DWN042 v The Republic of Nauru

[2017] HCATrans 203

[2017] HCATrans 203

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M20 of 2017

B e t w e e n -

DWN042

Appellant

and

THE REPUBLIC OF NAURU

Respondent

KEANE J
NETTLE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 18 OCTOBER 2017, AT 10.20 AM

Copyright in the High Court of Australia

MR P.R.D. GRAY, QC:   May it please the Court, I appear with MR M.L.L. ALBERT, for the appellant.  (instructed by Maddocks)

MR G.R. KENNETT, SC:   May it please the Court, I appear with MR A. ALEKSOV, for the respondent.  (instructed by Republic of Nauru)

KEANE J:   Mr Gray.

MR GRAY:   Your Honours, this appeal under the Nauru (High Court Appeals) Act relates to a leave application under the same Act heard and determined by this Court last year in M79/2016.  The subject matter and the circumstances giving rise to both are set out in the appellant’s annotated chronology dated 10 October 2017 and I would ask your Honours to take that document up now. 

As your Honours will see from the first point in that document, very shortly after the signing of a second memorandum of understanding that is mentioned in this Court’s judgment in M68/2015 ‑ that is [2016] HCA 1 ‑ on 7 September 2013, the appellant was transferred to Nauru from Australia. He entered the country on a visa and he was detained and remained detained thereafter at all material times. The next point, your Honours, at point 3, the appellant lodged an application for refugee status determination. That, as your Honours will know, was an application made under the Refugees Convention Act 2012 (Nr), section 5.  That occurred on 8 December 2013.

Next, point 5, there was a determination at the primary level under section 6 of that Act that occurred on 12 July 2014.  Next, point 6, your Honours, on 1 August there was a notification – that occurs under section 9 of that Act – and there was an application lodged for merits review – that occurs under section 31 of that Act.  Merits review is an invocation of the function of the Refugee Status Review Tribunal, a body established under that Act, with functions and duties under that Act.

Point 8, whilst still detained and at the place of his detention, the appellant gave evidence at a hearing before the Tribunal.  That occurred on 25 September 2014, and your Honours have the transcript of that hearing at appeal book 147 to 180.  Next, point 9, the Tribunal affirmed the primary decision.  That decision and the reasons for it are in the appeal book at 197 to 208.  That occurred on 29 December 2014.

Next, point 11, there was an appeal to the Supreme Court of Nauru lodged on 24 April 2015.  As your Honours well know, there is an appeal, so‑called, on a question of law available from a decision of the Tribunal to the Supreme Court of Nauru.  Next, point 12, counsel was retained on 4 May 2016 for a hearing on the very next day, and as it happened it was early in the morning of 5 May, an amended notice of appeal was lodged.

Now, that document is in the appeal book at pages 211 and 213 and I would ask your Honours to turn to that now.  The substance of the document begins on page 212.  If your Honours have that, I would ask your Honours in particular to note grounds 1 and 2.  Your Honours will see there that there are two grounds that relate to the alleged status of the appellant’s detention at the time of the hearing.  The first ground invokes the principles of natural justice and it of course was in amongst the conditions of the functions of the Tribunal, incumbent on the Tribunal, pursuant to section 22(b) to observe the principles of natural justice.

The second ground again refers to the alleged unlawful status of the detention of the appellant at the time but it is in effect a per se ground.  What I mean by that is it is claimed in ground 2:

The Tribunal’s hearing in respect of the Appellant was unconstitutional because he was unlawfully detained at that time.

KEANE J:   Ground 2 is really a particular, the particulars of 1, is it not; either particulars or an expansion of it.

MR GRAY:   We say it is an expansion.  We say that ‑ and I will come to this in a minute your Honour ‑ but we say that the conceptual framework for dealing with this issue has a common source and that is that the Constitution of Nauru limits the scope of valid laws of Nauru and the actions that can be taken under them.  One aspect of ‑ ‑ ‑

KEANE J:   The problem for us is whether or not that is right is not something on which this Court can pronounce.

MR GRAY:   That is so, your Honour.  When I come to the answers that are urged by our friends I will be attempting to persuade the Court that it is not ourselves but our friends who are in fact inviting the Court to trespass into the territory prohibited by Article 2(a) of the Agreement.  The way I put that, your Honour, just to foreshadow it and to vote early and to vote often, so to speak, is that we are invoking the appellate function of the Court in a manner analogous to what the Court does when it orders mandamus.

KEANE J:   Insofar as you say these issues are justiciable exclusively before the Supreme Court of Nauru, they have not been determined.

MR GRAY:   That is so, your Honour.

KEANE J:   If that is right, you do not need to worry yourself with the elaborate and exquisite exchange that you are foreshadowing with the Republic.

MR GRAY:   That is exactly how we put it, your Honour.  We say that it is sufficient, and in fact it may be prohibited to go further, for this Court to note that constitutional questions were raised and that, on grounds that are now admitted to have been plainly wrong, the Supreme Court declined to adjudicate those questions.

EDELMAN J: That is a different point. The point I think that was just being put to you by Justice Keane is concerned with, effectively, the failure to consider the notice of motion. It is a different point whether or not the Court can consider and adjudicate as plainly wrong matters which are bound up with questions of or the effect of the Constitution.

MR GRAY:   Thank you, your Honour.  I will endeavour to ensure that I keep those two points distinct when I address on the detail in a minute.

NETTLE J:   Well, it is as simple as that.  You say Justice Khan deprived you of natural justice or procedural fairness by proceeding upon the basis that there was substance in his reasons for striking out grounds 1 and 2 when it was conceded by the Republic that those reasons were wholly wrong, is it not?

MR GRAY:   Yes, that is ground 1 of the current notice of appeal in this Court.

NETTLE J:   And what is said against you is, I suppose, that you had your opportunity to have someone there at the hearing before Justice Khan and to prosecute your notice of motion for the reinstatement of grounds 1 and 2…..the concessions that were made before this Court on the application for special leave.

MR GRAY:   I will not go so far as to put exactly those words in our friend’s mouths, but something close to that, your Honour.

NETTLE J:   It seems to be, yes.  What is the answer to that?

MR GRAY:   Well, as we have said in our summary of oral address, it is only a very faintly put contention that a breach of procedural fairness on a prima facie basis has not been made out.  Our answer is that, perhaps in the nick of time but in time, a notice of motion was put before the Court – this is on 6 February – and acknowledged by the Court that communication took place between the then Registrar, now the Chief Justice, and Justice Khan and somehow my client was not provided with an opportunity to be heard on the notice of motion.  So that is the short answer.  Now, it happened in a brief space of time, in between 6 and 7 February, but that is sufficient for our purposes.

NETTLE J:   Yes.

MR GRAY:   The real thrust and gravamen of the ‑ ‑ ‑

KEANE J:   It is not just, is it, that you were not afforded the opportunity; it was that his Honour did not deal with your notice of motion at all?

MR GRAY:   I agree.  Yes, you are right, your Honour.

EDELMAN J:   You have put it on the basis of a breach of natural justice, but it could be put higher as a failure to exercise jurisdiction.

MR GRAY:   Yes, it could, and we have not – although we have referred to an undischarged function or duty, we have not actually particularised our notice of appeal in that way, your Honour.

So, your Honours, if I could just complete the background subject matter and then I will lead into the propositions and I will engage further with the questions that have already been asked of me.  Can I just note for your Honours we had omitted to mention this in our summary, but the amended notice of appeal to which I have just taken you, at appeal book 212 and 213, that was the subject of a grant of leave by his Honour.  Now, the grant of leave was quarrelled and it is at appeal book 414, at line 19.

So we are dealing, in a sense, with a situation where the Court had before it the amended notice of appeal, having granted leave, and then heard an application for a strike out of grounds 1 and 2.  And for the purposes of adjudication of that strike out the Republic, by its counsel, invited his Honour to assume that the detention of the appellant at the time of the hearing was unlawful – that should be an assumed fact.  Nevertheless, of course, the Republic went on to say grounds 1 and 2 should be struck out because of an absence of nexus and so forth.

The next point, your Honours, is the interlocutory decision of his Honour Justice Khan.  Again, that was given, or pronounced, orally at appeal book 437, lines 15 to 18.  Justice Khan then went on and heard the remainder of the matter relative to grounds 3 and 4 of the amended notice of appeal before him.  Next, your Honours, point 15, Justice Khan published reasons for that interlocutory decision, at that time making no final order disposing of the proceeding before him, and your Honours have the interlocutory judgment at page 471 and following.

I just ask your Honours to note there that at paragraph 9 his Honour summarised what he regarded as the respondent’s strike out submissions, and then essentially at paragraphs 25 and 26, without perhaps a great deal of elaboration as to precise reasons why, his Honour expressed his conclusions and they seem to have been based on a premise or understanding that he, sitting as a judge of the Supreme Court in the matter under the Refugees Act, did not have jurisdiction in some sense to deal with the constitutional questions.

When the matter then came before this Court, that was by way of an application for leave mentioned at point 16 in the chronology.  Leave was required because of Article 1(A)(b)(ii) of the agreement, which is in the schedule to the Act.  At the hearing before the High Court, which your Honours have at appeal book 329 to 339, the leave hearing began with questions from Justice Gageler and those questions elicited assurances which we have set out in our submissions and amongst those assurances there was the concession that I mentioned earlier that Justice Khan’s reasoning in support of a strike out decision was plainly wrong.

What followed then?  Well, your Honours have an affidavit of Tamsin Webster at appeal book 340 and following and it is at this point or close to this point that, your Honours, I am going to need to deal with a housekeeping issue.  Could I just, without asking your Honours to trawl through that affidavit, just mention the key pieces of correspondence and where they are to be found in the appeal book?

The first thing that happened was essentially straight after the hearing, 22 December 2016, Maddocks wrote to solicitors for the Republic or the solicitor for the Republic at appeal book 346 to 348.  Now, correspondence – the substance of the correspondence is at 347 and the proposed consent order which accompanied that correspondence is at 348. 

