Plaintiff M168/2010 By His Litigation Guardian Sister Brigid (Marie) Arthur & Ors v Commonwealth of Australia

[2011] HCATrans 1

Replacement Transcript

[2011] HCATrans 001

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M168 of 2010

B e t w e e n -

PLAINTIFF M168/10, A MINOR, BY HIS LITIGATION GUARDIAN SISTER BRIGID (MARIE) ARTHUR

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

First Defendant

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
  Melbourne  No M169 of 2010

B e t w e e n -

PLAINTIFF M169/10 BY HIS LITIGATION GUARDIAN SISTER BRIGID (MARIE) ARTHUR

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Melbourne  No M170 of 2010

B e t w e e n -

PLAINTIFF M170/10, A MINOR, BY HIS LITIGATION GUARDIAN SISTER BRIGID (MARIE) ARTHUR

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

First Defendant

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
  Melbourne  No M171 of 2010

B e t w e e n -

PLAINTIFF M171/10 BY HIS LITIGATION GUARDIAN SISTER BRIGID (MARIE) ARTHUR

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Melbourne  No M172 of 2010

B e t w e e n -

PLAINTIFF M172/10 BY HIS LITIGATION GUARDIAN SISTER BRIGID (MARIE) ARTHUR

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

First Defendant

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
  Melbourne  No M173 of 2010

B e t w e e n -

PLAINTIFF M173/10 BY HIS LITIGATION GUARDIAN SISTER BRIGID (MARIE) ARTHUR

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Melbourne  No M174 of 2010

B e t w e e n -

PLAINTIFF M174/10, A MINOR, BY HIS LITIGATION GUARDIAN SISTER BRIGID (MARIE) ARTHUR

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

First Defendant

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
  Melbourne  No M175 of 2010

B e t w e e n -

PLAINTIFF M175/10 BY HIS LITIGATION GUARDIAN SISTER BRIGID (MARIE) ARTHUR

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Summonses for directions and interlocutory relief

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 19 JANUARY 2011, AT 9.31 AM

Copyright in the High Court of Australia

MR C.J. HORAN:   May it please the Court, I appear for the plaintiffs with MS K.E. FOLEY in each of those matters.  (instructed by Victoria Legal Aid (Civil Law Section))

MR S.P. DONAGHUE:   May it please the Court, I appear with MS R.J. SHARP for the defendants in all matters.  (instructed by Australian Government Solicitor)

HER HONOUR:   Mr Horan, you have a number of summonses for directions and other orders?

MR HORAN:   Yes, your Honour.  The first issue concerns interlocutory relief and that is ‑ ‑ ‑

HER HONOUR:   Well, may I ask you first of all, do you read the affidavits in support?

MR HORAN:   I do.

HER HONOUR:   Is there any objection, Dr Donaghue?

MR DONAGHUE:   No, your Honour.

HER HONOUR:   Yes, thank you.

MR DONAGHUE:   Not for the purpose of the interlocutory applications.

HER HONOUR:   I have read the affidavits.  Mr Horan, I was going to suggest it might be convenient to deal with the application for extensions of time, then next deal with the applications for interlocutory relief and to, thirdly, deal with the proposal for future preparation of the matters.

MR HORAN:   Yes, I was proposing ‑ ‑ ‑

HER HONOUR:   Would that inconvenience you at all?

MR HORAN:   It does not, although I can be very short in relation to the extension of time.  I rely on the written submissions and if the extension is still opposed by the defendants, I am happy to address their submissions in my reply.

HER HONOUR:   Yes.

MR HORAN: In short, it is not the decisions in question, if one is taking the initial decision to detain made on or about 16 February or 11 February 2010, were made in relation to minors. They were given only, if anything, a one‑page notice that they were detained. They were given no reasons for the exercise of that discretion to detain. At that stage they had no legal assistance. They had no legal guardian, apart from the Minister himself pursuant to section 6 of the Immigration (Guardianship of Children) Act.  They ultimately, some weeks later, had a migration agent appointed on their behalf to assist them in making an asylum claim under the refugee status assessment process, but only for that purpose.  They in all but one case remain under the age of 18 and have only obtained assistance from Victoria Legal Aid pursuant to publicly funded legal assistance which ‑ ‑ ‑

HER HONOUR:   Just on the question of the ages of the applicant, it is my understanding that, as of today anyway, they were aged 16 and 17, 17 and 18, and that the third plaintiff – I should say plaintiffs – the third plaintiff, on my reading of the papers, will turn 18 I think next Sunday.

MR HORAN:   I think that is right, your Honour.

HER HONOUR:   Yes, thank you.

