Gjeka v Evans & Anor

[2009] HCATrans 98

[2009] HCATrans 098

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A29 of 2008

B e t w e e n -

LEONARD GJEKA

Plaintiff

and

THE HONOURABLE SENATOR CHRIS EVANS, MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SEAN LEYDEN

Second Defendant

Summons for Directions

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON WEDNESDAY, 13 MAY 2009, AT 9.35 AM

Copyright in the High Court of Australia

MR W.J.N. WELLS, QC:   May it please the Court, I appear with my learned friend, MR S.D. OWER, for the plaintiff.  (instructed by Patsouris & Associates)

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

HIS HONOUR:   I have had an opportunity to look at the draft stated case.  Might I raise a couple of matters about that case with counsel.  If we go to page 5, paragraph 25, it is said that:

On or about 18 September 2007, Minister Andrews decided to consider exercising his power under s 417 of the Act in response to the May 2007 requests, but decided not to grant a visa to the Plaintiff (the September 2007 decision).

Is it intended that the defined term “the September 2007 decision”, which becomes of importance in relation question 1, encompass both elements?  It is not instantly apparent whether that is so or if it is so, what the consequence of it is, because underneath that apparent question of form may lie some issues of substance that may – they may not – be appropriate to consider at this stage of the process.  What I have in mind by that particular Delphic statement is, let it be assumed that the decision in issue is or encompasses the decision not to grant, that then invites attention to what relief would go if there were some want of procedural fairness and what would be the consequence of granting that relief? 

Let it be assumed that the matters alleged in paragraph 26 of the case stated are legally significant, let it be further assumed that those matters lead to the conclusion that the decision, whether that is the decision to consider or the decision not to grant or both, are attended by some form of jurisdictional error, what then is the relief that would flow from that collection of observations?  What is the consequence?  Now, those are matters that the parties may wish to consider.  They are matters that the parties may say are not matters appropriate to deal with at this stage of preparation of the papers.  I do think, however, that it may be desirable, I suspect even necessary, to identify rather more carefully what is meant by the September 2007 decision.

The second set of issues that I wish to raise – and again these may be matters about which the parties may wish to stop and think rather than make any immediate response to – is that questions 2, 5 and 7 are each cast in terms of, can this Court grant relief?  In that expression, it seems to me the question is directed to a question of power.  Is that really what the parties are on about?  Are the parties on about what powers this Court has?  I would have thought they were not.  Rather, they were concerned with whether relief should go and what relief should go. 

Now, I notice that the question is framed in terms of grant any and if so, what relief, so the question of what relief is taken up, but is it that the parties would have me state a case about the powers of the Court or is it that the parties would have me state a case about the exercise of the powers of the Court in the events that have happened?  It would be a matter which might require a little further elucidation to persuade me that I should state a case about the ambit of the Court’s powers only.  It would seem to me that it would be desirable, it may even be necessary, to state a case about whether relief should go.

The final matter to which I draw attention concerns question 4, “did the December 2007 determination involve jurisdictional error?”  The word “involve” covers a number of possibilities.  The word “involve” is a useful word when tempting to slide over difficulties.  It is not a word that is particularly useful in pointing with clarity to what is involved and the generality of the expression “involve jurisdictional error” is rather alarming in its generality.

Now, these may be matters about which the parties would wish to pause and give further consideration.  They may be matters with which we can deal immediately.  Having received the documents and had an opportunity to read them only last night, I am sorry that I have not been able to give the parties some warning of this list of interrogatories, but there we are.  Now, Mr Wells, your side is perhaps properly to be regarded as the moving party in this process, what course do you propose I should take in dealing further with the matter?

MR WELLS:   Your Honour, perhaps the preferable course would be for the parties to give consideration to the matters your Honour has raised.  We may find in consultation that, at least in some of the questions your Honour has raised, that we are in agreement as to the response, but because, as it happens, there are one or two other matters that have not quite come the full point of agreement, there seems to be good reason to pause, if your Honour were prepared to consider that, for us to examine between ourselves the matters that your Honour has raised as well as one or two other issues that still remain unresolved.

HIS HONOUR:   I am not averse to following that course.  I will hear what Dr Donaghue has to say about it, of course, but I am always conscious of the desirability of avoiding multiple directions hearings in these matters, though, as to how real questions of costs are in a matter like this is always an interesting but irrelevant question for me to consider perhaps.  But it may be that if the parties came to an agreement about it and if they were good enough to submit the stated case when they are at that point, it may be that we could deal with the matter on the papers, I do not know.  All I would say is that I am anxious to avoid the revolving directions door in which you have 27 directions hearings before you get to an end.