As your Honours will see, Maddocks who were then instructing counsel who had appeared and are now my instructors as well, they were proposing a consent disposition.  The assurance that had been provided in the High Court was that the Republic would not rely on the reasoning of Justice Khan in opposition to an application to reopen the present case and to further amend the grounds of appeal.  The consent orders that were proposed perhaps went further than that because point 1 of the consent orders, or paragraph 1, proposed an order that the appellant have leave to reopen his appeal and I am not standing here and saying that the assurance given by our friends extended that far.  Nevertheless, this was a consent order that was ‑ ‑ ‑

EDELMAN J:   It is also a consent order which sought to obtain consent to leave to filing an amended notice of appeal when you had not provided them with the amended notice of appeal.

MR GRAY:   That is so, your Honour.  So, the assurance had only been – perhaps I misstated it a moment ago, in fact.  The assurance had only been that the Republic would not rely on the reasoning of Justice Khan in opposition to an application to reopen the case, period.  Now, this is, in effect, water under the bridge but this is what happened.  This consent order was proposed.  The solicitor for the Republic responded in the correspondence on 3 January 2017 at page 350, not consenting to the orders and, in effect, making the point I just attempted to make. 

Next, there was a hiatus ‑ and perhaps it is explicable by reason of the time of year ‑ but between 3 January and 1 February there is a hiatus in the chronology.  But be that as it may, on 1 February 2017, Maddocks wrote to the solicitor for the Republic, in effect putting an argument in support of consent orders and in terms of correspondence between the solicitors, there was not an immediate response.  However, on 3 February, if your Honours kindly turn to page 354, your Honours will see that the solicitor for the Republic emailed counsel who had appeared in the Supreme Court of Nauru for the appellant.  Mr Albert, my current junior ‑ ‑ ‑

NETTLE J:   Was he in Nauru or here?

MR GRAY:   He was here.  Well, at least he was not in Nauru.  He was in Australia, your Honour.  Next, the solicitor for the Republic wrote the email and sent the email at 356 to Maddocks.  Now, that email in the second paragraph noted that:

the Court has advised that the Supreme Court will rule on your client’s application for an extension of time in appeal no. 12 of 2015 at 11am tomorrow, 7 February 2017.

A brief explanation, your Honours.  Although the matter before the Supreme Court of Nauru is referred to in terms of an application for an extension of time, and although there was, as a matter of formality, an extension required, this is in effect a reference to the substantive final judgment expected in that proceeding.

That knowledge that the matter was to be the subject of final decision the very next day, on 7 February, prompted the transmission by email of a memorandum of appearance on behalf of Maddocks and a notice of motion for, relevantly, reinstatement of grounds 1 and 2 of the proceeding before the Supreme Court of Nauru.  Your Honours will see that notice of motion at appeal book 364.

In point 2 of that notice of motion there is also an application for an order to reopen the appeal to further amend the grounds of appeal and granted in response to your Honour Justice Edelman’s observation earlier.  At this point in time also there had been no formulation of a proposed form of amended appeal.

The covering correspondence is at page 362.  Your Honours will note that in the second paragraph Maddocks seeks the Supreme Court’s leave to appear by telephone:

If this is not possible –

this is the third paragraph:

we seek to have this hearing adjourned –

So that was the status as at the afternoon of 6 February.  Your Honours will see from page 361 that that correspondence was emailed just after 4 pm on Monday 6 February.

Next, your Honours, there was an email from the court.  When I say “the court” I am referring particularly to the then Registrar, who I understand is now the Chief Justice.  That email is at 376.  The then Registrar, as his Honour then was, writes:

I have referred the matter to the Judge for his decision.  It is rather late not only in time but also on the day to be making such a request but I had suggested that the matter be adjourned to another date.

Next – perhaps this is not quite as relevant as that email but it is still of note – at 378 there is an exchange initiated by the solicitor for the Republic.  The solicitor for the Republic, in the email in the bottom half of page 378, substantively says:

As we have previously advised, the Republic will be represented in Court to receive judgment in the four matters listed for judgment tomorrow.

However, if the judgment listing in appeal no. 12 of 2015 is to be conducted by telephone, Mr Aleksov will appear on behalf of the Republic by telephone.

Then there is a response, and this on the morning of 7 February shortly before the scheduled judgment hearing, the Registrar writes:

I have discussed with the Judge and we are not in favour of phone‑ins at all.

So, your Honours, what happened at the judgment hearing is not the subject of direct evidence emanating from the appellant but the inference can be drawn that the Republic was represented as foreshadowed in this email and further that, there being no answer to a hearsay statement in an affidavit relied upon by the appellant that the Republic did not raise the assurances that had been given to this Court at the leave hearing, the Court should infer that no such assurances were conveyed to the Supreme Court of Nauru before judgment was pronounced.

Next, your Honours, I should mention that the final judgment dismissing all grounds and affirming the decision of the Tribunal is in the appeal book at pages 300 to 310 and what followed is that the appellant then filed his notice of appeal in this Court and that happened on 21 February 2017.  Your Honours, the original notice of appeal I have just mentioned is in the appeal book at page 312 and 313.  Can I just mention also and this is one item of housekeeping I need to address.  It is more than simply housekeeping, it is an application.  On 28 March 2017, the appellant filed a summons in this Court to amend the notice of appeal.  If your Honours turn to appeal book at page 321 and following, I will now move the Court in accordance with that notice of motion for leave to rely on the proposed amended notice of motion mentioned in that summons.

KEANE J:   Mr Kennett, your attitude to that application? 

MR KENNETT:   We have no difficulty with that, your Honour.

KEANE J:   You have that leave.

MR GRAY:   Thank you, your Honour.  Those amendments that have just been made are at pages 325 and 326 of the appeal book.  If your Honours kindly turn first to page 325, your Honours will see that what has been done is that in each of the first three grounds, I will just explain them in a minute, there is now a claim on the appeal that the Supreme Court erred in certain ways and those ways involve failing to deal with and determine respectively the notice of motion that was transmitted on 6 February and not dealt with on the 7th.

The first ground, ground 1 of the amended notice of appeal, it was before the Supreme Court, and the second ground, ground 2 of the amended notice of appeal, that was before the Nauruan Supreme Court, and each of those matters ‑ well, the way those matters have been arranged has resulted in a disjunction in the numbering.  So, grounds 2 and 3 before this Court relate to grounds 1 and 2 before his Honour Justice Khan and ground 1 is a separate matter of the procedural fairness ‑ ‑ ‑

EDELMAN J:   What do grounds 2 and 3 add to ground 1?

MR GRAY:   They seek to obtain a more far‑reaching outcome from this Court.  I will just explain that, your Honour.  If your Honours were only to uphold ground 1 and not grounds 2 and 3, in our respectful submission, it would follow that there would be a remitter to – and I am putting aside grounds 4 and 5 for the moment – in our respectful submission, it would follow that there would be a remitter to the Supreme Court of Nauru and the question would then be what functions remained outstanding or what duties remained outstanding before the Supreme Court of Nauru at that point.  What would have to be performed on the remitter?

If only ground 1 had been upheld and not grounds 2 and 3, the Supreme Court of Nauru would proceed to deal with the notice of motion for reinstatement.  If, on the other hand, your Honours went further and upheld grounds 2 and 3, then that function would be otiose and, in effect, original grounds 1 and 2 of the amended notice of appeal before the Nauruan Supreme Court would have to be heard and determined on their substantive merits by the Supreme Court of Nauru.

NETTLE J:   But, Mr Gray, do not grounds 2 and 3 require this Court to express a view about the constitutionality of what was done?

MR GRAY:   We say not, your Honour, for reasons I will come to shortly.  We say that they do no more than rely upon the concession already made that the reasons advanced by his Honour for striking out grounds 1 and 2 before him were plainly wrong.

NETTLE J:   But you have got that in ground 1.

KEANE J:   To the extent that it goes further, you are inviting us to engage in a hypothetical, on the footing that the concession is right.

MR GRAY:   It involves ‑ ‑ ‑

KEANE J:   It is all very well to say for the sake of argument accept such and such a proposition, but this would require us either to transgress into areas that are forbidden to us, or to proceed on a hypothetical basis.

MR GRAY:   Does your Honour the presiding Judge mean by the hypothetical basis that I am seeking to extend the concession of unlawful detention that was made for the purposes of the strike out application into this Court?

KEANE J:   Well, inviting us to rely upon it as a foundation for making an order without ourselves examining its correctness.

NETTLE J:   Which we cannot.

EDELMAN J:   It is a concession of law.

MR GRAY:   I am not asking your Honours to determine grounds 2 and 3 only to find that the Supreme Court had an obligation and has an obligation to reach a substantive determination of the matter.

KEANE J:   Why is not that ambition accomplished if you succeed with ground 1?

MR GRAY:   It is partially accomplished, your Honour, I accept that.  But, as I said a minute ago ‑ and this has troubled me and I have put a deal of thought into getting the conceptual framework correct ‑ my considered submission is that if only ground 1 is upheld then we are simply at the stage where back in the Supreme Court of Nauru, the Supreme Court, albeit differently constituted because that is the relief we seek, will entertain the notice of motion for reinstatement of grounds 1 and 2 before it.

KEANE J:   Is that not precisely the position that has to be the case, given that the argument that you are seeking to agitate depends upon the interpretation and operation of the Nauruan Constitution?

EDELMAN J:   Especially in circumstances in which your response to the Stead type argument that the respondent raises is, well, this Court cannot consider that because it involves consideration of the effect of the Constitution.

MR GRAY:   There is a lot of force in what has been put to me.  I will have one more go in a minute at stepping through the propositions in our outline to endeavour to persuade your Honours that the conclusion should be otherwise with respect to grounds 2 and 3 before you.

NETTLE J:   Can I just say that if you get ground 1 you get everything to which you are apparently entitled at the end of the application for leave hearing late last year.  It is back to the status quo ante where you should be put. 

MR GRAY:   That is so, your Honour.  I do not have an answer to that.  I am seeking more, there is no question.  Before I forget it, can I just address the housekeeping matter that I foreshadowed a little earlier?  In addition to that application for leave to rely on the amended notice of appeal which has now been dealt with, there is a matter concerning an exhibit to Ms Webster’s affidavit that I mentioned a short time ago.  Exhibit TW 11 is an affidavit of the appellant made in July 2016 in the leave application before the High Court in M79/2016 and it provided a factual foundation for a submission that at a factual level there was an impact on the appellant’s ability to present his case to the Tribunal by reason of his detention.  So, it is potentially an important document particularly in respect of the Stead type argument that is advanced against us. 

