Plaintiff M150 of 2015 v Minister for Immigration and Border Protection & Anor

[2015] HCATrans 164

[2015] HCATrans 164

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M150 of 2015

B e t w e e n -

PLAINTIFF M150 OF 2015

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 16 JULY 2015, AT 9.29 AM

Copyright in the High Court of Australia

MS K.L. WALKER, QC:   If the Court pleases, I appear with my learned friend, MS R.J. SHARP, for the plaintiff.  (instructed by Allens Lawyers)

MR S.P. DONAGHUE, QC:   If the Court pleases, I appear for the defendants, your Honour.  (instructed by Australian Government Solicitor)

HER HONOUR:   Before I begin, I just wish to say something about this matter and then stand it down, if I may.  I see there is an application for a non‑publication order and it is by reference to certain facts and I want to say something about that and then have it stood down, if I may.  I will, of course, hear what counsel have to say about that, but it occurs to me that it may be a preferable course if the parties were to file redacted documents and they would then be available for public search and copying.

I say that for this reason.  First, I want counsel to present oral argument this morning but to do so in a way which does not affect the transcript and require orders in relation to the transcript, but, secondly, it would also mean that it would make the order, if it was to be made, easier to enforce and apply.  In other words, I do not want Registry to be in a position where they are subject to looking at materials and trying to work out what is in or what is out, given the issues that are raised in these proceedings.  So I would be very grateful if the matter could be stood down while I deal with the next matter while you may think about that amongst yourselves, about whether that is an appropriate course.

MS WALKER:   Yes, thank you, your Honour, for that indication.  Can I just clarify, is your Honour envisaging that process of redacted versions of documents as being in addition to the non‑publication order?

HER HONOUR:   I think, in a sense, it would actually achieve two things.  First of all, it would mean that you will need between you to prepare a set which extracts from what is publicly available anything which – to the extent to which you agree and if there is a dispute about it I will resolve it ‑ the matter is listed, but at the moment I think it is difficult to identify where that line is to be drawn and I notice, with no disrespect to the applicants, that there is actually material in that which itself – I found three instances just reading the papers and so that was the reason why it concerned me.

MS WALKER:   Yes, your Honour.

HER HONOUR:   The second is in relation to the non‑publication order itself, it would make it easier I think, dealing with those issues, if it was done by reference to a set of redacted documents.

MS WALKER:   Yes, your Honour, and I certainly appreciate your Honour’s suggestion.  I suppose there does remain the fact that at some point counsel is – depending on the course the matter takes, counsel is likely to need to refer to some of those identifying factors as relevant facts to the legal argument, but ‑ ‑ ‑

HER HONOUR:   Today?

MS WALKER:   Not today, no, no.

HER HONOUR:   No, no.  So I am talking about ‑ ‑ ‑

MS WALKER:   Just today.  Yes, your Honour.

HER HONOUR:   ‑ ‑ ‑ dealing with it until we get to a point where we can work out how ‑ if the matter is to stay in this Court, how it progresses.

MS WALKER:   Yes.

HER HONOUR:   As an administrative matter, I would be grateful if you could consider that issue.

MS WALKER:   Yes, thank you for that indication, your Honour.

HER HONOUR:   I will stand the matter down while I deal with the first matter.  Thank you.

AT 9.32 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.09 AM:

MS WALKER:   If the Court pleases, we have had an opportunity to consider the matters raised by your Honour at the outset this morning and we think that what your Honour suggested is indeed a very sensible way to approach the issues, at least for present purposes, and I understand my learned friend is content with a course of that kind as well.

In my submission, then the Court need not today deal with the application for a non‑publication order, but we contend it would be appropriate for your Honour to make an order effectively precluding public access to the Court file as a whole at the moment so that a set of redacted documents could be provided to the Court and ultimately that set of redacted documents would be publicly available.

HER HONOUR:   So what I propose to do, I think, if that is right – is that agreeable to you, Mr Donaghue ‑ ‑ ‑

MR DONAGHUE:   Yes, your Honour.

HER HONOUR:   ‑ ‑ ‑ is that the parties prepare and the plaintiff file within a period of time – you can tell me how long it is going to be – a copy of the documents that have been filed so far, redacted to remove the information listed in paragraph 1 of your plaintiff’s summons seeking a non‑publication order and I will describe those as the redacted documents.

