Newman-Mariotti v Minister for Immigration and Border Protection

[2015] HCATrans 251

[2015] HCATrans 251

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M231 of 2015

B e t w e e n -

TROY EDWARD NEWMAN‑MARIOTTI

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Defendant

NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 2 OCTOBER 2015, AT 2.59 PM

(Continued from 1/10/15)

Copyright in the High Court of Australia

HIS HONOUR:   I can see you, Mr Knowles, but I cannot see anybody in Canberra – is someone there?

MR T.M. HOWE, QC:   May it please your Honour, I appear with MR G.J. LOUGHTON for the defendant, the Minister for Immigration and Border Protection.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Thank you, Mr Howe.  Mr Knowles, is there anything further you want to say obviously?

MR KNOWLES:   Not in respect of the interlocutory application, no.

HIS HONOUR:   Thank you.  Yes, Mr Howe.

MR HOWE:   Your Honour, since yesterday, the matter has been considered by the Minister as to, in particular, whether he would as it were intervene by the grant of a visa and he has decided that he will not do so.  That has the effect of leaving the issues raised by the plaintiff in his application live before the Court. 

On the question of interlocutory relief concerning, in effect, an injunction restraining the removal of the plaintiff, my instructions are to give no undertaking to the Court in relation to non‑removal and, indeed, I can indicate to the Court that absent any interlocutory order of a restraining kind, the Minister would propose to effect the removal of the plaintiff at the earliest opportunity, which could, your Honour, be as early as over the weekend.

HIS HONOUR:   Yes, I understand.

MR HOWE:   Your Honour, I can also indicate that my instructions are to oppose the application for a grant of interlocutory relief restraining my client from removing the plaintiff.  In that regard, your Honour, we have had prepared an affidavit affirmed by an Australian Government Solicitor employee, Ms Julia Anne Randall‑Smith, a little earlier today.

HIS HONOUR:   I have a copy of it, thank you, Mr Howe.

MR HOWE:   If we could have your Honour’s leave to file that affidavit in Court, there should be the original of it available to your Honour in Melbourne.

HIS HONOUR:   Any opposition to that, Mr Knowles?

MR KNOWLES:   Well, we do question how it is relevant and we also note there is some argument about its admissibility, given that it does appear to be hearsay as such, but ‑ ‑ ‑

HIS HONOUR:   The interlocutory application?

MR KNOWLES:   On the interlocutory application, we do not object on the grounds of admissibility.  We do question the relevance of the affidavit.

HIS HONOUR:   Thank you.  You will have leave to file the affidavit.  I will take that as read, Mr Howe.

MR HOWE:   Thank you, your Honour.  Would your Honour be assisted now by me very briefly putting submissions on the question of interlocutory relief?

HIS HONOUR:   Yes, thank you.

MR HOWE:   Your Honour, the burden of the affidavit of Ms Randall‑Smith, which has just been filed and read, is that the plaintiff was informed in the United States before he boarded a plane to travel to Australia that, in effect, he did not have entitlement to do so.  It indicates that despite being informed of that, and exhorted on a number of occasions to make contact with officials from the Australian Embassy, he determinedly and advertently made arrangements to get himself to Los Angeles – specific and special arrangements – in order to board a flight that departed there, so as to secure his arrival in Australia.

In those circumstances, your Honour, on the question of interlocutory relief, the Minister submits that to a very large measure indeed, the plaintiff can properly be regarded as the author of his own misfortune or predicament.  That is a factor which tells strongly against the grant of interlocutory relief in his favour.  In our submission, the grant of such relief would secure the ongoing presence in Australia of the plaintiff in circumstances where, on my client’s case, there is no proper authority which sanctions that presence. 

We must accept, of course, that the refusal of interlocutory relief would entail some prejudice to the plaintiff, because it would result in his certain removal and very imminently, but as I put to your Honour earlier that, with respect, is the natural consequence of his decision to come to Australia in circumstances where he was informed he was not entitled to, and he was exhorted to make contact with embassy officials, and he basically took steps which circumvented the position that was represented to him prior to his departure from the United States.