As it happens, the exhibit was in unsworn form.  Very recently, in fact this morning, we have filed in the Registry ‑ and I have a stamped copy now available ‑ a verifying affidavit of my instructor, Ms Gallaher, affirmed yesterday 17 October 2017.  So, it is an affidavit of Alison Gallagher affirmed 17 October 2017 verifying that affidavit of the applicant in its duly completed, that is, signed and affirmed form.  Your Honours, I apply for leave to supplement the materials before you with this affidavit that we have filed this morning.

KEANE J:   Mr Kennett?

MR KENNETT:   I do not have any objection to that, your Honour.

KEANE J:   You have that leave.

MR GRAY:   Thank you, your Honour.  Do your Honours have that document or can we simply supply it to your associates at an appropriate time?

KEANE J:   And file it formally in the Court.

MR GRAY:   It has been filed in the Registry.

KEANE J:   It has been filed?

MR GRAY:   It has been filed in the Registry.

KEANE J:   Very well.

MR GRAY:   Thank you, your Honour.  Sorry, your Honours.  I move now to proposition 3 of the outline.  Your Honours, in our written submissions, at paragraph 34.3 we sought a particular direction and the application for that direction is no longer pressed.  Do your Honours see that?  It is in the last three lines of paragraph 34.3.

As to jurisdiction, your Honours, in our submission, the only contentious question is whether or to what extent the exclusion in Article 2(a) of the agreement applies.  And we submit that is no part of our appeal, properly characterised, to invite this Court to trespass into the ground covered by 2(a).  I have already made my submission that an analogy with mandamus can be drawn and, in short, that is because, although the grounds before the Supreme Court of Nauru that were struck out required adjudication by that court of questions concerning the effect of the Republic’s constitution, this appeal does not.

When the respondent mounts its Stead argument, it is the respondent that is in fact inviting the Court to trespass into the 2(a) territory.  And they expressly submit that the questions before the Nauruan Supreme Court had no merit in their submissions at 23 and following.

Your Honours, the question on application of accepted principles concerning natural justice or, as it is now known, procedural fairness can be distilled as follows.  If the procedure adopted by the Supreme Court failed to afford a fair opportunity to the appellant to be heard, relief – and in this case that means remedial orders on appeal – are justified, unless it can be shown that the failure did not deprive the appellant of the possibility of a successful outcome – WZARH in particular, at paragraph 60, see also 43, 56.

EDELMAN J:   Or there may be a live question as to whether that principle in Stead, as embodied in WZARH, even applies to a case where the denial of procedural fairness effectively involves a failure to exercise jurisdiction.

MR GRAY:   We say there is no reason in principle why it should not apply.

EDELMAN J:   Well, then, the effect of application in such a circumstance would be for the appellate court to say that, on a matter where there had been hearing at all, the appellant or applicant is not entitled to a hearing because any hearing would have resulted in a particular outcome.  I am not aware of any case that has ever applied Stead in those circumstances.

NETTLE J:   That avails you, Mr Gray.  It is to your benefit that that be so.

MR GRAY:   It is taking the matter back to that higher level of analysis that your Honours identified at the outset.  We have not framed our grounds that way. 

EDELMAN J:   You say it does not need to arise here because to even engage in the exercise engages article 2(a).

MR GRAY:   Yes.  So your Honours will see that dealing with the matter at the level we particularised it in our notice of appeal as a natural justice issue.  Our friends respond by saying that it is necessarily the case – they use the word “necessary” – that the substance of the constitutional issues have to be traversed on our appeal in this Court, and we say, no, they have the onus in moving the Court on a question of futility.  It is not necessarily, therefore, something that has to be determined in the course of our appeal; it is something that they can choose to raise, but if they do, they are moving the Court for an outcome and for that reason, it is our friends who are inviting the Court to trespass into 2(a) territory.

I move now to proposition 4.  Much of what I would submit under proposition 4 and following has already fallen out of my addressing your Honours on the chronology and dealing with questions from your Honours on aspects of the chronology, so I will skip over the detail of what happened factually.  I did mention at the very start of my address that the respondent only faintly disputes our contention that the procedure adopted by the court was unfair.  Its principal response is the Stead‑type argument, and I have made my submission as to what we say about that.

I move now to proposition 7 and following.  I think I am going to run into the remarks that I have already received from your Honours in relation to proposition 7 itself, where we say that the grounds before the Supreme Court were and are clearly arguable for the reasons that we adumbrate in our submissions at 44 to 56.

NETTLE J:   It is enough for you that it is not demonstrated that they are clearly unarguable, is it not?

MR GRAY:   We prefer to put it that way, and that is probably the way I should have drafted it in this document.  I hesitate to go into the detail of why that is so.  If our friends bear the onus on it then I repeat my submission about 2(a).  If we bear the onus then there is a great deal of force in what was put to me by your Honours earlier in my address.

Can I just mention a couple of points of detail without inviting your Honours to resolve any questions arising as to the effect of the Constitution of Nauru?  Your Honours will see in the submissions – I do not know to what extent you are going to delve into the detail – that there is reference to a decision of Justice von Doussa in AG & Ors v Secretary of Justice (2013) NRSC 10. Lest it be thought that that decision governed the outcome in this case, it was submitted before the Supreme Court of Nauru that it was distinguishable. In a nutshell, that was because the particular exclusion to the right of liberty in section 5(1) of the Constitution of Nauru that was engaged on the facts of that case was not engaged on the facts of this case.

In a nutshell, that was because the grant of the relevant visa in this case, although resettlement to another country might be possible, is not for the purpose of removal of the visa holder from Nauru.  So the detention is not for the purposes of expelling a person from Nauru.  As to ground 1, our submissions set out the thrust of why that cannot simply be dismissed as fanciful at 48 to 50.  When I say ground 1, your Honours, I mean ground 1 before the Supreme Court of Nauru.  As to ground 2, the thrust is at our submissions, paragraphs 54 to 56.

Can I just say there, because it has attracted some attention from our friends, we say no more about the doctrine of the fruit of a poisonous tree than that this is an analogous situation.  We do not say necessarily that it directly applies.  The reasoning that the Supreme Court will need to grapple with in the end is in textual terms as follows.  The Constitution of Nauru conditions the scope of the validity of the laws of Nauru and of administrative action under law.  The Tribunal is exercising administrative power and has to do so under law and within the confines of valid law.

One of the things the Tribunal does is conduct a hearing and take evidence, section 24 of the Refugees Act.  The scope of validity of those actions, so the argument goes in the Supreme Court of Nauru, is that the right to liberty in section 5(1).  If none of the adumbrated exceptions are engaged, that is a limiting factor on valid exercise of administrative power under law including the conduct of the review by the Tribunal under the Refugees Act.

This argument was put to the Supreme Court by my junior.  The written submission to that effect is at appeal book 217 to 218.  When one considers the two grounds before the Supreme Court of Nauru, that is an argument that is relevant to both grounds and it is, in effect, the sum total of the per se ground under ground 2 that was before the Supreme Court of Nauru. 

On natural justice, there is a refinement to the argument, and it is as follows.  Under the accepted explanations of how one arrives at the content of natural justice in a particular case, for example, as explained by Justice Mason in Kioa, in the famous passage at 584 to 585, the content of natural justice or the duty to act fairly in a particular case so influenced by the particular statutory framework and are adapted to the circumstances of the case and in particular, as your Honours will recall, there is reliance not only by Justice Mason but by Justice Wilson on Justice Kitto’s remarks in Mobil Oil, amongst the constellation of factors that will inform the content of natural justice, it is submitted.

Where a right of liberty exists such as in the Nauruan Constitution, this is an indispensible element of that context, that legal context or framework against which the content of natural justice is to be ascertained in a given case.  Again, my junior put a submission along those lines at the passage I mentioned.

NETTLE J:   At the time of the strike out application?

MR GRAY:   Yes – well, they were written submissions filed overnight before the hearing.

NETTLE J:   And relied upon.

MR GRAY:   And relied upon inter alia in answer to the strike out application.

NETTLE J:   Your point is none of that was dealt with and the reasons given which were that it could not be the subject of a jurisdiction which his Honour was exercising.

MR GRAY:   Exactly, your Honour.  Your Honours, there is a refined version of the natural justice ground, the ground that was ground 1 before the Supreme Court of Nauru.  It is to be found in our reply submissions at paragraph 3.2.  This is an argument that, in effect, fleshes out the natural justice argument by alleging a factum which the Supreme Court of Nauru should note in establishing a nexus between the unlawful detention, as we put it, and the ability of the appellant to mount his case or to be heard by the tribunal.  It alleges that the appellant was effected in his ability to present his case by the fact of unlawful detention. 

As I mentioned, his affidavit not filed before the Supreme Court of Nauru but prepared for the purposes of the leave application last year in this Court is a factual foundation for that.  What is the relevance of that?  Well, having dealt with a strike out and allowed our ground, the court in Nauru went on to consider the natural justice claim, there would be evidence available as to an effect on the appellant’s ability to present his case.

The Republic in our friend’s submissions at 25c submit that acceptance of our argument may mean that the Tribunal could not lawfully complete the review which the appellant had himself initiated.  Your Honours, our response is as follows.  Even if that was so, it would be immaterial to the outcome of the argument in this Court or in the Supreme Court of Nauru.  It is not suggested that any kind of estoppel arises or that there has been approbation or reprobation merely by reason of the appellant engaging the review function of the Tribunal. 

In any event, the proper solution is that the relevant government organs in Nauru must comply with the Constitution and they must do so without exception and if there is an infringement, it must be remedied promptly. It is not to be laid at the door of the appellant that the review function was perhaps arguably incapable of proper discharge in circumstances where he was being unlawfully detained against his will.

