MIP, Ex parte- Re Hudson

[1999] HCATrans 57

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M30 of 1999

In the matter of -

An application for Writs of Mandamus and Prohibition or for an Injunction against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

First Respondent

DR RORY HUDSON constituting THE REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte -

"M I P"

Prosecutor/Applicant

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 17 MARCH 1999, AT 10.38 AM

Copyright in the High Court of Australia

MR T.V. HURLEY:   Your Honour, I appear on behalf of the prosecutor applicant.  (instructed by Fernandez and Johnson)

MR C. GUNST, QC:   If your Honour pleases.  I appear with my learned friend, MR W.S. MOSLEY, on behalf of the respondent.  (instructed by Australian Government Solicitor)

MR HURLEY:   Your Honour, I apologise on behalf of my instructor who is unwell.

HIS HONOUR:   Yes.

MR HURLEY:   Your Honour, this is the return of a summons in the matter issued and returnable today seeking further interlocutory orders in the matter and which would have the effect of restraining the first respondent from removing the prosecutor applicant and the summons requests that the further hearing of the applications for order nisi be adjourned to a further date.

HIS HONOUR:   Yes, why should that be done?

MR HURLEY:   Because, your Honour, the prosecutor applicant approaches the Court on the basis that the decision of the second respondent is affected by bias.  That bias is the apparent bias.  Normally in these matters we would ask they be remitted to the Federal Court and all further proceedings take place in that court except that it is uncertain that that court has jurisdiction over this applicant and this issue within section 44 of the Judiciary Act.  That is a matter which is, itself, reserved, I understand, and for that reason, your Honour, we seek that the further proceedings and the request for an order nisi remain here for some time.

HIS HONOUR:   Does the pendency of judgment in Abebe’s Case and Eshetu’s Case mean that consideration cannot be given to whether an order nisi goes.  It may mean that it is inappropriate to decide whether to try any issue in this Court or to remit it, but why does it mean that the question whether order nisi goes should be deferred?

MR HURLEY:   That threshold question, your Honour, the preferred course for the prosecutor applicant is that the matter be remitted to the Federal Court.

HIS HONOUR:   But remitted as a 75(v) proceeding?

MR HURLEY:   Yes, your Honour, and any other matter over which the Federal Court not have jurisdiction would remain here.  That was done by one of your fellow Judges in Sydney who remitted to the Federal Court so much of the matter as the Federal Court had jurisdiction over and left a residual, but undefined part, in this Court.

HIS HONOUR:   I will, of course, have to hear what counsel for the Minister has to say on this issue but I must say at first blush the difficulties presented by pendency of judgment in Abebe and Eshetu do not seem, to me, to stand in the way of deciding whether order nisi should go.  They may stand in the way of deciding whether the matter remains wholly in this Court, partly in this Court or goes in whole or in part down to the Federal Court but it may be best, I think, Mr Hurley, if I hear what the attitude of the Minister is to the application generally and then, if needs be, come back to see where we go from there.  Mr Gunst, firstly, what is the attitude of the first respondent to the application for an extension of the interim relief I granted on Monday night or whenever it was.

MR GUNST:   Monday night, as I understand it, your Honour.  It is opposed.

HIS HONOUR:   Yes, could you state without developing them the bases on which it is opposed.

MR GUNST:   On two principal bases, your Honour.  First of all, that there has been a significant and apparently conscious delay in the application being made to the Court.

HIS HONOUR:   Yes.

MR GUNST:   We will need to put some material before your Honour but it is apparent that the present solicitors for the applicant have been talking about an application to this Court since, at least, August of last year and that it has been known that the applicant was to be removed for about a fortnight but that, very much at the eleventh hour, late in the evening of Monday, the application was made.  That is the first ground, your Honour.

The second ground is that there is no arguable cause of action and we will need to take your Honour to some of the material and address the judgment of Justice Heerey that is now sought to be relied upon and say a few things about that.

HIS HONOUR:   Just as to that second point, Mr Gunst, it would be a bold decision, would it not, to say that there is no arguable case when there is already a decision of a single judge of the Federal Court saying that the point is good.  The point may win or lose on appeal.  That is what appeals are for but is it, since the immediate question is, is there serious question to be tried or is there arguable case, it would be rather bold to say no serious question to be tried, would it not?

MR GUNST:   Your Honour did say not to develop the point.

HIS HONOUR:   Yes.