Your Honour, on the question of interlocutory relief, we also do accept that there is satisfaction of the conventional first limb of that test.  We do not press upon your Honour the proposition that there is simply not any arguable case whatsoever.  But, we do ask your Honour to note that the terms of the provision under which or upon which the revocation or cancellation of the visa was based refers to satisfaction not only as to the probability of a threat to good order, but satisfaction as to the possibility of it.  It is a low threshold of satisfaction, and that feeds into a commensurately high burden that the plaintiff must discharge in order to obtain final relief.

So, whilst accepting as it were for present purposes, satisfaction of the “serious question to be tried” limb, we do ask your Honour to take into account that the very nature of the statutory provision in question pitches the satisfaction requirement at a very low threshold, and we ask your Honour to read the reasons of the Minister’s delegate which make reference to satisfaction about a threat to good order by reference to the very fact that it is only a possibility of such a threat that the provision speaks of as preconditional. 

May it please, those are the matters which the Minister wishes to put on the question of interlocutory relief.  I must confess, your Honour, I was not here yesterday.  I have not seen a transcript, I do not know if there was one, and I am not familiar with the arguments which were advanced by the plaintiff in ‑ ‑ ‑

HIS HONOUR:   I should tell you that the argument which was put was in substance that section 116(1)(e) must be construed subject to the constitutionally implied freedom of political communication, and it is apparent from the decision and the grant on which it was based that the Minister could not have so construed it.

MR HOWE:   Yes, well ‑ ‑ ‑

HIS HONOUR:   It is that which is said to be a seriously arguable question, or serious question to be tried.

MR HOWE:   Yes.  In that light, your Honour, I do not think there is more that I can put to your Honour beyond conceding the existence of a serious question, but noting that at the end of the day the plaintiff does satisfy a formidable threshold in persuading your Honour that the reasons cannot be construed in a manner consistent with the importation into section 116 of the so‑called implied freedom of political speech.

HIS HONOUR:   Thank you, Mr Howe.  Anything in reply, Mr Knowles?

MR KNOWLES:   Your Honour, simply, firstly, it was said that there is no undertaking given – I note that yesterday an undertaking was given for 24 hours.

HIS HONOUR:   Yes.

MR KNOWLES:   We are proceeding on the basis that – and I think this was implicit in what was said – there certainly will not be any removal before the weekend, but in the meantime we are proceeding on that basis.  In relation to the affidavit material, I will just make the points that firstly, there was no notification of the cancellation decision in any formal sense.  It was only made in an oblique matter by airline staff.  I also note that, having regard to paragraph 6 of the affidavit that has just been filed with the Court today, there was no apparent difficulty on the part of my client in boarding the plane in Los Angeles at all. 

Otherwise it was said by my learned friend that there is no proper authority that sanctions my client’s presence in Australia.  Well, that is precisely the subject of the proceeding, your Honour.  If we are right about there having been no valid cancellation of the visa, in those circumstances he is authorised to be here as matters stand.

HIS HONOUR:   But until best determined, he is not.

MR KNOWLES:   Yes, I accept that, your Honour.  The only other matter was – there was nothing further, your Honour, in relation to the interlocutory relief.

HIS HONOUR:   Thank you, Mr Knowles.

In this proceeding, the plaintiff seeks an order to show cause why certiorari should not go to quash the defendant Minister’s decision to revoke the plaintiff’s Class UD (Subclass 601) Electronic Travel Authority (“the visa”). The application before me today is for an interlocutory injunction to restrain the Minister from giving effect to the revocation decision pending the hearing and determination of the proceeding. The application is put on the basis that there is a serious question to be tried as to the validity of the revocation decision by reason of the defendant Minister having misconstrued or misapplied section 116(1)(e) of the Migration Act 1958 (Cth) and that the balance of convenience favours the grant of injunction.

So far as the evidence goes, the plaintiff is a United States citizen, an ordained Presbyterian minister, and a prominent anti‑abortion activist in the United States.  Some time ago, he made arrangements to come to Australia to speak at a series of seminars to be conducted by Australian pro‑life anti‑abortionists.  For that purpose he sought and, on 4 August 2015, was granted the visa.

On 28 September 2015, Ms Terri Butler MP, the Member for Griffith, sent a letter to the Minister in which Ms Butler stated as follows:

“ . . . Right to Life Australia, promise that Mr Newman will “stir up” debate throughout the country.  There is a risk that this will involve the harassment and intimidation of women accessing reproductive services and professionals offering those services at medical clinics, and result in their vilification within the community; especially vulnerable women.  Mr Newman’s conduct may incite discord within the community and disrupt the ability of women to access lawful reproductive medicine.