Your Honours, attempting to grapple with the points that have been made against me on the ability of this Court to deal with grounds 2 and 3, or perhaps the appropriateness of this Court dealing with them, my submissions are as follows.  It is clear, of course, that the Supreme Court in Nauru did not conduct a substantive hearing of either of grounds 1 and 2 before it.  It struck them out and it did so for reasons that the Republic has since accepted were plainly wrong.  I should have said when I was going through the chronology that when your Honours come to look at the final judgment of Justice Khan, just simply are noting – he simply notes that grounds 1 and 2 have been struck out.  There is no additional bee sting.

So, when the Supreme Court constituted by Justice Khan gave its final judgment, it was inter alia relying on that interlocutory judgment which is accepted to have been unsupported by any correct reasoning.  To that extent at least, the respondent must for the purposes of this proceeding be accepting that the reasons for the final judgment are also plainly wrong.  Both the interlocutory judgment striking out those grounds, and to the extent that it relies upon that interlocutory judgment, final judgement, are to be regarded for the purposes of this appeal, in our submission, as liable to be set aside as arbitrary.

EDELMAN J:   I do not understand that submission.  I mean, there would have been no difficulty if Judge Khan had made no reference at all to the strike out application, would there, because the effect of the strike out application was that those two grounds were no longer before him when he came to adjudicate upon the remaining grounds, and if that be right, then his recitation of what he did in the strike out application is no more than just a summary of the background of the case.

MR GRAY:   Well, your Honours, it would be my submission in response to that, that even if Justice Khan had not referred to the fact that he had struck out grounds 1 and 2, it would have been open to the appellant to appeal his Honour’s judgment by reference to his Honour’s failure to deal with grounds 1 and 2, albeit constituted or resulting from his Honour having struck out those grounds. 

The reason for that would be that although the appellant had the option of seeking leave to appeal the interlocutory judgment and in fact he availed himself of that and invoked this Court’s jurisdiction, he did not need to do that and he could have awaited the final judgment and simply appealed that as a right, and in doing so he would be able to raise any appellable error and agitate submissions about any appellable error provided they related to a decision which was a necessary step in the judge reaching his final conclusions for the purposes of final judgment.

One of those antecedent steps that could have been agitated would have been the striking out of grounds that the appellant was seeking to agitate in the form of grounds 1 and 2.  So in circumstances where there has been a concession that the reasons for those grounds may have been dealt with were plainly wrong.  In circumstances where it is not open to our friends to advance some alternative basis, although they are reserving their position, obviously, on the correctness of grounds 1 and 2, they are not able in this Court to demonstrate to your satisfaction that there is some alternative basis for upholding them.  In those circumstances, the Court should proceed on the basis that the striking out of grounds 1 and 2 is liable to be set aside and the matter should be remitted to the Supreme Court of Nauru on the basis that those grounds be treated as reinstated.

In the alternative, as I have said, your Honours, if only the final judgment of the Supreme Court is set aside on the basis that it did not deal with the notice of motion or, putting it in the manner we have in our notice of appeal, the way or the circumstances in which final judgment was granted was vitiated by a failure to accord procedural fairness in respect of the notice of motion.  In those circumstances, the Supreme Court will have a remaining unperformed duty to deal with the notice of motion.

I will move now to proposition 12 and following.  Your Honours, this is an orthodox claim that the Tribunal failed to deal with an integer of the appellant’s claims before it and that his Honour erred in not upholding that claim.  If your Honours were to grant relief on this basis, the order would simply be, in our respectful submission, that the matter goes back to the Tribunal to be re‑determined and that the Tribunal’s decision is quashed by reason of it having failed to deal with this integer, and, in effect, that would technically speaking render otiose our other grounds, grounds 1, 2 and 3.  We would not wish to corral your Honours in any way in that respect but it seems, logically speaking, that in terms of relief that would be the logical outcome.

The principles are, I do not think, controversial.  Your Honours, in our submissions, paragraph 68, we referred to Dranichnikov in this Court.  Our friends have responded with reference to Chief Justice Gleeson’s remark at the beginning of S395.  His Honour there was sounding a cautionary note about the benefit of hindsight and attempts by litigants to, in effect, reconstruct arguments at a higher level of appellate review that were, in effect, not really being put before primary decision‑makers or tribunals.

We say we are not guilty of that offence in this Court.  We are not reconstructing what was put before the Tribunal.  When one goes through the material and the submissions and the remarks or the contents of various paragraphs of the statements of the appellant made at the primary level, it is clear that, although he was advancing a claim that he was the specific target of the Taliban because of circumstances surrounding a previous extortion attempt, he was also asserting that he faced the risk of harm, including arbitrary deprivation of life from generalised violence, at the hands of the Taliban in his region of Pakistan and throughout Pakistan.  That claim is articulated in a submission on his behalf.  It is clear from his statements and it is clear from the country information that was advanced on his behalf.

Your Honours, in the outline of argument we have given a ready reckoner of where that material is to be found in the appeal book.  We do have a criticism to make of our friend’s submissions on these points.  Contrary to what our friends say at 38 to 39, it is clear that looking at all this material, the appellant’s main fear, yes, was fear of violence at the hands of the Taliban because the Taliban are the principal insurgents in Pakistan and action by the Taliban and other armed groups, but principally by the Taliban, is the main reason for fearing generalised violence in that region of Pakistan and throughout Pakistan.

Now, our friends say the claim that was made was that the appellant claimed to fear violence at the hands of the Taliban and that is the end of it.  We say no.  It is clear from the material that the applicant claimed to fear Taliban not only because of his particular claims to have been the subject of an extortion attempt and therefore to be specifically targeted by the Taliban, but also because he faced a risk of generalised violence from the Taliban and from other armed groups.

The reason he faced and claimed to face that risk of harm from the Taliban and other armed groups was by reason of the breakdown of security and the prevalence of insurgent violence generally.  Your Honours, if I could ask you to take up the appeal book, if your Honours please go to page 45.  This was a signed statement of the appellant made to the primary decision‑maker and under the heading “Why I left Pakistan”, even before the appellant comes to the claimed extortion incident which is ultimately disbelieved by the Tribunal.

But even before he come to that, he begins by talking about when he was working at a checkpoint the Taliban attacked the area.  “Some of the security staff were killed”, this is at the foot of page 45, your Honours, so at the very beginning of his narrative he is saying that this is a very dangerous place, I fear that the Taliban could kill me.  Unrelated to any particular extortion attempt, just because there is a breakdown of security and there is a prevalence of insurgent violence.

Page 65 to 73, your Honours, that is a submission made on the appellant’s behalf.  That country information that is advanced is all to the effect that Pakistan has become unstable, there is an atmosphere of generalised violence.  It is not limited to identifying specific targeting as the only factor that can put somebody at risk.  There is generalised violence that can put somebody at risk of harm that could amount to ICCPR harm or CAT harm.

EDELMAN J:   Where is the point where you say that this submission about generalised violence leading to a contravention of the ICCPR is most clearly put to the Tribunal?

MR GRAY:   Thank you, your Honour.  Possibly at 114, your Honour, at the foot of the page.  Does your Honour see there the main heading “Extent of Nauru’s International Non‑Refoulement Obligations”?  Can I just say here, in answer to your Honour Justice Edelman’s question, that before we get to this point in the submission there is a set of submissions about the Refugees Convention.  In terms of the structure of the document a separate point has being made about, in effect, complementary protection at this point.  Under that main heading, “Extent of Nauru’s International Non‑Refoulement Obligations”, is the very first heading, “Physical Violence”. 

That submission is not made in a way that is limited to any particular claim of being specifically targeted by the Taliban because of the claimed extortion attempt.  That claim is a freestanding claim of a broader nature and is not disposed of by the Tribunal’s disbelief of the extortion claim.

Just while we are there, your Honours, could you please make a mental note that there is a subheading, “Physical Violence”, and then ‑ it is a bit hard because it is a line left on the page – there is actually another heading, “Discrimination”, and then there are submissions about discrimination.  When the Tribunal came to deal with complementary protection it thought or it characterised the claim as essentially, to use the word, in particular being a claim that as attached the appellant would face discrimination throughout Pakistan.  The Tribunal missed this freestanding point about generalised risk of violence.

EDELMAN J:   Paragraph 35 on page 114 must be read, must it not, in light of all of the enumerated harm that the appellant had described himself as being under threat of?

MR GRAY:   Certainly, your Honour, the appellant was not saying, certainly not explicitly, you may not believe that I have actually been subjected to an extortion attempt but, even so, here it is.  We say he should not be expected to have to say that.

EDELMAN J:   No, but 35 is referring to him facing harm of this kind and then the kind seems to be enumerated at pages 109, 110 and on top of 111, where the submissions set out the appellant’s fear of harm or imputed and actual political opinion or membership of social group, membership of a particular group and so on.  But each of those paragraphs seems to begin with “the Taliban believe” or the appellant “opposes the Taliban’s ideals” or the appellant “will be further perceived to oppose the Taliban”.  All of those matters seem to be focused not upon generalised violence but upon a threat to the appellant by the Taliban.

MR GRAY:   All of those matters are, your Honour, yes, but if your Honour is suggesting to me that, when we come to paragraphs 34 and 35 they are to be read as confined in the same way, at that point I part company with your Honour’s suggestion.

NETTLE J:   All of his evidence was the Taliban.

MR GRAY:   It was.

NETTLE J:   And not only Taliban but Taliban to the exclusion of all others:

It is not possible that such an attack would have been carried out by criminal gangs who are interested in extorting money –

because they would have killed my whole family.  It is the Taliban.  Again, it is the Taliban.  He beats it like a drum repeatedly throughout the statement.

MR GRAY:   Because it is the Taliban, your Honour, who are, in the vast majority of cases, responsible for the infliction of violence in that north‑western area.

NETTLE J:   Put aside what might have been in some country information thrown in at the end of a written submission amongst hundreds of other pages, his case was he was scared of the Taliban and he was disbelieved.

MR GRAY:   Your Honour, I am not ignoring what your Honour says, I am just going to have another attempt to persuade your Honour that there is a broader claim here as well.  I am not saying that that is not the main thrust of what he was saying to the Tribunal; it was.  It was his story.  He was disbelieved on the extortion attempt because of various dates that he had probably got wrong in an earlier interview and so forth.  Be that as it may, underlying – not even underlying – on the face of this material there is a claim that he is terrified of the generalised violence. 

