Hashimi & Anor v Director of Police (Aka Nauru Appeal)

[2004] HCATrans 326

[2004] HCATrans 326

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 FRIDAY, 27 AUGUST 2004, AT 9.32 AM

Copyright in the High Court of Australia

MR J.W.K. BURNSIDE, QC:   If the Court pleases, I appear with MR S.D. HAY for the appellant.  (instructed by Vadarlis & Associates)

MR P.J. HANKS, QC:   May it please your Honour, I appear for the respondent.  (instructed by Clayton Utz)

HIS HONOUR:   Which of you claims to have the right to go first? 

MR BURNSIDE:   We are in your Honour’s hands.  Your Honour, you will have seen that this is an appeal from the Supreme Court of Nauru.  Nauru objects to the competency of the appeal on the footing that the Act apparently giving the Court jurisdiction is beyond the power of the Parliament.  The second aspect ‑ ‑ ‑

HIS HONOUR:   And on the further ground, as I understand it, that even if the Act is within power, there is a limitation on the appeals which may be brought to this Court, which is engaged in this case. 

MR BURNSIDE:   Yes, that is the second aspect of their objection to competency, and because of the presence of that aspect it seemed to us, with respect, that the better way to deal with the matter is to have both questions heard at the same time or, putting it differently, to have the first objection to competency dealt with as part of the appeal, which necessarily raises the second question as to competency. 

HIS HONOUR:   I am not minded at the moment to pursue that course, Mr Burnside.  I am minded at the moment to set down or to deal only with the objection to competency and then see where it goes.  So if you wish to pursue some other course, you will need to persuade me of why that is appropriate. 

MR BURNSIDE:   The objection to competency has two aspects.  If the first aspect of it only were to be pursued, that would ‑ ‑ ‑

HIS HONOUR:   No, you misunderstand me.  My intention is that the objection to competency as a whole should be pursued. 

MR BURNSIDE: The second aspect of the objection to competency depends for its correctness on the substance of the appeal itself. The appeal may include reference to the Constitution of Nauru, but the argument below had two distinct limbs, one of which was independent of the Constitution of Nauru and the other of which made reference to the Constitution, but that reference, we say, does not come within the limitation in the legislation. So it will not be possible, in our submission, to decide the second aspect of the objection to competency without in substance hearing the appeal itself. The

same ground will be traversed fairly thoroughly and that seems to involve duplication of effort. 

In addition to that, of course, by separating the objection to competency from the appeal proper, the time for dealing with the appeal proper will be greatly extended if the objection to competency fails, and this is, after all, a matter which ultimately determines the liberty of an individual currently held in Nauru and, in fact, of course, indirectly it will determine the liberty of other people held in like circumstances in Nauru.  So it seemed to us, with respect, undesirable that the matter should be heard in a way which, if the objections are not upheld, might have the disposition of the appeal delayed for up to two years. 

HIS HONOUR:   The time that you posit is a time of your devising, Mr Burnside.  I do not know where you get that from and I do not see any profit in debating it with you.  Is there anything further you wish to say about whether the notice of objection to competency should be heard at the same time as the appeal? 

MR BURNSIDE:   No, but only one matter, if I may, to elaborate my suggestion of two years.  If the objection to competency is heard at the end of this year, which we understand is potentially possible, but that would be the earliest, if we assume that that took a few months to decide, and if then the appeal were to be brought on for hearing, it may well be the end of next year before the appeal could be finally determined. 

HIS HONOUR:   Mr Burnside, again these dates are dates of your assumption.  I do not propose to debate with you whether those assumptions are right. 

MR BURNSIDE:   If your Honour please.  I have nothing further to say on the first question. 

HIS HONOUR:   Yes, Mr Hanks. 

MR HANKS:   Your Honour, we had in mind that that part of the objection to competency which raised the invalidity of the law purporting to confer jurisdiction on this Court should be dealt with separately, and could be dealt with separately. 

HIS HONOUR:   Why should we split it?  If you take an objection to competency, why should we split the objection? 

MR HANKS:   Because, your Honour, that part is freestanding, it does not depend upon how the appeal is argued or put, whereas the second objection to competency will be – or the outcome of that objection will be affected by how the appeal is actually argued, the question being whether the appeal involves the interpretation or effect of the Constitution in Nauru. Now, that is a rather more complex question depending upon the arguments advanced in support of the appeal.

We think that, as our learned friend has said, the disposition of that part of the objection to competency might turn on a course which the appeal takes in argument, whereas the first point goes to the very foundation of the Court’s jurisdiction to entertain the appeal at all or, should I say, any appeal, no matter what the content of the appeal, from the Supreme Court of Nauru, and that can properly be dealt with separately.  If it is a well‑founded objection, then that will bring the proceedings to an end immediately. 

