Ly v The Minister for Immigration, Local Goveernment and Ethnic Affairs

[1993] HCATrans 318

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl99 of 1992

Bet.ween -

LY SOK PHENG (an infant) by

LY MUY HENG. his next friend

Plaintiff

and

THE MINISTER FOR IMMIGRATION,
LOCAL GOVERNMENT AND ETHNIC

AFFAIRS

First Defendant

and

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

For directions

MASON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 26 OCTOBER 1993, AT 9.01 AM

Copyright in the High Court of Australia

Ly 1 26/10/93

MR A. ROBERTSON:  May it please the Court, I appear with

MS P.A. SHARP, for the plaintiff. (instructed by

Blake Dawson Waldron)

MR B.W. WALKER:  May it please Your Honour, I appear for the

defendants. (instructed by the Australian

Government Solicitor)

HIS HONOUR:	Mr Robertson.
MR ROBERTSON:	Your Honour should have a summons for

directions dated 22 October 1993 seeking that

questions be reserved for consideration by a
Full Court pursuant to section 18 of the Judiciary

Act.

HIS HONOUR:	Yes.
MR ROBERTSON:	Your Honour should also have a short

affidavit sworn by Lea Caroline Armstrong on

22 October 1993, to which is exhibited a statement

of agreed facts and proposed questions for the

determination of a Full Court.

There has been a plethora of pleadings in the

matter. There has been a series of statements of

claim:  I think probably only two defences; an

original defence and an amended defence.

HIS HONOUR:	I remember Sir Garfield Barwick saying to me, when he was at the bar, on one occasion that you
never get a good statement of claim until it has been amended three times.
MR ROBERTSON:	I think this has been amended three times,

Your Honour, so maybe - - -

HIS HONOUR: Well, it may be a good omen for you,

Mr Robertson.

MR ROBERTSON:  Your Honour, could I hand to Your Honour the

Act of the Parliament which is in question, which	is Act No 235 of 1992, which is an Act which came
into effect shortly after these proceedings were
commenced in this Court. If Your Honour turns to
pages 2 and 3, it is section 54RA, as inserted into
the principal Act, or section 6 of this Migration challenge by the plaintiff.

Your Honour will see that it inserts or

purports to insert 54RA(l), and at the top of

page 3:

no action lies, and no action is taken to have

lain, in any court ..... against the

Commonwealth, an officer or any other person

Ly 2 26/10/93

for damages ..... other than an action under

subsection (2).

And then subsection (2) gives a right of action for

compensation, and then subsection (3) specifies

that the compensation to be awarded shall be:

$1 for each day of the person's unlawful

custody.

So far as the facts are concerned, if Your Honour was to go to the exhibit to Ms Armstrong's - - -

HIS HONOUR:  Are the courts of competent jurisdiction

designated or i.s that an expression that merely

takes up those courts that have jurisdiction?

MR ROBERTSON:  I think it is left at large, Your Honour.

HIS HONOUR: Left at large, yes.

MR ROBERTSON:  I cannot see a definition in either the

principal Act - at least not where one would expect

to find it - and there is certainly no definition in Act No 235 of 1992. There is no definition in
the interpretation section of Division 4B which is the division that was inserted by the Act. It was

considered, Your Honour may recall, by this Court

in Lim's case, 176 CLR 1.

But if Your Honour were to turn to the exhibit to Ms Armstrong's affidavit, that statement of

agreed facts as between the parties substantially

replaces, subject to the matter I will mention in a

moment, the exchange of pleadings and the essential

facts are on page 2 of that document. I_f

Your Honour were to look at paragraph 6 where there

is an agreed fact that the plaintiff was taken into

custody:

kept him in custody from 30 March;

1990 ..... until 6 May 1992.

Your Honour will see the significance of 6 May

1992, that being the day on which Act No 24 of 1992

commenced which authorized from thenceforward the

detention. Then Your Honour will see paragraph 10:

The defendant admits that from the time that

the plaintiff -

that should probably be "the defendants" I think -

admits that from the time that the plaintiff

came to be held against his will in custody by

or on behalf of the defendants, that custody

was unlawful and unauthorised.

Ly 3 26/10/93

11.      The parties agree that the defendants

wrongfully and in excess of their power and/or

without power imprisoned the plaintiff and

deprived him of his liberty for a period of

approximately two years and two months

although the defendants say that the precise

period of unlawful detention of the plaintiff

is yet to be ascertained.

So the defendants then obviously rely on 54RA of

the principal Act as removing the action and

replacing it with a statutory action under 54RA(2)

and subject to the maximum amount specified in

54RA( 3) •

It is in that context that the parties have

submitted to Your Honour as suitable for the

consideration of a Full Court the questions at the
foot of page 3 of that document, that is: are

sections RA(l), (2) and (3), or any of them,

invalid and, if so, which in the purported

application to the plaintiff's claims against the

defendants.

