Minister for Home Affairs v DUA16 & Anor; Minister for Home Affairs v CHK16 & Anor

[2020] HCATrans 64

[2020] HCATrans 064

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M4 of 2020

B e t w e e n -

MINISTER FOR HOME AFFAIRS

Applicant

and

DUA16

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

Office of the Registry
  Melbourne  No M5 of 2020

B e t w e e n -

MINISTER FOR HOME AFFAIRS

Applicant

and

CHK16

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

Applications for special leave to appeal

KEANE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO SYDNEY

ON FRIDAY, 29 MAY 2020, AT 10.29 AM

Copyright in the High Court of Australia

____________________

MR G.R. KENNETT, SC:   May it please the Court, I appear with my learned friend, MR N.M. WOOD, for the applicant in both matters. (instructed by Clayton Utz)

MS G.A. COSTELLO, SC:   May it please the Court, I appear with my learned friend, MR A.N.P. McBETH, for the first respondent in both matters.  (instructed by Clothier Anderson Immigration Lawyers)

KEANE J:   Yes, Mr Kennett.

MR KENNETT:   I have been asked to try to remember to speak up because I understand the line from here to other places is a bit faint, so I will do my best in that regard.

KEANE J:   It is a bit faint.  So if you could, do your best.

MR KENNETT:   Yes.  Your Honours, these cases concern third party fraud in an administrative law context.  The last case in this Court to consider the relevant principles in that regard was SZFDE in 2007.  In that case, the Court noted, very properly, at paragraph 28 that it was not determining the scope of a review for fraud:

at large and in generally applicable terms ‑

This case, we would say, indicates the desirability of some further elaboration of the relevant principles by this Court.  The Court also said in SZFDE at paragraph 29:

Any application of a principle that “fraud unravels everything”, requires consideration first of that which is to be “unravelled” –

which calls for close attention to the relevant statutory scheme.  And, secondly, what constitutes the fraud.

I want to say a little bit about each of those things in the present case.  I will come to that in a minute, but as your Honours will no doubt recall, SZFDE concerned the Refugee Review Tribunal, which was obliged expressly to invite a review applicant to attend a hearing and entitled to proceed without hearing if the applicant did not attend.

The hearing was a central element, obviously, of the procedural fairness obligations of the Tribunal, and the rogue, in that case, to protect himself from being unmasked as such, had persuaded his clients not to go to the hearing, when clearly they should have gone.  The Tribunal had said it was not going to accept their claims on the papers.  And the Court, at 49, described what had happened in terms of:

stultifying the operation of the legislative scheme ‑

And at paragraph 51 their Honours refer to the Tribunal, having acted on a presumption of regularity in that it assumed, as it was entitled to do, that the review applicants were exercising a free and informed choice not to come to that hearing ‑ ‑ ‑

EDELMAN J:   Mr Kennett, is one way to characterise those passages and that decision as being concerned with a type of fraud that really goes to the root of the proceedings, to borrow an expression from elsewhere, or a fraud that undermines the nature of the hearing in such a way that the person has not had the hearing to which they are entitled, compared with, for example, particular instances of fraud that need to be shown as to how they have had a material effect on the process?

MR KENNETT:   That is a fair characterisation of what was seen and what was exposed in SZFDE, and it is really a question for the Court, we would say, how far outside that core area the law ought to go.

EDELMAN J:   Do you understand the majority in these cases to have decided the case upon the premise that it is in the SZFDE or the first category, where the fraud is such that it effectively undermines the entire nature of the hearing, or in the second category, that the fraud has had some particular material effect upon the process?

