Pearson v Commonwealth of Australia & Ors

[2023] HCATrans 178

[2023] HCATrans 178

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S126 of 2023

B e t w e e n -

KATHERINE ANNE VICTORIA PEARSON

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

MINISTER FOR HOME AFFAIRS

Second Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Third Defendant

JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON MONDAY, 4 DECEMBER 2023, AT 9.30 AM

Copyright in the High Court of Australia

HER HONOUR:   In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR D.J. HOOKE, SC appears with MR J.D. DONNELLY and MR M.G.S. CROWLEY for the plaintiff.  (instructed by Zarifi Lawyers)

MS Z.C. HEGER appears with MR M.P.A. MAYNARD for the first and second defendants.  (instructed by Australian Government Solicitor)

HER HONOUR:   There is a submitting appearance from the third defendant.  I have the parties’ consent orders, which look fine to me.  I was just going to ask Ms Heger what the position was with the other two matters.  Is that ‑ ‑ ‑ 

MS HEGER:   Yes.  A special leave application was filed in JZQQ on 16 November, I understand my learned friend Mr Hooke is briefed in that one.

HER HONOUR:   Yes.

MS HEGER:   A special leave application was also filed in the Tapiki matter on 1 December.

HER HONOUR:   What was the other matter called, sorry?

MS HEGER:   Tapiki, T‑a‑p‑i‑k‑i.

HER HONOUR:   Tapiki.  And are they differently represented people?

MS HEGER:   I understand they are.

HER HONOUR:   Okay.

MR HOOKE:   I can assist with that, your Honour, Mr Crowley appears for Mr Tapiki.

HER HONOUR:   Thanks.  Now, is it sensible, though, that I get those other matters in for a case management?  I mean, I am happy to make your orders.  I am quite happy to make the orders today, but they may not suit the parties in the JZQQ and Tapiki matters, because it seems to me, surely, either they all go together or we have to consider the special leave applications, or one is selected, for example, I do not know what the – so I am wondering if the best thing to do, actually, is to accelerate consideration, perhaps, by the Court of JZQQ and Tapiki – I am just thinking out loud here.

Perhaps what I will do is make the orders in your matter, because you are happy with them, and they can be subject to variation.  I will arrange for accelerated consideration of JZQQ and Tapiki.  Is there any reason, if they did get special leave, or one or other of them – I do not know the facts, I do not know anything about them – is it precisely the same issue?

MR HOOKE:   Your Honour, it is in Tapiki with, I think, some additional questions.

HER HONOUR:   Yes.

MR HOOKE:   JZQQ is slightly different in that the amending Act came into operation while the proceedings in the Federal Court were pending but before there had been any determination.

HER HONOUR:   Right.

MR HOOKE:   So, that puts a slightly different complexion on a related question.  So, it had occurred to us that a convenient course might be to refer the special leave applications into the Full Court with the special case in this matter.

HER HONOUR:   No, no, and that is – I will accelerate the consideration of the two special leave applications, but I do not see any reason I cannot make these orders.  If they need to be amended in order to accommodate the needs of the other matters, once people have had a look at them, then I can just notify the parties by email, it seems to me.  You have yourself coming back in for a further directions hearing – you have said after 19 February, apparently that is a Monday.  I mean, I would be happy to list it on the 19th or the 20th, or whatever, if that is convenient to you both, but that is subject – we can move that.  Is the 20th all right?

MR HOOKE:   Yes, your Honour.  I will not be here, but one or both of my juniors can appear on that occasion, if that is convenient.

HER HONOUR:   That is fine.  It may be that we do not need it, we can do it all by email, in which event I will vacate it.  If we do need it, we can have – Ms Heger, does that suit you, or not – the 20th?

MS HEGER:   I am not available on the 20th, but I imagine that someone else in the matter would be able to appear.

HER HONOUR:   I can move it to another day if you want.

MS HEGER:   Yes.  I am available on the 21st, if that is convenient.

HER HONOUR:   Yes.  Why do we not say the 21st, then?  That is fine.  Yes, the 21st is fine.  And if we could sort it all out by email communications and orders made in chambers, we will.  Once I get off the Bench, I will hunt down these two other matters.  I was not quite aware what the status was, so thanks for letting me know about their filing details.  Is there anything else today, other than making the orders and me chasing up the other two matters to see where we go?

MR HOOKE:   Not for our part, your Honour.

MS HEGER:   All I would note, your Honour, is that given the Tapiki special leave application was only filed on 1 December, the Commonwealth will need a little bit of time to consider its position on that.

HER HONOUR:   Sure.

MS HEGER:   So, I am not sure when you are intending to list those matters for directions.

HER HONOUR:   No, and neither and I, so let us have a look at them and we can communicate by email as appropriate, or list you for a further directions hearing as need be.  But that will be in consultation with you as to the timing, so that is no problem.

MS HEGER:   Thank you.

HER HONOUR:   Okay, I will make orders 1 through to 7, changing the date in 7 to “at 9.30 am on 21 February”, and we will come back to you in some form or another about how we deal with it with the other two matters, okay?  All right, thank you.  I will adjourn.

AT 9.37 AM THE MATTER WAS ADJOURNED