McCrea v Minister for Customs and Justice

[2005] HCATrans 676

[2005] HCATrans 676

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M109 of 2005

B e t w e e n -

MICHAEL McCREA

Applicant

and

MINISTER FOR CUSTOMS AND JUSTICE OF THE COMMONWEALTH OF AUSTRALIA

Respondent

Application for interlocutory injunction

KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO CANBERRA

ON MONDAY, 5 SEPTEMBER 2005, AT 10.01 AM

Copyright in the High Court of Australia

MR P.G. NASH, QC:   If your Honour pleases, I appear with my learned friend, MR P.W. LITHGOW, for the applicant.  (instructed by Grundy Maitland & Co)

MR G.H. LIVERMORE:   If your Honour pleases, I appear on behalf of the respondent Minister.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Nash.

MR NASH:   If your Honour pleases, this is a matter involving the liberty of the subject.  We say that it is necessary to establish there is not an insubstantial chance or prospect of special leave being granted.

HIS HONOUR:   I asked the Registrar in Melbourne to inform the parties that I was inclined, on reading the papers, to expedite the hearing of the special leave application until the next sitting of the Court in Melbourne, which is on Friday.  If that were done, then protecting the utility of the application would seem to suggest that I should receive an undertaking from the Minister or, alternatively, consider the provision of relief, at least until the Court has had the time to consider the matter on Friday morning.  So does that cause any difficulties for you or do you support that proposal?

MR NASH:   It does cause difficulties for us, your Honour, one reason being that I will not be in Melbourne on next Friday, cannot be in Melbourne on Friday, and the prospect of some other counsel taking this matter over at this stage is a little bit drastic.

HIS HONOUR:   Yes, I notice that there was some problem in the papers.  What is the position on Thursday?

MR NASH:   The only difficulty there, your Honour, would be getting ourselves up and running.  There would not be a difficulty ‑ ‑ ‑

HIS HONOUR:   I realise that, but this matter has taken a very long time.  The matter was reserved for a very long time in the Federal Court and it seems to me that one way or the other, especially if a continuing injunction is to be granted, that the matter should be dealt with quickly.  The issues have been refined by the consideration of the matter in the Federal Court and by the submissions which I received this morning of an opinion which supports the propositions that you are seeking to advance.

MR NASH:   Yes, your Honour, it has become a very narrow issue really.

HIS HONOUR:   Yes.  So that I do not think that getting up and running – you have been running at a somewhat lethargic pace for about three years now and I think we are getting near the finishing line one way or the other so ‑ ‑ ‑

MR NASH:   I am getting old, your Honour.  It is very hard to sprint that last 100 metres.

HIS HONOUR:   So am I, Mr Nash, so am I, but never mind.  We still have a lot of fight in us.  Now, I will ask Mr Livermore what his position would be on Thursday.

MR LIVERMORE:   Your Honour, we have no objection to the matter being heard on Thursday or Friday and we would have nothing to say in relation to your Honour granting interim relief in relation to one or other of those days.  The Solicitor‑General has been in this matter for the Minister and he is available on Friday.  We have not checked his availability for Thursday, but I am instructed not to oppose either Thursday or Friday, whatever is convenient for the Court.

HIS HONOUR:   Yes.  Well, I have to make some inquiries as to whether the matter could be heard on the Thursday.  I endeavoured to do that before I came into Court but it was not possible to get the inquiries completed, so that it is just a little bit up in the air at the moment, but I would be minded to list the matter on a day when Mr Nash could argue the matter and, if that means Thursday or perhaps Tuesday of next week, then that would be what I would be inclined to do rather than press the matter on on Friday.

Do you have anything to say contrary to that?  Friday is convenient to the Court and, indeed, that was what was arranged, but subject to this hearing this morning and the papers indicated, Mr Nash, that there was some problem but I did not quite understand what that problem was, but what would your attitude be to the matter proceeding on Tuesday if that was the first time that I could secure a Full Court?

MR LIVERMORE:   We would not have anything to say to oppose that, your Honour.

HIS HONOUR:   Yes, one way or the other it ought to be dealt with on Thursday or Tuesday of next week, but I will just ask Mr Nash what his position is in relation to those days.