MR GUNST:   I can say this.  The point upon which the judgment of Justice Heerey turned was not a point that was pleaded in the case before him.

HIS HONOUR:   That may mean that it is an infirm judgment on appeal and I can understand that there may well be all sorts of Part 8 issues that the judgment presents.

MR GUNST:   That is my next point, your Honour.

HIS HONOUR:   But in this Court, the current point of debate is whether it can be argued that the Tribunal constituted in the way it was might be seen by the reasonably informed objective bystander to have prejudged an issue in some way and then there is a further question whether, even if that is so, what is the legal consequence of that conclusion.  But are those points not arguable, will you say?

MR GUNST:   We say not, your Honour.  We say that when fairly read the comments that are complained of and that are taken, we say, not a little out of context in Justice Heerey’s judgment, first of all show, in fact, a very compassionate and concerned RRT member but, second of all, they display no more than the healthy and perfectly proper scepticism that any fact‑finding tribunal must bring to its task, the sort of scepticism that we would say a judge necessarily brings to his task, not approaching the matter in a naïve way, we would say, but approaching it in the knowledge that human nature being what it is, those that have an incentive to put a spin on their evidence may, in fact, do so.  We say, when properly read, there is no arguable case, your Honour.  That is the second point.

HIS HONOUR:   Yes.  Now, as to delay, are you in a position to advance that argument now.

MR GUNST:   Yes.

HIS HONOUR:   You have on all the material you wish to have on?

MR GUNST:   The short answer, not in proper form, your Honour.  I have three letters from the applicant’s solicitors that, with my learned friend’s consent, I would hand up to your Honour that are sufficient to illustrate the point that we make but they are not in proper form now.

HIS HONOUR:   Mr Gunst, if you are going to argue the point, you are going to be nailed to the mast.  Have you put on all of the material that the Minister wishes to put on on this issue?  If you have, that is one case.  If you have not, that is another case.

MR GUNST:   No, we have not, your Honour.

HIS HONOUR:   Then how am I to determine the issue today on this question of delay if you seek to pursue it?

MR GUNST:   The only way would be if, with your Honour’s leave and with our learned friend’s consent, we were to hand up copies of the correspondence and if it was to be agreed that they were, in fact, letters emanating from the applicant’s solicitors which were sent on about the date they bear.

HIS HONOUR:   When?

MR GUNST:   We are in your Honour’s hands about that and we understand your Honour’s view.

HIS HONOUR:   One of the purposes of bringing this thing back on so very quickly, 36 hours after the first order, was so that we could get hold of it and see how best to deal with it.

MR GUNST:   If the question your Honour was to ask was, what material would you like to have on, I would like to have three or four affidavits, one exhibiting this correspondence ‑ ‑ ‑

HIS HONOUR:   What counsel would like to have on and what counsel can get on is another question too, Mr Gunst.

MR GUNST:   Yes; 36 hours is not a long time, your Honour.

HIS HONOUR:   Yes.

MR GUNST:   One affidavit would go to the correspondence that I have just mentioned to show a knowledge and a threatening of the proceedings over a period of time.  Now, that is one issue ‑ ‑ ‑

HIS HONOUR:   On the ground of bias or simply we are going to challenge.

MR GUNST:   No, no grounds are specified, your Honour.  We are going to go to the High Court.  That is how it is put and then there is further application made to the Minister and so on but that goes to the question of ‑ ‑ ‑

HIS HONOUR:   Yes.  The reason I say that, Mr Gunst, is that I was told on Monday night – and have you yet been able to obtain transcript of Monday night?

MR GUNST:   No.

HIS HONOUR:   I settled it early yesterday and it should be available very soon, but I believe I was told on Monday night that the point of bias was a point said to have come to the attention of the advisers of the applicant only very, very recently.  Now, there may be factual controversy about that but that was the basis on which Monday night proceeded.

MR GUNST:   Yes.  Well, the judgment of Justice Heerey is dated 23 December 1998.  It is two and a half months ago.

HIS HONOUR:   Yes, but the question that was agitated on Monday night was not just when could they have found out, it was when did they find out.  Now, you may later tell me that does not matter.  It is a case of when could they, but I would not wish the thing to go off on a false premise for the moment.

MR GUNST:   Well, that brings me to the next point, your Honour.  There is, in fact, no material before your Honour about that.  I understand what my learned friend said to your Honour, and we do not controvert that, but there is, in fact, no admissible material.

