Jones v Commonwealth of Australia & Ors

[2023] HCATrans 21

[2023] HCATrans 021

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 BY VIDEO CONNECTION

ON THURSDAY, 23 FEBRUARY 2023, AT 9.52 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)

MR S.P. DONAGHUE, KC, Solicitor‑General of the Commonwealth of Australia, appears with MS F.I. GORDON, SC and MR L.G. MORETTI for the defendants.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Mr Hartford Davis.

MR HARTFORD DAVIS:   Yes, thank you, your Honour.  First of all, we accept the two matters will travel together, and should travel together.  Second is we accept and defer to Mr Donaghue’s estimate of two days for both matters.

HIS HONOUR:   Thank you.

MR HARTFORD DAVIS:   The third thing I just wish to say is – and I have heard what your Honour has said about the practical reality of accommodating a May sitting, and your Honour has now made orders in the first matter, and so my first and second points – it would seem to follow that we are not going to get a May date.  But to the extent it becomes relevant, I want to just draw your Honour’s attention to an affidavit which has been filed of my instructing solicitor Caitlin White, dated 10 October 2022, from paragraphs 17 to 22.

I do not propose to take your Honour through those matters, but the plaintiff in this matter is 71 years old, he has medical conditions including, as a result of the impact on him of the detention.  If it can be accommodated – and I accept the practicalities in this – if it can be accommodated, then those matters would support a May date if at all possible, but that is all I propose to say, because I have heard what your Honour has said about those dates.

The next thing is that we – your Honour would, in my respectful submission, just make the same timetabling orders as your Honour has just made in Benbrika, but we do embrace our learned friend’s suggestion of a joint joint book of authorities, and we are very grateful to our learned friends and those instructing him for the offer to prepare that.  That is all I wish to add, your Honour, unless there are any specific questions.

HIS HONOUR:   All right.  Mr Hartford Davis, the one amendment that we might need to make is this, we will not need a special case book, I do not think, because you are not coming up via that route.  But I would be grateful if you could give some further consideration to your pleading, particularly in relation to the grounds that you invoke, your reliance upon naturalization in 51(xix), and the reason I want you to think about it is because I do not want this matter to get to the Full Court and not have the constitutional issues that you raise reached, if you can follow what I am saying.

MR HARTFORD DAVIS:   Yes.

HIS HONOUR:   And so, I wondered whether you might like – and you do not have to agree to this – but instead of having me order you to file a special case book by 2 March, because you will not be doing that, that I give you leave to re‑plead by that date, and I will accept, depending on what you do, that that might affect what Mr Donaghue as the Solicitor‑General would want to do in relation to his demurrer.  He might be content to proceed by way of demurrer, then again, he might not be content and you might have to come back before me to decide what next to do.  So, that is the wrinkle that I foresee – or potential wrinkle that I foresee – in this matter at this stage.

MR HARTFORD DAVIS:   Your Honour, could I ask your Honour to give some further indication to us about what deficiency your Honour perceives in having the naturalization issues crystallised before the Court?  I hope that is not impertinent, but we certainly – at the moment, we do not perceive the issue and we just want to make sure that we are taking up the suggestion and giving it due consideration.

HIS HONOUR:   I cannot give you advice, unfortunately.  I think I have taken it as far as I can permissibly take it to indicate to you the concern – potential concern that I have.  It may be that the best thing to do is for you to go away and have a think about the issue ‑ ‑ ‑ 

MR HARTFORD DAVIS:   Yes, your Honour.

HIS HONOUR:   ‑ ‑ ‑ you have got until, in my view, 2 March, and it is a matter for you, what you do.

MR HARTFORD DAVIS:   Yes, thank you, your Honour.

HIS HONOUR:   It has to be understood that if you do amend your pleading, the Solicitor‑General will need to have the opportunity to consider whether he wishes to proceed by way of demurrer, whether he wishes to proceed by way of agreed facts with you about the history of your client, or if you are unable to agree facts and if a demurrer is not something which the Solicitor‑General wishes to proceed with, whether it be remitted to the

Federal Court to make findings of fact about the history of your client’s residence in this country since 1966.

MR HARTFORD DAVIS:   Thank you, your Honour.  We will take that under consideration.

HIS HONOUR:   All right.  Thank you for that.  Mr Solicitor‑General, what do you think?  You are probably not happy about me giving him an opportunity to re‑plead it.