MR HORAN:   For those reasons, the extent of the delay here is not significant and it is explicable and it provides no reason to prevent the plaintiffs from raising these significant issues of public importance about the exercise of a power which has never been the subject of consideration by this Court or, I believe, any other court.  It involves significant issues in relation to that power, significant issues in relation to the obligations of the Minister as a guardian in relation to unaccompanied minors, significant issues in relation to the interaction of sections 189 and 196 and, although the extension may be needed in relation to the relief claimed for the initial decision to detain, there are, of course, a number of ongoing decisions or failure to make decisions in respect of which it is arguable that no extension would be needed, and that continues right up until the present day, and the most important relief sought for present purposes in the order nisi proceedings is in relation to current detention.

HER HONOUR:   Although the order nisi proceedings focus in relation to the writ of certiorari on the Christmas Island detention decision.

MR HORAN:   Yes, and the defect in the initial detention is what gave rise to the initial unlawfulness, and that unlawfulness has, in the plaintiff’s submission, continued to the present day, but it is artificial to take the application for certiorari or an order of that nature out of the context of the whole application and to try and stymie the root cause of the present alleged illegality by seeking to oppose a discretion to extend time in the interests of the administration of justice.  Now, the only reason that appears to be advanced in terms of the prejudice to the defendants is that if they are held to have acted unlawfully it will have serious consequences for them, they will be prejudiced, and it is said ‑ ‑ ‑

HER HONOUR:   Well, I understand your submission in relation to that if that favours an extension of time.

MR HORAN:   Yes.  It is said, in effect, that somehow the plaintiffs have permitted the defendants to administer their Act unlawfully on that hypothesis and that that is some reason that should be counted against them, notwithstanding that they are minors, notwithstanding that they have no guardian and notwithstanding that they have never been given any reason for the exercise of a discretion to detain, nor have they been given any reason for the decision not to grant them a visa under 195A and not to grant them a residence determination under 197AB.

HER HONOUR:   Have any applications been made in relation to those matters?

MR HORAN:   They have not, but I will take your Honour to the policies.  It is government policy that those powers should be considered and will be considered in every case in relation to minors in detention.

HER HONOUR:   Well, is there not something a little unrealistic about the proposition that the power should be exercised in the absence of any applications being made in respect of them?

MR HORAN:   Well, there may be but it happens regularly in relation to – there have been outcomes of the RSA process which have resulted in the grant of visas under 195A without any application for a protection visa pursuant to ‑ ‑ ‑

HER HONOUR:   Well, this set of circumstances is rather special though because the Minister has conceded in his written submissions that the balance of convenience considerations favour the grant of relief.

MR HORAN:   In relation to interlocutory relief, yes.

HER HONOUR:   Yes.  Sorry, of course, I meant interlocutory relief because I was referring to his written submissions in relation to the interlocutory relief.

MR HORAN:   I will come to that in relation to the interlocutory application because I by no means am going to refrain from making submissions on the balance of convenience simply by reason of that concession.  All that means is that I can refer to the uncontested evidence to demonstrate what that balance of convenience is.

HER HONOUR:   Yes.  Well, I appreciate it covers two points and I have assumed the concession is in relation to the two points.  The first point is that there is uncontested evidence of mental deterioration of the plaintiffs in the detention centre in which they are presently located.  The second point, which is uncontested, is that there is an alternative possibility for detention outside the detention centre in premises which belong to Brigidine Congregation.

MR HORAN:   Yes, and I will just say the third point – we did not directly address in the submissions but I want to make some submissions on it – is that in fact the relief, as I will seek to show, is consistent with stated government policy in relation to children and their placement in detention and, in particular, their placement in community detention, and ‑ ‑ ‑

HER HONOUR:   Well, the evidence in relation to the deteriorating mental health of these plaintiffs was completed on 12 January this year and the Minister made the concession in the written submissions on 14 January.

MR HORAN:   Yes.

HER HONOUR:   Which I would have thought raises certain possibilities in relation to applications to the Minister to exercise his powers which only he has.

MR HORAN: I can get instructions, but on my understanding there is no application process under section 197AB. One can request a referral, but it is a power that is non‑compellable and the Minister can exercise of his own motion. Now, in conjunction with the policies ‑ ‑ ‑

HER HONOUR:   Well, I understand that, but in this case the Minister has made concessions in relation to relevant considerations.