Furthermore, I am most concerned that Mr Newman’s call for “abortionists” to be “executed” could lead to threats of the commission of acts of violence against women and medical professionals.  The risk of this type of violence is not theoretical.  On 16 July 2001 Peter Knight stormed a medical facility in Melbourne with a shotgun, murdering a security guard, Steven Rogers.  Many others may have been injured if it were not for the bravery of a young man at the scene who wrested the weapon from Mr Knight and overcame him.

I ask you to refer this matter to the Department of Immigration and Border Protection to determine whether Mr Newman’s visa ought to be cancelled for failing the character test under section 501 of the Migration Act1958.”

I should note in passing that the allegation that the plaintiff had called for abortionists to be executed appears to be false.  In a letter to the Minister dated 30 September 2015, which perhaps surprisingly is not mentioned in the reasons for decision, Ms Cheryl Sullenger, the Senior Policy Adviser of Operation Rescue, informed the Minister that what she and the plaintiff had written in their book, called Their Blood Cries Out, was not that abortionists should be executed, but rather that:

“Families and churches do not have the authority to execute anyone or convene courts for civil justice . . . Individuals, families, or churches operating on their own cannot establish justice on behalf of the civil authorities.

. . . 

The truth is that even in that book and subsequent books that we have authored together, we always make the strong point that we reject violence as a solution to abortion or any other problem.”

Nevertheless, on 29 September 2015 at 5.30 pm, the Minister made the decision to cancel the visa under section 128 of the Act and, at 5.52 pm, the Minister sent a copy of the notification of cancellation to the email address provided on the plaintiff’s application for visa.  At 5.53 pm, the Minister received an email indicating that his notification of cancellation had failed to transmit to the plaintiff’s email address.  On the same day, the Minister sent a copy of the notification by post to the plaintiff’s address in the United States.  By that stage, the plaintiff had boarded an aeroplane in the United States bound for Los Angeles with the intention of flying from there to Australia. 

En route, the plaintiff was taken off the plane at Denver and told by airline staff that his visa had been revoked and that he could not travel to Los Angeles and then on to Melbourne.  They exhorted him to contact embassy staff.  Shortly after that, the plaintiff posted on his Facebook page a video of his being prevented from boarding the flight from Denver to Los Angeles, together with the following statement:

“RED ALERT!!!  The Australian government has revoked my visa in mid‑flight . . . 

“I was pulled off a plane in Denver and told I could not travel to Los Angeles.  And then on to Melbourne Australia.  I am scheduled to speak on Friday at Right to Life of Australia’s main convention in Melbourne.

“It is clear that the pro‑abortion crowd does not want anyone to hear the truth about Planned Parenthood’s illegal actions.  Please pray for me I’m stuck in Denver airport like a man without a country.”

There is some evidence, although it is not altogether clear, as to how the plaintiff later got from Denver to Australia, but in any event, on 1 October 2015, at approximately 7.00 am, he arrived on a flight at Melbourne Airport and, at 7.17 am, was processed at the primary immigration line at the airport.  At 7.24 am, he commenced an interview with Australian Border Entry (Immigration), and between 7.24 and 7.32 am, a Senior Airport Inspector handed the plaintiff a copy of the notification of cancellation and explained the revocation process.

At 7.42 am, the plaintiff requested revocation of the cancellation decision, and between 7.44 and 7.55 am, he was afforded an opportunity to consider his response to the cancellation decision.  Between 7.54 and 8.02 am, he responded to the cancellation decision, but at 10.01 am, he was notified that the defendant had decided not to revoke the cancellation decision and, subsequently, a copy of the cancellation decision and a notification of the decision not to revoke the cancellation was emailed to the plaintiff’s solicitors.

The application for interlocutory injunction first came on for hearing before me late yesterday afternoon and after some argument the further hearing of it was stood over to this afternoon, apparently to allow the parties an opportunity for discussion, which has not resulted in any fruitful outcome. 