Two other matters of minor moment that I should mention when you are considering it, you may think it desirable to preface the stated case beneath the heading with something to the effect that, “Pursuant to section 18 of the Judiciary Act 1903 (Cth) I, K.M. Hayne, Justice of the High Court, state the following case and reserve the following questions for the consideration of a Full Court.” The document would then on its face record the basis upon which it is going forward.

The second matter again of perhaps proof that I have read the document rather than anything more substantive than that is that you might consider in paragraph 27.2 casting it as “provide the plaintiff with an opportunity to comment or make submissions” rather than both, but maybe I am wrong in that observation.

MR WELLS:   Thank you, your Honour.

HIS HONOUR:   Dr Donaghue, what course do you propose I should take?

MR DONAGHUE:   Your Honour, I am content for the questions your Honour has raised to be stood over for further discussion between the parties.  I should say that it may be that it is necessary for there to be more profound changes than changes responding to your Honour’s comments this morning.  The reason I say that is, I have recently become aware of the fact that the Minister has initiated a review under 417 of the applicant’s position and I am instructed that the Minister’s intention is personally to give consideration to the exercise of his section 417 powers and a letter to that effect went to the plaintiff some weeks ago inviting him to provide information for that process.

Obviously that has not happened yet so the Minister has not considered the powers and I am not in a position to indicate one way or the other how they will be exercised, but it does seem to us that either way that fact has significant implications for this case, because if exercised in his favour, Mr Gjeka would receive a visa and that may well remove any point or purpose in this proceeding continuing.  It may not.

HIS HONOUR:   It is not apparent to me at all why it would not entirely remove it, but there we are.  The Judge knows least about these things.  Counsel knows most about these things.

MR DONAGHUE:   Your Honour, from my perspective I would have thought so as well.  I did not wish to presume to speak on behalf of the plaintiff but it is hard to see how it could continue if he gets a visa.  If he does not get a visa under that process, then the position will be that the current Minister will have personally considered the material as it stands now and that may well have implications both for the question of whether there is any purpose or utility in challenging Minister Andrews’ decision and insofar as this case purports to raise questions about not referral, those questions might also be impacted on.

HIS HONOUR:   It may also lead to the basic question of utility which would be better dealt with by a single Justice than on reference into a Full Court, but those are matters to which the parties should give attention.  Having regard to what you have said and having regard to the attitude expressed by Mr Wells, I have no doubt that the proceeding should be stood over to a date to be fixed.  I would wish, if at all possible, to deal with it most likely during the week of – Monday, 8 June is a public holiday – Tuesday, 9 June. 

I give you that indication not only to ensure that minds remain focused on this, but also to indicate that I do not wish the case simply to go off into the land of nod.  But if I simply adjourn the matter to a date to be fixed, reserving liberty to either party to restore the matter on not less than, say, three days notice to opposite parties, and if I reserve the costs of today, would either side wish to be heard against my making orders in those terms?

MR DONAGHUE:   Could I just indicate to the Court – obviously I will convey your Honour’s comments then – my instructions coming here today were that the Minister did not expect to be in a position to consider this matter until the end of June.  I think that timeframe is in part influenced by the fact that the applicant sought further time to provide material.  So it may be that the position would not be clear by early June, but I can of course convey what your Honour has said.

HIS HONOUR:   If it cannot be done by early June, it cannot be done by early June.  It is better that this matter be attended to with a sufficient time on both sides of the record for them to give appropriate consideration to the material they want to advance, the decisions they wish to reach.  So it may well be that we will not be able to deal with the matter until into July.  If that so, so be it.  But if I simply adjourn the matter to a date to be fixed, liberty to apply to either side to restore the matter on not less than three days notice in writing.

MR DONAGHUE:   There is one other minor matter, your Honour.

HIS HONOUR:   Yes, Dr Donaghue.

MR DONAGHUE:   Your Honour will recall when we were first before the Court there was a question of discovery and I indicated that the Minister would provide the relevant documents without a formal order being made and that occurred.  Those documents as provided informally included various redactions on the basis of protecting the privacy of the parties.  On reviewing the unredacted documents, it seems to me that there was one redaction that is significant to the procedural fairness case that the applicants seek to make.  My client is concerned about providing that document because of the privacy principles in the absence of an order of the Court and I have prepared a formal discovery order to make in relation to that document so as to free us to provide an unredacted copy of that document to the plaintiff.

HIS HONOUR:   Yes.  I assume you have no objection to my following this course, do you, Mr Wells?

MR WELLS:   None at all, your Honour.

HIS HONOUR:   Yes.  Thank you.  In addition to the orders I have indicated, there will be a further order that the first defendant make discovery of and produce for inspection by 14 May 2009 the document headed “Submission” directed to the Minister for Immigration and Citizenship dated 14 August 2007 in relation to the plaintiff.

MR DONAGHUE:   If the Court pleases.

HIS HONOUR:   Yes.  Thank you.

AT 9.54 AM THE MATTER WAS CONCLUDED