MR KENNETT:   The analysis of the majority is, in substance, the latter; we would say, perhaps purports to be the former.  I was going to come to that rather more indirectly than your Honour has taken me to it, but the difference, essentially, between Justice Griffiths and the majority is that Justice Griffiths, properly and correctly, we would say, goes deep into the statutory scheme and asks the question whether that which the Authority was deprived of by the fraud in this case was an imperative central element of performance of the statutory function, answers that question no, whereas the majority ‑ and one can see this, particularly, in how the issue is framed by Justice Mortimer at paragraph 120 on page 167, and one sees, also, at paragraph 109 where her Honour refers back to what Justice French had said in the Full Court in SZFDE to the effect that:

it may not be necessary to fasten on a particular statutory power –

but one could look for a distorting effect on the decision‑maker’s approach.  Now, that tends in the direction of asking a question whether in the particular case the fraudulent conduct has had an effect or potential effect on the outcome on how the decision‑maker viewed things.

Now, we would pause there and say that the majority’s analysis taken at that level of analysis probably overstates things somewhat because the – your Honours will have seen what the nature of the fraudulent conduct was here and what it resulted in.  It resulted in submissions which were essentially more or less useless for the solicitor’s clients, which contained a wrong statement or a wrong assertion that they represented the client’s instructions.

One wonders how that wrong assertion diverted the Authority from its proper course in any way, but included some completely irrelevant information about other applicants which, as your Honours will have seen the Authority discarded and ignored without too much trouble.  Her Honour also suggested that one of the effects of these submissions might have been to give an impression that the review applicants or present respondents had nothing more to say about their claims. 

Now, of course, there was not any evidence that they did have more to say, or what more to say they had, but beyond that whether or not somebody had something to add to the claims they advanced below is not an issue that properly weighs in any way on the decision to be made by the Authority.  Indeed, saying everything the first time around is something that the statutory scheme encourages, so it is hard to see how that impression if it was created could have been an impression that weighed against the present respondents in some way.

So her Honour may overstate, we would suggest, the extent to which the submissions, affected as they were by the fraud, affected the disposition of the cases.  But putting that to one side we would say there is quite an important difference of principle between that approach, which appears to us to ask that question in quite board terms – was the review affected, was the outcome affected, or was the approach of the decision‑maker affected by what had happened, on the one hand ‑ and the rather more detailed statute analysis of Justice Griffiths on the other which looks for a particular imperative function that was disabled or subverted or stultified by the particular fraud visited on the present respondents in that particular case.

That is really where we would say the point of interest in the case is located and it is a point of interest that has potentially – well, it is a point that occurs at a level of principle as to what the ground of review properly entails, and is potentially significant well beyond this particular statutory scheme and well beyond the Migration Act and something on which it would be useful for this Court to have a say. 

One does, in the end, come to quite large questions of public policy.  The Court in SZFDE observed that one of the features of fraud in a public law context, a matter to be taken into account is the fact that in a public law context the victim of the fraud might not have any remedy other than to have the affected decision set aside and hence in SZFDE itself the Tribunal was completely blameless but, nevertheless, its decision was set aside. 

But the other side of the public policy venture, as it were, is that as the Court, again in SZFDE, noted at paragraph 53 there were very “sound reasons of policy” why one should not be able to set aside just because one received “bad or negligent advice” or because the adviser was lazy or incompetent.

Now, here the conduct of the solicitor has been characterised by the courts below as fraudulent, and we do not seek to challenge that.  But if one looks at how it affected the process it was a world away from the ‑ ‑ ‑

EDELMAN J:   When you refer to “affected the process” are you making a materiality submission?  In other words, that the effect of the fraud inevitably would not have made a difference to the result?  Or are you making some other submission?

MR KENNETT:   No.  It is another submission, your Honour.

EDELMAN J:   What is it?

MR KENNETT:   Well, that when one looks at how the fraudulent conduct here might have diverted the process, that probably involves an imaginary inquiry as to what might have happened differently if there had not been fraud.  But the point that we would make is that – and this is still in the zone of previous jurisdictional error rather than….. – it is still in the zone of is there error rather than is it material?  Did it stultify or prevent an imperative statutory process from being undertaken?

