Plaintiff M1/2021 v Minister for Home Affairs

[2021] HCATrans 80

[2021] HCATrans 080

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M1 of 2021

B e t w e e n -

PLAINTIFF M1/2021

Plaintiff

and

MINISTER FOR HOME AFFAIRS

Defendant

Directions hearing

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 27 APRIL 2021, AT 9.32 AM

Copyright in the High Court of Australia

MR R.C. KNOWLES, QC:   If it pleases the Court, I appear with my learned friend, MS C. MINTZ, for the plaintiff.  (instructed by Corrs Chambers Westgarth)

MR C.L. LENEHAN, SC:   May it please the Court, I appear with MR B.D. KAPLAN for the defendant.  (instructed by Australian Government Solicitor)

HER HONOUR:   Thank you both for appearing.  Can I raise three matters with you, please?  A special case is the parties’ case and I accept this is a special case and not a stated case.  My concern on reading the special case, and in particular the questions of law that the parties have agreed should be stated for the opinion of the Full Court, read like a set of interrogatories.  I know that I would not be too pleased to be faced with them in that form and I doubt too if many of my colleagues would. 

On reading the questions it also seemed to me that what appeared as proposed questions 5 and 6 were a part of, if not a central part, of what had been agreed as question 1 and were drafted – just at different levels of specificity.  I could be wrong, possibly am wrong, but I raise both matters for consideration.

The third is this.  It now appears, as a result of an email communication to the Registrar from the defendant’s solicitors at 4.00 pm yesterday, that there is no longer agreement on what was question 1 as originally formed because of what was asserted to be “an addition” of the word “representations”.  That word “representations” appeared in the original agreed question 1 in the special case.  It also appeared in what was proposed and agreed, as I understood, as the revised question 1 in the revised special case.  The email was, with respect, unhelpful and inaccurate.

What I would like to know is whether or not it is possible for you, Mr Lenehan, and you, Mr Knowles, to revisit the form of the parties’ agreed stated questions for the opinion of the Full Court so that they are short, directed and, to put it bluntly, do not appear as a long set of interrogatories.  Who wants to go first?

MR LENEHAN:   Your Honour, may I clarify the last point that your Honour raised which concerns the word “representations”?  We were not, in fact, responding to your Honour’s form of questions.  There was an email communication from our friend’s solicitors to the Court that suggested an additional word or a question…..and if that word…..be deleted.

HER HONOUR:   I am sorry, Mr Lenehan, but you are breaking up and I cannot hear you.  Would you mind sitting back a bit from the microphone and it might be that that helps?

MR LENEHAN:   Yes.  Shall I repeat what I just said, your Honour?

HER HONOUR:   Yes, please, I did not hear it.

MR LENEHAN:   Yes.  We were not responding to your Honour’s form of questions.  We were responding to an email from our friend’s solicitors which suggested that they had added certain words to your Honour’s proposed questions.  We had no difficulty with those suggestions from a further addition to question 1 where there was an additional word, “representations”, to be added to what, your Honour…..been written.

HER HONOUR:   I do not understand any of that.  Anyway, I am going to put that to one side.  On any view the email was unhelpful being sent to the Court in that form because no one could make head nor tail of it.

MR LENEHAN:   Yes, I apologise…..

HER HONOUR:   What I would like, though, is for you, Mr Lenehan, and for you, Mr Knowles, to confer and see whether or not you can come up with a set of questions which are directed, short, which address the issues that you seek to have this Court express its opinion on.

MR LENEHAN:   Yes, I am confident that that can be done, your Honour.

HER HONOUR:   My principal concern, as you all know, is not only that they look like a set of interrogatories – and they do – but that questions 1, 5 and 6 in effect need to be somehow brought together in a way which provides the necessary level of specificity so that the issues can be addressed.

MR LENEHAN:   Yes.

HER HONOUR:   How long do you need to undertake that process?

MR LENEHAN:   Your Honour, from our part I think that can be done in the course of today.  Mr Knowles and I have spoken and – it is not hard.  We think the form that your Honour has proposed allows Mr Knowles’ client to agitate each of the issues that he wishes to put.

HER HONOUR:   All right.  As I said, it is your case.  It is not the Court’s case.  I would ask each of you to reconsider the formulation of question 1 to make sure that it is apparent on its face that it is intended to pick up and address what is raised, or proposed to be raised, in questions 5 and 6.

MR KNOWLES:   Yes, we can certainly do that, your Honour.

HER HONOUR:   If that happens today, and I have every confidence that it will, given that I have both of you here in front of me, is there any need to adjust the timetable?

MR LENEHAN:   No, not from our perspective, your Honour.  Order 5 that your Honour made last time had our friends filing the agreed special case book on the 20th.  That would need to be adjusted, but other than that ‑ ‑ ‑

HER HONOUR:   I think that is fine.  I think it was filed on the 20th.  It is just that you will have to file – it was provided to the Court on the 20th – you will have to file it once it is done.

MR LENEHAN:   Yes.

MR KNOWLES:   For our part, your Honour, I can say that we are perfectly content to proceed with the timetable.  Otherwise in respect of submissions, chronology, list of authorities we can still do that by next Tuesday.

HER HONOUR:   All right.  I am reminded by the Deputy Registrar that the book was to be filed by the 20th, and that has not been done, but that will be done shortly, I assume.

MR KNOWLES:   Yes, your Honour.

HER HONOUR:   Anything else, Mr Lenehan?

MR LENEHAN:   No, your Honour.

HER HONOUR:   Mr Knowles?

MR KNOWLES:   Nothing for our part, thank you, your Honour.

HER HONOUR:   I thank both of you for making yourselves available.  It seemed to me it was much quicker to have you before me rather than to have a continued email exchange which seemed to be at cross‑purposes, at least in part.

Adjourn the Court.

AT 9.39 AM THE MATTER WAS ADJOURNED