Jones v Commonwealth of Australia & Ors

[2023] HCATrans 37

[2023] HCATrans 037

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B47 of 2022

B e t w e e n -

PHYLLIP JOHN JONES

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

MINISTER FOR HOME AFFAIRS

Second Defendant

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Third Defendant

STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON MONDAY, 20 MARCH 2023, AT 9.56 AM

Copyright in the High Court of Australia

HIS HONOUR:   In accordance with the Court’s protocol for remote hearings, I will announce the appearances.

MR S.H. HARTFORD DAVIS appears with MS M.F. CARISTO and MR S.J. HOARE for the plaintiff.  (instructed by Fisher Dore Lawyers)

MS F.I. GORDON, SC appears with MR L.G. MORETTI for the defendants.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Mr Hartford Davis and Ms Gordon, I have your proposed orders by consent.  I have a difficulty with them – not a substantial one, but a procedural one.  In order to get this matter referred in, I have to make an order that it is referred to a Full Court, and I cannot make that order until you agree upon your special case, if you are able to agree upon it.  So, what I thought I had in mind was that, rather than making the timetabling orders today, that I bring you back for further directions in any event, and what I thought would be suitable would be 9.30 am on 3 April.

There is nothing to stop you and Ms Gordon from working towards the timetable you have presently agreed upon, and you should assume that if I am content with your special case I am also going to be content with making all the orders that you have agreed, there is no difficulty about that, but I cannot make them today because I do not know whether you are going to do a special case, and what is more, I have to be satisfied that it is in a form suitable for referral into a Full Court, and so those two things need to happen before I can agree your timetable.

Then, the other thing I need to tell you is I cannot guarantee you will make June, and indeed, the fact that we will not know whether you are ready to proceed until the end of March means that is going to be more and more difficult.  I will keep those who need to be appraised of this appraised.

MR HARTFORD DAVIS:   Yes, thank you, your Honour.  There is no difficulty, of course, in bringing the matter back on 3 April.  I should just clarify that there is a, I think, relatively minor disagreement between the parties about the timetable.  There is an agreed structure, there is just a disagreement about the date – in effect, the date for submissions, but that is a matter that can be discussed further between counsel.

HIS HONOUR:   I agree, I agree.  I do not need to be worried about that today, and indeed, what I hope to be in a position is to be able to tell you on 3 April whether you will make June or not.

MR HARTFORD DAVIS:   Thank you.

HIS HONOUR:   Then, that might encourage either a more compressed timetable or a more relaxed timetable depending on what happens.  But we are aware that your client is in detention.

MR HARTFORD DAVIS:   Thank you, your Honour.

HIS HONOUR:   So, what I had in mind was simply making four orders, subject to your contribution, Mr Hartford Davis, and you too, Ms Gordon.  Namely, I would make the first order:

The plaintiff file any agreed special case by 4.00 pm on 30 March 2023.

The second order would be that:

The matter be listed for further directions at 9.30 am on 3 April 2023.

There would be liberty to apply on three business days’ notice, and I would reserve costs.  Are you content with the making of those orders, Mr Hartford‑Davis?

MR HARTFORD DAVIS:   Yes, your Honour.

HIS HONOUR:   Ms Gordon?

MS GORDON:    Yes, your Honour.  If I could just add, in terms of the question your Honour has raised as to whether the matter will make it to June or in time for June, if I could just reiterate the Commonwealth’s submission, or the defendants’ submission that was made last time, which was that, if possible, this matter should travel together with the Benbrika ‑ ‑ ‑ 

HIS HONOUR:   I agree.  As a matter of efficiency, that is a given, but it is just a question of priority, if I can put it like that.  All right.  Are there any other matters that either of you need to raise with me?

MR HARTFORD DAVIS:   Nothing further, your Honour.

MS GORDON:   No, your Honour.

HIS HONOUR:   All right.  Those orders will be made and I shall see you all on 3 April.  Can I thank you both for your attendance in Court today.  All right.  Adjourn the Court, please.

AT 10.01 AM THE MATTER WAS ADJOURNED