Section 128 of the Act provides that the Minister may, without notice to a visa holder, cancel a visa if the Minister is satisfied that there is a ground for cancelling the visa under section 116 of the Act, that it is appropriate to cancel the visa in accordance with Subdivision F of Division 3 of Part 2 of the Act, and that the visa holder is outside Australia.  Section 116(1) of the Act provides, so far as relevant, that:

Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

. . . 

(e)the presence of its holder in Australia is, or may be,or would or might be, a risk to the health, safety or good order of the Australian community . . . 

According to the decision record of visa cancellation (“the record of decision”) the evidence on which the cancellation was based was as follows:

“Open source information indicates that Troy Edward Newman‑Mariotti is a prominent anti‑abortion activist in the United States of America.  Troy Edward Newman‑Mariotti has led a number of anti‑abortion protests in the United States of America and in March 2015, he was arrested for protesting against abortion outside the office of John Boehner.  In 2003, Troy Edward Newman‑Mariotti authored a book titled Their Blood Cries Out where he presented an argument that “abortion is a most savage act of violence”.

Troy Edward Newman‑Mariotti intends to deliver a seminar series in Australia (02 October 2015 to 09 October 2015) on the topic of the sale of body parts of aborted foetuses by Planned Parenthood clinics in the United States of America.  The media has reported that there has been a strong reaction against Troy Edward Newman‑Mariotti’s visit from members of the public who support the choice of women to have an abortion.  An online petition calling for Troy Edward Newman‑Mariotti to be denied entry to Australia has a large number of signatures.”

Below that was stated the following:

“Based on this information, I am satisfied there is a risk that the public would have an adverse reaction to Troy Edward Newman‑Mariotti’s presence in Australia that would result in protests similar to those that took place in the United States of America, that is, Troy Edward Newman‑Mariott[i]’s presence in Australia would be a risk to the good order of the Australian community.

“Good order”, in the context of 116(1)(e) is concerned with actions by a visa holder which have an impact on public activities or which manifest themselves in a public way, including the risk of an adverse reaction by certain members of Australian society to a visa holder’s presence in Australia. Therefore, it appears Troy Edward Newman‑Mariott[i]’s presence in Australia would be a risk to the good order of the Australian community and I am satisfied that there is a ground to cancel the visa under section 116(1)(e).”

I should also refer to the subsequent record of the decision not to revoke the cancellation.  So far as is relevant, it is stated as follows:

“In considering your response, I do not find that the decision relied on subjective evidence, rather on readily available open source information regarding the Australian public’s reaction to your visit to Australia.

While I acknowledge there may be support for anti‑abortion positions in the US and within segments of the Australian community, I do not find this diminishes the significance of the community reaction to your visit to Australia.

In relation to your claims you have never advocated violence and have never been arrested for a violent act, the decision record does not provide these as reasons for cancellation of your visa and as such I do not find they diminish the evidence contained within the decision record.

Although you claim the quote from your 2003 book was taken out of context, you did not provide any explanation of this context and reaffirmed your belief in this statement as it reads.

I acknowledge the seminars you intended to conduct in Australia are legal.  There is also no evidence available to me that suggests the group they are associated with has advocated violence or radical political action.  I further acknowledge you may have in part contributed to the instigation of various investigations in the US.  Despite these considerations, I do not find these factors diminish [t]he evidence contained within the decision record in relation to the risk you pose to the good order of the Australian community.

Although you claim your protests in the United States of America are legal and non‑violent, and that attendees sign notices of good conduct, I note that in March 2015 you were arrested outside the office of John Boehner during one of your protests.

In relation to your claims regarding your good standing, status as a Presbyterian minister, religious behavioural framework and membership of organisations and churches, I do not find these diminish the risk you pose to the good order of the Australian community.”

In relation to your claims regarding the “factual” and “objective” nature of your information, that this information is readily available and that poor reactions to this information are not problems of your making, I am nonetheless satisfied, based on the evidence contained within the decision record, that you continue to pose a threat to the good order of the Australian community.

In order that certiorari may go to quash the cancellation decision, it will be necessary for the plaintiff to establish that the decision is affected by jurisdictional error, or at least error on the face of the record:  see Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58; Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1.

