Hashimi & Anor v Director of Police (Aka Nauru Appeal)
[2004] HCATrans 371
[2004] HCATrans 371
IN THE HIGH COURT OF AUSTRALIA
Registry No C8 of 2004
B e t w e e n -
JAMILKHAN HASHIMI
First Appellant
MOHAMMAD ARIF RUHANI
Second Appellant
and
DIRECTOR OF POLICE (THROUGH THE SECRETARY OF JUSTICE AS DIRECTOR OF PUBLIC PROSECUTOR)
Respondent
For directions
HAYNE J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON MONDAY, 4 OCTOBER 2004, AT 9.30 AM
(Continued from 27/8/04)
Copyright in the High Court of Australia
__________________
MR C.J. HORAN: If the Court pleases, I appear with my learned friend, MR S.D. HAY, for the appellant. (instructed by Vadarlis & Associates)
MR P.J. HANKS, QC: Your Honour, I appear for the respondent. (instructed by Clayton Utz)
HIS HONOUR: Now, Mr Horan, I understand there is some change in parties, is there?
MR HORAN: I think one of the appellants – if I am right, it is second appellant – has filed a notice of discontinuance. I stand corrected. It is the first appellant that ‑ ‑ ‑
HIS HONOUR: Has he actually filed and served notice of discontinuance yet? It is just that I do not have it on the file.
MR HORAN: It has been served.
HIS HONOUR: It has been served?
MR HORAN: It has been served. I am instructed that it was filed in the Canberra Registry on Friday afternoon, but it may have been by fax.
HIS HONOUR: Yes. So that being so, henceforth the proceedings will be Ruhani v Director of Police, is that right?
MR HORAN: Yes, if the Court pleases.
HIS HONOUR: Yes, Mr Horan.
MR HORAN: The appellants have also filed a second affidavit, of Mr Eric Vadarlis, sworn 16 September 2004, which supplements the evidentiary basis for the purposes of the determination, initially, of the objection to competency and, ultimately, of the appeal, if the objection to competency is dismissed. The additional material is predominantly, broadly speaking, the record before the Supreme Court of Nauru. It includes the originating summons and the writ of habeas corpus that were filed in that court and/or the evidentiary material before that court.
The evidence before Chief Justice Connell was listed in paragraph 7 of his reasons, and I believe that all of the affidavits – the proceeding was conducted on affidavit, and all of the affidavits listed in that paragraph ‑ ‑ ‑
HIS HONOUR: Was there any cross‑examination in the court below of any deponent?
MR HORAN: Not to my knowledge, your Honour. I will just confirm that.
HIS HONOUR: Yes. Can I point to what seemed to me to be two deficiencies in the material? It may be that I am wrong, but it appears to me that they are lacking. Firstly, there is no sealed order, or copy of the sealed order, of the Supreme Court. Indeed, if order nisi was granted, and there is some suggestion in the material that there was order nisi, there is no copy of that order nisi; nor, I think, is there an affidavit of Reubun Kun, which appears to be the foundation for the grant of order nisi on 21 April 2004.
Now, these are inferences which I am drawing from the material. At the least, the parties are going to have to be in a position to explain whether the inference which I draw is right or wrong, and, if the inference were right, we would need to do something about the papers. I should say to the parties that the Registry in Canberra has again contacted the appropriate authorities in the court in Nauru asking for transmission of the file. I think I report accurately the response as being that the authorities in Nauru would look for the file and transmit it, but no time was stated.
MR HORAN: I am told that the file may be here, as in in Melbourne – in Australia, which is where the Chief Justice of Nauru is based. Whether that makes it easier or more difficult to obtain is another question.
HIS HONOUR: Yes.
MR HORAN: Your Honour, perhaps I could take the three points that your Honour raised on notice for the time being. I did note when I looked through the material that the sealed order had not been forthcoming, and
had assumed that perhaps that meant that there may either not be a sealed order or at least that the combined efforts of the appellant and the respondent had not been able to obtain one. But perhaps if I could make further enquiries.
HIS HONOUR: Now, go back a stage. Subject to any further affidavit exhibiting any of the three documents I have identified, have we now all of the material upon which the appellants rely in support of the competency of their appeal?
MR HORAN: Yes. Subject to the points your Honour has raised, and there are some objections which have been supplied by the respondents to certain paragraphs of the appellants’ material. I should say, in light of those objections, the appellants do not propose to read the following paragraphs of the first affidavit of Eric Vadarlis – that is the affidavit sworn 2 July 2004. The paragraphs are paragraphs 8 to 13, 15 to 20, which include exhibits EV2 to EV10. Now because EV10 is an exhibit which both parties – that constitutes the submissions of the parties which were filed before the Supreme Court of Nauru, and both parties wish to have that before the Court. It is proposed, I believe, to have that exhibit tendered by consent rather than through paragraph 20.