Could I just ask your Honour to bear with me while I find the reference.  I was going to say in support of those submissions that the Court was just looking at, there is attached country information at the back of the submission, yes, your Honour, but it is attached not only for the purposes of demonstrating that the Taliban are present in the region but also that there is a risk of generalised violence.

When we get to the more specific material at 141 there are claims in the appellant’s further statement at that point, paragraph 18 and also over the page on 142, 23 to 26, to the effect that, in a sense, the people of his locale are at risk.  There is no claim that they are being specifically targeted as wealthy businessmen for extortion.  They are just at risk.

NETTLE J:   From the Taliban?

MR GRAY:   From the Taliban, because it is the Taliban who are the insurgents in the region and who have inflicted violence because of the break down in security in the main.  Next, paragraph 28 of the same statement, this is not a claim that is limited to being an extortion victim, this is a claim that there will be military operations and the Taliban will use people as shields, human shields so‑called.

Next, in the submissions to the Tribunal, I should say in the evidence to the Tribunal, it is important that at 179, appeal book 179, at the end of the hearing essentially the – and this is after there had been, in effect, footage about the dates at which the extortion attempt occurred relative to the dates at which the appellant had applied for his passport, the matter on which he was ultimately disbelieved and that was the principal reason really why his extortion claim was disbelieved, but, after all that, in 179 onwards, he says – he makes the point that if the threat was not – this is at the very top of the page, your Honours, if the threat was not real:

I would go back –

but then he seems to depart onto a related but different topic:

And while I was doing that business I am a witness of a lot of incidents which is taking place in that area.  People were being killed – hundreds of people were being killed. 

Et cetera.  Then, there are details of some horrific incidents, and a member of the Tribunal over the page at 180 after that passage signals that there is acceptance of those basal facts.  Then the appellant finishes off by saying these are my personal experiences.  He is terrified of the risk of generalised violence, not just of being specifically targeted, and that is clear from what he is saying.  It should have been dealt with, it was not.  It is an appealable error in terms of question of law test in the Supreme Court and it should have resulted in the Tribunal’s decision being quashed and the matter remitted to the Tribunal.  In respect of ground 5 we rely on our written submissions.

Would your Honours hear me briefly on costs?  If the appellant is successful in this proceeding, the appellant seeks his costs of this proceeding.  Your Honours may have seen that in our materials in the lead up to this hearing, there is also a claim for costs of the leave application.  That was heard and determined in proceeding M79/2016.

NETTLE J:   Did we not order that there be no award of costs?

MR GRAY:   Yes.  Now, your Honours, there had been an omission to do anything formal which would be necessary probably I think to reopen that issue, and while there was a claim in the material in this case that the Court in this case in effect revisit that costs disposition, there was not any summons filed to reopen M79/2016.

NETTLE J:   Put aside the formalities, why should it be revisited?

MR GRAY:   Well, if your Honours wishes to hear the merits of that point ‑ ‑ ‑

NETTLE J:   Not very much, just the exception of why is there justification for such an exceptional application?

KEANE J:   Given that it was determined.

MR GRAY:   Yes, Mr Albert will address on the merits if necessary but in a nutshell, it is this, your Honours:  the application for leave last year was refused on the basis of the assurances that were given by the Republic.  The inference should be drawn, and I can put it no higher than that, that when the matter was called for final judgment on 7 February this year, before Justice Khan, the Republic was present and did not convey the assurances that it had made to this Court.

KEANE J:   On the other hand, contributing to that situation was the overreaching attempts by your side to verbal the Republic in terms of the content of the assurances.  As a result of the stalemate that was reached by that overreaching, one got to the situation where what happened on 7 February, happened.  This is not a particularly attractive application for us to revisit a conclusion of the matter that occurred in this Court last year ‑ or, sorry, on the previous occasion it was before the Court.

NETTLE J:   Last year.

KEANE J:   Last year.

MR GRAY:   Your Honour, I beg to differ on some of the words your Honour has used but I understand the force of what you are saying.

KEANE J:   Well, Mr Gray, I do not think I misunderstood you earlier when you were taking us to your side’s correspondence, you acknowledged ‑ ‑ ‑

MR GRAY:   Yes, I did.

KEANE J:   ‑ ‑ ‑ that it was suggesting to the Republic that they had given assurances, which they plainly had not and which it was apparent to any lawyer worth their salt, that they had not.

MR GRAY:   Well, your Honour, I do not think I intended to put it that way.  Certainly a consent order was put which extended beyond the assurances that had been given.  There was an attempt to obtain consent to that and I agree that that is beyond the assurances that were given and I understand the force of what your Honour has put.

EDELMAN J:   It was also reasonably clear at the special leave application that the Republic were going to resist an application to reopen but albeit, resisting on different grounds from the grounds that had been given by the judge.

MR GRAY:   Your Honours, I am going to leave it there.  Unless there is anything further, that is all we would say by way of our principal submissions on the appeal.

KEANE J:   Thank you, Mr Gray.  Yes, Mr Kennett.

MR KENNETT:   Thank you.  Your Honours, may I begin with ground 1.  The simplest answer I suppose to ground 1 which is the procedural fairness ground, is our proposition 2, that is has not been established that there was a denial of procedural fairness.  We make the point in paragraph 21 of our written submissions and of course your Honours are already alive to this, that the attempt to raise this matter before the Supreme Court came right at the death, the evening before judgment was due to be given and after notice of the impending judgment had been given, I do not really seek to expand on that except in one respect which does not get emphasis in our paragraph 21.

If your Honours have the affidavit of Ms Webster in the appeal book at page 343, your Honours see in paragraph 15 a reference to the email to which you were taken earlier, that is at page 378, in which the Registrar reports back to the parties that we, that is to say the Court:

are not in favour of phone‑ins –

The next paragraph, we see that Ms Keane, who was a solicitor in attendance, has informed Ms Webster about some aspects of what went on at the hearing where judgment was given.  Further, in paragraph 17, a lawyer appeared on behalf of the Republic and she says:

No lawyer appeared nor was able to appear on behalf of the Appellant –

but Ms Keane mentioned the appearance of Mr Albert.  What we seek to note from that is that – well, firstly, we know very little about what transpired on the day judgment was handed down but we do know that Ms Keane announced an appearance on behalf of the appellant, albeit she says that she was mentioning the matter on behalf of Mr Albert.  Someone appeared for the Republic.  Someone appeared in some capacity or other for the appellant and, seemingly, nobody referred to the motion which had been sent in for filing the previous day.  In other words ‑ ‑ ‑

NETTLE J:   I am sorry, Mr Kennett, just pause a moment – where do we get that someone for the appellant before Justice Khan?

MR KENNETT:   From paragraph 17 where she says that she mentioned the appearance of Mr Albert.

EDELMAN J:   But Mr Albert did not appear.

MR KENNETT:   Mr Albert did not appear, no.

NETTLE J:   Because he was ill, apparently.

MR KENNETT:   I think he was in Australia at the time.

NETTLE J:   I see.

MR KENNETT:   He had until that point been – or he had at the hearing appeared for the appellant on a direct access basis and there was no solicitor on the record at the time for the appellant and that was why ‑ ‑ ‑

NETTLE J:   The solicitor wrote to him.  I thought that was probably the case.  But it is clear enough, is it not, that no one was there before Justice Khan when final judgment was handed down on behalf of the appellant?

MR KENNETT:   Your Honour, it depends what one takes from the very brief mention at paragraph 17, but what we seek to draw from that is that there is some indication that Ms Keane was there with some kind of instructions on behalf of the appellant.  She may have announced an appearance, probably did announce an appearance of some sort for the appellant, and nobody sought before his Honour to move on the motion which had been sent in the previous day or even refer to it. 

Now, usually in a court filing the motion is just the first step to getting something done.  Yes, we accept that the solicitors who represented the appellant here had made a request in correspondence that the matter be adjourned or heard by way of telephone, but when the matter was called on in open court, nobody sought to move on it.

And it is not unorthodox, we would say, for a judge in those circumstances to proceed on the basis that the matter, after all, is not being pressed.  So we would seek to add that to our submission that, in the circumstances of this case, there was no denial of procedural fairness on the part of the Supreme Court.

EDELMAN J:   So why do you say it follows that the judge should have assumed that a notice of motion that had been filed the previous day and had been accepted by the Registrar was no longer being pressed, in circumstances in which counsel had sought to appear by telephone but been refused?

MR KENNETT:   Your Honour, I do not say he should have assumed that.  I would say he was entitled to.

NETTLE J:   Given that Ms Keane was there and did not mention it.

MR KENNETT:   Yes, that is the submission.  If your Honours are not with me on that, then we come into more complex territory, which is propositions 3 and following of our outline.  We would seek to begin that by noting that the Court here is exercising appellate rather than supervisory jurisdiction and the ultimate question is whether the court below gave the right judgment, so that an allegation that the court below denied procedural fairness, depending on the nature of it, may be only the beginning of the inquiry. 

If the court below has failed to have regard to evidence or allow evidence to be led on a matter of facts, then this Court would generally have no alternative but to send the matter back because the court could not make the factual findings or would not make the factual findings for itself.  Where the allegation is that the court below failed to deal with an argument or respond to an argument of law or determine an issue of law, then really the next question here is, “Well, was it a good point?” which is a matter that this Court can work out for itself, as well as anybody else can. 

So that, leaving aside the Constitution and Article 2(a) of the Agreement, ordinarily, if our friends came to say Justice Khan had not given them a hearing, it would be open to us to respond by saying that did not matter because this Court can see for itself that the grounds had no merit and his Honour, properly instructed, would not have reinstated them.

EDELMAN J:   Is there a difference, though, between a failure by a court to address an argument on an issue of law that is a step in the process to determining some application and the failure of the court to consider the entirety of the application?

MR KENNETT:   Not one of substance, we would say, even though the application may have had an element of discretion to it.

EDELMAN J:   That would therefore mean that Stead could be extended to a conclusion that an applicant is not entitled to a hearing because the effect of the hearing on the entirety of the application would be a foregone conclusion.

