Leghaei v Director-General of Security & Anor

[2007] HCATrans 296

[2007] HCATrans 296

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  No C5 of 2007

B e t w e e n -

MANSOUR LEGHAEI

Applicant

and

DIRECTOR-GENERAL OF SECURITY

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Second Respondent

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO MELBOURNE

ON THURSDAY, 14 JUNE 2007, AT 4.01 PM

Copyright in the High Court of Australia

MR P.J. HANKS, QC:   Your Honour, I appear for the applicant.  (instructed by Deacons Lawyers)

MR N.J. WILLIAMS, SC:   Your Honour, I appear with MR T.M. HOWE, QC for the respondents.  (instructed by Australian Government Solicitor)

HIS HONOUR:   As the parties know, I have prepared a draft set of orders and directions.  I should explain that I prepared that document having regard to the submissions on the summons for directions that were filed on behalf of the first‑named respondent and having regard to the draft short minutes of order that were supplied and which I assume, Mr Williams, were made available to the representatives of the applicant, were they?

MR WILLIAMS:   They were, your Honour.

HIS HONOUR:   Yes.  I should say about the draft that counsel have in front of them that it is prepared on this footing.  I thought we should go so far as to prepare the matter to the point of filing application books.  Where we go after the filing of application books may raise a separate and distinct set of issues.  I will come back to some of the possibilities that may have to be taken into account at that point.  But it is prepared on the footing, first, that the Court does not receive the documents until they are ready for incorporation into an application book.

They are prepared on the further basis that at that point the parties – and I have in mind it is most likely to be the respondents for whom you appear, Mr Williams, rather than anyone else – but that the parties should then nominate in a summons exactly what it is that they say should be treated confidentially and, no doubt, in support of that summons you would file whatever material seemed appropriate to support the claim that was made.

But you will have seen that the proposal is to prepare the application book in two forms; one form that contains nothing in respect of which a claim for confidentiality is made, one form which contains everything that would ordinarily go into an application book.  The complete version, which I have referred to as the confidential version, should be marked in a way that enables the user, which is to say one or more Justices, to know what it is that is said to be subject to a claim of confidentiality.  It just will assist when working with the document to know by annotation or marking or some other suitable system whether this page, this sentence, this document, these series of pages, whatever it is, is subject to a claim.  The purpose of getting you to put on a summons at the point where you file the application

book is to obtain some definition of what it is that it is sought to keep separate from public treatment. 

Once the application book is filed, the way in which the Court will proceed will be a matter for determination then.  What I am about to say is not to be regarded as a final or binding indication of how the Court would then proceed.  A means of proceeding would be that the confidential application books, which are to be in the custody of the Chief Executive and Principal Registrar or the Senior Registrar, would be taken by that officer or one of those officers to the hands of the Justices who are nominated as a panel to consider whether the application should be dealt with on the papers.

If the matter were to be dealt with on the papers, it would be possible – I do not say that this is the only way of dealing with it – but it would be possible to deal with it on the papers with the document passing from the hand of the Senior Registrar or CEPR to the hand of the Justices, considered, returned from the Justices to the CEPR or Senior Registrar and then, according to the disposition that is to be made and whether it was necessary in the course of that disposition to make any direct or indirect reference to confidential material, either to then call on the summons seeking confidentiality or, if it is unnecessary to refer to those papers, not.

Then, of course, where we go to after that will depend on whether there is grant or a refusal on the papers or whether there is to be an oral hearing.  If there is to be an oral hearing, I have little doubt that we shall meet again.  What we do then, well, then we will have to decide, will we not?  But that is what informed the way in which these documents have been prepared.  You have had them for only a very short time, I know that.  Recognising that to be so, Mr Hanks, is there anything that you would wish to add immediately about the course I have proposed or the draft I have put forward?

MR HANKS:   Two matters arising out of the draft, your Honour.  There are references in, for example, orders 1 and 2, to service of summaries on the opposing party.  This matter has been conducted under peculiar logistical constraints, your Honour, and the movement of documents has not followed what one would normally understand by service, that is, where documents are prepared by one party, that the document in question is placed in a sealed envelope and is then delivered by safe hand to a location where the other party may attend and inspect, and having inspected, if there are any answering documents to be prepared, may at that place and only at that place prepare the answering document and having prepared it, place it in another envelope and return it to the safe hand.  So it is a peculiar process and none of that really looks like service on the opposing party.  But if we understand that the protocol that we have followed so far would be comprehended within that notion of service on the other party, then we can proceed.