HIS HONOUR: Yes.
MR HORAN: Subject to that, there are some further paragraphs to which objection has been taken, which are still outstanding after those paragraphs have been excised. Perhaps my learned friend could outline those objections to the Court.
HIS HONOUR: Before we come to that, does the appellant intend that the material presently filed in relation to the competency question should constitute the whole of the material upon which the appeal would be determined?
MR HORAN: Yes, your Honour.
HIS HONOUR: So that the appeal, if competent, would be determined upon the record below?
MR HORAN: Yes, your Honour.
HIS HONOUR: Yes. Well, perhaps if I hear from Mr Hanks about the state of the evidentiary material. Yes, Mr Hanks.
MR HANKS: Thank you, your Honour. I just have a table, which I might ask your Honour to look at. It is not detailed. It will allow your Honour to see that ‑ ‑ ‑
HIS HONOUR: Yes. Your opponent has this?
MR HANKS: Yes, your Honour. This is the product of correspondence between the parties. Your Honour will see that we have raised objections to either old paragraphs or particular sentences within paragraphs 3, 5, 6, 7 and over the page, 22, and the nature of the objection is summarised. Your Honour will see that in each case the appellant has noted the objection but not conceded it as being the response in each case.
HIS HONOUR: Yes. One moment.
MR HANKS: Does your Honour have Mr Vadarlis’ first affidavit?
HIS HONOUR: Yes, I do.
MR HANKS: Your Honour, paragraph 3 – we have objected to the whole of the paragraph on the basis, first, as to its relevance to any of the issues either in the appeal or on the objection of competency, and as to its argumentative nature. Mr Vadarlis’ belief cannot, with respect, be relevant to any of those issues.
In paragraph 5, we have objected to only the first sentence, and to a parenthetical phrase on the second last line, commencing the second last line. We have objected here on the basis that, as to the first sentence, the form in which the evidence is given. If instructions were received, the proper form in which this evidence should be given is to recount either the conversation or exhibit the letter which gave the instructions.
So far as the parenthetical phrase is concerned, again, we have an objection to the form in which that is put. We also object to that parenthetical phrase on the basis that it can only be hearsay with an unnamed source.
HIS HONOUR: Yes.
MR HANKS: Paragraph 6, three words only are objected to here, and those are the words “held in detention”. Again, that must be based on hearsay, your Honour; again, without the source of the information being supplied, and it is also, to use the American term, conclusory, for the question of whether the appellants have been held in detention is a live issue in these proceedings.
Paragraph 7 – here, your Honour, it is only the first sentence to which we object. Again, the objection is to the form in which the evidence is given. The deponent has not deposed as to any conversation or as to any correspondence, but has merely summarised what he maintains or asserts is the effect of some communication. Paragraph 22, which is the next paragraph that remains alive, your Honour – our objection is to all the paragraph except for the last sentence. It goes to relevance, your Honour. This is the paragraph in which Mr Vadarlis deposes as to a telephone conversation he had with a member of the Australian Government Solicitor’s staff.
HIS HONOUR: Yes.
MR HANKS: We do not object to a copy of the judgment being exhibited, but the terms in which Mr Vadarlis was informed of the delivery of the judgment are not relevant.
HIS HONOUR: Given that the objection to competency is set down before the Full Court, it occurs to me that there may be some doubt about whether I am in a position to make any ruling on any of the questions of admissibility that are raised. My first impression of the matter is that the appellant is on notice that you object to the reception of these parts of the material. If they wish to, they will no doubt apply for leave to file further material to amend their hand. If they do not, then if the material be struck out by the Full Court and not received that will have whatever consequence it has in relation to their demonstrating that the appeal is competent.
MR HANKS: Yes, your Honour. We would think that it is possible that these matters can be resolved between counsel, but I can say no more than that, your Honour.
HIS HONOUR: Yes. Determining matters of admissibility with a Full Court is not entirely easy.
MR HANKS: Your Honour, it has a certain attraction.
HIS HONOUR: It would be better if the parties resolved these difficulties. It would be better if they were resolved before the books were prepared, so that, when the books are prepared, either by note or marking, the material that is received and relied on is before the Court and the Court knows what it is dealing with.
MR HANKS: Yes, your Honour.
HIS HONOUR: Now, Mr Horan, you have heard what I have said about these questions of admissibility. What do you say I should do?
MR HORAN: I think the course suggested by your Honour is the preferable one. I think also my learned friend is right in saying that some, if not all, of those points can be resolved between counsel, and perhaps that will result in any points disappearing altogether or being reduced to a very small compass.
HIS HONOUR: If there is some resolution reached, I would urge the parties to reduce the form of the agreement reached to writing.
