Graham v Minister for Immigration and Border Protection; Te Puia v Minister for Immigration and Border Protection

[2016] HCATrans 256

[2016] HCATrans 256

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M97 of 2016

B e t w e e n -

AARON JOE THOMAS GRAHAM

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Defendant

Office of the Registry
  Perth  No P37 of 2016

B e t w e e n -

MEHAKA LEE TE PUIA

Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Respondent

Directions hearing

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 27 OCTOBER 2016, AT 9.31 AM

Copyright in the High Court of Australia

____________________

MR B.W. WALKER, SC:   May it please your Honour.  Good morning, I appear with MR J.M. FORSAITH for the applicant plaintiff in each matter.  (instructed by Malkoun & Co Lawyers)

MR S.P. DONAGHUE, QC:   Good morning, your Honour.  I appear for the defendant in both matters.  (instructed by Australian Government Solicitor)

HER HONOUR:   It seems there is some consensus between you about ‑ ‑ ‑

MR WALKER:   A very large measure.

HER HONOUR:   About the Graham matter.

MR WALKER:   Yes.

HER HONOUR:   I wondered whether I had got to the point in relation to Te Puia – in relation to that matter it is the same issues – the difference between them is factual in the sense that in the Graham matter there is some reference to potential basis whereas in the second matter there is no reference at all.

MR WALKER:   That is right.  We think that that factual matter is small and contained, that is it does not really make much of a difference between the bulk of the argument, the point of each of the case which is the same ‑ ‑ ‑

HER HONOUR:   My point is more direct, I think, Mr Walker, and that is whether it is a point that is relevant at all to the argument to be put to the Court, that is the factual difference.

MR WALKER:   The short answer is no, it is an extra point.

HER HONOUR:   So it makes a difference but it is an extra point.

MR WALKER:   Yes.  It makes no difference to the point that makes it common.

HER HONOUR:   I am not talking about common.  I am talking about whether or not it is an additional argument of yours in relation to the Te Puia matter.  In other words, as a matter of argument does it make a difference that there is a reference in Graham to something, but nothing in the second matter?

MR WALKER:   No, your Honour.

HER HONOUR:   That surprises me, but anyway, all right.

MR WALKER:   Your Honour, I may be at cross‑purposes.

HER HONOUR:   I understand that the issues are the same.

MR WALKER:   Yes.

HER HONOUR:   As an advocate, what I am asking is whether or not the absence of the additional fact in the second matter is something that you would want to bring to the attention of the Court in the hearing because against you it is put that it is unnecessary to bring the second matter up.  So I am trying to work out from you ‑ ‑ ‑

MR WALKER:   No, I am sorry, I am at cross‑purposes.

HER HONOUR:   Yes.

MR WALKER:   When I was thinking about facts in the other case – I am so sorry.

HER HONOUR:   No, no, I am talking about the distinction between Graham and the second matter.  So at the moment there is consensus among you that Graham comes up and with a special case.

MR WALKER:   Yes.

HER HONOUR:   That needs to be done soon and it can be fixed.

MR WALKER:   Yes.

HER HONOUR:   The only issue between you is whether it is necessary for the second matter to come up because of the factual difference in order for you to run an additional argument.

MR WALKER:   Yes.

HER HONOUR:   I do not know the answer to that.  That seems to me to be the determinative question about whether or not both matters should come up together.

MR WALKER:   In our submission there is that difference between the cases.  That is not a difference that is such as to prevent the great utility of them being argued together, that is brought up together.

HER HONOUR:   What is that utility of them, other than the distinction of fact?  I will put it bluntly.  Is the lack of material in the second matter something which gives you additional arguments that you want to run in the High Court?

MR WALKER:   Yes, yes, of course.

HER HONOUR:   How quickly could you get the special case for both up?

MR WALKER:   Very quickly.  We are, I think, on the verge of at least understanding better the only disagreement between us – so very quickly, that is, I suspect, within 10 days or so.

HER HONOUR:   I will have a chat to Mr Donaghue.  Graham, I understand you are, in effect, subject to resolution of the special case agreed.

MR DONAGHUE:   Yes.

HER HONOUR:   Is it a matter for five or seven?

MR DONAGHUE:   Your Honour, we think seven.

HER HONOUR:   Right.

MR DONAGHUE:   But if your Honour were minded to list the matter in December, accepting that that would not allow seven to happen, then we would not oppose that course given that the liberty of the subject is involved, but we think more appropriately it is a matter for seven.

