Epeabaka, Ex parte - Re Ruddock & Anor (M22-99 ) CHH

[2000] HCATrans 92

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M22 of 1999

In the matter of –

An application for Writs of Prohibition, Mandamus and Certiorari against PHILIP RUDDOCK, THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

DR RORY HUDSON, a (former) Member of the REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte –

FAUSTIN EPEABAKA

Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 16 MARCH 2000, AT 9.31 AM

Copyright in the High Court of Australia

MR D.L. LUCAS:  If it please the Court, I appear for the prosecutor in this matter.  (instructed by Victoria Legal Aid)

MR R.R.S. TRACEY, QC:  If your Honour pleases, I appear for the Minister.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Tracey.

MR TRACEY:   Your Honour, the parties have had some discussions about this matter and your Honour may remember that on the last occasion we were searching around for a test case which might usefully be referred to a Full Court to resolve the question to which your Honour referred, namely, whether the Migration Act constitutes a Code such that natural justice would not be available as a ground in a challenge by way of prerogative writ even in circumstances where Part 8 was not available.  The discussions have led to the choice of this case as a suitable vehicle, subject to your Honour’s views on the matter.

HIS HONOUR:   It seemed to me, Mr Tracey, that this matter of Epeabaka might be suitable for reference to a Full Court as raising two kinds of issue which, although closely related, may, in fact, represent separate paths.  The first of them being that to which you referred, namely, whether there is some obligation of procedural fairness greater than, or different from, following the statutorily prescribed procedures of the Act.  The second aspect of this case that seemed to me to arise may be a question about what role questions of apprehended bias play in connection with a process of decision making which, on one view of the Act, is essentially inquisitorial rather than adversarial with joinder of issue and determination of issues between adversary parties.

As I say, it seemed to me that the two issues may be related.  They may, perhaps, find a degree of separation.  But this case would then become a suitable vehicle, I think, if two conditions were met.  One, that there was no factual dispute remaining outstanding between the parties, and the corollary of that is that both parties have on whatever evidence it is that they feel they need to make their case.  Second, that the grounds are properly formulated in a way that will raise whatever the parties would see as being the area for debate and decision in a Full Court.

MR TRACEY:   I can certainly, I think, assure your Honour that there are no factual disputes between the parties.  As your Honour knows, the argument arises out of a decision by a member.  He subsequently said some things publicly that led to the allegation that there was an apprehended bias on his part.  None of that is in dispute, your Honour.  What appeared on his web site is public knowledge.  So that, from that point of view, I do not apprehend there will be any difficulty.  As to the crafting of grounds, I think that really is for my learned friend ‑ ‑ ‑

HIS HONOUR:   It is.

MR TRACEY:   But, in so far as we are able to, we will co-operate in bringing the matter on.

HIS HONOUR:   I would be anxious that, so far as possible, the grounds be in a position, when it goes to a Full Court, that they do accurately identify the true field of debate between the parties and I am grateful for the indication that you and those who instruct you will give some attention to assisting in that task.

MR TRACEY:   Your Honour, once they are formulated, or perhaps even before, I am sure there will be no difficulty in providing an agreed statement of facts.  So that there will not be any issues of affidavit material or things of that kind.

HIS HONOUR:    Well, then, is it best, on your submission, that I make an order now referring it into a Full Court, making the application for order nisi returnable before a Full Court, or is it best that I wait until grounds are formulated and facts are agreed?  Can the two go forward simultaneously?  What is the best means of proceeding?

MR TRACEY:   Yes, well, I understand that your Honour has certain other matters listed on the 29th of this month.

HIS HONOUR:   Yes.

MR TRACEY:   If your Honour would, I think, and I say this without reference to my friend who will no doubt tell your Honour if he disagrees, but it would seem a sensible course for the matter to be adjourned until then and, in the meantime, the necessary steps that we have been discussing could be put in place.  So that, on the 29th we could, hopefully, present your Honour with a set of consent orders and agreed statement of facts, and anything else that is necessary with a view to it being referred immediately to a Full Court.

HIS HONOUR:   Now, the last point I should raise is, is there any question of the kind considered by Justice McHugh in Durairajasingham 168 ALR at 407?