HIS HONOUR:   If the parties choose to effect service one upon the other by particular methods, I am not going to stand in the way of their adopting whatever methods they may regard as satisfactory for service.  I will obviously have to hear whether Mr Williams wants me to be more precise in my order, but if, as I say, the parties choose to regard service as having been effected in a particular way, so be it.

MR HANKS:   The affidavit of service naturally, your Honour, will be sworn, say, by my instructing solicitor, will be effectively an affidavit to the effect that he is informed by me and believes that I followed those steps because he will not be present when this happens.

HIS HONOUR:   That, again, is not a matter that troubles me.  The purpose of requiring an affidavit of service is the simple case management requirement of knowing whether the parties are running more or less on track.  There is no greater or larger motive behind it than that. 

MR HANKS:   I had assumed as much, your Honour.  That takes me to the second matter I wish to raise.  Running on track is the segue, your Honour.  Order 3 would – if things were to run on track – have us, if we were to file a reply, doing so, let us say, I think about 20 July.  I do not have my calendar with me, your Honour, but I will be out of the country on that day.  This is a peculiar case in which, really, I am the only person who can prepare the reply.  That is the fact of it.

HIS HONOUR:   The bottom line is, what date do you want, Mr Hanks, and then we will see whether Mr Williams is accommodating or not.

MR HANKS:   Regrettably, I had not anticipated that we would be dealing with this, but I think it is the second full week in August when I would have an opportunity to attend at the office of the Australian Government Solicitor, as I have to, in Melbourne in order to prepare the document.

HIS HONOUR:   That would rather suggest, Mr Hanks, that the better course to adopt would be to slip the timetable generally and extend it more generally rather than just blow out reply and simply to give parties a series of dates to contemplate, not with a view to anything more definite than that.  If I were to begin by saying 9 July for your summary of argument, 28 after service, maybe even 35, but 28, perhaps, and 14, does that sufficiently push us over?

MR HANKS:   It will, your Honour.

HIS HONOUR:   Mr Williams is looking a bit anxious about that.  Rather than have an auction between you, you are looking to end with a timetable by about second week August, are you?

MR HANKS:   That is right, your Honour.  I am looking to end by about 9 August, which is a Thursday, as I understand.  I will be out of the country and then I will be travelling interstate on other matters.

HIS HONOUR:   Let me interrupt you there and ask Mr Williams.  Can we set a timetable that can accommodate that or does that present any difficulty for your side, Mr Williams?

MR WILLIAMS:   Your Honour, the final date does not present a difficulty.  We would not wish to give the impression that the matter is one that can be dealt with in a leisurely fashion, but understanding Mr Hanks’ particular position in the case and understanding, as I do, from other matters that he and I have against each other the position of his diary, I would not wish to say anything against the final date that he mentions for reply.  There is a difficulty with pushing the timetable back more generally and that is that it gives rise to peculiar difficulties with my timetable.

HIS HONOUR:   A solution is simply this, Mr Williams.  Leave 1 as it stands, applicant to put on by 25 June.  Leave 2 as it stands or you could push it out to 28 days after.

MR WILLIAMS:   That would be helpful.

HIS HONOUR:   Push it to 28 days and then make 3 read “On or before 10 August”.  Does that meet the dates problem?

MR WILLIAMS:   That is convenient to the respondents, your Honour.

HIS HONOUR:   So just to check through them again so that we are all together on this.  Paragraph 1 would be on or before 25 June, paragraph 2 would be within 28 days, paragraph 3 would be on or before 10 August the applicant may serve but not file. 

MR WILLIAMS:   Yes.

HIS HONOUR:   Mr Hanks, I interrupted you.  Were there other matters that you wished to raise?

MR HANKS:   There were not, your Honour.  That is entirely suitable and appropriate as far as we are concerned. 

HIS HONOUR:   Nothing else you want to raise about the draft?

MR HANKS:   No, your Honour, I understand that there is a big issue that is left in abeyance but that is deliberate. 

HIS HONOUR:   Yes.

MR HANKS:   Thank you, your Honour.

HIS HONOUR:    Now, Mr Williams, we have sorted dates but there may be other matters that we should deal with, are there?

MR WILLIAMS:   There is but one, your Honour, and that is relatively minor.  I should say that I have not had the opportunity to take instructions in respect of the particular form of orders but I see no difficulty with them and nor do those instructing me, subject to one matter.