HIS HONOUR:   There was, I believe, simply a statement in paragraph 12 of the affidavit of the solicitor for the applicant.

MR GUNST:   Yes, that is the highest it gets.

HIS HONOUR:   Yes.

MR GUNST:   Can I just go on to identify that the other material that the Minister would like to have may not be relevant, your Honour.  Two grounds, as we understand it, are put forward.  The first is the apprehended bias argument.  The second is a reasonableness argument that, because of the present physical disability of the applicant, it is unreasonable.  We see that argument as foreclosed as a matter of law, not least by your Honour’s judgment in the matter of SE that the word “reasonable” is not to be imported in section 198.  Where the Act speaks of “remove as soon as reasonably practicable”, the reasonableness goes to temporality of the removal rather than the personal circumstances of the applicant but, if it is to be argued – I am not sure my learned friend is, in fact, persisting with it because there was - not a concession but a statement made on Monday night.  As I am told by my learned junior the argument might not be put, but if it is, if it relies on ‑ ‑ ‑

HIS HONOUR:   The course of events on Monday night was that, I regret to say, I intervened and took charge and focused the argument of both parties on point one, that seeming to me to be the critical point.  I did not take what occurred on Monday night as to amount to a concession that point two was unarguable or would not be argued.  It owed much to the hour of the night and the state of my hunger, Mr Gunst.

MR GUNST:   Your Honour, can I then refer your Honour to paragraph 11 of the applicant’s solicitor’s affidavit.  It puts what one might take as a pretty serious state of events, state of affairs.

HIS HONOUR:   Yes.

MR GUNST:   Now, we do not yet have material.  This goes in answer to that point what material the Minister would like.  We have instructions.  The instructions are, in fact, a number of the things in that paragraph ,but the paragraph in itself is not admissible because it is clearly hearsay and we would object to it if it was proposed to be relied upon.

HIS HONOUR:   This is not an interlocutory process?

MR GUNST:   Yes.

HIS HONOUR:   In which statements on information and belief are admissible.  You may be right but it had not struck me so.

MR GUNST:   So far as the interlocutory application is concerned, that would be right, your Honour.  We would want to controvert what is in paragraph 11 both by cross‑examination of the deponent and by putting some material on.  As your Honour will understand, there are reports generated once an incident of this nature takes place.

There are a number of things, but can I just say this.  I do not want to give evidence from the Bar table but can I break it down into two parts.  There is, at least, an innuendo of forcible administration of sedatives without medical supervision.  That is not so, on our instructions.  First of all, it was at the applicant’s request, as we are instructed and it was prescribed by a medical practitioner.

The second point is that, although there was an incident - it is important to have the full history - in fact, it is not both wrists either.  The solicitors says “wrists” plural.  In fact it was one.  My learned junior says your Honour was told 18 stitches on Monday night.  It was four of those small butterfly closures that were placed on ,but those are the matters about which we would want to have evidence because paragraph 11 does raise a serious innuendo or inference.  Your Honour, that is a rather comprehensive answer.

HIS HONOUR:   Is there any pressing urgency that you would press on me that this thing ought to be heard and dealt with at this stage of the process, in effect, today, rather than in a little time?

MR GUNST:   Subject to your Honour receiving the three letters on the basis put before, we would be content for the interlocutory injunction to be dealt with today but it would not be ‑ ‑ ‑

HIS HONOUR:   No, you misunderstand me.

MR GUNST:   On the first ground.

HIS HONOUR:   My question is, is there anything that you have put before me that says the Minister must have, wants to have, might want to have this thing dealt with today rather than tomorrow because?

MR GUNST:   Yes, I understood the question, your Honour.  I was coming at it from the other end first and hoping to work back to meet your Honour’s question so that the answer would be comprehensive rather than immediate, but I do not want to be unhelpful.  Can I just seek instructions for one moment?

HIS HONOUR:   Yes.

MR GUNST:   Not as we are presently instructed, your Honour.  It can be put over for some little time.

HIS HONOUR:   Could you bear in mind that I am sitting in Canberra next week with a full week.

MR GUNST:   Yes.

