation to whether or not we have been absorbed.  My client is in endurance vile and he will stay there for some time and after Meng Kok Te is decided, even if Meng Kok Te is decided in our favour.

HIS HONOUR:   Yes.

MR NASH:   So it is a “hearts and flowers” argument primarily rather than cold logic entirely, your Honour, but we feel that since we could make an application to intervene, it would be more logical for us to be a party.

HIS HONOUR:   Yes, thank you, Mr Nash.  Mr Solicitor, what is the attitude of the respondent?

MR BENNETT:   Your Honour, we do not accept the word “vile”.

HIS HONOUR:   We will not debate that, Mr Solicitor.

MR BENNETT:   Your Honour, we would regard it as primarily a matter for the Court.  There is one argument in favour of what my learned friend submits, which he has not put to you, and that is that if in Meng Kok Te this Court were to come to the conclusion that because the case on absorption in the stated case there is so weak the constitutional issue does not arise, the issue would go away and not be determined, whereas if this case were there as well, this case being, without conceding anything, stronger than Te’s Case on that issue, it bolsters up the appropriateness of the vehicle, if I may put it that way.  That is an argument in favour. 

There is a question as to how far the issue of absorption can be determined beforehand; probably it cannot.  So there is the disadvantage my learned friend has referred to, that the Court would be looking at a stated case with a whole lot of basic facts in it.

HIS HONOUR:   Is Meng Kok Te stated case?  I thought it was ‑ ‑ ‑

MR BENNETT:   No, it is not, I am sorry.

HIS HONOUR:   ‑ ‑ ‑ returnable before a Full Court, there being no challenge to the facts asserted in the applicant’s material.

MR BENNETT:   I think that is so, your Honour.  I apologise if I suggested to the contrary.  The problem is that the Court could decide Te’s Case by saying, whether or not there is an absorption test under the aliens power, this case would not make it out and thus, on that view, the Court might not decide the constitutional issue, whereas if this case were there as well, that possibility would be far less likely.  That seems to be an advantage to both parties and to the law.

HIS HONOUR:   If I were to accede to the request, procedurally how would it be done?  Given that Mr Dang seeks to rely on grounds other than what might be loosely called the Patterson point, it would seem inappropriate to order that the application be made in the first instance to a Full Court under, what is it, 55 rule 3, is it?

MR BENNETT:   Yes.  I was thinking, your Honour, of the rule – yes, there is Order 55 rule 2, but there is the rule about splitting cases.

HIS HONOUR:   Yes.

MR BENNETT:   There is a rule under which the Court can make an order for separate determination of issues.  One would need to work through – and I have not done the exercise – how that rule fits into the stated case provisions.

HIS HONOUR:   I think in the end I would probably have to do it by a section 18 case or something akin to a section 18 case.  I do not see for the moment any procedural impediment to doing it in that way.  A question arises in a matter and it would be necessary therefore to have some agreed facts, so that there is a factual base for it on which it might go forward.

MR BENNETT:   We are having discussions with my learned friend about the question of what facts can be agreed or placed in a stated case.

HIS HONOUR:   Can I say to the parties, my first impression of the matter was that there was no real advantage to anyone in putting this issue in this case before a Full Court, but that impression proceeded from the unstated premise that the facts are not so different as to lead to some difference in the way in which the two cases would be disposed of.  If, however, it is right to say that the factual base for Mr Dang’s case is different from and stronger than Mr Te’s case, then the impression I first had is open to attack. 

It would seem to me, however, that in the end, unless the parties could agree upon a case stated raising the same question, we end in a procedural morass of a kind that it is not productive to spend time trying to unravel.  If the parties could agree on a stated case, then there may be the advantage in putting them both up.  If that were to be done, it would be done, however, on the clearest possible understanding that there would be but one argument for those advancing the point.  There would not be separate arguments, save as to matters of true difference between the two cases.  We are not just going to idly multiple representation. 

It may well be that at the end of the day, so that the parties would be under no misapprehension, that the applicants would have but one set of costs, were they to succeed, whereas, of course, were they to fail, they would be at risk as to two sets of costs for proceedings in the Court.  Now, those are all matters of course ultimately for the applicant.  They are not for your side, Mr Solicitor, but they are matters that no doubt should be taken into account.

MR BENNETT:   Yes.  Your Honour, the immediate course may well be then to adjourn this matter for further mention before your Honour at a convenient time, with a view to the parties having an agreed document to place before your Honour, if that can be achieved.