HIS HONOUR:   Upon what factual base would you propose that any part of the objection to competency be determined, bearing in mind the provisions of Order 70A rule 8(8) that: 

Upon the hearing of the objection, the burden of establishing the competency of the appeal is upon the appellant. 

MR HANKS:   We would think that the factual foundation would consist of the record below, which is simply the order nisi and the discharge of that order nisi by the primary judge and the notice of appeal.  That would be the factual foundation.  We would be arguing that in those circumstances, the purported conferral of jurisdiction does not confer any part of the judicial power of the Commonwealth as defined in Chapter III.  It is essentially, with respect, your Honour, a technical argument depending upon the width or the narrowness of section 73, which confers appellate jurisdiction on this Court ‑ ‑ ‑

HIS HONOUR:   Well, is it said that section 73 is engaged? 

MR HANKS:   We would say it cannot be engaged. 

HIS HONOUR:   It would seem to me the argument against you will found itself either in 75 or 76. 

MR HANKS:   Precisely, your Honour. 

HIS HONOUR:   If that is so, if it is, though called an appeal, an exercise of original jurisdiction in the Court, the question of evidentiary foundation takes on some significance.  I have in mind what was said, though in the different context of provisions which gave appeal as of right according to the matter at issue amounting to a particular sum or being of a particular value, in Dempsey v Harris Scarfe Ltd (1969) 122 CLR 521 at 524 three members of the Court said in that context, which may differ significantly from the present:

The question as to the competency of an appeal ought to be determined as the Rules of the Court contemplated it should, at a time anterior to the hearing of the appeal and upon admissible material presented in such a form that clear conclusions of fact can be drawn. 

MR HANKS:   Yes, your Honour. 

HIS HONOUR:   Now, given further that the burden of demonstrating competency is on the appellant, it would seem to me at first blush that it is for the parties to file such factual material as they wish, as to which there may emerge a question of whether the appellant is content to rest upon the affidavit of Mr Vadarlis, sworn on 2 July 2004 as revealing facts sufficient to demonstrate competency, that the Court should then, on an identified factual base, determine the question of competency having regard, amongst other things, not only to the constitutional issue which you seek to agitate, but this question of burden of proof which is presented by the Rules, that it is for the appellant to demonstrate competency, which, in turn, seems to me to present a difficulty about dividing the objection to competency.  If you put on this objection on two bases, so be it.  Now, where do we go? 

MR HANKS:   I appreciate what your Honour has said.  We are in the Court’s hands.  If the Court wishes to deal with the objection to competency as a whole, that is a course that ought to be adopted, but we do think that there are complexities in relation to the second aspect, and I do not wish to repeat myself.  In our submission, there is a basis for dividing the objection to competency in the way that we have suggested. 

HIS HONOUR:   If the matter were to proceed divided as you suggest, what evidentiary base would the Court have for determining the first of the two issues that you proffer? 

MR HANKS:   Well, the first issue is whether the legislation in question is valid, that is, whether it does confer on this Court any part of the judicial power of the Commonwealth, in particular, whether it could be said that this appeal or any appeal from the Supreme Court of Nauru is a matter arising under a treaty within 75(i) or a matter arising under a law of the Commonwealth within 76(ii).  Those are the types of issues, we would think, which would fall for determination by the Court. 

HIS HONOUR:   But does it follow that you would not seek to put on any evidentiary material? 

MR HANKS:   I believe it does, your Honour, other than ‑ ‑ ‑

HIS HONOUR:   It is up to the parties what evidence they put on.  

MR HANKS:   I understand that, your Honour.  The only material which we would see to be relevant would be the material which would allow the Court to identify the matter, and that material emerges, we think, from the process filed in the Supreme Court of Nauru and the orders made by his Honour Justice Connell.  That would allow the identification of the matter.  Then the question would be whether that matter, in respect of which jurisdiction is purportedly conferred on this Court by the Commonwealth Act, falls within one of those categories in 75 or 76.  With respect, your Honour, that is not an issue that is going to depend on any complicated fact‑finding or require any extensive evidence.  That is all I have to say, your Honour. 

HIS HONOUR:   Now, Mr Burnside, is the appellant content or not content to rest on the affidavit of Mr Vadarlis sworn on 2 July 2004 as the factual base for its contention that the appeal is competent, or does the appellant seek to file further material going to either of the grounds of alleged incompetency of the appeal? 

MR BURNSIDE:   With one qualification, we are content to rely upon the affidavit that has been filed.  The qualification is whether we need to produce to the Court the agreement between Nauru and Australia, but I think that is done by the Act.  I do not have the Act to hand, but my understanding is that it is appended to the Act. 