MR KENNETT:   Your Honour, I do not seek to extend anything I am saying to judicial review of an administrative decision where the court is obviously hamstrung in what it can say about what the decision‑maker could or should have thought and where the doctrine of procedural fairness has important normative considerations behind it.  The procedure is important for its own sake before an administrative decision‑maker, and part of the role of the court is to say that and to indicate what the right procedure is.

Your Honours will note that I have not referred to Stead, and I am seeking to steer away from the stringency of that test which is rightly applicable to an administrative decision.  What I say relates very much to appellate jurisdiction, and we say that, in the normal circumstance, if the appeal court can work out matters for itself it will do so rather than sending it back to have the court below work them out, so that ‑ ‑ ‑

EDELMAN J:   Even where the court below has not considered the application at all?

MR KENNETT:   I have to take it that far, yes, and I do.

KEANE J:   And how does that sit with the very existence of an appellate structure?  If the primary level of the judiciary do not do their job, one just goes to the appellate level and says, well, we can skip the first step and we will come straight to you.  That seems to be rather inconsistent with the very notion of an appellate hierarchy.

MR KENNETT:   It is subject to constraints and certainly courts, including this Court, have resisted the invocation of appellate jurisdiction to deal with things that could have been said below but were not and, of course, what I have said is also subject to the constraint that if there is fact finding involved, even though the appellate court in a procedure such as this one, can receive fresh evidence that would normally be inconsistent with the appellate function to embark on a fresh fact‑finding exercise.

NETTLE J:   There does seem to be some fact involved in view of the affidavit which deposes to the man having been compromised in his defence to the proceeding because he was locked up in the detention centre, physically rather than as a matter of procedure or form.

MR KENNETT:   There is that which was not in any formal way in front of the Supreme Court ‑ ‑ ‑

NETTLE J:   No, of course not but it would be, were it to be remitted, presumably.

MR KENNETT:   Yes, or some other version of it, presumably it would be.

NETTLE J:   Similarly before us, if we were to entertain it.

KEANE J:   And you might have a good answer on the facts that whether or not you are one side of a fence in Nauru or the other side of the fence probably does not have much practical impact on your ability to mount your case, but those are matters of fact that really are not before us in any factual way.

MR KENNETT:   That is so. That would be the answer, your Honour.  What your Honour says about it is so.  To the extent that facts are involved, they are not before this Court and we would not ask this Court to find primary facts.

NETTLE J:   But over and above all that, to work out whether the grounds were wholly unarguable such as to be struck out requires a consideration of the constitutionality of the issues which are advanced in it, surely.

MR KENNETT:   It does, your Honour, and that is the next issue to which I need to come.  But just before I get there, can I note that at least insofar as the reinstatement of the former grounds 1 and 2 was sought, the objection that was made to those and that was articulated in some detail in the leave application last year and your Honours see it in our written submissions as well, is an objection at the level of principle which says even if this detention was unlawful it just cannot, as a matter of logic and principle, have had any consequence in terms of either procedural fairness or the constitutionality of what the Tribunal did. 

NETTLE J: That must or at least must yield the possibility that it depends upon the meaning of the Constitution.

MR KENNETT: Yes, your Honour, it does and I promise I am going to come to that. Can I say one last thing before I come to the Constitution and that is that a ground need not be unarguable in a legal sense in order to be struck out. What I mean by that is that one can have quite long and detailed arguments on a strike out and the issues can be quite finely balanced but, nevertheless, the ground ends up being struck out because as a matter of law one concludes that it cannot succeed.

It was an argument of that nature that was sought to be had before Judge Khan and that would be sought to be had but for the Constitution. The problem, though, as your Honour Justice Nettle alludes to, is that whatever we would want to say about whether the grounds in the court below were properly capable of being reinstated takes one into the Nauruan Constitution and raises a competency issues for this Court because of Article 2(a) of the Agreement. That is the background to why, and we go on from that to say that the problem infects the grounds as well and that is the issue that we sought to crystallise by the summons which we filed and which your Honours will see at page 316 of the appeal book.

There are, I think, three points to make about that issue of competence, or four, I suppose.  Firstly, regardless of whether we adhere to the assumption made in argument below that the detention of the appellant was unlawful, the appellant needs at some level to maintain his insistence that it was unlawful in order to press those grounds, which is itself a constitutional proposition because, as my friend has indicated, it involves distinguishing the judgment of Justice von Doussa that has been referred to.

The second point is that, as we have indicated in the written submissions, we would wish in an appeal, if we could, to question that assumption – that is to say, the detention of the appellant was not unlawful at the relevant time.  But that, too, of course, is a constitutional proposition which this Court would not entertain.

Then, thirdly, at least as to ground 2, set out on appeal book page 212, that ground asserts squarely that the process of the Tribunal was unconstitutional and, try as we might, we cannot say or suggest that that is a proposition capable of being debated or whose merits or arguability is capable of being debated without embarking on a trip to the Nauruan Constitution and thus infringing the limitations of Article 2(a).

NETTLE J:   That is the modified Miranda v Arizona doctrine, is it, true to the point?

MR KENNETT:   Yes.  At a practical level, everything I have just said probably makes remitter to the Supreme Court more and more attractive.

NETTLE J:   Best option, yes.

MR KENNETT: But this Court needs to have a competent appeal before it before any power of remitter arises, and we say it does not in relation to ground 1. Because the answer that my client would seek to make to ground 1, and I suppose our friend’s necessary responses to such an answer, are of a constitutional character. That is so, we say, even though our learned friends in their primary argument do not press any point on this Court on ground 1 that is based on the Constitution.

NETTLE J:   But, Mr Kennett, why does it involve anything more than that upon the admissions of Nauru the basis on which grounds 1 and 2 were not conceded or considered were wholly misconceived and it is not demonstrated otherwise that they are plainly unarguable?

MR KENNETT:   It is accepted that the basis on which those grounds were disposed of below on the strike out level were misconceived.  I do not think we used the term “plainly wrong” but that is a verbal quibble.

EDELMAN J:   And that was your answer at the special leave application to the first question that Justice Gageler posed.  Your answer was yes, that you accepted it was plainly wrong.

NETTLE J:   In any event.

MR KENNETT:   In any event.  So we certainly accept what your Honour says that far.  We would seek to submit that an answer to the procedural fairness point is that it does not justify any grant of relief in this Court if it can be shown that the grounds were in any event not properly capable of being reinstated.

NETTLE J:   That would be right, but it cannot be shown for the reasons that you have just expatiated upon; namely, that it involves constitutional issues.

MR KENNETT:   Yes, your Honour, and there is an echo here of section 75(i) of the Australian Constitution, a matter arising under a law of the Commonwealth which is engaged if either the claim or the defence depends on a federal law.  Here we say that if a respondent – perhaps stepping back for a moment from the particular facts of this case – in an appeal from the Supreme Court of Nauru, seeks to put an argument other than a colourable one that, if canvassed, would take the court into forbidden territory under Article 2, the consequence of that we say is that the appeal cannot be properly determined. 

It is the appeal, and Article 2(a) refers to an appeal having a particular character. We would say the appeal has that character if it cannot be properly determined according to the bona fide arguments of the parties without crossing the line into the Constitution. That is why we say, insofar as it involves ground 1, because of the issues that I have adverted to, the appeal itself becomes incompetent and ‑ ‑ ‑

EDELMAN J:   Just so I understand, your submission is essentially that the appeal is incompetent in relation to ground 1 because it is not open to an appellant to appeal where there is an allegation that the primary judge completely failed to deal with a notice of motion.  You say it is because, if that had been dealt with, there might have been a constitutional issue raised by your client, so therefore there could be no appeal from the complete failure to deal with the issue.

MR KENNETT: We say there – we would if it is relevant to speculate about what would have occurred below then we would say an argument would have been raised by our client whose resolution required attention to the Constitution.

EDELMAN J:   And that is what makes the appeal incompetent.

MR KENNETT: What actually makes the appeal competent is the answer which my client would seek to give to the point here, because the answer and as my friend says in his reply, I think, the consequence of that is that the respondent can make an appeal to this Court go away by raising the Constitution, to which we say, well, if it was a colourable argument, if it was one just put for the sake of manipulating jurisdiction, then it would not trouble the Court.

But where it is an argument of some substance, and your Honours have seen an outline of it in the written submissions on both sides, then the fact that it would be sought to be put in a bona fide way, or is put in writing in a bona fide way, gives the appeal the character of one involving the Constitution, and then we are in forbidden territory. So that is how we would seek to put that.

In proposition 5, I have referred to the new ground suggested in our friend’s appeal and I just seek – I think I may have already said so but that was not articulated before the Supreme Court and would not have a bearing, we say, on whether the court afforded procedural fairness, and insofar as the motion sought leave to amend, it was leave to amend in completely general terms with no particulars which the Supreme Court, we would say, was entitled to ignore unless and until some shape was given to it. 

Could I move to grounds 2 and 3?  Those grounds, and in the light of what has passed between my learned friends and your Honours, those grounds seem to go too far and yet not far enough.  They resolve in our friend’s written reply as we read it into a complaint that the reasoning by which his Honour struck out grounds 1 and 2 in the Supreme Court was unsatisfactory.

We accept that and we have not sought to defend that reasoning, but we would maintain, and we would maintain that if the matter went back, that the grounds as they were articulated could not have succeeded.  But we say the fact that the reasoning went astray does not itself justify setting the judgment aside.  It does not justify how I think I understood my friend to put the purpose of grounds 2 and 3, which was to essentially leave over the application to reopen and have the grounds reinstated by force of this Court’s order.

That is not a suitable – an appropriate order, we say, partly of course because it cannot done without canvassing the Constitution, but also because if the flaw is that the Supreme Court has not dealt with the matter, then the proper response is for the matter to go back to that court and at the stage of, as I think your Honour Justice Nettle put it, the point that my friends should have been, after the lead application was resolved. So they do not seem to add much or anything in terms of substantial argument to ground 1. They have the same problems of competency, perhaps even more starkly than ground 1, and to the extent that they seek to do something in a practical, remedial sense, we say that would not be appropriate.