In its effect in the end it was not all that different – and we say this at paragraph 31 of our outline – from just a really bad job, from the agent being too busy to do the job properly or forgetting to send the email on the last day that something could be done.  It is quite far removed from the more serious and perhaps dastardly designs of the rogue in SZFDE.  So the case really sets up, we would say, and poses some quite important questions about where lines ought to be drawn in cases of third party fraud in ‑ ‑ ‑

EDELMAN J:  Those lines are already drawn.  I mean, that line has been drawn by recognition of fraud as a ground for a finding of jurisdictional error, but not recognising negligence as a ground for jurisdictional error. 

MR KENNETT:   Well, there is some ‑there is fraud and there is fraud, and there are obviously an infinite variety of ways in which fraud might affect or not affect the statutory process.  The point I am seeking to make is that the analysis of Justice Griffiths, which we seek to submit is the correct one, poses that question very much in the context of a particular statutory scheme and asks what imperative function has actually been stultified.  The analysis of the majority ‑ and, as I say, we submit, of course, that Justice Griffiths is right ‑ the analysis of the majority, if that be a correct application of SZFDE or if it be in the zone of what is not being decided by SZFDE, is a very different approach in point of principle and the difference between the two reflects a difference in the precise drawing of lines which we would submit would be useful for this Court to have a say about.

Your Honour’s questions have taken me to the end of my submission more directly than I had planned, but I do not think I need to backtrack over what I was going to say in the interim.  I am content for those to be submissions of the applicant.  If the Court pleases.

KEANE J:   Thanks, Mr Kennett.  Yes, Ms Costello. 

MS COSTELLO:   Your Honours, as you know, all three judges in the Full Court found that the respondent’s agent had committed fraud and the line has been drawn by SZFDE, and also by the majority and indeed by Justice Griffiths as to the difference between negligence and fraud.  In particular, Justice Wheelahan makes clear that this is case of fraud, not negligence, at paragraph 188 of his judgement.

In answer to your Honour Justice Edelman’s question about whether this is fraud that stultified or distorted the process, because on the one hand it was a case decided where fraud undermined the process, or, on the other hand, fraud had a material effect on the process, our answer to your question, your Honour, is that the majority decision found both:  that here, one, there was fraud that undermined the process and, two, fraud had a material impact on the process. 

EDELMAN J:   If that is right though, it is hard to conceive of any type of fraud that would not in these terms undermine the whole of the process.  In other words, one would never really need to examine the effect that the fraud has had upon the decision‑making process; as soon as there is any type of fraud, however minor in its ultimate effect, it would automatically lead to stultification of the decision‑making process. 

MS COSTELLO:   With respect, your Honour, the majority judgment and indeed Justice Griffiths drew two clear questions:  one, was there fraud, and the answer was yes; two, did it stultify the process.  In that respect, the majority judgment analysed whether in the circumstances of this case the fraud did stultify or distort the process.  The majority did not accept the premise that any fraud could stultify this process; rather, the majority went through the circumstances and found the following to be the case in reaching the conclusion that the fraud stultified or distorted the process.

I will just go through these things that were relevant to this question about how it stultified the process.  The first was that the IAA reviewed the case and in doing so took into account the submissions and was unaware that there was fraud affecting the submissions.  The Minister seeks to overplay the fact that the IAA noticed there was something awry, that something seemed incorrect here.  That is not enough because it is important to recognise that the IAA did not realise there was fraud and nor did the IAA recognise that these two cases were part of a 40‑case problem where the same submissions were being used across the board, fraudulently.

Next, the majority found that the IAA’s review function was stultified not because of a failure to adhere to the practice direction, which in itself was not an imperative thing that the IAA had to do; rather, the majority was careful to say that what went wrong here was a stultification of the review process, particularly because the fact was that in this case submissions had been asked for, submissions had been received and submissions had been considered.  Those submissions were affected by fraud.  Therefore, fraud affected, in fact, as these two cases unfolded, was important. 