MR TRACEY:   Your Honour, as I recall that case, it had principally concern with the extent of the obligation to give reasons ‑ ‑ ‑

HIS HONOUR:   But also raised the question of jurisdiction of this Court to grant certiorari otherwise than as ancillary to other matters falling within its jurisdiction.  It is to that point that I ‑ ‑ ‑

MR TRACEY:   Your Honour, I will have to await my learned friend’s choice of remedies, but I would have thought that he could craft his application in such a way that, for example, by seeking mandamus and calling certiorari in aid, if need be, such as to avoid that problem arising.

HIS HONOUR:   It is not a problem that, it seemed to me, arose, but I did not want it to pop out of the woodwork in the course of argument before a Full Court, without the parties being alive to whether there is such a problem.

MR TRACEY:   Yes, your Honour.

HIS HONOUR:   Yes.  Well, now, thank you, Mr Tracey.  Mr Lucas, what do you say about the course proposed?

MR LUCAS:   Well, your Honour, certainly, in principle, the prosecutor is absolutely happy with the notion of referral to a Full Court and particularly given that it raises the other issue that the Minister wishes to resolve.  The prosecutor is entirely happy to resolve that as well.  I suppose I would need to clarify, initially, also, I mean, it sounds almost as though the grounds are going to almost be drawn by consent or at least with reference to the other party.

HIS HONOUR:   They are going to be your grounds and you are going to be tied to them in the Full Court, I fear, Mr Lucas.  Whatever input Mr Tracey may have, I fear the buck will stop firmly on your side of the Bar table.

MR LUCAS:   Certainly.  I will obviously have to consent to the wisdom of my own counsel because I do not propose to run it myself, of course.

HIS HONOUR:   But do you understand that I am very anxious that the grounds be as refined as we can make them so that the issue is as clearly presented as we can present it.

MR LUCAS:   Certainly, your Honour.  On that point of the issue that was raised by Justice McHugh in the Durairajasingham matter, I will again confer with Mr Freckleton, my own counsel that we have briefed, to see whether he considers that this certiorari issue needs to be addressed at all.  Otherwise, is it the proposal then that by the 29th of this month the grounds be amended to ‑ ‑ ‑

HIS HONOUR:   That by the 29th this case be ready for parcelling up in a nice piece of pink tape and sending off to a Full Court, Mr Lucas.

MR LUCAS:   Yes, all right.

HIS HONOUR:   That there be nothing further to be done except to refer it into the Full Court.  So, we would want grounds;  we would want, if there is to be agreed statement of facts, we would want that statement of facts in final form and I think that is all I would need but, in effect, I want the paperwork complete in good time for the 29th.  Now, the 29th falls on the Wednesday.  Would it be possible to have these papers filed and served by 4.00 pm on 27?  That would give people the weekend, but 4.00 pm on Monday, 27th, would mean that the papers would be done in good time before the hearing on 29.  Would that be possible?

MR LUCAS:   That would be possible, your Honour.  The only, I suppose, formal issue is to actually seek a further extension of aid.  The prosecutor has obviously sought aid so far, simply for the order nisi aspect of the matter.  I will have to take that back to our grants division.  I cannot imagine though that there will be any problem with that because our guideline entertains ‑ ‑ ‑

HIS HONOUR:   You should do so with this indication from me, that as things presently stand, it is my intention that the matter would be made returnable before a Full Court and that may, perhaps, assist in the consideration by the relevant authorities.

MR LUCAS:   It certainly would, your Honour, yes.

HIS HONOUR:   Then, if I order:

That on or before 4.00 pm on Monday, 27 March, the applicant file and serve an amended statement of his grounds for grant of relief and applicant file and serve any agreed statement of facts;

I would then reserve the costs and certify. 

I have put the order in terms of filing and serving any agreed statement of facts so that the parties are not bound to set about agreeing, but it really would be of the greatest help if that could be done.

MR LUCAS:   Very well, your Honour, although I certainly can indicate our concurrence with my learned friend’s submission that there are not really any factual issues that are in contest.

HIS HONOUR:   Yes, thank you, Mr Lucas.  Now, Mr Tracey, is there anything you want to say about those forms of order?

MR TRACEY:   No, thank you, your Honour.

HIS HONOUR:   Yes, thank you.  There will be orders in those terms.

AT 9.44 AM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 29 MARCH 2000