MR HORAN:   Yes, but the applicants, whether or not they are formally applied if that is possible for those determinations, have been seeking ‑ ‑ ‑

HER HONOUR:   Well, I cannot see why it would not be possible, Mr Horan, because if one is seeking a residence determination – and I perhaps need to be better informed, perhaps by Dr Donaghue, about how these are done or have been done or perhaps you can assist me – but I would have thought an application might be made in circumstances where there is a proposal for another premises to be declared a place of detention, which is possible under paragraph (b)(v) of section 5(i) of the definition of “immigration detention” and pursuant to that process there would be, I would imagine, some negotiation in relation to reporting conditions and so on.

MR HORAN:   Precisely.  Could I just say that the plaintiffs’ litigation guardian has been in contact over the past week with the Department, on my instructions, and it is a matter – certainly I do not believe the Minister will say that the plaintiffs have not explicitly or implicitly sought their relief pursuant to any available power the Minister has.  At the moment my understanding is the position is they cannot or will not at the moment be relief pursuant to any of those powers ‑ ‑ ‑

HER HONOUR:   Well, my understanding is the position is that the Minister is resisting relief not because he does not accept the balance of convenience evidence, he does accept it, but he is resisting relief, on my understanding of the written submissions, on the basis that you are asking for the relief on the basis that the detention is unlawful, and a different legal analysis applies to a release from a detention centre to another place declared to be a place of detention.

MR HORAN:   Yes, I understand that.

HER HONOUR:   You understand the point I am making?  In other words, the terms in which relief are sought do not correlate with alternative relief, which, in a practical sense, would be equivalent to what you are asking the Court to do.

MR HORAN:   Precisely, and for that reason, parallel to this proceeding, steps have been taken to seek the exercise of those powers, but we cannot seek in this proceeding on an interlocutory basis to compel the Minister to exercise those powers.

HER HONOUR:   Well, nor can I.

MR HORAN:   No, precisely.  So the issue is one for the Minister.  If he considers it appropriate ‑ ‑ ‑

HER HONOUR: I mean, the only context in which the Court may have the ability to do something in circumstances where the Act only gives the power to the Minister would be in the context of possibly – I am only speaking hypothetically – an incidental power in the context of some review in respect of some decision.

MR HORAN:   Yes, but in this proceeding the plaintiffs challenge the lawfulness of their ongoing detention and as an incident of that ‑ ‑ ‑

HER HONOUR: Yes, but may I just make the point, it does not seem to me that formal application to the Minister to exercise his powers under section 195A or section 197AB would prejudice the plaintiffs in arguing subsequently that the detention is unlawful, but, of course, such an application is predicated on the legal analysis that the release is from detention in a detention centre to detention in a place otherwise declared as a place of detention.

MR HORAN:   Yes.  My instructions are that ‑ ‑ ‑

HER HONOUR:   Now, I know that that, of course, does not sit with your argument that the detention is unlawful, but that is a route by which the practical results you are seeking may be achieved.

MR HORAN:   I agree perfectly, and that is precisely what the plaintiffs have been seeking from the Minister’s representatives certainly in the last week, and ‑ ‑ ‑

HER HONOUR:   Well, are you going into evidence in relation to that?

MR HORAN:   Well, I can put Sister Brigid, the plaintiffs’ litigation guardian, in the box to give evidence about her discussions with officers of the Department, but I do not think it is necessary because if Dr Donaghue stands up and says that the Minister is prepared to release the plaintiffs on receipt of an application for a community residence determination, then it would be astonishing if – it has never been said to the plaintiffs that the only reason why that power was not being exercised was because they had not filled out a form or sent a letter requesting it, but if ‑ ‑ ‑

HER HONOUR:   Yes, but all the material which you would expect to be put before the Minister has been put before the Court in these proceedings and the completion of the putting of that material, including the expert evidence of MR Entwisle, was filed on 12 January ‑ ‑ ‑

MR HORAN:   Well, there have been ‑ ‑ ‑

HER HONOUR:   ‑ ‑ ‑ and the concessions were made in writing by the Minister about the balance of convenience considerations two days later.

MR HORAN: Yes, I mean, we are in one sense in furious agreement. I agree, your Honour, that if the plaintiffs could be released pursuant to one of those powers without prejudice to their claim that part detention has been not authorised by the Act, that would be the appropriate outcome, and perhaps I can – we do not know what the Minister’s position is yet on that, but I ‑ ‑ ‑

HER HONOUR:   Well, as you know from your commercial practice, sometimes when an application or an interlocutory injunction is made, the evidence is such that it is possible for a resolution of matters, an interim resolution, to occur on the basis of the evidence and the circumstances which have been exposed by the application for interlocutory relief.

MR HORAN:   I agree, and my understanding was that had been explored and it certainly can be further explored, but unless the Minister’s position is that he wants to deal with this application without reference to those potential powers that he has ‑ ‑ ‑

HER HONOUR:   Well, he has already made a concession in relation to the balance of convenience considerations.

