First Plaintiff M54/2011 & Ors v Minister for Immigration and Citizenship & Ors

[2011] HCATrans 184

[2011] HCATrans 184

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M54 of 2011

B e t w e e n -

FIRST PLAINTIFF M54/2011

First Plaintiff

SECOND PLAINTIFF M54/2011

Second Plaintiff

THIRD PLAINTIFF M54/2011

Third Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

REGIONAL MANAGER, CHRISTMAS ISLAND

Third Defendant

FIRST ASSISTANT SECRETARY; BORDER SECURITY, REFUGEE AND INTERNATIONAL POLICY DIVISION

Fourth Defendant

Directions hearing

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 21 JULY 2011, AT 9.28 AM

Copyright in the High Court of Australia

____________________

MR R.M. NIALL, SC:   May it please your Honour, I appear with MR E.M. NEKVAPIL for the plaintiffs.  (instructed by Allens Arthur Robinson Lawyers)

MR S.P. DONAGHUE:   May it please the Court, I appear for the defendants.  (instructed by Australian Government Solicitor)

HIS HONOUR:   I am sorry that counsel are crammed down one end of the bar table, but it seems at the moment we can run to one working microphone and no more than that, so I am sorry that you should be crushed at that end.

MR NIALL:   Not at all, your Honour.

HIS HONOUR:   Now, Mr Niall, what is the position?

MR NIALL:   Your Honour, since we were last before your Honour some steps have been taken.  Can I identify what they are?

HIS HONOUR:   Yes.

MR NIALL:   Firstly, your Honour, proposed amended application to show cause was filed to the Court on 1 July.

HIS HONOUR:   I understand there is no opposition to amendment in that form, is that right?

MR NIALL:   That is so, your Honour.

MR DONAGHUE:   That is right.

HIS HONOUR:   You have that leave.

MR NIALL:   May it please your Honour.  The second step is that the parties have spent the time that your Honour gave us to agree to some facts which the parties both identify as the facts which they say would be relevant for the matter to proceed, and that was filed, your Honour, on 15 July 2011 and it contains a relatively brief statement of facts and contains some attachments which are largely in the nature of formal documents and the like.

HIS HONOUR:   Now, am I to understand that the statement of agreed facts would be the only facts to which the Court need have reference in determining the matter?

MR NIALL:   Yes, your Honour.

HIS HONOUR:   Therefore, any application book would consist of the initiating process and the agreed facts and annexures?

MR NIALL:   Yes, your Honour, and if your Honour is so minded the order referring to the Full Court would conclude as far as ‑ ‑ ‑

HIS HONOUR:   Yes, so it is a small and confined document?

MR NIALL:   It would be, your Honour.

HIS HONOUR:   Yes.

MR NIALL:   The third matter that is subject to agreement is that the plaintiffs and the defendants have agreed that the application to show cause is amended in a form suitable for referral to Full Court subject to one qualification which is in relation to paragraphs 14 and 15, that really being because it raises factual issues which may not be suitable for adjudication, and it does not ‑ ‑ ‑

HIS HONOUR:   This is this question about detention of minors?

MR NIALL: And the extent to which the discretion was in fact exercised in this case. So the existence of the discretion in 189 will be relevant as a question of construction, but that particular part of the case can, if your Honour is so minded, remain despite the outcome, but it does not impinge upon the two principal planks which I endeavoured to explain to your Honour on the last occasion. So they are the three matters to date, your Honour. The steps forward, again which the parties are agreed in identifying what they are, would be the file of any – service of any section 78B notice and then submissions.

HIS HONOUR:   Well, have you seen the draft orders proposed by the Minister’s side, and what do you say about those?

MR NIALL:   I have, your Honour.  In terms of identification of the steps, we have agreed that they are all appropriate for your Honour to make.  As your Honour, with respect, identified on the last occasion, it is the question of detention of the minor which requires it appropriate to be dealt with expeditiously or in the Court’s hand, and as soon as the Court can identify a date we will cut our cloth accordingly, your Honour.

HIS HONOUR:   We are looking towards October.  You have seen, have you, the transcript of the proceedings in the matter of Ahmadi?

MR NIALL:   I have, your Honour.

HIS HONOUR:   Do you accept that it is appropriate that this matter go forward in lockstep with Ahmadi in the sense that it should come on for hearing either at the same time as or immediately after, I do not think it matters which, the matter of Ahmadi?

MR NIALL:   Yes, your Honour.

HIS HONOUR:   As I say, Justice Gummow who has management of the matter of Ahmadi was looking towards October, as am I.

MR NIALL:   In those circumstances, your Honour, the directions that have been provided to your Honour by the defendants are appropriate for your Honour to make, with respect.

HIS HONOUR:   Now, an opinion was expressed in the directions hearing in Ahmadi that there was a very considerable degree of overlap or commonality between the two proceedings, is that how you see it?

MR NIALL:   Your Honour, I have had the opportunity to review, or read I should say, the application for an order to show cause in that case which is fairly brief, your Honour, and we have endeavoured to identify the arguments, or at least the sets to the argument that we would seek to advance before the Full Court, but we assume and having read that transcript that there is a degree of overlap.  Certainly, it seems to be a linchpin of their argument, as it is ours, that the purpose of the detention is not for the purpose of removal and not for a lawful purpose.