HIS HONOUR:   The Act has its schedule, but it was not altogether clear to me what parts of Mr Vadarlis’ affidavit were said to demonstrate that an appeal lay as of right.  There seems to be a deal of material devoted to other questions or factual matters, the relevance of which is not instantly apparent to me.  What parts of the affidavit are said to demonstrate competence? 

MR BURNSIDE:   Your Honour, on the first attack on competency, we submit that the existence of the legislation, with the agreement between the two countries annexed, provides all the Court would need to determine the constitutional validity of the Act.  As to the second attack on competency, what Mr Vadarlis has done is to set out the background and produce in substance the record below, and that provides the basis on which we submit the Court can determine whether the second attack on competency is made out or not. 

HIS HONOUR:   Well, can I say this to you.  The affidavit of Mr Vadarlis does not, I think, produce a copy of the originating process.  It does not produce any copy of any other of the documents filed in the Nauruan court.  It does not produce a copy of the order of the Nauruan court.  It produces what is said to be a copy of reasons for judgment, I think, but other than a deal of material about matters to do with airlines, which seem to me at the moment not to be of relevance to any question of competency of the appeal, it does not, on its face, seem to me to produce material which would reveal why the appeal is competent. 

Now, if your side is content to rest on it, so be it, but this matter will not get to a Full Court with the parties saying to the Full Court, “We want to supplement the material”.  The parties are going to have to get their house in order before this gets to the Full Court.  Are you content to rest on the affidavit of Mr Vadarlis, or do you seek to supplement it? 

MR BURNSIDE:   In light of your comments, we would seek to supplement it.  That will involve getting the record from Nauru.  That is attended with extraordinary difficulty.  We understand that no – well, we have never seen an order made by the court.  None has been produced to us.  We only got the reasons for decision through the solicitors for the respondent in this matter.  We will do what we can to get what parts of the court’s record we do not have, but there are practical difficulties associated with that, one of which is that we cannot get into the country. 

HIS HONOUR:   Now, the Court has not fixed matters beyond the Canberra sittings of October and the Perth sittings, though the Perth sittings are not yet fixed, commencing on 25 October.  The Court has, in particular, not yet fixed cases for the Canberra sittings commencing on 9 November. 

If this matter, or any part of this matter, is to be put into the sittings commencing on or after 9 November or the December sittings, the timetable that would have to be followed appears to me to be as follows, that any further affidavit in support of competency would have to be filed by 10 September, any affidavit in answer by 24 September, any reply by 1 October.  That would give us our evidentiary base concluded by 1 October.  That would give us a week, up to 8 October, within which books could be produced, because thereafter, assuming, as I do, that there may be interventions in this matter, there would be a round of submissions which would be the appellant and any intervener supporting competency on 15 October, the respondent and any intervener opposing competency on 22 October, reply by 29 October, to get the matter in order.

Now, the underlying concern I have about splitting competency is rooted in the evidentiary base that the Court would have to consider to determine competency.  The question of competency is separate from the issues that arise on the appeal.  As the objection to competency now stands, there are two issues raised.  The Rules have it that it is for the appellant to demonstrate that the appeal is competent.  What I am presently minded to

do is to give directions about affidavits that would take us through to 1 October.  Subject to what other obligations may intrude in the meantime, it may be that I would bring the matter back on on 4 October to see whether we split, and, if we split, how we do it, but it would come back then on a basis that, absent intervening events, a timetable of the kind that I have foreshadowed would then be fixed.  That would require the preparation of books within very short time after that hearing and the rounds of submissions to commence very soon after.

Now, Mr Burnside, what do you want to say about my giving this morning directions for affidavits – affidavits in support of competency 10 September, affidavits in answer 24 September, affidavits in reply 1 October, and then adjourning the matter to 4 October at 9.30 am in Melbourne or such other time as may be fixed, but on the understanding that, absent intervening events, timetables would then roll on with books 8 October, submissions in support of competency 15 October, submissions opposing competency 22 October and reply 29 October?

MR BURNSIDE:   We think that is all achievable, but there is one modification I would ask for, that is, that we get an additional week for the affidavit in support – so 17 September, taking that out of Nauru’s time – for the simple reason that for us to get access to the record has proved to be extremely difficult.  Anything Nauru might want to put on is readily available to it.  So we need more time, they need rather less.

HIS HONOUR:   Yes.  Mr Hanks?

MR HANKS:   I will not comment on the premise, your Honour, about ready availability.  There are problems with communication that afflict both sides in this matter.  However, that timetable we think would be appropriate.

