Duman & Ors v Commonwealth of Australia

[2020] HCATrans 70

[2020] HCATrans 070

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M36 of 2020

B e t w e e n -

ZEHRA DUMAN

First Plaintiff

JARRAH RAMADAN

Second Plaintiff

LAYLA AFANEH

Third Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

Directions hearing

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE BY VIDEO CONNECTION

ON THURSDAY, 4 JUNE 2020, AT 10.03 AM

Copyright in the High Court of Australia

MS G. WATSON KEESING:   Your Honour, I appear for the first to third plaintiffs.  (instructed by Human Rights for All)

MR P.D. HERZFELD:   Your Honour, I appear for the defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Thank you for the draft minutes which were sent to me which seem to be pretty satisfactory.  The only thing I would want to say was that on this timetable you would not get a hearing before September at the earliest.  Is that what is contemplated in the circumstances which appear to apply up north where the plaintiffs are located?

MS WATSON KEESING:   Your Honour, we would certainly be open to some further level of expedition if that were possible.  This is the timetable that has been agreed between the parties, but if the Court were minded to speed things up a little, certainly from our end that would be a good thing.

HIS HONOUR:   Mr Herzfeld, I do not want to put too much pressure on you or the Commonwealth, as it were.  It is much better to get it right than to get it quickly, but is it capable, realistically, of being accelerated at all?

MR HERZFELD:   Yes, your Honour.  This timetable, it seemed to us, realistically would not get the matter to hearing before October.  We did think there could be some tightening at this stage so in relation to – I am not sure if your Honour is getting feedback ‑ ‑ ‑

HIS HONOUR:   It is satisfactory.

MR HERZFELD:   In relation to proposed order 3 in our draft – it might actually be proposed order 4 in the short minutes, so the time at which the plaintiff is to provide a draft of the special case that could be brought forward to 3 July.

HIS HONOUR:   Yes.

MR HERZFELD:   Then that would mean that the next order, say our amendments could be brought forward a week to 17 July and then the next order could be brought forward to 24 July.  That still gives a reasonable amount of time for the negotiation of a special case and that would mean the proceeding could come back for directions in the week beginning 27 July.

HIS HONOUR:   Yes.

MR HERZFELD:   That, it seemed to us, would be more realistic for September.

HIS HONOUR:   I agree.  Ms Watson Keesing, could you accommodate those steps?

MS WATSON KEESING:   Yes, your Honour.

HIS HONOUR:   Very good.  I take it there is nothing else I need to know at this stage?

MR HERZFELD:   Not from our perspective, your Honour.

HIS HONOUR:   Ms Watson Keesing?

MS WATSON KEESING:   No, your Honour, only in relation to order 1, I understand that my friend does not oppose that order, but that it is not consented.  I assume your Honour does not require me to address you on those matters?

HIS HONOUR:   No.  I gather from the affidavit filed in support of the application that the difficulty of obtaining the written consent still applies, does it?

MS WATSON KEESING:   Yes, your Honour.

HIS HONOUR:   Very well.  I will make orders as follows: 

1.The first‑named plaintiff, Zehra Duman, be appointed nunc pro tunc litigation guardian for each of the second and third plaintiffs, Jarrah Ramadan and Layla Afenah, and for that purpose compliance with rule 21.08.7 of the High Court Rules 2004 (Cth) is dispensed with.

2.On or before 4.00 pm on 19 June 2020, the defendant file and serve a defence.

3.On or before 4.00 pm on 26 June 2020, the plaintiff file and serve any reply.

4.On or before 4.00 pm on 3 July 2020, the plaintiffs provide to the defendant a draft special case.

5.On or before 4.00 pm on 17 July 2020, the defendant provide to the plaintiffs any proposed amendments to the draft special case.

6.On or before 4.00 pm on 24 July 2020, the plaintiffs either file and serve any special case that has been agreed to in the filings or inform the Court that no agreement has been reached.

7.The proceeding be listed for directions at 9.30 am on 27 July 2020.

8.Costs be in the cause.

9.The parties have liberty to apply on one day’s written notice.

Thank you both very much.

MR HERZFELD:   Thank you, your Honour.

HIS HONOUR:   Adjourn.

AT 10.09 AM THE MATTER WAS ADJOURNED