As to ground 4, the appellant’s claims before the Tribunal, we say, were squarely based on and limited to what he said was harm that he feared from the Taliban as a consequence or related to extortion attempts against him.  There was no broader argument.  Your Honours were referred to the passage from Dranichnikov that is set out in paragraph 68 of our friend’s submissions and that refers to a failure to deal with a substantial, clearly articulated argument.  If that be the test then, we say, this a long way short of a substantial, let alone a clearly articulated argument to the effect that our friends suggest.

Can I take your Honours to some passages in the appeal book that relate to this?  Firstly, the first written statement of the appellant which begins at page 45.  Your attention was drawn to paragraph 6 at the bottom of page 45, which refers to an incident in 2007, a number of years before, of course, the appellant decided to leave Pakistan.  He says in paragraph 7 that as a result of that he was concerned for his life; that is, he was concerned some time ago.

Over in paragraph 46, and I will not, of course, read all this to your Honours, but he refers then to having started his own business and to a sequence of events that begin in February 2013.  All of what follows is a description of a series of threats and intimidatory behaviour on the part of the Taliban relating to that incident.  Then at 47, just below line 20:

Who I think may harm/mistreat me in Pakistan

It was the Taliban.  The next heading:

Why I will be harmed in Pakistan

Paragraph 32:

I will be harmed because I refused to pay the Taliban the money –

So that was the way he put it in his first statement.  In paragraph 37, at the bottom of that page, he said:

For the reasons outlined above I fear that if I am returned to Pakistan I would be arbitrarily deprived of my life –

So the complementary protection concept is invoked at that early stage, but it is squarely for the reasons mentioned above.  Our friends have drawn attention in paragraphs 64 and 65 of their written submissions to some passages in the submissions made on behalf of the appellant by his advisers, firstly, to the refugee status determination officer, and, secondly, to the Tribunal.  These are – your Honours can see the pages that are referred to but these are remarks divorced from their context.  If one looks through those two submissions, the first begins at page 59 in the appeal book and it refers to:

Attacks on Political Opponents of the Taliban

Page 60:

Attacks on Journalists

Page 63:

Persecution of Wealthy Pakistani Businessmen

Then there is a document that begins at 65 which discusses the security situation in a number of cities in Pakistan.  Probably the highest this goes for the appellant is the first paragraph, which refers to:

a culture of lawlessness in some parts of the country’, including –

and several are set out.  From memory, I think Khyber is the district where the appellant came from.  My friend refers to the Federally Administered Tribal Areas.  It is one or the other of those.  But then the detail of the document goes on to talk about the security situation in a number of large cities in Pakistan which have not been put forward as having any direct bearing on the appellant’s circumstances unless it was suggested that he needed to relocate to one of them to avoid harm.  Then at page 73, line 28, there is a completely general assertion:

Pakistan has been subject to widespread political, sectarian and terrorist violence –

The other document is a submission made to the Tribunal which begins at page 107.  Your Honours have been taken to paragraph 35 at the bottom of page 114, which, firstly, makes a contention as to the scope of Nauru’s non‑refoulement obligations.  That is the first sentence.  That is a contention of law that does not relate to the appellant specifically.  Then there is a submission in completely general terms that the appellant “would face harm of this kind”. 

The only way that the Tribunal could have given that any content, we would say, was, as I think your Honour Justice Edelman suggested, to read it as picking up the factual matters that had been put in some level of detail in the preceding paragraphs, so that is to be understood either as a completely general and, frankly, not useful proposition, or as picking up what had been said before and putting an additional legal submission on the basis of it.

My friend refers to the Federally Administered Tribal Areas, and it is one or the other of those, but then the detail of the document goes on to talk about the security situation in a number of large cities in Pakistan which have not been put forward as having any direct bearing on the appellant’s circumstances unless it was suggested that he needed to relocate to one of them to avoid harm.  Then at page 73, line 28, there is a completely general assertion that “Pakistan has been subject to widespread political, sectarian and terrorist violence”.  The other document, a submission made to the Tribunal which begins at page 107. 

Your Honours have been taken to paragraph 35 at the bottom of page 114, which contends that the appellant – well, it firstly makes a contention as to the scope of Nauru’s non‑refoulement obligations, that is the first sentence.  That is a contention of law that does not relate to the appellant specifically.  Then there is a submission in completely general terms that the appellant “would face harm of this kind” and the only way that the Tribunal could have given that any content, we would say, was as I think your Honour Justice Edelman suggested, to read it as picking up the factual matters that had been put in some level of detail in the preceding paragraphs.  So that is to be understood either as a completely general and frankly not useful opposition or as picking up what had been said before and putting an additional legal submission on the basis of it. 

Then, of course, there is a more particular assertion of degrading treatment.  The heading on the bottom of 114 and the paragraphs that follow on page 115, and there is no complaint how the Tribunal dealt with that. Then could I note the appellant’s own statement that begins at page 139, which focuses on “Extortion attempts, threats and attacks”.  The telephone records and the police report mentioned on 140 are aspects of that.  Page 141 has a heading:

Safety of Home Area

Because the status determination officer had been doubtful about whether it was really the Taliban that were oppressing this gentleman, and he says at 141, paragraph 18:

It is not local people and mere criminals who do these things.  It is only the Taliban who are responsible.

So his argument, regardless of what his advisors might have said, his own words really direct the Tribunal’s attention squarely and solely to the Taliban, and then he goes on to talk about how his family have been targeted and things have happened which relate back to what he said was the extortion attempt.

Then, when he gets to his hearing before the Tribunal, the transcript starts at page 147 in the appeal book.  At the bottom of page 148, starting at about line 44, one of the Tribunal members outlines to him the state of the Tribunal’s thinking about complementary protection.  So, the reasoning was foreshadowed in case he or his advisor wanted to say anything about it.  Could I note a handful other passages in the transcript please?  Firstly, on page 150, starting at line 25, the member says “I understand”, refers to the passport and he says:

I understand you have got that and you applied for that as a response to the threats you had received to – from the Taliban.

THE INTERPRETER:   Yes, that’s true.

No suggestion of, at that point, something broader.  Your Honours will have probably seen that the discussion and the detail of questioning in the transcript all related to the account that the appellant put forward of having been the subject of extortion attempts.  Could I mention page 161 where there has just been a short adjournment and on resuming the member, Mr Fisher, says:

So you were telling us about the risk you’re facing.

THE INTERPRETER:   Yes.

MR FISHER:   Is there anything else that you wanted to say about that?

The answer goes back into the detail of the Taliban extortion attempt.  It does not suggest anything – any other independent issue that is lurking.  Then, page 172 at the bottom of the page starting at line 37 again Mr Fisher says:

Did you have anything else . . . if we don’t accept that you have been targeted in the way you say then it’s not apparent that you would be – that sending you back to Pakistan would breach Nauru’s international obligations . . . we will come back in 10 or 15 minutes depending on how long you think  you would need, and respond further if you wish to the concerns that we have raised today.

The answer through the interpreter is:

No, I’m okay.

Although, that may be a reference to whether he needed a break or not, but I just draw that to your attention because there is not – again there is no separate set of issues that is drawn out by that question.  Then, at 173, line 42:

Is there anything else you want to tell us –

He says:

My representative can say something on my behalf.

Then, Ms Farmer, who we assume was that representative begins by relying on the written submissions.  She makes a number of points including on the bearing on ground 5 – around about line 10 on page 174 which I will come back to.

Finally, at page 178, starting at line 11, just after the representative has finished, another Tribunal member says:

Thank you.  Okay.  Anything else?

There is no other matter raised and then she says thank you to the appellant:

for coming today . . . We will very carefully consider all of the information ‑

Then she says again at line 26:

Did you want to say something?  Okay.  Ms Farmer’s going to try and provide us a little more information ‑

Then at line 30:

When you finish, can I have a few words to say?

Yes, you may.

Then begins a long description to which our friends took you to part, beginning at page 178, about line 38, but the first thing he says in that is:

I just want to bring it to your attention that I had a – I had a good life in Pakistan.  And the place where I was working in the checkpoint . . . I quit that job . . . when the second threat was being very personal and addressed to myself, as a result when the threats you – if the threats you have for your life, and finally I made it to flee the country.

So when he gives his closing address, as it were, he begins by saying that he had a good life in Pakistan apart from these threats that he had received and that is very difficult to square, we say, with him having put any contention that he had a broader kind of fear of deprivation of his life.

So, we say one needs to look at the material with quite a strong magnifying glass to see any issue of the kind that our friends suggest arising.  It seems really, on the contrary, that the appellant directed the Tribunal away from any such issue and really focused the attention of his claims on his account of extortion attempts.  So, this does not, we say, get close to a substantial, clearly articulated argument that the Tribunal failed to deal with.  That is ground 4.  Can I then come to ground 5?  I want to say a little bit about it even though our friends have not taken it beyond their written submissions because our own written submissions need a little bit of refinement.

The first proposition is we would respectfully resist the notion that the appellant disowned either his own statements in the transfer interview or the record of that interview.  Reference has been made in that connection to page 45 of the appeal book, paragraph 2.  He does not disavow anything there, we submit.  He puts a couple of propositions about how far it could be taken.  He says he was not aware during the interview that the information would be used for the purpose of assessing his claims and he also says that the information:

was only a summary –

So, he indicates some reasons why one would not take what he had said in the interview as being the entire extent of his claims but certainly does not disavow it, we would say.  We do though, I think have to accept in the light of page 37, at the bottom of the page, at least at that stage of the game, that is December 2013, the appellant’s advisor and probably the appellant himself had not obtained a copy of the record of the interview.

However, it is appropriate to infer, we would say, that that record would have been on the departmental file which the status determination officer referred to as part of the material before him at the bottom of page 76 and there is no – when reference is made to the interview later in the Tribunal process, there is certainly no objection raised to that on the basis that he or his advisor has not seen the record.  So, it is not established, we would say, that the record of interview remained inaccessible or unknown to the appellant and his advisors during the tribunal review process.