HIS HONOUR:   Yes, and if it cannot, then, at least as at present advised, I am hesitant to attempt to try to devise some other means of achieving the same end.

MR BENNETT:   Yes.  It should be clear, your Honour – this was the matter which agitated us prior to my friend getting to his feet – that the other issues in this case are not to be raised before the Full Court in ‑ ‑ ‑

HIS HONOUR:   Whether they would seek to raise them before the Full Court, I would not, as at present advised, be minded to permit that to be done.

MR BENNETT:   No.

HIS HONOUR:   No doubt they may apply if they wish it, but that is my present frame of mind.

MR BENNETT:   Yes.  Would your Honour just pardon me for a moment on the question of dates?

HIS HONOUR:   Yes, of course.

MR BENNETT:   My learned friend suggests 28 March, if that is convenient.

HIS HONOUR:   I would rather bring it back, I think.  In fact, 28 March is not convenient.  So I would rather bring it back, I think, on either 8 or 15 April.  There are obvious advantages in bringing it back on 15 April.  Has Meng Kok Te a date yet?

MR BENNETT:   Yes, your Honour, 18 April.

HIS HONOUR:   Ah.  He was heard to say, “Ah”.  My horizon is about 20 minutes, Mr Solicitor.  It is not as far ahead as 18 April.  I could do it on the morning of 26th.  The morning of 27th I have to speak at a conference.

MR BENNETT:   There is a problem with that, your Honour, in that the one matter which would have to be attended to before that is the obtaining of instructions on a number of factual matters, which require some unearthing of documents.

HIS HONOUR:   Yes.

MR BENNETT:   I am a little concerned that we could do it by that date.  If your Honour has a date in the week after Easter.

HIS HONOUR:   I could do it on Thursday, 4 April.  Are we running it too close to the fixing of Meng Kok Te though?  Meng Kok Te is in on the 18th.  To get submissions up and running by then, the parties would be under very, very close timetables.  Now, it is all very well to impose a close timetable on the applicant who seeks to have this done.  I am rather more hesitant about imposing close timetables on the respondent, though perhaps if the issue is one that is purely factually based and the facts are not disputed, there is no difficulty, Mr Solicitor?

MR BENNETT:   Your Honour, we would anticipate that our submissions in the two matters would not be materially any different to what the submissions would be in Te alone.  In other words, there might be a paragraph dealing with the facts here but it would be unlikely to be a major matter.

HIS HONOUR:   I had anticipated your submission would be that absorption is not a relevant matter for consideration.

MR BENNETT:   Precisely.

HIS HONOUR:   Yes.

MR BENNETT:   Yes, that would be our submission.  As I say, the way my learned friend has suggested the matter were to go up, I would assume there would not be anything extra to the Te submissions beyond perhaps a paragraph commenting on the factual matters, which may or may not be there.

HIS HONOUR:   Which again brings me back to the question from which I began:  are we really achieving anything by doing this?

MR BENNETT:   Only avoiding the risk of ‑ ‑ ‑

HIS HONOUR:   Of going off on a ‑ ‑ ‑

MR BENNETT:   ‑ ‑ ‑ Te going off on the facts and the Court saying we do not get to the constitutional issue.

HIS HONOUR:   Then what I will do is I will stand the matter over until 4 April 2002 at 9.30.  I will make no other order other than reserving costs and certifying for the attendance of counsel.  But the parties should understand that if this process is to be adopted it could be adopted if, but only if, (a) it was clear by 4 April that there was no dispute of fact, on relevant facts; (b) that by 4 April the parties had agreed upon the text of a case stated; and (c) that the parties were in a position to comply with very short dates for the filing of any submissions additional to those that will in any event be filed in relation to the matter of Te. 

I speak in those terms because, again as at present advised, I would not be minded to permit the filing of submissions except to the extent that they were additional to, or supplementary of, what is already to be said in the matter of Te.  Now, do the parties seek to be heard against my following the course I have just described?  Mr Solicitor?

MR BENNETT:   Only in one respect, your Honour.  I have instructions to seek costs of the mention today on the basis that these matters should have been raised on the prior occasion.  It is a matter for your Honour.

HIS HONOUR:   For the moment I am minded to reserve them, Mr Solicitor. 

Then the matter will be stood over until 4 April 2002 at 9.30 am in Melbourne or such other time as may be directed.  Costs are reserved and I certify for the attendance of counsel.  Parties have heard the other strictures that I have given vent to during the morning.

AT 10.16 AM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 4 APRIL 2002