MR HORAN: Yes.
HIS HONOUR: Again, there is evident advantage in that and we avoid the difficulties that sometimes happen when parties think that they have agreed on different things.
MR HORAN: Yes. As your Honour suggests, the preparation of the Court books or appeal books may be a way of ensuring that that is recorded in some form, because it will likely result in a marking up or a note to be inserted in the Court book.
HIS HONOUR: Yes. Well, then, the objection to competency is set down. It is presently fixed for hearing by the Full Court on Wednesday 10 and Thursday 11 November. On Thursday 11 November, the Court will not sit before noon – there are, of course, Remembrance Day ceremonies on that day – but it will give you a day and over half a day for argument. If I were to direct that the application books be filed by 8 October, the written submissions by the appellant and any intervener supporting competency by the 15th, written submissions by the respondent and any intervener opposing competency by the 22nd, written submissions in reply by the appellant by the 29th and then were to give a direction requiring service of a copy of the order on the Attorneys so that they have the timetable that is fixed, what would you want to say, Mr Horan, about my making directions in those terms?
MR HORAN: I was going to suggest – and my learned friend is on a similar wavelength – that perhaps, given the date on which the hearing has been fixed, that the dates, at least for the submissions, could be moved each back by one week, which would then leave the reply submissions – which presumably will be of a narrower compass, one would hope – being filed on 5 November, which still leaves ‑ ‑ ‑
HIS HONOUR: I am reluctant to do it for this reason. This timetable takes us through to the end of the Perth sittings. All of the papers would then be available to the Court during the one week we have between the end of the Perth sittings and the commencement of the November sittings of the Court. The run home this year is very hard. We have a two week break between the end of these sittings and then Perth, then one week, two weeks November sittings, one week, two weeks December sittings. So our run home is very hard. To that end, if we can get the subs in and available to us during that non‑sitting week, there is some advantage to us.
MR HORAN: Yes.
HIS HONOUR: How difficult is it going to be for the parties to comply with that?
MR HORAN: I think I can say that the appellant will comply with whatever timetable is fixed. It would be perhaps easier if there were an extra week, but it is not impossible to comply with the ‑ ‑ ‑
HIS HONOUR: If you want the weekend, I will slip it over to 1 November, but you have got Cup week in Melbourne.
MR HORAN: Yes.
HIS HONOUR: Some of my colleagues are heard to express a little wonder at this, but the week is a broken week in Melbourne.
MR HORAN: Yes.
HIS HONOUR: Now, if it is of advantage to the parties I will slip it to the 1st, but it would be 12.00 noon on the 1st, so that we can get the papers distributed amongst chambers.
MR HORAN: Yes. Maybe the date for the reply could stay on the Friday and the other dates could change to the Monday. But it might be a bit safer, if that is the case, to make it the 1st.
HIS HONOUR: Yes. Make them 18, 25 and 29.
MR HORAN: Yes.
HIS HONOUR: Now, books by the 8th?
MR HORAN: Unless that were also changed to the Monday, which would be the 11th, but I am not ‑ ‑ ‑
HIS HONOUR: I will do that, but is that going to present difficulties for parties in the preparation of their submissions? The preparation of their submissions by reference to the books is evidently desirable, and I will slip
it to 11 October if you want, but 8 October was fixed to ensure that the parties had the pagination before them.
MR HORAN: Yes. I think it would only be an issue of inserting the appropriate page references, which should not trouble ‑ ‑ ‑
HIS HONOUR: So speak counsel. The other side of the Bar table, I think, would take a very different view.
MR HORAN: I do not think much turns on it, your Honour. It is just that it is now ‑ ‑ ‑
HIS HONOUR: We will fix the 8th, Mr Horan. Yes. Mr Hanks, are you game enough to contribute to the debate?
MR HANKS: No, your Honour. I am content with those directions if essentially the appellant will have until 18 October to file his submissions and we until the 25th to file ours in reply.
HIS HONOUR: Just so, yes.
MR HANKS: That is certainly adequate for our purposes, your Honour.
HIS HONOUR: Now, who is going to tell the Attorneys about the timetable? Because we need the Attorneys to be told pretty quick.
MR HANKS: We will undertake to do that, your Honour. Today.
HIS HONOUR: Yes. Do I need to make a direction about it or is it enough if your side sends letters?
MR HANKS: We will send letters outlining the terms of the directions, your Honour.
HIS HONOUR: For my part, that is sufficient.
MR HANKS: Yes.
HIS HONOUR: But it will tell the Attorneys when their submissions are expected.
MR HANKS: Yes.
HIS HONOUR: Very well. Is there anything else then that I need to do, other than make those directions, reserve costs and certify?
MR HANKS: Just one point in relation to our undertaking, your Honour. We have had responses from some Attorneys saying they will not intervene.