HER HONOUR:   All right.  In relation to the matter I just put to Mr Walker, obviously very inelegantly on my part, as I read it the only distinction – and I do not mean that in a pejorative sense – between the two matters is this – really the content of the reasons themselves.

MR DONAGHUE:   Yes.

HER HONOUR:   In the first matter there is some reference to some material.  In the second matter I could not identify any reference to any material.  Is that a fair description of the distinction between the two of them?

MR DONAGHUE:   Certainly, your Honour, in the second matter, the removal matter, if I can call it that, as we understand it the legal argument is exactly the same ‑ ‑ ‑

HER HONOUR:   I accept that.

MR DONAGHUE:   But what is illustrated is that 503A in that context is operating to apply to more - the material that was before the Minister than was the case in the Graham matter.  So it sheds light only insofar as it illustrates the potential for 503A to capture a greater body of the material than is before the relevant decision‑maker.  We think that ultimately is not going to make any difference at all to the way that the Court analyses the validity or otherwise of the scheme, which is why we submitted that there is no utility in bringing the matter up.

HER HONOUR:   Given the same solicitors and counsel and that there is that small, arguably important, difference, there is no real difference either in time or cost, is there, to ‑ ‑ ‑

MR DONAGHUE:   In my submission there is this very modest additional complexity of extra court books and matters of that kind.  But it is minor.  I accept that.  It should not add anything to the length of the hearing.

HER HONOUR:   How long do you think – a day?

MR DONAGHUE:   We think so, subject to the possibility that if all the States come along that might push it over.  But certainly if it is just the parties it should be easily able to be managed in the day.

HER HONOUR:   All right, thank you.  Mr Walker, anything you want to add to ‑ ‑ ‑

MR WALKER:   No, we have discussed that estimate and we agree.

HER HONOUR:   All right.  Does that mean in relation to the Graham matter – I will deal with that first because that is, I think, the easier matter, the order that was sought by you – are they agreed that you will have to 3 November?

MR WALKER:   No, those dates are not agreed.  They are subject very much to the matters that you raise with my friend.  We can do that.  I certainly do not want to embarrass my friend at all in that regard ‑ ‑ ‑

HER HONOUR:   This is what I propose.  I propose to make an order for the parties to agree to file a special case in the Graham matter and then I think as a matter of course the Court should look at it before we refer it in or make appropriate orders.

MR WALKER:   Yes.

HER HONOUR:   In relation to the second matter it seems to me that there should be the referral as well as the order in relation to the special case.  So it is really a question for you about the dates for that second part of it, i.e. how long it is going to take for you to agree so that the Court can have a look at it.

MR WALKER:   Is the 9th a date that can fit the Court’s diary, your Honour?

HER HONOUR:   Just one moment, I will just check on that, Mr Walker.  I have my calendar here – I do not think ‑ ‑ ‑

MR WALKER:   I think we have in mind the 9th as a day for the ‑ ‑ ‑

HER HONOUR:   Is that for the filing of the material?

MR WALKER:   Yes, quite so.

HER HONOUR:   That would be all right.  That is Wednesday?

MR WALKER:   Yes.

HER HONOUR:   Two weeks away.

MR WALKER:   Yes.

HER HONOUR:   In the Graham matter I will order that the parties, on or before 9 November 2016, file any agreed special case.  Do you then want the matter listed for directions – I think that is probably going to be most appropriate so if you can have a look at it and make sure that we are all ‑ ‑ ‑

MR WALKER:   Yes, please, your Honour.

HER HONOUR:   What date for directions do you want?

MR WALKER:   I think the 14th or 15th has been suggested at the Bar table, your Honour.

HER HONOUR:   Why do we not make it Monday morning, the 14th at 9.30?

MR WALKER:   If it please the Court.

HER HONOUR:   Costs will be reserved in that matter.  In relation to what is presently P37/2016, I will order that proceeding WAD732 of 2015 should be removed into this Court and heard together with M97/2016, and on or before 9 November 2016 the parties file any special case.  Again list the matter for directions on Monday, the 14th and costs reserved.

MR WALKER:   If it please the Court.

MR DONAGHUE:   If it please the Court.

HER HONOUR:   Anything else?

MR WALKER:   No, your Honour.

MR DONAGHUE:   Thank you, your Honour.

HER HONOUR:   Thank you very much.  Adjourn the Court.

AT 9.41 AM THE MATTERS WERE ADJOURNED