The plaintiff says that the cancellation decision is so affected by jurisdictional error in that it is apparent from the record of the cancellation decision that the Minister misconstrued, and thus misapplied, section 116(1)(e) of the Act. In the plaintiff’s submission, section 116(1)(e) must be construed and applied subject to the constitutionally implied freedom of political communication recognised in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25, and, in the plaintiff’s submission, it is evident from the reasons for cancellation decision that the Minister has not so construed and applied the section.

So much is clear, the plaintiff contends, in that even if the statement of evidence on which the decision was based is taken at its highest, the supposed “risk to the health, safety or good order of the Australian community, or segment of the Australian community” is apparently no more than that there may be “strong reaction against the plaintiff from members of the public who support the choice of women to have an abortion that might result as protests similar to those that took place in the United States of America.”

Evidently, there is some force in the plaintiff’s contention.  Given the absence of any suggestion, still less evidence, that the protests said to have taken place in the United States were violent or otherwise productive of a significant risk of injury to person or damage to property, it seems that the cancellation decision may have been based on little if anything more than that a section of the Australian public vehemently disagrees with the plaintiff’s position on abortion and, if he were permitted to proclaim it at the Right to Life seminars, those who are opposed to it would be moved to protest vociferously in opposition to it.

If that were the basis for the decision, the judgments of at least three members of this Court in Monis v The Queen (2013) 249 CLR 92; [2013] HCA 4, may be thought to suggest that the Minister’s construction or application of section 116(1)(e) of the Act is at odds with the implied freedom of political communication and, therefore, that the cancellation decision is invalid. Consequently, I am persuaded that there is a serious question to be tried.

The balance of convenience is, however, more problematic.  To start with, although the plaintiff has been engaged to speak at the Right to Life seminars, there is no evidence the plaintiff’s absence from the seminars would necessitate their postponement or, even if it would, why the seminars could not be postponed without the incurrence of insuperable cost. 

Secondly, although, as the evidence stands, it may appear that the risk to the health, safety and good of the Australian community is no more than that a section of the public vehemently disagrees with what the plaintiff wishes to say, the matter has been brought on very quickly with little time for the Minister to prepare his case in response to the plaintiff’s allegations.  In those circumstances, I cannot exclude entirely the possibility of the Minister later seeking to adduce further evidence of the gravity of the risk to the Australian community and, if so, that it might then appear such that, despite the implied freedom of political communication, the decision to cancel the visa should be viewed as reasonably appropriate and adapted or proportionate to the legitimate end of avoiding the risk of serious violence. 

Thirdly, as the evidence shows and was acknowledged by counsel in the course of argument, the plaintiff was on notice before he left the United States that the visa had been cancelled.  Despite that, he continued on his journey to this country.  If he had not done so, he could still have retained solicitors and counsel to act on his behalf to seek certiorari to quash the decision, but the application would have proceeded in the usual way while the plaintiff remained in the United States.  In that event, there would have been no possibility of an interlocutory injunction to restrain the Minister giving effect to the decision until the application for certiorari had been determined.  Obviously, the plaintiff is not entitled to be put in a better position by obtaining interlocutory relief by reason of consciously entering this country with knowledge of the risk and thereby placing himself in harm’s way. 

Finally, although the plaintiff has every right to challenge the cancellation decision, he has no right to treat it as nought until and unless his challenge has been upheld:  see Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148; [1986] HCA 58 and Richardson v Forestry Commission (1987) 164 CLR 261 at 282; [1998] HCA 10. For the time being, like everyone else in this country, he is bound by lawful authority and must obey it. Acting as he did in contumacious disregard of the cancellation decision means that he does not come to this Court with clean hands. Interlocutory injunctive relief will not be granted to protect a plaintiff from his own wrongdoing: see Meyers v Casey (1913) 17 CLR 90 at 124 per Justice Isaacs; [1913] HCA 50.

In the result, the application for interlocutory injunction is refused.

Mr Howe, do you seek any other orders?

MR HOWE:   Your Honour, I anticipate an application for costs following the event of the refusal of the application.

HIS HONOUR:   Do you make that application?

MR HOWE:   Yes, your Honour, those are my instructions.

HIS HONOUR:   Yes.  Do you say anything in opposition, Mr Knowles?

MR KNOWLES:   The only thing we say is we would seek to have the matter dealt with finally, your Honour, on the merits, and we would seek to do that today, if it is at all possible.