HIS HONOUR: Yes.
MR HANKS: And we would not propose to communicate with them.
HIS HONOUR: Yes. Do we need, do you think, to make any direction about serving the written outlines on the other Attorneys, the other Attorneys who have not said they are not interested in intervening? It would be of advantage, I think, if they got the submissions.
MR HANKS: So that they could be fully informed, your Honour, before the client was to turn up.
HIS HONOUR: Yes.
MR HANKS: Yes, your Honour, we think it would be of advantage.
HIS HONOUR: Should I direct service on all Attorneys or service only on those who have not positively said, “We will not”?
MR HANKS: We would go for the latter, your Honour.
HIS HONOUR: Who then are the Attorneys who have said positively, “We will not intervene”?
MR HANKS: I will not be a moment, your Honour.
HIS HONOUR: Yes.
MR HANKS: Western Australia does not intend to intervene in these proceedings, the Northern Territory will not intervene, Tasmania will not intervene and the Australian Capital Territory will not intervene. Some more coming – sorry, your Honour. Queensland, did I give that to your Honour? Queensland not intervening, and New South Wales – this is a peculiar answer ‑ ‑ ‑
HIS HONOUR: So long as they have not positively said, “We will not intervene” then they should be ‑ ‑ ‑
MR HANKS: Only if the matter is removed to the High Court, your Honour.
HIS HONOUR: Sorry?
MR HANKS: Only if the matter is removed to the High Court, I believe. “If the matter be removed to the High Court or proceed to appeal, then further notice should be given to the Attorney”. I think they did not read our letter, your Honour. New South Wales – we have had some communication from them firming up their intention not to intervene, but I will ‑ ‑ ‑
HIS HONOUR: Well, I think, unless they have positively said, “We will not”, I will direct service on them.
MR HANKS: Thank you.
HIS HONOUR: South Australia, Victoria and the Commonwealth are, I think, the only polities left, are they not?
MR HANKS: Yes, I think so, your Honour.
HIS HONOUR: Well, do we include New South Wales?
MR HANKS: In light of your Honour’s sentiments, yes.
HIS HONOUR: Yes. Very well, then, I will make the following directions:
1. The appellant file and serve the requisite number of application books on or before 4.00 pm, 8 October 2004;
2. On or before 4.00 pm, 18 October 2004, the appellant file and serve on the respondent and on the Attorneys for the Commonwealth, New South Wales, Victoria and South Australia its written outline of submissions in support of competency;
3. On or before 4.00 pm, 18 October 2004, any Attorney‑General intervening in support of competency file and serve on parties and other Attorneys referred to in paragraph 2 of this order a written outline of submissions;
4. On or before 4.00 pm, 25 October 2004, the respondent file and serve on the appellant and on the Attorneys referred to in paragraph 2 a written outline of submissions opposing competency of the appeal;
5. On or before 4.00 pm, 25 October 2004, any Attorney‑General intervening in opposing competency of the appeal file and serve on the parties and on the other Attorneys‑General referred to in paragraph 2 of this order a written outline of submissions;
6. On or before 4.00 pm, 29 October 2004, the appellant file and serve on the respondent and on the Attorneys referred to in paragraph 2 a written outline of submissions in reply;
7. Reserve costs;
8. Certify for the attendance of counsel.
Is there any further direction that counsel seek, or anything that counsel seek to say about the form of directions I propose?
MR HANKS: There remains only one matter, your Honour, which we did ventilate on the last occasion. Our objection to competency has two facets.
HIS HONOUR: Yes.
MR HANKS: One going to the validity of the legislation purporting to confer the appellate or non‑appellate jurisdiction on the court, and the other going to a particular aspect of the appeal which is said to be excluded by the terms of the agreement between Nauru and the Commonwealth, as incorporated into the Act. We had indicated on the last occasion that we had hoped that only the first of those issues would be dealt with in November, the second of the issues depending very much on how the appeal is argued by the appellants. It would be, in our submission, difficult to dispose of that second objection to competency without hearing the argument of the appeal. That was our submission; your Honour has heard that.
HIS HONOUR: Yes.
MR HANKS: We do not resile from that position.
HIS HONOUR: I understand that. I remain of the view that subject to any contrary order of the Full Court, the objection of competency, having been set down, should be determined separately from the appeal.
MR HANKS: If your Honour pleases. Thank you, your Honour.
HIS HONOUR: Anything you wish to raise, Mr Horan?
MR HORAN: No, your Honour.
HIS HONOUR: Very well. I will adjourn.
AT 10.05 AM THE MATTER WAS CONCLUDED
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
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Civil Procedure
Legal Concepts
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Appeal
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Jurisdiction
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Procedural Fairness
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Judicial Review
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Standing
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