HIS HONOUR:   Is there any reason, Mr Hanks, why copies of the record cannot be made available to the appellant’s solicitors within a very short time?

MR HANKS:   That is in the hands, not of my client, but of the registrar of the Supreme Court.

HIS HONOUR:   Does your client not have any copies of any of the process or other documents that have been filed or orders made?

MR HANKS:   We have copies, your Honour, but we certainly do not have copies of all the documents that your Honour has referred to.  We do not have a copy of the order.  We have a copy of the reasons for judgment of Justice Connell, but we do not have a copy of that order.  I think in each

case we do not necessarily have a copy that bears a seal of the court.  So in part we relied upon the appellant’s solicitors as well as on our own solicitors to gather together what we think is a complete copy of those documents that are currently available.  But we have been attempting to communicate with the registrar.  There are, one might say, physical difficulties in communication because of – how can I put it – liquidity issues affecting the government of Nauru, which have made telecommunications very difficult.

HIS HONOUR:   Yes.  What do you say to the timetable of 17 September, 24 September, 1 October?

MR HANKS:   Bearing in mind what your Honour has had to say about where the onus lies in this matter, we think that is appropriate.

HIS HONOUR:   Well, it is a provision of the Rules.

MR HANKS:   Yes, your Honour.

HIS HONOUR:   I must confess to having been a little surprised on reading the Rules to discover that, but then reflection suggested why it may have occurred.

MR HANKS:   Yes.  Well, that is what the manual says, so it must be right.

HIS HONOUR:   I do not know that I would follow that, Mr Hanks.  If I were to bring the matter back on 4 October?

MR HANKS:   Yes.

HIS HONOUR:   What about the balance of the timetable, Mr Hanks, that I suggest may then be imposed?

MR HANKS:   Well, as a foreshadowed timetable, we think that that is feasible.  Yes, we think it is feasible, your Honour.  I would wish to foreshadow – this will be a matter I will discuss with my learned friend, Mr Burnside, about whether we might simplify matters in relation to the objection to competency.

HIS HONOUR:   Yes.

MR HANKS:   That is all.  We may be able to do that, your Honour, by – I will not allow fortune to take any hostages just yet.

HIS HONOUR:   But can I invite the attention of both parties to considering what, if any, consequences follow from a contention which I assume may lie behind an answer to the objection to competency, that the Court is exercising original jurisdiction.  That may – that may not – have consequences for the evidentiary base.  What I do not want to have is that these fights emerge in the Full Court or that the problems are considered for the first time when in the Full Court. 

There is, I think, a further direction that may be appropriate, and that is that the parties notify each other of objections that they have to affidavits that are filed.  For the moment, I make no direction to that effect.  If on 4 October, however, I am not told that the parties have considered whether they wish to object to any material filed by an opposite party, and if I am not told that their proposed objections have been communicated to the opposite party, I will expect counsel to explain to me why I should not direct those steps to be taken in very short order.

Again, recent experience dictates that it is awkward to have objections to reception of affidavit material being made in the course of a Full Court hearing, if only because it seems then to lead to parties having to seek to repair their hand while on the run. 

For the moment, all I direct is:  any further affidavit to be relied on by the appellant in support of the competency of the appeal is to be filed and served on or before 4.00 pm, 17 September; any affidavit in answer by the respondent or in support of its objection to competency is to be filed and served on or before 4.00 pm, 24 September; any affidavit in reply by the appellant to be filed and served on or before 4.00 pm, 1 October; I will reserve the costs of today, certify for the attendance of counsel and I will adjourn the matter for further directions to 9.30 am on Monday, 4 October or such other time as may be directed.  Is there anything else that counsel would wish to raise?

MR BURNSIDE:   As your Honour pleases.

MR HANKS:   Only one thing, your Honour.

HIS HONOUR:   Yes, Mr Hanks.

MR HANKS:   Your Honour has foreshadowed the possibility that this matter could be listed in that period where matters have not currently been listed.  We would assume that by 4 October those listings might have occurred.  Is our understanding or assumption correct?

HIS HONOUR:   It is possible that fixtures may then have been made and it may be that a time will be put aside for this case.  We will see.  It depends very much on the press of other business on the Court.

MR HANKS:   Indeed, your Honour.  I take it we could communicate with the Registrar if we had anything we would wish to say.

HIS HONOUR:   No doubt you may communicate with the Registrar with anything you wish to say, but I think, more relevantly, you may expect communication from the Registrar, which may perhaps deal with questions of fixing.

MR HANKS:   Thank you, your Honour.

HIS HONOUR:   Yes.  I will adjourn.

AT 10.03 AM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 4 OCTOBER 2004