MS WALKER:   Yes, thank you, your Honour.  We do anticipate we can do that fairly swiftly, but to be on the safe side perhaps if we could say five working days, if your Honour did not think that was too long.

HER HONOUR:   Then those redacted documents shall be available for inspection and copying under High Court – I think it is rule 4.07.4 - and then until further order of the Court or a Justice the documents – and they will be the ones – and I just need to go through with you in a moment – shall not be available for inspection or copying under High Court Rule 4.07.4.  Now, what I am not by all means certain is this, is it seemed to me – and Mr Donaghue can interrupt me as I am going along which ones he does not agree with – the application for order to show cause would seem to need to be redacted.

MS WALKER:   Yes, your Honour.

HER HONOUR:   The affidavit of Alexandra Janet Cuthbertson, affirmed 13 July, including exhibits AJC‑1 to 10, would need to be redacted.

MS WALKER:   Yes, your Honour.

HER HONOUR:   The summons filed on 13 July 2015 it seems to me would need to be redacted.

MS WALKER:   Yes, your Honour.

HER HONOUR:   The affidavit of Cassandra Jane Benjamin, affirmed 13 July 2015, including exhibits CJB‑1 to 8, would need to be redacted.

MS WALKER:   Yes, certainly.

HER HONOUR:   I am not certain that the submissions on that summons need to be – which is your plaintiff’s outline of submissions ‑ ‑ ‑

MS WALKER:   Yes.  We think that those submissions need not be redacted.

HER HONOUR:   I think that is my view when I had a look at them, so I am going to leave them out of the list, but if you wish to change that you can let me know.

MS WALKER:   Yes.

HER HONOUR:   The summons for the non‑publication order did not seem to me to need to be redacted ‑ ‑ ‑

MS WALKER:   No.

HER HONOUR:   ‑ ‑ ‑ but your outline of submissions in support of that summons needs to be redacted.

MS WALKER:   Yes.

HER HONOUR:   I did not think that the defendants’ outline needed to be redacted.

MS WALKER:   No, I think that is also correct, your Honour.

HER HONOUR:   So at the moment there were five documents would be in the list that would be the subject of redaction.  The balance would be available for copying – or inspection in the usual way ‑ ‑ ‑

MS WALKER:   Yes, your Honour.

HER HONOUR:   ‑ ‑ ‑ and then you will produce the redacted documents available.

MS WALKER:   Yes.  Thank you, your Honour.

HER HONOUR:   I will make those orders in those terms.

MS WALKER:   Thank you, your Honour.  That deals with obviously one of the matters that was raised before your Honour today.  Your Honour would also, of course, have the summons in relation to effectively the first directions hearing on the application.  Can I indicate to the Court that since the filing of the proceedings matters have moved somewhat, and your Honour will have gained that impression no doubt from the submissions filed by the defendants, in particular, effectively, an undertaking to give the plaintiff notice of any intention to remove her from Australia that has now been provided. 

Also the defendants have indicated in the written submissions filed that effectively there is no dispute between the parties that at present the plaintiff cannot be removed because either the temporary purpose for which she was brought to Australia has not been completed or, alternatively, it is not reasonably practicable to remove her.  Now, in light of that, your Honour ‑ ‑ ‑

HER HONOUR:   I think there was a third reason given too and that was that they had not yet considered their obligations under the ‑ ‑ ‑

MS WALKER:   That is also correct, your Honour.  Whether that feeds into reasonably practicable, I am not sure what the defendants’ position on that is, but certainly that is an additional matter, that it has been indicated that that assessment is to occur and has not yet occurred.  In those circumstances, your Honour, we in effect agree with the Commonwealth that the matter is, in a sense, not ripe now for determination because there is, in effect, no dispute between the parties at the present time.

HER HONOUR:   So do you take issue with the defendants’ proposed orders?

MS WALKER:   We have a different set of orders to suggest to your Honour which have been discussed with the defendant after the submissions were received and are the subject now of some agreement so if I might hand those up to the Court.

HER HONOUR:   I see.  Do you agree with these, Mr Donaghue?

MR DONAGHUE:   I agree with some of them, your Honour.  I agree with ‑ ‑ ‑

HER HONOUR:   Tell me – do it a different way – tell me what you do not agree with.