Indeed, the fact that the IAA has such limited capacity for visa applicants to engage in the process means that where submissions have been asked for, advanced and considered, fraud in those means that the only opportunity to persuade has been distorted.  Now, your Honour’s question to my learned friend ‑ ‑ ‑

KEANE J:   Well, does that not depend, though, Ms Costello, whether there has been this distortion?  Does that not depend upon the possibility that there were other things that could and should have been said?  Here it is said against you that in the judicial review proceedings there was no evidence that your clients had other things that they wished to be said.

MS COSTELLO:   Your Honour, in that question, and ultimately in the earlier question by Justice Edelman, which asked my learned friend, Mr Kennett, whether the Minister was arguing about materiality, but the question was no, you see that there is a slide into a materiality analysis, where what the ‑ ‑ ‑

KEANE J:   That is inevitable once you adopt a test of distortion.  You are talking about the decision‑making process being affected in some material fashion.

MS COSTELLO:   Yes, your Honour.  Here, the Court found, as earlier, that both the process was undermined by fraud, and that fraud had a material effect on the process.  And, in particular, at paragraph 154(g) on page 174 of Justice Mortimer’s judgment, her Honour sets out a number of paragraphs and then says that the result of the matters stated in paragraphs:

(d), (e) and (f) was the false impression given to the IAA that each of the respondents had nothing particular to them to advance to it about why the factual basis for their claims, and the application of the country information to that factual basis, meant that contrary to the delegate’s decision they did meet the criteria for the grant of a protection visa.

It is important to see this case, the facts of the case ‑ ‑ ‑ 

EDELMAN J:   That is correct in the sense that the impression was false because it created a positive impression that they had nothing to add, but it does not necessarily follow from that that anything that they might have had to add would have made any difference to the outcome or the application.

MS COSTELLO:   If your Honours are interested at that level of specificity in the fact‑finding of the majority of the Full Court in this case, that is nearly a case‑specific analysis, your Honours, not a case of much interest in general.

KEANE J:   Is that right, Ms Costello?  Because in the absence of evidence bearing upon whether or not there was something more to be said, what is being applied is a principle that there is a presumption of a failure of process rather than proof of a failure of process.

MS COSTELLO:   Your Honour, here the failure of process is that there are things that a non‑fraudulent submission could have done.  It could have put correct rather than false facts in the submission.  It could have argued why the delegate was wrong, and the IAA should grant the visa.  It could have said something about the actual applicant’s claims rather than almost nothing about them.

It is clear on the evidence before your Honours and on the fraud, as found by the court below, that it did go awry.  And it is not the case that – it is not hard to say that the fraud here, that the only opportunity to persuade was affected by fraud and so that the task of the IAA to review the decision, which only involved looking at the material that had been before the delegate and looking at the submissions that had been asked for and received, was affected by fraud.

EDELMAN J:   Ms Costello, that is, effectively, then to say, I think consistently with what you said at the outset, that the nature of the fraud in this case was such that it stultified in the sense of denying the applicant the hearing to which the applicant was entitled in such a fundamental way that one need not examine the effect of the fraud or the way in which the fraud distorted the decision‑making process.  It falls within that category like SZFDE where the fraud itself was sufficient for jurisdictional error.

MS COSTELLO:   Well, yes, your Honour, in that in SZFDE, as far as I can tell, the High Court did not require arguments as to what would have been said at the hearing.  Rather, it was a loss of an opportunity to impress.  Here there has been a loss of the only opportunity to impress in a statutory context in which there is so little opportunity to impress.

What the Minister seeks special leave for is not in relation to the interesting question of what is fraud in an administrative context and, instead, asks you to consider what the role of submissions is in the IAA and whether an error in respect of those submissions is something that affects something important enough in circumstances where submissions are not a necessary part of the process.

Our answer to that is that it ought be uncontroversial that where submissions are asked for and advanced and considered and those submissions are affected by fraud, then that is a sufficiently central stultification and/or distortion of the process.  The questions your Honours are asking around the particular impact on what might have been said differently in this case or whether the IAA would have reached a different conclusion in this case is much like the questions your Honours are already considering in so many other cases around materiality.