If I could temporarily jump to the end of that process, it is significant, we say, to observe what the Tribunal did with the evidence about the transfer interview in making its findings because the hook for ground 5 is that the Tribunal relied on that interview record in making findings adverse to the appellant.  The Tribunal reaches the issue of credibility at the bottom of page 204, paragraph 40.  It refers in paragraph 41 on page 205 to the appellant having:

stated in his transfer interview that he was first contacted and threatened by the Taliban on 20 February 2013 –

It is significant, though, that no suggestion is made that he has been inconsistent.  Certainly, no adverse inference is drawn from the fact that any suggestion that he said 20 February on one occasion and a different date on another occasion.  The Tribunal goes on:

he has consistently said that he only applied for a passport as a response to the threats against him, and that it was issued to him some two months later.  In his RSD application the applicant stated that the first contact was made in February, but when asked at the Tribunal hearing when it was the applicant said he couldn’t recall but he knew it was in late February.

So, none of this is suggesting that there is a problem with these dates arising from inconsistency between the different accounts.  The Tribunal goes on:

However, the passport states on the biodata page that it was issued to him on 13 February 2013. 

So the problem was that all of his renderings of the story were on the face of it inconsistent with the date on the passport, and the Tribunal comes back to the question of – well, there is a bit more on the question of chronology in paragraph 42 where reference is made to a printout of phone calls and says that:

the first call was made at 11.50 am on 11 February 2013, whereas the applicant’s evidence as to the date has variously been 20 February, February, and late February –

So once again the documentary evidence was inconsistent with all of his renderings, and then similar problem at 43:

Even assuming that the applicant has made a mistake about the date, and the 20th should have been the 11th, this evidence is inconsistent with the applicant’s claims in other respects –

And the Tribunal goes on to indicate why that was so.  Then, of course, the Tribunal goes on to mention a number of other difficulties that it found with the appellant’s story.  None of those rested on the transfer interview having somehow undermined his claims by being inconsistent with what he said on later occasions, so we would respectfully dissent from our friend’s proposition that the Tribunal relied adversely to the appellant on the record of that interview.  That takes much, if not all, of the force out of our friend’s proposition that it was unfair for the Tribunal to rely on it.  Any force that remains in the submission we say is swept away by what happened in the Tribunal hearing, if your Honours go back to that for a moment.

At page 153, starting at line 32, there is some discussion, if your Honours start higher up on the page at about line 23, there is a question:

Do you recall the date when you were first approached?

The appellant says that he cannot really be exact:

but it was the second month of the year in 2013.

Then Mr Fisher says:

I think in your original interview you said it was 20 February.

The answer is:

It was late February.  It was the end of February.

So the date supposedly put in the transfer interview is put to him.  He does not say, “No, that’s wrong. I never said that.”  He gives an answer which is in a broad sense confirmatory of that.  Then there is a similar kind of exchange on page 167.  If we start at line 8, Mr Fisher says:

I have got some concerns about the sequence of events . . . and the documents you have submitted.  Now, through your claims you have said that in your – including your written statements – you have said that the incident occurred on 20 February.

The appellant says:

No.  I have reported this complaint to tehsil office ‑

I understand that to be some kind of local law enforcement body:

on that day.  The actual incident happened before then.  So the complaint’s actually made on the 28th of that month.

Well, I said 20 February.

Sorry.  I said 28th.

There seems to be a bit of confusion:

Sorry.  I said 20 February.

Then the interpreter again:

Just to clarify actually, I told him 28th.

So the date of the 20th is put squarely as something that the appellant had said on earlier occasions, and the substance of his response as we read it is not contradictory of that.  He says – we take him to be saying that he had made the complaint on the 28th and not suggesting that his evidence was other than that the actual incident had occurred on the 20th.  At any rate, however one reads it, it was squarely raised.

Then I mentioned when I was dealing with the previous ground what the adviser had said.  The adviser begins her address at the bottom of page173.  At 174, starting at line 8, she refers to the date of 20 February that has been referred to.  She says:

my submission is to exercise caution with respect to –

that, and she gives the reasons why.  She said:

Alternately . . . there may have been an error –

but we would draw attention to that for two reasons.  The first reason is that his adviser does not at that point make any suggestion that she has not seen this interview record, which one might have expected an adviser to do if that were the case.  But secondly, she has picked up the references to 20 February.  She has not said, “My client never said that.”  She has counselled properly, with respect, a degree of caution in drawing too much from that specification of a date and it was up to the Tribunal to make up its mind about what to do with it.

For all those reasons, we say there was no unfairness in the Tribunal’s use, such as it was, of the transfer interview record and nor, of course, was there any rule of evidence requiring that the document be put

to one side because it was not signed or anything formal of that kind.  Those are our submissions on the grounds pressed in this Court.

Can I add a few words in relation to the disposition of the appeal?  We would not dissent from paragraph 15 of our friend’s outline.  That is to say, if ground 4 or 5 were upheld the result would be that the matter would go back to the Tribunal.  As to ground 16, if ground 1 is upheld but not grounds 4 or 5, we would agree that the appropriate order would be to remit the matter to the Supreme Court. 

We would respectfully suggest that there is no reason to exclude the former Registrar from determining the matter, he having so far as we know exercised only the role of a functionary at earlier stages, not having made any decision or being part of any decision on either the merits of the grounds or the rights and wrongs of reinstatement.

NETTLE J:   It is correct, is it, that he has been promoted to Chief Justice?

MR KENNETT:   Yes, your Honour.  We would also, and I think I have indicated this, we would resist the proposition that if ground 1 is upheld, then 2 and 3 ought be upheld as well and the appellant should be able to jump over that – the need to press that reinstatement application in the Supreme Court.

So we would differ in those respects from what is suggested in paragraph 16 of our friend’s outline.  As to costs, I am just seeking some instructions on whether the Republic would seek its costs of this.  Your Honours, I do not have any specific instructions on the costs of this appeal so I think I am driven to say that costs would follow the event and we would, of course, resist any attempt to reopen the costs of the earlier leave application.  Such an attempt could only be based on what had transpired after the application was determined and after the court made its decision to make no order as to costs. 

We would say that nothing in the Republic’s conduct was inconsistent with the assurances that were given to the court on the last occasion.   In particular, the Republic was not under a duty to raise matters with the court on behalf of the appellant if the appellant had not raised them himself.  So that there is no occasion, we would say, for reopening the costs aspect of the leave application.  Those are the submissions of the respondent, if the Court pleases.

KEANE J:   Thank you, Mr Kennett.  Mr Gray, how long will you be in reply?

MR GRAY:   Thank you, your Honour.  I will be very brief.  I only have two reply points and I have a correction.

KEANE J:   Well, we will sit on.

MR GRAY:   Thank you, your Honour.  Firstly, I wish to reply to the point our learned friends began with.  I said in my submissions that, with respect to ground 1 in this Court, our friends were only faintly resisting characterisation of the procedure adopted by Justice Khan as being unfair.  They have now bolstered their case in that respect with a particular characterisation of two paragraphs that appear on appeal book 343.

NETTLE J:   Was Ms Keane there on behalf of the appellant?

MR GRAY:   Your Honour, my instructions, and this would probably have to be verified by affidavit, I am going to come to that in a second, but my instructions are that Ms Keane was not instructed to appear on behalf of the appellant.

However, some form of email communication occurred to the effect that she was going to collect the judgment or hear the judgment or receive the judgment.  Now, precisely what that email exchange says should, now this matter has been raised be, in my submission, the subject of a supplementary affidavit, if your Honours will grant me leave.

KEANE J:   Mr Kennett.

MR KENNETT:   I would not object, your Honour, if we have the opportunity to put on such evidence in response as may be appropriate.

KEANE J:   Yes, well, that – you will have leave to file a further affidavit within five days.

MR GRAY:   Thank you, your Honour.

KEANE J:   Mr Kennett, you have leave to respond within a further five.

MR KENNETT:   If the Court pleases.

MR GRAY:   So I will leave that point there.

KEANE J:   Yes.

MR GRAY:   The next point by way of reply, your Honours, is a point that arose right at the end of my learned friend’s address on any direction that might be made as to the constitution of the Supreme Court on the remitter if a remitter be ordered.

KEANE J:   Yes.

MR GRAY:   Our friends submitted to the Court that the Registrar, as his Honour then was, had not in effect been involved in a substantive manner.  However, that, in my respectful submission, is an unsafe submission.

I do ask your Honours to reflect on the documents that I have taken you to already.  I will not labour the point but they are at 376 and 378.  In particular, the decision on the question of allowing or not allowing phone‑ins was expressed as a decision not only by the judge but by the Registrar:  we are not in favour of phone‑ins at all.  For those reasons, we have made the considered submissions we did in the closing passages of our outline this morning. 

The correction, your Honours, is in the very last paragraph of our outline.  I do not think my friend is going to need to respond to this.  If your Honours have our outline of oral submissions handy, point 17, the second line, parenthetically we have included the words “(by separate summons now filed in proceeding M79 of 2016). 

At the time I settled this document it was our intention that, by now, they would have been filed.  The Registry did not accept for filing that notice of motion.  There is such a document in existence but whether it is going to be filed or not is not something on which I wish to further address.  In other words, those lines should be struck out of this document.

NETTLE J:   Mr Gray, on the previous point, do you know if there are any Justices of the Supreme Court of Nauru, other than Justice Khan, Justice Crulci and Justice Jitoko?

MR GRAY:   Can I simply give evidence from the Bar table, your Honour?

NETTLE J:   Yes, as far as I am concerned, speaking myself.

MR GRAY:   Yes, there are as of recently.

NETTLE J:   There are others; that is enough.

MR GRAY:   Mr Albert could supply detailed information but my understanding is yes, there are.  Unless there is anything further, those are the submissions on behalf of the appellant.

KEANE J:   Thanks, Mr Gray.  Mr Kennett?

MR KENNETT:   I was just checking the state of my instructions on the Supreme Court but I do not dissent from anything that my learned friend said in answer to your Honour’s question.

KEANE J:   Very well.  The Court will consider the matter.  Please adjourn the Court until 9.30 am on Friday, 20 October in Melbourne and in Sydney.

AT 12.51 PM THE MATTER WAS ADJOURNED