MR DONAGHUE:   Your Honour, can I say 1 and 2 have been overtaken because they are about non‑publication, 3 and 4 are agreed, 5 is about the costs of today and is not agreed.  So it is really only a costs disagreement, from our point of view.  I know, your Honour, but it is not me who is asking for the costs.

HER HONOUR:   Even in the High Court I have to deal with these sorts of issues.  Are you serious?

MR DONAGHUE:   You can say costs in the cause very quickly, your Honour.

HER HONOUR:   Is that right?  I could also say why did it take you so long, but that is all right.

MS WALKER:   Your Honour, perhaps if I can just indicate to the Court ‑ ‑ ‑

HER HONOUR:   Sorry, can I just ask a different question?

MS WALKER:   Yes, your Honour.

HER HONOUR:   I have two issues, I just want to make sure I am clear about it – 72 hours’ notice all sounds fine and dandy.  Is that appropriate or is it better business days?

MS WALKER:   Undoubtedly, your Honour, it would be better business days given that it may otherwise become necessary to move this Court on a weekend and that would be ‑ ‑ ‑

HER HONOUR:   I work on weekends, as most of you know.

MS WALKER:   Well, many of us do, your Honour.

HER HONOUR:   Exactly.  Anyway, I raise that for consideration because it does seem to me to be – it would be unfortunate if it was sort of Friday lunch time and all of a sudden things have to be moved by Monday.  I raise that for the first issue.  Mr Donaghue may have to get some instructions about that.

MS WALKER:   Yes.

HER HONOUR:   The second thing is what is happening about production of documents, has that been agreed between you?

MS WALKER:   There has been an agreement that certain categories of the documents sought are to be produced.  Other categories are not the subject of agreement.

HER HONOUR:   But you will come back and see me if you need to?

MS WALKER:   Precisely, your Honour.  Yes.

HER HONOUR:   All right.  So do you want it adjourned out of the list to a date to be fixed?

MS WALKER:   Yes, your Honour.

HER HONOUR:   Right.  Liberty to apply – well, you can have that, that is alive, and we are back at costs.

MS WALKER:   We are back at costs, your Honour.  In my submission, today and, indeed, the institution of proceedings at all, would not have been necessary if the defendants had communicated by letter when asked the matters that I identified earlier to your Honour, which is that at the moment there is agreement that the legal duty to remove the plaintiff has not arisen for the reasons described, that the process of assessment for removal back to Nauru in terms of a protection claim would occur and, indeed, that the 72 hours’ notice which had originally been sought, if that had all been given in writing by the defendants then the proceedings would not have been instituted and may never have needed to be instituted because it will, of course, depend on how facts play out in the future as to whether the proceedings ‑ ‑ ‑

HER HONOUR:   So you do not actually seek the costs associated with the directions hearing, do you?  That is odd, is it?  Can I say this ‑ ‑ ‑

MS WALKER:   Well, I was trying to be more modest, your Honour, rather than seeking the costs to date, but it may be that I have been too modest.  I am certainly content for your Honour to make ‑ ‑ ‑

HER HONOUR:   I am happy to see you.

MS WALKER:   I appreciate that, your Honour.  Certainly, it is contended that some portion of costs should be payable in the circumstances where – one of the final communications set out in a letter annexed to the affidavit of Ms Cuthbertson was to the effect that you are leaving us with no choice but to institute proceedings, and notwithstanding that the response was we will not give you the undertaking, again without the explanation that we now find in the written submissions and, indeed, subsequent to the issue of proceedings of course we have been given the undertaking of 72 hours’ notice.  In those circumstances, the plaintiff contends that at least some portion of her costs, if not all of them to date, ought to be payable.

HER HONOUR:   Mr Donaghue.

MR DONAGHUE:   Your Honour, can I make three points?  Point no 1 – in any proceeding for an application to show cause, the Rules require there to be a directions hearing where we come and address remittal and document production and matters going forward.  The costs of the directions hearing follow the ordinary course and there is no reason why, at this stage, the defendant should pay them.  Two - that is particularly true, given that our friends filed a second summons, the summons of the 15th seeking non‑publication orders which relate to the redaction of their own documents.  So one had to come ‑ ‑ ‑

HER HONOUR:   Neither of those are really the issue, are they?  The question is why, despite numerous letters and correspondence, it took the Commonwealth that long before they gave what was ultimately asked.  We will ask a different question – why is it that they should not be entitled to – they would have got a fee waiver on the lodging, so the question is – I do not know what their costs are, but it is not really the directions hearing.  I accept that.  It is really a question about a need to institute proceedings.