This is not a case for your Honours to give special leave in order to explore materiality.  There would be better vehicles for that.  And nor is it an appropriate case for your Honours to explore the question about the role of a failure to consider the content of submissions in an IAA review.  It would be a better vehicle where your Honours were looking at a case where there was a failure to consider a claim made.

So what you end up with here is a forensic analysis about looking at the statutory process that the IAA engages in and the fraud in fact as found, was it distorted or stultified enough to mean that the decision should be left quashed.  We say it should be and that these cases should not be used as vehicles to explore abstract questions that ought be left undisturbed.

Here the reasoning of Justice Mortimer, with which Justice Wheelahan agreed, we respectfully urge your Honours to find correct and that there is nothing erroneous in her Honour’s analysis, particularly at paragraph 173 at application book page 178, where her Honour built upon the earlier findings at 154, which I have already taken you to, and found that the IAA’s task of determining whether the criteria was met was subverted and, therefore, there had not been a true exercise of the power.

KEANE J:   Apropos of paragraph 173, Ms Costello, her Honour does not refer to fraud there.  One asks, and I ask you, whether what her Honour says there, why would that not apply equally to a conscientious decision by a representative of an applicant not to put material that he or she was instructed to put to the IAA?

When one looks at what Justice Mortimer says there, what her Honour says there one would think would be equally applicable to a case of an innocent failure on the part of the representative to put fully the case that he or she is instructed to put.

MS COSTELLO:   The difference, your Honour, is in the facts, which is that in this case, as you can see from the use of the words subverted, misled and misled ‑ you see misled there in the last sentence:

The IAA was also misled into conducting its review on the basis that the respondents had nothing at all to say to it ‑ ‑ ‑

KEANE J:   But they could be honestly misled by a perfectly honest and conscientious submission that does not include everything that the applicant for a visa would want to say. 

MS COSTELLO:   This is a case ‑ ‑ ‑ 

KEANE J:   But they could be equally misled as to whether they had more that they wanted to say. 

MS COSTELLO:   This is a case, your Honour, of third party fraud ‑ ‑ ‑ 

KEANE J:   Yes, I understand that.

MS COSTELLO:   The Minister does not challenge the finding that this is fraud.  The question in an orthodox application of SZFDE is that the second set of evaluations made after fraud is found is whether the process has been stultified.  Her Honour in that ‑ ‑ ‑ 

KEANE J:   By reason of the IAA being misled ‑ ‑ ‑

MS COSTELLO:   Yes, your Honour.

KEANE J:   ‑ ‑ ‑ as to the position in terms of what the applicant wants to say, or can say. 

MS COSTELLO:   Yes, your Honour. 

KEANE J:   What I am struggling with is in one case you say, well, you establish that they had been misled where there is fraud, but in the other case where there is not fraud even though the effect of the fraud is the same – the fraud or no fraud – the effect of the decision made by the representative is the same, in one case there is a misleading, in another case there is not a misleading. 

MS COSTELLO:   Yes, your Honour, and the difference is that you do not get to the second step, that is analyse the stultification of the process, unless there is fraud, because that is what this case is and that is what SZFDE says.  The distinction between negligence impacting the outcome and fraud impacting the outcome, that line has been drawn, there is no need for your Honours to draw it again.  It has been drawn.  In fact, the fraud finding is not challenged by the Minister.

KEANE J:   No, but is your contention that the fraud finding means that one can presume that the IAA has been misled. 

MS COSTELLO:   No, your Honour.  Our submission is that if the fraud finding is made an evaluation has to be made of the facts in order to establish whether the process has been stultified and here the careful forensic analysis of Justice Mortimer illustrated by paragraph 154 and paragraph 173 took the correct approach, in our respectful submission, that the Court should take in this.