MR NASH:   There is no problem, your Honour.

HIS HONOUR:   Yes.  Very well, is it necessary to provide interim relief or is it sufficient if an undertaking is given to the Court that until the disposition of the special leave application that no steps would be taken to surrender the applicant to the state of Singapore?

MR NASH:   We would be happy with an undertaking, your Honour.

HIS HONOUR:   Yes, very well. 

MR LIVERMORE:   Your Honour, I am not instructed to give an undertaking but I am instructed not to oppose any interim order that your Honour might make.

HIS HONOUR:   Yes, very well.  It looks as though it is appropriate, therefore, to make an interim order.  Have counsel agreed on the form that that order should take?

MR NASH:   My learned friend says that the Attorney would be happy with an order in the same form as that made by Justice North, your Honour, and I unfortunately do not have a copy of – could your Honour bear with me?

HIS HONOUR:   Yes, let us see whether that is in the papers here.  Did Justice North make that order at the end of his reasons in the Federal Court?  They do not appear on page 18 of the reasons of Justice North.

MR NASH:   The form of the order made, your Honour – I have found it – and the order we would be happy with is “Until the determination of the special leave application or until further order the respondent is restrained from taking any steps to surrender the applicant to Singapore”.

HIS HONOUR:   Yes, thank you.  Mr Livermore, do you ask for any undertakings in respect of the making of that order?

MR LIVERMORE:   No, your Honour.

HIS HONOUR:   As to the costs of the proceedings today, they would be costs in the special leave application.  Is that your understanding?

MR LIVERMORE:   Yes, your Honour.

HIS HONOUR:   It used to be necessary for the Court to certify for counsel, but that is not necessary under the new Rules.  That is provided for in the Rules so we do not have to do that.

MR LIVERMORE:   Thank you, your Honour.

HIS HONOUR:   Now, I indicate that I would endeavour to get a Full Court together by video link to Melbourne on Tuesday of next week or, if possible, on Thursday of this week and to signify that to the parties through the Registry in Melbourne some time this morning, so that that is what I will endeavour to do.  If that cannot be arranged then the earliest possible date for a Full Court would be sought and video link to Melbourne would seem appropriate for that purpose.

MR LIVERMORE:   Thank you, your Honour.

HIS HONOUR:   However, I will certainly endeavour to get the Full Court together by Thursday of this week or by Tuesday of next week if that can be done; otherwise a very early date expedited for the hearing of the special leave application will be obtained.

The orders that I would propose to make are:

1.        Order expedition of the hearing of the application for special leave to appeal;

2.        Direct the Deputy Registrar to inform the parties of the date of the special leave hearing which will be by video link to Melbourne;

3.        Until the determination of the special leave application or until further order of this Court the respondent is restrained from taking any steps to surrender the applicant to Singapore; and

4.        The costs of the application before the Court today are costs in the application for special leave.

Do you ask for any further orders, Mr Nash?

MR NASH:   No, your Honour.

HIS HONOUR:   Do you, Mr Livermore?

MR LIVERMORE:   No, your Honour, other than possibly a direction as to the filing of written contentions in the special leave application.

HIS HONOUR:   Yes, thank you.

MR LIVERMORE:   Perhaps the Deputy Registrar might be able to deal with that.

HIS HONOUR:   It depends a little on when the return date is.  Perhaps I can indicate to the parties what I would contemplate there.  If the return date is Thursday, then it would be necessary to have the applicant’s submissions by late tomorrow, Tuesday, 6 September at 4.00 pm, filed and served, then the respondent’s submissions by Wednesday, 7 September at 4.00 pm, filed and served, and any submissions in reply could be faxed to the Registry early on the Thursday morning.

If, however, the application is to be heard next Tuesday, then the timetable would be comparatively leisurely.  It would be the applicant’s written case and arguments by Wednesday, 7 September at 4.00 pm; the respondent’s arguments by Friday, 9 September at noon; and the applicant’s submissions in reply by Monday, 12 September at noon.

MR LIVERMORE:   Thank you, your Honour.

HIS HONOUR:   I add those directions to the orders that I previously indicated and they are the orders and directions of the Court.  The Court will now adjourn.

AT 10.15 AM THE MATTER WAS CONCLUDED