MR DONAGHUE:   But, your Honour, in that respect the position is that there was correspondence in which – while the Commonwealth did not give an undertaking, it did say that it had no present intention to remove the applicant and it said “she is not a person who is under active consideration to be taken to a regional processing country”.  So they said that.  They did refuse to give the undertaking but that, your Honour, is in a context where the Commonwealth receives multiple requests for undertakings about the exercise of its removal power.  It can really only assess the underpinnings of whether or not there is substance in the matter being raised when it knows with particularity the arguments that are being raised. 

As it happens, the correspondence here was mainly about the exercise of non‑compellable powers.  The Minister was asked to exempt the applicant from regional processing or grant a visa under one or other of two non‑compellable powers.  When the application was commenced, it did not say anything about that.  It raised questions about the existence of power to remove under 197AD, so it was a different point and, having considered that different point and the way that it was likely to be dealt with in the course of proceedings, the Commonwealth gave the undertaking.

Ultimately, your Honour, in our submission, whether or not the Commonwealth should pay the costs associated with instituting the proceedings depends on what happens to the proceedings and we just do not know now – it cannot be said now that there was no point instituting the proceeding.  At some point in the future it may be that removal will be raised and all of the arguments that have been framed in the proceeding will come to life and it will then be a matter of how they are determined as to whether the Commonwealth should pay the costs associated with the commencement.

But, at the moment, we submit that your Honour cannot know whether or not that the work done in framing and starting the proceeding was or was not warranted.  In my submission, for that reason, the appropriate order is costs in the cause.

HER HONOUR:   Ms Walker.

MS WALKER:   Well, your Honour, I think one thing is very clear.  If, given the circumstances, the proceedings were instituted before there was an active and known decision to remove the plaintiff – if the proceedings continue in some form they will continue following a decision of that kind, of which notice is given to the plaintiff, that is going to be an entirely different case from the case that had to be commenced in these circumstances because there would be an actual decision.  It is highly likely that the way in which the case proceeds will be quite different.  There will be a need for amendment to the originating application.  There will be, no doubt, a considerable amount of work required to be done to deal with the changed circumstances.

HER HONOUR:   That all may be fine and dandy and I accept all of that, but at the moment I do not understand why you would get this directions hearing – the costs of the direction hearing.  That is an odd request.  You had fee waiver for the filing of it, so what are the costs of instituting the proceeding in order to preserve your client’s position given the correspondence from the Commonwealth?

MS WALKER:   Your Honour, I cannot tell you a figure for those costs, but the costs would include costs associated with obtaining the relevant evidence to support the application, solicitor and counsel costs involved in preparing the application which may ultimately be rendered redundant following an actual decision that then becomes the subject of a different kind of challenge.  In fact, the work done to prepare for and file proceedings is considerably more than the costs, I think, associated with today’s directions hearing.

There are also, of course, the costs associated with, to some extent, preparing for today’s directions hearing insofar as the application for interlocutory injunctive relief is concerned because the undertaking in relation to the 72 hours came in only yesterday.

HER HONOUR:   I accept all of that.  In the circumstances, I think the order should be costs in the cause and that does not mean that you are not open at some later point to contend that the costs – you should have them and split them up in the way in which you have put them to me in the course of this morning’s argument.

MS WALKER:   Thank you, your Honour.

HER HONOUR:   Therefore, I am making two orders.  I would put to one side the order in relation to redaction, which I have already made.  That means I make two orders: 

1.That the matter be adjourned and stood out of the list to a date to be fixed.

2.There be liberty to apply.

Anything else, Ms Walker.

MS WALKER:   No, your Honour.

HER HONOUR:   Thank you.  Mr Donaghue, anything else?

MR DONAGHUE:   Sorry, your Honour, does that mean your Honour is not making an order in relation to the costs of today’s hearing?

HER HONOUR:   Correct, yes.  I will leave it open then for either of you to come back and deal with it.

MR DONAGHUE:   If the Court pleases.

HER HONOUR:   Anything else?

MR DONAGHUE:   No, your Honour.

MS WALKER:   No, your Honour.

HER HONOUR:   I will adjourn the Court.

AT 10.25 AM THE MATTER WAS ADJOURNED