HIS HONOUR:   Yes.  What I am looking forward to is how can we efficiently have the two matters without either confining either of the sets of parties in the two matters, yet at the same time promoting and provoking as much efficiency as we can, because my next question will be what is your best estimate of how long this matter or this matter and Ahmadi together would take?

MR NIALL:   I would estimate, your Honour, that this matter and Ahmadi would take two days.  This matter without Ahmadi might well go into the second day.

HIS HONOUR:   Yes, those estimates do not come to me as a surprise at all.

MR NIALL:   In terms of the efficiency, certainly if your Honour was – as we understand it, the directions that are proposed, and your Honour has a copy of, are similar to or identical to with a couple of minor exceptions in relation to the timing for our application book and 78B notice, but they are in lockstep, and no doubt when those are complied with the parties both before and after will – that is, the triumvirate of parties – will no doubt be in a position to work out the most expeditious way for the issues to be presented in oral argument before the Full Court.

HIS HONOUR:   Yes.  Now, as to the particular timetable, have you got suggestions or variations?

MR NIALL:   No, your Honour.  Within the framework of that October hearing date, we are content with these orders, your Honour.

HIS HONOUR:   Yes, thank you.  I cannot promise you a hearing date in October, but that is certainly what we are working towards.

MR NIALL:   If your Honour pleases.  Certainly – well, I have said that we are keen to get it on, your Honour, so ‑ ‑ ‑

HIS HONOUR:   Forgive me if I say, so am I.

MR NIALL:   If your Honour pleases.  So within that target range, these directions will achieve it, your Honour, and we see also these directions as enabling efficiencies to be gained between the two parties.

HIS HONOUR:   Yes, thank you.  Yes, Mr Donaghue.

MR DONAGHUE:   Your Honour, there is very little I need to add to that.  As my friend has indicated, we have tried to track the orders – this is on Ahmadi – in relation to dates.  One thing that we did not have enter the orders proposed before your Honour that his Honour contemplated is bringing the matter back before him in late September.  We did not see that that was necessary in this case.

HIS HONOUR:   Nor do I at the moment, but I would ordinarily reserve liberty.  Obviously, if it were necessary to bring it back it may be that by that stage of the progress of both matters it would be better if it came back before a judge who had in effect both matters.

MR DONAGHUE:   Yes.  Well, I noted, your Honour, just reviewing the orders this morning, that I had left out liberty and I would ask your Honour to add it because his Honour seemed to be particularly concerned that if there were factual developments that needed to be added that should happen, and it would be, we submit, undesirable for the factual record to have gaps in this case that are not present in the other case.

HIS HONOUR:   That is not simply undesirable, it is just not going to happen.

MR DONAGHUE:   Yes.  Subject to that, we think that everything that is needed is in the agreed facts and the timetable will mean the two matters will be ready if the Court has an available date in October.

HIS HONOUR:   Yes.  Well, if I were to make orders in the terms of the proposed directions, adding liberty to apply on, what, two days’ written notice to opposite parties, would that suffice?

MR DONAGHUE:   Yes, your Honour.

HIS HONOUR:   Reserve the costs or make them in the cause, which – you have got them as reserved, is it better to deal with it that way?

MR DONAGHUE:   I am content either way, your Honour.  Costs in the cause is ‑ ‑ ‑

HIS HONOUR:   In the cause – nobody is left catching up questions of costs.

MR DONAGHUE:   Yes, your Honour.

HIS HONOUR:   There will be directions:

1.The plaintiffs have leave to file an amended application in the form of the Proposed Amended Application for an Order to Show Cause filed on 1 July 2011.

2.Pursuant to rule 25.03.3(b) of the High Court Rules 2004, the amended application, with the exception of paragraphs 14 and 15, be referred for further hearing by a Full Court.

3.The further hearing of paragraphs 14 and 15 of the amended application is adjourned to a date to be fixed following the hearing and determination of the remaining grounds referred for consideration by a Full Court.

4.On or before 29 July 2011 the plaintiffs file and serve any necessary notices under section 78B of the Judiciary Act 1903 (Cth).

5.On or before 29 July 2011 the plaintiffs file and serve their application book.

6.On or before 26 August 2011 the plaintiffs and any party intervening or seeking to intervene in support of the plaintiffs file and serve their or its written submissions.

7.On or before 9 September 2011 the defendants and any party intervening or seeking to intervene in support of the defendants file and serve their or its written submissions.

8.On or before 16 September 2011 the plaintiffs file and serve any written submissions in reply.

9.        Costs of the proceedings today be costs in the cause.

10.Liberty to apply to any party on not less than two days’ notice in writing to opposite parties.

Is there anything else that would need to be picked up or dealt with?

MR DONAGHUE:   No, your Honour.

MR NIALL:   Not for our part, your Honour.

HIS HONOUR:   Obviously, if facts change then I would expect the liberty to apply to be exercised.  It will be a matter for internal organisation of the Court whether and how we deal with that in Melbourne or by video link to Sydney because obviously if facts change presumably those facts will affect both matters.

MR NIALL:   That would seem to be likely, your Honour.

HIS HONOUR:   Yes.  Very well, there is nothing else?

MR NIALL:   Not for our part, your Honour.

HIS HONOUR:   Thank you.  Adjourn the Court.

AT 9.42 AM THE MATTER WAS ADJOURNED