Now, my learned friend, Mr Kennett, said this case could have ramifications for various decision‑making, not just in the IAA context.  If that is the case, in any context the same analysis that the High Court tells us should be made in SZFDE which is, is there fraud, how did it stultify the process, is applicable.  In this case, with respect, her Honour Justice Mortimer and Justice Wheelahan agreed with her, did that analysis and came to the conclusion that stultification had occurred here.  This is an unusual case, forty ‑ ‑ ‑ 

EDELMAN J:   Ms Costello, I think you are using, as I understand it, stultification in two different senses.  Sometimes you are using stultification in the sense of saying, well, the fraud has been so significant, such as in a case like SZFDE, that it is enough to look at the fraud and simply to say that the proceedings have been stultified or vitiated in such a way as to give rise to a jurisdictional error. 

Occasionally you are also using stultification to refer to the fraud as being such as having had an effect, a particular effect, a misleading effect which was sufficiently substantial, material, and so on, as again to stultify the process, but that is quite a different question.  I think the question Justice Keane was asking you about is how it is that the misleading of the Tribunal, the misleading of the Authority could have made a difference, particularly given that the misleading could have occurred innocently.

MS COSTELLO:   It could have made a difference because, if a non‑fraudulent submission had been made, then a different impression might have been formed by the decision‑maker, rather than suddenly a new claim, seemingly unconnected to what had been said before popping up in a submission that not only would indicate a lack of credibility, it is a common finding that some new claims lead to credibility issues ‑ ‑ ‑

EDELMAN J:   What would that new submission have been?

MS COSTELLO:   What would the new submission have been?  Well, it had not been the case, your Honours, that in showing how – it is not the case that in every…..of a procedural fairness defect or a process defect you have to put on the evidence you would have given if you had been able to go there and have your day in court.  So it should not be necessary for a visa applicant saying “fraud affected this process” to have to then put on evidence as to what would have been said in the submission that the person was never actually given the opportunity to do.

It is difficult to predict what the impact of a non‑fraudulent submission could have been made, but an analogy with materiality, there is a realistic possibility, even on the facts here where materiality was not the subject of the judges’ attention, that a different outcome may have been reached if a non‑fraudulent agent had made arguments it actually had for a relationship with the claims and evidence of the clients.

KEANE J:   Thanks, Ms Costello, I see the red light is on.  Mr Kennett, is there anything in reply?

MR KENNETT:   Just briefly, your Honours.  My learned friend, as your Honour Justice Edelman highlighted, frames the proposition, as really did the majority below in terms of the review process being stultified, which perhaps contains an ambiguity.  My friend also accepted a proposition of your Honours to the effect that this could be a case where the hearing ‑ the respondents were denied a hearing to which they were entitled.  If that is the analysis, then of course one needs to ask what was the hearing to which the respondents were entitled in this statutory scheme?

The opportunity to impress that they lost, is that opportunity something that is baked into the statutory scheme and central to it to the extent that one can say that if the opportunity is not given, the statutory review has not been accomplished?  Those questions require a dive into Part 7AA, which I omitted from my submissions in‑chief, and I do not intend to bore your Honours with it in reply.  The Court has looked at this scheme, of course, in a battery of recent cases, and I am sure your Honours will recall it, Plaintiff M174 was one, BVD17 was another, but the Authority, as your Honours will recall, is a body set up to review cases primarily on the papers without interviewing the visa applicant, and on the basis, ordinarily, of the material given to it by the Secretary.

There is nothing in the statutory scheme except, conceivably by the side wind of the practice direction having invited submissions on quite a specific basis, submissions as to why the delegate got it wrong, apart from that whisper, which cannot control, of course, the construction of the statute itself, there is nothing in the statutory scheme that makes the provision of written submissions, or the acceptance of written submissions, or even their

consideration as central, in the way that the hearing was central in the scheme in SZFDE.