HIS HONOUR:   We have a part heard tax appeal Monday.  We then have Mr Eastman’s various applications Tuesday to Thursday, Friday 26 we are sitting in Melbourne on an appeal.  It is likely that the first reasonable opportunity to give the parties a substantial amount of time would be Monday 29.  Now, bear in mind also, that Monday 29 I have an electoral petition coming on in which the Deputy Registrar was good enough to inform me that there are 200 appearances entered by individual electors.  I am not quite sure whether I am going to be favoured with the attendance of all 200.

MR GUNST:   Perhaps we could sneak in first, your Honour.

HIS HONOUR:   Monday might be a little occupied, but Monday or Tuesday of that week.

MR GUNST:   It would be possible for our material to be ready for hearing on Friday of this week but given your Honour’s commitment – I would say possible, I do not say desirable, but it would be possible.  There would be three or four deponents necessary.

HIS HONOUR:   Were it said to be pressingly urgent to deal with it on Friday, I would, if needs be, clear the plate and deal with it on Friday, but can I be quite blunt with you.  The week’s sittings ahead – part heard tax followed by Mr Eastman’s case followed by an appeal here, I think those parties deserve a little bit of preparation on my part and the 48 hour day has not yet been invented so I say if you want to make a case it must be this Friday because then, if needs be, I will clear the plate and do it Friday but my preference would be to put it over say, to Monday or Tuesday, 29 or 30.

MR GUNST:   Your Honour, our only concern is this, as your Honour will have seen from the materials this applicant arrived on a ship rather than, perhaps one might think of the usual way, an aeroplane.

HIS HONOUR:   Yes.

MR GUNST:   The entitlement to give a notice to the carrier to remove a person goes to a ship in this instance rather than an aircraft and ship sailings are rather less frequent than airline flights.

HIS HONOUR:   Not out of Esperance with the meat trade, are they, but maybe I am bringing to bear knowledge which I should not bring to bear or assumed knowledge which I certainly should not bring to bear.

MR GUNST:   Well, perhaps, your Honour, is right about that.

HIS HONOUR:   Yes.

MR GUNST:   But that is our understanding.  Arrangements have been put in place.  It may be that once they are dislocated there will be a rather longer period of time than there might be in respect of an airline flight which is rather more frequent but that is the concern, your Honour, and we express it frankly but we do not put it on the basis that the matter must be heard today or tomorrow.

HIS HONOUR:   Yes.  The present inclination, Mr Gunst, is this.  This matter is of very considerable importance to both sides in this litigation, not least the applicant and it is better that it go forward on proper material properly prepared with sufficient time to get the case up properly.  I am minded to put it over to Monday 29 at 2.15 in the fond imagining that the electoral petition matter might be capable of being dealt with in the morning and perhaps give some directions about time for materials.  That would necessitate extending the interim relief to, presumably, 4.15 on that Monday or further order, but that is the present inclination.  What do you say in relation to it?

MR GUNST:   Your Honour, given your Honour’s commitments, there is nothing we could sensibly say to gainsay that proposition.

HIS HONOUR:   The other theoretical possibility I should have mentioned is, of course, that during the Canberra sittings it would be possible to get me out of Court hours but that, I think, really, I dismissed as being not only awkward for the parties to traipse up to Canberra but doing it out of Court hours puts pressure on everybody of a kind that is undesirable so, although I did dismiss it, I should, perhaps, have explained why I did so.

MR GUNST:   Thank you for that, your Honour.  Can we just say something about the point your Honour first raised with our learned friend, Mr Hurley, about whether the application for the order nisi could go forward.  We do not see any reason why it should not go forward to be determined by your Honour.  The question of disposition, that is whether it remains here in whole or in part or is sent to the Federal Court, is another question.

HIS HONOUR:   At least at first blush, it seems to me that does depend wholly on Abebe and Eshetu’s judgments.

MR GUNST:   Yes.

HIS HONOUR:   Probably on both.  I do not know, but certainly ‑ ‑ ‑

MR GUNST:   Yes.  Justice Heerey’s judgment turns on Eshetu.  We would be interested to see a judgment in that but it certainly depends on Abebe, your Honour.

HIS HONOUR:   Yes, the validity issue.  Well, I think that if it is to go over to Monday 29 at 2.15, counsel would be advised to consider what arguments they wish to advance about determining whether to grant order nisi or not.  Again, the immediate inclination is to say that I should go on at that stage to consider two issues: (1) should order nisi go?  If order nisi is made, then that will perhaps carry with it, or would certainly carry with it the question should interlocutory relief continue and if order nisi goes then, at first blush, there seems strength in the applicant’s position.  If order nisi should not go, then there is no proceeding to support the interlocutory relief and the interlocutory relief goes. 

