Plaintiff A33/2016 v Minister for Immigration and Border Protection

[2016] HCATrans 205

[2016] HCATrans 205

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A33 of 2016

B e t w e e n -

PLAINTIFF A33/2016

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Defendant

NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON MONDAY, 5 SEPTEMBER 2016, AT 12.08 PM

Copyright in the High Court of Australia

MS K.M.M. EATON:   May it please the Court, I appear for the plaintiff.  (instructed by Craig McKay Legal)

MR K. TREDREA:   May it please the Court, I appear for the defendant.  (instructed by Sparke Helmore)

HIS HONOUR:   Yes, Ms Eaton.

MS EATON:   Thank you, your Honour.  By the summons, the applicant in this matter seeks a hearing date of his application to show cause and he seeks pre‑hearing procedural orders as outlined in the summons.  Your Honour, I can inform the Court that the defendant has already produced the digital recording that we were seeking in our summons paragraph 1 so we would not be seeking a direction in those terms as that has already been provided.

One other preliminary matter, your Honour, is that there is a typographical error in the application for an order to show cause which we would seek to be corrected.

HIS HONOUR:   Yes.

MS EATON:   Your Honour, that appears on page 3 of the application to show cause, at paragraph 3(b), the final word in 3(b) is currently “Australia” but it should be “Pakistan”.

HIS HONOUR:   Yes.  Well, that amendment will be made.  Thank you.

MS EATON:   Thank you, your Honour.

HIS HONOUR:   Ms Eaton, what sort of time do you need to get any further affidavits or submissions together ready for the hearing?

MS EATON:   Your Honour, we would be requesting 14 days for further affidavit evidence.  We have just received the recording, which we would be wanting to have transcribed, and may want to produce that in an affidavit.  Your Honour, we would also be intending to provide two further affidavits in relation to the extension of time, one from Sister Mary Simmonds and the other from the applicant.

HIS HONOUR:   Can all of that be done within 14 days, including the transcription of the record of interview?

MS EATON:   My understanding is that it can, your Honour, but if the Court is minded to give us any further time, we would obviously make use of that, your Honour.

HIS HONOUR:   Thank you.  Mr Tredrea, what do you have to say about that, if anything?

MR TREDREA:   Your Honour, the application…..but if your Honour has proceeded to make procedural orders I would have no objection with a slightly longer period of 14 days being allowed, quite frankly, your Honour.  It seems to me there may be a bit to attend to and if your Honour is going to make orders…..matter for argument, I would have no difficulty with 21 days and then say 28 after that for us, your Honour.

HIS HONOUR:   You were saying if I am going to make procedural orders though of the times, were you contemplating that I would deal with the matter today on a final disposition basis?

MR TREDREA:   I was contemplating anything, your Honour.  We oppose it for the reasons in our outline and I would not have too much to add to that.  If your Honour is not prepared to deal with it – if your Honour is prepared to make the orders sought by my learned friend in terms of time, I am happy with that.

HIS HONOUR:   Well, it sounds to me that there might be something substantive in the record of interview and it sounds as though there is going to be some further material by way of explanation for the delay.  Given that that is to be produced, it would be perhaps unfortunate to deal with the matter now without the benefit of that, do you not think?

MR TREDREA:   Yes, I…..your Honour is correct, yes.

HIS HONOUR:   Yes, thank you.  Subject to anything counsel may wish to say, I propose to make the following orders:  firstly, I shall order that any further affidavits and exhibits on which the plaintiff seeks to rely in support of his application and an outline of any further submissions which he seeks to advance shall be filed and served by no later than 3.00 pm on Friday, 30 September 2016; secondly, I propose to order that the defendant file and serve any further affidavits and exhibits in reply on which he seeks to rely and an outline of any further submissions which he seeks to advance by not later than Friday, 14 October 2016; and then I should propose to adjourn the further hearing of the summons to Wednesday, 24 October if that is not too inconvenient to counsel.

MS EATON:   That date would be convenient to the applicant, your Honour.

HIS HONOUR:   Thank you, Ms Eaton.

MR TREDREA:   Thank you, your Honour.

HIS HONOUR:   Thank you, Mr Tredrea.  I am advised that I said Wednesday, 24 October.  It is, in fact, Wednesday, 26 October.  Might I just add that the outlines of any further submissions should, if at all possible, not exceed about six pages, one and a half space - see what you can do.

The orders I shall make are as follows:

1.Any further affidavits and exhibits on which the plaintiff seeks to rely in support of his application and an outline of any further submissions he seeks to advance be filed and served by no later than 3.00 pm on Friday, 30 September 2016.

2.The defendant shall file and serve any further affidavits and exhibits in reply on which he seeks to rely and an outline of any further submissions which he seeks to advance by no later than 3.00 pm on Friday, 14 October 2016.

3.Adjourn the further hearing of the summons dated 30 June 2016 to Wednesday, 26 October 2016 at 9.30 am, Eastern Standard Time, or such other time as the parties may be advised.

4.Reserve the costs of all parties.

Is anything else sought, lady and gentlemen?

MR TREDREA:   Not by the defendant, your Honour, thank you.

MS EATON:   Not by the applicant, your Honour, thank you.

HIS HONOUR:   Thank you very much.  Adjourn now, sine die.

AT 12.16 PM THE MATTER WAS CONCLUDED