So, in that case, one could say the obligation to provide a hearing had been subverted the hearing did not take place as it should have, as it was required to, and really there was no more to say in that case.  But this case is obviously radically different from that because there is no duty in relation to submissions that corresponds or is comparable in any way to the obligation of the Tribunal in SZFDE.  I hear the buzzer, your Honours, so I will stop.

KEANE J:   Thanks, Mr Kennett.  Subject to the Minister’s agreement to pay the reasonable costs of each respondent of the applications for special leave and of the appeals there will be a grant of special leave in each of these cases.  Mr Kennett, how long will the hearing take?

MR KENNETT:   I would think half a day, your Honour.

KEANE J:   Ms Costello.

MS COSTELLO:   Yes, your Honour, the hearing in the Federal Court took a little more than half a day but fraud was still in issue at that point.

KEANE J:   Okay, thanks.

MS COSTELLO:   Your Honours, you have mentioned something in relation to the Minister’s costs in what you have just said.  Did your Honours see in our written submissions the issue that, given the obvious resources disparity between the parties, the Minister paying the costs of the special leave application and appeal will end up not funding the respondent’s legal costs if the costs order below is disturbed.

EDELMAN J:   You are asking for a condition also that the Minister not seek to disturb the costs below?

MS COSTELLO:   Yes, your Honour, which is my understanding of what was the subject of discussion when the High Court granted special leave in the case of Li.  I understand that at times the Minister, not only in public interest cases such as these or cases of general interest such as this, undertakes to pay the special leave and appeal costs but also to not disturb the costs orders below.

KEANE J:   Mr Kennett, what is your attitude to that?

MR KENNETT:   My instructions are along the lines that your Honours will have seen on page 259 of the application book, that is…..come what may but does wish to seek to have the costs order below set aside.  If your Honours were minded to make it a condition of leave that that order not be disturbed, then I could seek instructions and I would think probably get them to proceed on that basis, that the position is ‑ ‑ ‑

KEANE J:   Well, you are here asking for the indulgence of special leave.  Perhaps you should seek those instructions.

MR KENNETT:   Yes, your Honour. 

EDELMAN J:  Particularly in the context that one of the matters you raise is that there are at least 40 other cases that will be affected by this decision. 

MR KENNETT:   Well, I am just wondering in terms of logistics, your Honours, should I break the link and make a phone call or try and do it while we are all online. 

KEANE J:   Sorry, I could not catch that. 

MR KENNETT:   Your Honour, I am just trying to think through the logistics of seeking instructions in the circumstances in which we are now.  Were your Honours proposing to adjourn briefly while I do that? 

KEANE J:   Yes, very well. 

MR KENNETT:   I do not have my instructor in the room - that is the thing. 

KEANE J:   I am reminded that the next matter comes on from Sydney at 10.30.  Perhaps you could let us know then what the position is, Mr Kennett? 

MR KENNETT:   Yes, your Honour. 

KEANE J:   Will you be able to get instructions by then?

MR KENNETT:   I do not see why not.  I will make it happen. 

KEANE J:   Very well. You can let us know what your instructions are then.  Is that satisfactory for you, Ms Costello? 

MS COSTELLO:   Yes, your Honours.  The other thing is, as you have seen, we have a notice of contention and I do not think I need to bother you with that, but just so that it is not ‑ ‑ ‑ 

KEANE J:   No, we are aware of your intention in relation to that.

MS COSTELLO:   Yes, your Honours.

KEANE J:   Very well.  The Court will adjourn until 11.30.

AT 11.15 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.28 AM:

KEANE J:    Yes, Mr Kennett, do you have instructions?

MR KENNETT:   Yes, your Honour, and my client is content to proceed on the basis that we will exclude the costs aspect of the Full Court’s orders from that which we seek to overturn. 

KEANE J:   Very well then.  Subject to the Minister’s agreement to pay the reasonable costs of each respondent of the applications for special leave and the appeals, and not to disturb the costs orders below, there will be a grant of special leave in each case. 

MR KENNETT:   If the Court pleases.

AT 11.29 AM THE MATTER WAS CONCLUDED