HIS HONOUR: 

I have no problem with the statement of facts

or with the form of the questions that have been
reserved but can I ask you: why is this not done

in the form of a stated case under section 18?

MR ROBERTSON: 

Your Honour, it certainly could be made into

that form, if that were a more appropriate form for

it to be in, in terms of what we have put in the

exhibit is merely the statement of agreed facts and

what we had in mind, at least on our part, was that

if Your Honour were to indicate a preparedness to

reserve those questions, then we could draw

the - - -

HIS HONOUR:  Yes, I am prepared to reserve those questions.

I take it, Mr Walker, that you are in agreement

with the reservation of these questions?

MR WALKER:	Yes.
HIS HONOUR:	And you have agreed to the statement of facts

and the questions?

MR WALKER: Yes.

HIS HONOUR:  It seems to me it would be better if it were

done in the form of a stated case which recites at

the beginning that it is done pursuant to section

18 of the Judiciary Act. This comes out of the

air, so to speak, when you look at the document

itself. I suppose the cognizantee would realize

that it is being done under section 18 but better

that it should recite that.

Ly	4	26/10/93
MR ROBERTSON:	Yes.	Could we take up that in drafting the

order, Your Honour?

HIS HONOUR: Certainly, as long as you convert this into a

stated case and you recite that it is being done

pursuant to section 18, I am happy to sign the

document incorporating these facts and these

questions.

MR ROBERTSON: Thank you, Your Honour. Could I just

indicate the one reservation in the form of the

question, lest there be any later issue about it.

HIS HONOUR:	Yes.
MR ROBERTSON:	The last line, given the plethora of

pleadings, has an inaccuracy in it. It should

be - - -

HIS HONOUR: Further amended.

MR ROBERTSON:  - - - "the further amended statement of claim

dated 10 August", to put it beyond doubt. In fact,

the one thing that has been constant, I think, in

all the pleadings is the prayers for relief but we

should be accurate in specifying which document

they are to be found in.

HIS HONOUR:  Yes. I just wonder whether it might be

desirable to have the further amended statement of

claim annexed to the stated case so that the

document speaks for itself. But I do not hold any

strong views about that. You might discuss that

with Mr Walker and see which you think is the best

way of doing it.

MR ROBERTSON:  It would then be a self-contained document,

yes, Your Honour.

HIS HONOUR:  One question, Mr Robertson. Has the Registrar

given a tentative date to this case?

MR ROBERTSON-:  No, Your Honour. That is a question that

perhaps I should canvass.

HIS HONOUR:	How long is it expected to take?
MR ROBERTSON:	It would be no more than a day but the length

of time that it would take would, in all

probability, be affected by when, in terms of the

Court's reserved decisions in other

section Sl(xxxi) cases, whether it was before or

after.

HIS HONOUR:  You mean when judgment in the cases in which it

has been reserved is delivered by the Court?

Ly 5 26/10/93

MR ROBERTSON:  Yes, there are three of them, I think,

Your Honour.

HIS HONOUR:  Yes, that is right.

MR ROBERTSON: There is the Mutual Pools, Peverill and

Georgiadis which, in all probability, one would

think, would cast light on one or more of these

questions. But we thought that if the questions

were to be reserved and then if the matter came on

for hearing, perhaps in April, then the parties

might possibly have the benefit of those judgments

by that time.

HIS HONOUR:	I think there is a likelihood that that would be so. That bears on the other question I was
going to raise with you, and that is that in the formal documents that are before the Court there is
not much indication of the way in which the
plaintiffs endeavour to make out this case of
invalidity. The 78B notice gives some clue, but
not a particularly informative clue, and I would
have it mind at a later stage to direct the parties
to file comprehensive written submissions.

But it seems to me that it would be premature

to do that at the present time. If there is a real

prospect of the Court delivering judgment in the

cases to which you have referred on Sl(xxxi), it

would be more desirable that after that has taken

place the parties are then required to file and

serve comprehensive written submissions.

MR ROBERTSON:  Yes, and by that stage, perhaps, there would

be a better idea of when the matters might be

listed for hearing and one could work out a

timetable for the written submissions. We

certainly have no objection to comprehensive

written submissions, as Your Honour indicated.

HIS HONOUR:  Do you wish to say anything, Mr Walker?

MR WALKER:  No, Your Honour.

HIS HONOUR:  Very well. I think that the matter can be

disposed of on the basis discussed, and I shou

indicate that I will sign a stated case in a f0r:m

that corresponds in substance to the statement of

agreed facts and reserve questions that is an

exhibit to the Armstrong affidavit.

MR ROBERTSON:  Thank you, Your Honour.

AT 9.14 AM THE MATTER WAS ADJOURNED SINE DIE

Ly 6 26/10/93