HIS HONOUR:   Well, it is not possible today, no.  You sought interlocutory injunction.  It has been dealt with on that basis.  We have spent a considerable amount of time on it.

MR KNOWLES:   Yes, and we proceeded on the basis that once that had concluded there would be an ability to proceed then to consider the final relief, given the urgency ‑ ‑ ‑

HIS HONOUR:   Of course there is in due course, after the matter has been appropriately prepared.

MR KNOWLES:   Yes, we had thought we would do that – we might have an opportunity to do that today, but ‑ ‑ ‑

HIS HONOUR:   That will not be the case.  The orders are that the application for interlocutory injunction is dismissed.  The applicant will pay the respondent’s costs of the application.  Now, as to directions for the further conduct of the application for certiorari, what, if any, do you seek Mr Knowles?

MR KNOWLES:   Given what I have just said to your Honour, I will need to take some instructions in that regard briefly, but I suspect it would just be the usual procedural orders leading to a final hearing.  If I might just take some instructions on that point.

HIS HONOUR:   Yes, certainly.  If I stand down for five minutes to allow you to confer with Mr Howe about the directions that you propose?

MR KNOWLES:   If your Honour pleases.

HIS HONOUR:   I shall do so.

AT 3.36 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.50 PM:

HIS HONOUR:   Mr Knowles.

MR KNOWLES:   Thank you, your Honour, for that time.  I have spoken with my learned friend, Mr Howe, in the interim, and we have come to an agreed position on a formal order for the matter going forward.  Firstly, Mr Howe has sought that the plaintiff file and serve section 78B notices.  We have agreed that the timeframe for that be four weeks, so that would bring us to 28 October for that to occur.

HIS HONOUR:   Yes.

MR KNOWLES:   Sorry – 30 October, my apologies, your Honour.

HIS HONOUR:   Yes.

MR KNOWLES:   That would occur, obviously, without any concession on the part of the plaintiff necessarily that they are required.  It is simply out of an abundance of caution that that would take place.  Then, we would seek that the matter be listed for directions around that same time with a view to the parties in the meantime hopefully arriving at a more detailed consent position for directions which could be presented to the Court with the hope that those directions might be made in chambers in the interim.

HIS HONOUR:   Very good.  Mr Knowles, we are in Canberra for the two weeks beginning Monday, the 2nd.  If we bring forward the dates, say, to Friday so that we give the directions on Friday, the 30th.

MR KNOWLES:   Yes, we are content with that, your Honour.

HIS HONOUR:   Perhaps the 78B notices in, say, by the 25th.

MR KNOWLES:   If your Honour pleases.

HIS HONOUR:   Is that satisfactory to you, Mr Howe?

MR HOWE:   Yes, it is, your Honour.  I should indicate that one of the matters that we would propose to negotiate with the plaintiff’s legal representatives about is, of course, a question of possible remittal of the matter to the Federal Court.  I simply do not have instructions in relation to that, but there are a range of matters that will need to be the subject of negotiation between the parties with a view to reaching an agreed position and presentation of proposed short minutes of orders to your Honour, hopefully, to avoid the need for a formal directions hearing.  But in the event that complete agreement cannot be reached or, for whatever reason, if the matter comes back to your Honour, if we could have a date now on 30 October, that would be very convenient.

HIS HONOUR:   Thank you.

MR KNOWLES:   Your Honour, I have just been informed that the 25th is a Sunday, so perhaps the 26th in relation to the section 78B notice date.

HIS HONOUR:   In regard to us all being here today, I am not quite sure about these concerns, but nonetheless I take the point.

MR KNOWLES:   Thank you.

HIS HONOUR:   I will direct that the plaintiff file and serve section 78B notices on or before 4.00 pm on 26 October 2015.  I shall adjourn the further hearing of the summons for directions until 9.30 am on 30 October 2015, and I shall note but not include in the order that the time will be spent by counsel in endeavouring to reach an agreed position on, amongst other things, the possibility of the matter being remitted to the Federal Court.  If consent minutes can be filed in advance, say, by about 28 October, that would be desirable, but it is not mandatory. 

Thank you very much gentlemen, for your assistance.  I will adjourn now sine die.

AT 3.54 PM THE MATTER WAS ADJOURNED