If counsel then would turn their minds to possible timetable for further material and, if they could, a written outline of submissions, it would help me.  We are now at Wednesday 17.  Mr Hurley, would the applicant be in a position to put on any further material upon which he relies by Monday 22 nd at 12 noon?  It gives you the balance of this week.

MR HURLEY:   Can I ask for 5 o’clock, your Honour?  The day, yes.

HIS HONOUR:   Maybe I am just thinking that not only the judges should lose their weekends, Mr Hurley, but that is an uncharitable thought, is it not?  These thoughts should not be permitted.

MR HURLEY:   It is geography within the city, your Honour, that makes certain…..teachers, your Honour.

HIS HONOUR:   22 March, at least, at some point for further material.

MR HURLEY:   Yes, your Honour.

HIS HONOUR:   Mr Gunst, if by the Friday close of business?

MR GUNST:   Yes, certainly, your Honour.

HIS HONOUR:   That would be Friday 26 close of business.

MR GUNST:   Yes, and we would anticipate each party putting in any further material and an outline of argument and we would perhaps be assisted by a draft order nisi on behalf of the applicant.

HIS HONOUR:   Have you not seen a draft?  There was a draft exhibited to the affidavit of the solicitor.

MR GUNST:   No.  I withdraw what I said in that event, your Honour.

HIS HONOUR:   I think, though, it was in old form and there is a new one lurking about and if I might be let into that secret about the same time you are let into it, that might help me.

MR GUNST:   Yes, and that would be the appropriate time on behalf of the applicant for any further proposed draft order, together with the outline and any further affidavits, and we would have ours by the Friday.

HIS HONOUR:   Do you suggest sequential outlines then?

MR GUNST:   We would find it helpful.

HIS HONOUR:   Mr Hurley, have you anything to say against adopting that timetable?

MR HURLEY:   No, your Honour.

HIS HONOUR:   Yes.  Now, it would be necessary, I think, Mr Hurley, one, for you to renew the undertaking on behalf of the applicant that was given on Monday night, the undertaking as to damages.  On one view, that undertaking may persist only in respect of that order, but do you offer that undertaking?

MR HURLEY:   I do, your Honour.

HIS HONOUR:   Yes, then upon that undertaking I would order: 

(1)  That until 4.15 pm on Monday, 29 March 1999 or until further or other order of the Court or a Justice of the Court, the first respondent, the Minister for Immigration and Multicultural Affairs, not, whether by himself, his servants or agents or otherwise howsoever, remove or attempt to remove the intended applicant from Australia;

There would the question of the continuation of the orders about publication of the applicant’s name.  Do either counsel seek to be heard on that?  Do you seek its continuation, Mr Hurley?

MR HURLEY:   I do, your Honour.

HIS HONOUR:   Do you oppose that, Mr Gunst?  Then:

(2)  Until 4.15 pm on Monday, 29 March 1999 or a further or other order: 

(a)  the applicant’s name not be published; and

(b)  the transcript of the proceedings and the documents filed in this Court refer to the applicant as MIP;

(3)  Direct that on or before 4.15 pm, 22 March 1999, the applicant file and serve any further affidavit on which it is intended to rely, together with a written outline of his submissions to be made in support of:

(a)the application for interlocutory injunction;

(b)application for order nisi for prerogative relief;

(4)  Direct that on or before 4.15 pm, 26 March 1999, first respondent file and serve any affidavit on which it is intended to rely, together with a written outline of his submissions to be made in opposition to:

(a)  application for interlocutory relief;

(b)  application for order nisi for prerogative relief;

(5)  Adjourn summons dated 16 March to 29 March 1999 at 2.15 pm in Melbourne.

Other than to reserve costs and certify for the attendance of counsel, is there any other order or direction that counsel say I should make? 

MR HURLEY:   No, your Honour.

MR GUNST:   No, your Honour.

(6)  Reserve costs, certify that it is a matter is proper for the attendance of counsel in chambers.

As I say, Mr Hurley, I think on the return of this on the Monday, you will need to address, amongst other things, whether order nisi should go or, if you contend that I should defer deciding that, why I should do so?

MR HURLEY:   Yes.

HIS HONOUR:   I will adjourn.

AT 11.08 AM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 29 MARCH 1999