HIS HONOUR:   It is not so much a question of your taking instructions, Mr Williams, it is a case of whether you can point to difficulties about them.

MR WILLIAMS:   There is only one, your Honour, and it is relatively minor.  The general form of the orders in the course that your Honour proposes is one that, with respect, would commend itself to my clients.  The only difficulty that I see, and it may be that I have not given sufficient attention to the precise terms, there is a question of the confidentiality and security of the full version of the application which has so far been filed in the Court.  There is a short version of the application which is open that refers to a full version of the application.  We would seek an order protecting the confidentiality of the application perhaps of the kind that is presently in the short minutes that we attached to our written submissions in order 2(a).

HIS HONOUR:   Would that be sufficiently accommodated, Mr Williams, by varying line 2 of order 6 so that it will read “Subject to any further or other order or direction of the Court or a Justice, all copies of (a) the full version of the application for special leave to appeal and (b) the confidential application book are to be held” et cetera, et cetera.  Does that sufficiently ‑ ‑ ‑

MR WILLIAMS:   Yes, your Honour.  There may be one issue.  The order is presently wide enough to cover both the open short version as well as the order that your Honour proposes might be seen to cover both the open short version which is not confidential.

HIS HONOUR:   Did I say the full version or the final version?

MR WILLIAMS:   Your Honour said the full version.

HIS HONOUR:   The full version.  I was taking 2(a) of your short minutes as the description.

MR WILLIAMS:   Yes, it may be that it is necessary if your Honour were to mark the form of the application in the way that ‑ ‑ ‑

HIS HONOUR:   The alternative, of course, Mr Williams, is this.  That we now return to the hands of those instructing you that which is presently held as the full version and we stand it over until the application book comes in, in effect.

MR WILLIAMS:   We are content for that course, your Honour.  That would solve the difficulties.

HIS HONOUR:   Mr Hanks, is there any reason why I should not direct that the complete version of the application for special leave presently held in safe custody be returned to the representatives of the respondents?

MR HANKS:   I can think of no reason to oppose that, your Honour.  I simply ask through you, your Honour, that they ensure that I be provided with a copy when I have to prepare the summary of argument.  That is all, your Honour.

HIS HONOUR:   You have this quaint old‑fashioned view that you should have before you the document on which you are moving, do you, Mr Hanks?  This a very quaint and old‑fashioned view.

MR HANKS:   I have no doubt that the first respondent would not intend to withhold it from me but there sometimes can be problems of communication.

HIS HONOUR:   I think, Mr Williams, what I will do is in addition to making directions along the general lines of those I have described in the short minutes, and I have yet to perhaps hear you out finally on that, direct now that the Senior Registrar return to whom?  The solicitor for the respondents?

MR WILLIAMS:   To my instructing solicitor.

HIS HONOUR:   To the solicitor for the respondents that copy of the application for special leave to appeal which is presently held by the Senior Registrar in safe custody.  Does that sufficiently meet the case?

MR WILLIAMS:   It does, thank you, your Honour.

HIS HONOUR:   I will make a direction in those terms.  That said, is there any other feature of the draft which I had prepared which you would wish to be heard about?

MR WILLIAMS:   No, your Honour.

HIS HONOUR:   Then, subject to amending the draft orders, first by providing in paragraph 2 of that draft “within 28 days after service of the printed version within 21 days”; second, by amending paragraph 3 of that draft to read, “On or before 10 August 2007 the applicant may serve but not file” et cetera, I would make orders and directions in the terms of the minutes that were provided to counsel and a copy of which, as amended, I will initial and leave on the file.  Is there any other matter wish counsel wish to raise with me?

MR HANKS:   No, your Honour.

MR WILLIAMS:   No, your Honour.

HIS HONOUR:   May I simply say about the liberty to apply, of course the parties should exercise that liberty as they are advised.  If in doing so they would bear in mind that if there is any question of either reference to or provision of material for which some confidence is sought, it will be easier if it can be dealt with in Canberra.  Obviously, I do not wish to exclude the possibility of holding a further summons for directions by video from Melbourne but it will be easier if it can be dealt with in Canberra.       It will be easier if it can be dealt with when the Court is sitting in Canberra.  Those are matters of convenience.  They are not intended as constraints upon the parties exercising the liberty to apply which is to be reserved to them.

Yes.  Adjourn the Court.

AT 4.23 PM THE MATTER WAS ADJOURNED