MR DONAGHUE:   Your Honour, I do not seek to be heard against that, but as your Honour rightly anticipates, in the event that our friends take up that offer, we will need to consider whether we are content to demur in those circumstances.

HIS HONOUR:   Yes.

MR DONAGHUE:   So, my submission ‑ ‑ ‑ 

HIS HONOUR:   And it will have to come back to me.  It will have to come back.

MR DONAGHUE:   Yes.  Well, what I was going to propose to your Honour is that if order 1 is that the appellant has leave to file an amended statement of claim by 2 – or further amended statement of claim, I think, by 2 March, order 2 should be something to the effect that if the Commonwealth files a demurrer to the further amended statement of claim, then the Court orders as follows, to make the timetabling orders contingent.  And if we do not file a demurrer, then, in my submission, the matter should come back before the Court.

HIS HONOUR:   So, at the moment, Mr Solicitor, we will have 2 March as the opportunity to re‑plead.  The next step on the old timetable, the Benbrika timetable, was written submissions on 16 April.

MR DONAGHUE:   Yes.

HIS HONOUR:   I would need to insert in there the step about whether – do I need to put a date for whether you wish to proceed by way of demurrer?

MR DONAGHUE:   Your Honour, could you give us – it will not take us long, I do not think.

HIS HONOUR:   No.

MR DONAGHUE:   Could your Honour give us, perhaps a week, your Honour, so make it 9 March, to ‑ ‑ ‑ 

HIS HONOUR:   Yes.  All right.  I am happy to do that, Mr Solicitor.  And as I said to Mr Hartford Davis, if you do not proceed by way of demurrer, the only way forward I can see in this matter is you either agree upon the facts necessary to engage the legal issues, and you may be able to do that, or, if it is going to be a large factual inquiry, I will have no choice but to remit it.

MR DONAGHUE:   Yes.  No, I understand, your Honour, but if we have not filed an amended demurrer, in my submission, it would be appropriate for us to come back before your Honour, before too long, to discuss the way forward.  We might be able to reach agreement, but ‑ ‑ ‑ 

HIS HONOUR:   Yes, you might.  All right, then.  Then, I will make the following orders, and once again you can correct me if I get these incorrect, that:

1.The plaintiff have leave to file on or before 4.00 pm on 2 March 2023 a further amended statement of claim.

2.The defendants have leave to file and serve an amended demurrer, if any, on or before 4.00 pm on 9 March 2023.

3.If a demurrer is so filed, the following shall apply:

(a)the plaintiffs file and serve written submissions on or before 4.00 pm on 6 April 2023.

(b)Any intervener in support of the plaintiff file and serve written submissions by 4.00 pm on 18 April 2023.

(c)The defendants file and serve any written submissions on or before 4.00 pm on 2 May 2023.

(d)Any intervener in support of the defendants file and serve written submissions on or before 4.00 pm on 9 May 2023.

(e)That the plaintiff file and serve any written submissions in rely on or before 16 May 2023.

Mr Solicitor, you are prepared – proposed to do a joint book?

MR DONAGHUE:   Yes, your Honour.

HIS HONOUR:   

(f)That the defendants file and serve a joint book of authorities prepared in accordance with High Court Practice Direction 1 of 2019 by 4.00 pm on 26 May 2023.

(g)That the matter be referred to a Full Court of this Court to be heard on a date to be fixed.

(h)That subject to any further order, Part 44 of the High Court Rules 2004 apply, with necessary adoption to this proceeding.

(i)The parties have liberty to apply on three days’ written notice.

Are you content with those orders, Mr Hartford‑Davis?

MR HARTFORD DAVIS:   Yes, your Honour.

HIS HONOUR:   All right.  Mr Solicitor, you are happy with those orders?

MR DONAGHUE:   I am, your Honour.  The only possible addition is that your Honour might be minded to make an order that if an amended demurrer is not filed, the matter be relisted for directions on a date to be fixed after 16 March, or something to that effect.

HIS HONOUR:   The final order will be that:

4.If no amended demurrer is filed, the matter is to be listed for further directions on a date to be fixed.

MR DONAGHUE:   If the Court pleases.

HIS HONOUR:   Can I thank you both for your attendance in Court today.  Adjourn the Court, please.

AT 10.03 AM THE MATTER WAS ADJOURNED