MR HORAN:   I agree.

HER HONOUR:   I have taken that as a responsible concession.

MR HORAN:   Yes.  Well, the ball is in the Minister’s court in one sense.  If those powers are available to be exercised, and there is an indication that they will be exercised, then that would render the interlocutory relief unnecessary, but I have certainly heard nothing from the other side to indicate that an exercise of those powers was imminent and certainly they have been on the table ‑ ‑ ‑

HER HONOUR:   Well, since 12 January.

MR HORAN:   Since the proceeding was commenced, but, in effect, since the plaintiffs were first detained because the government policy is that they must be considered in every case in which a minor is detained.  So that if now, after 11 months, the Minister, having been provided with psychological and psychiatric assessments, thinks that that changes the position and that these plaintiffs should be placed in community detention or granted a bridging visa of some kind, then – I think I can take instructions, but I am fairly confident the plaintiffs would welcome that outcome, but it is really not a matter I can take any further because ‑ ‑ ‑

HER HONOUR:   Well, you are giving an indication, I take it, that the plaintiffs would be prepared to apply for a bridging visa and a residence determination.

MR HORAN:   Well, they would be prepared to – they cannot apply for a bridging visa because of 46A.  They can only have a favourable exercise of a personal discretion by the Minister under either 195A or 197AB, and that is the Minister, and I think the Minister’s submissions in response to this application emphasises that point, that that is completely a matter for the Minister.

HER HONOUR: Well, that is right. Only the Minister has the power under the Act to do what seems to be the primary requirement in the context of the circumstances like this case. Only he has the power to declare premises like the premises belonging to the Brigidine Congregation a place of detention for the purposes of releasing the persons from a detention centre.

MR HORAN:   Yes.

HER HONOUR:   The Court does not have that power.

MR HORAN:   Well, we are not seeking on the interlocutory application – we are seeking something to similar effect, but we ‑ ‑ ‑

HER HONOUR:   That is the point.  You are not seeking a possible route which will have the practical application of giving the plaintiffs the same outcome as the outcome you are seeking on the basis that the detention is unlawful.

MR HORAN:   Well, we are seeking that, and we have been.  I may be under a misapprehension, but I do not think it has ever been said that the plaintiffs are unwilling to accept a visa under 195A or a ‑ ‑ ‑

HER HONOUR:   What sort of visa have you got in mind?

MR HORAN:   A bridging visa of some kind, or a protection visa, but that might pre‑empt the outcome of the RSA process which is still ongoing, but in the interim, some form of bridging visa could be granted.

HER HONOUR:   But the plaintiffs cannot apply for a bridging visa?

MR HORAN:   They cannot apply for any visa and, in essence, this ‑ ‑ ‑

HER HONOUR:   Because of that requirement for consent of the Minister?

MR HORAN:   Yes, under section 46A.

HER HONOUR:   Yes.

MR HORAN:   In essence, this application for interlocutory relief is on the basis that the Minister having failed to exercise his powers under those sections, the plaintiffs were driven to ask the Court to ‑ ‑ ‑

HER HONOUR:   Well, having failed to date to exercise.

MR HORAN:   Yes, and if that continues to be the case, then the Court has power to act on that material and achieve a similar outcome.  It is no more than the grant of bail ‑ ‑ ‑

HER HONOUR:   Well, how would that arise?  Does that arise on your argument that there would be a prima facie case of a breach of guardianship?

MR HORAN:   No, it arises on the basis that there is a serious question as to the legality of the detention, and ‑ ‑ ‑

HER HONOUR:   By serious question, what test are you raising with me?

MR HORAN:   Well, a prima facie case.

HER HONOUR:   The Beecham test?

MR HORAN:   The Beecham test, but in accordance with Bullock, which I think is referred to in the plaintiffs’ reply submissions. It is 5 FCR 464:

A more doubtful claim (which nevertheless raises “a serious question to be tried”) may still attract interlocutory relief if there is a marked balance of convenience in favour of it. 

So that the two limbs are not considered in isolation and given here that the balance of convenience is all one way and strongly one way, that must influence the threshold to be established in relation to serious issue. In short, the Minister says, well, section 189(1) authorises the current intention, whatever was the case in the past, and the court cannot release someone who is lawfully detained.

The problem with that is that the very question raised by the plaintiffs goes to the construction of section 189 and the plaintiffs submit that section 189(1) is not applicable on two alternative arguments. The first is in relation to subsections (1) and (3) belonging to separate regimes and the plaintiff falls into the subsection (3) regime, not into the subsection (1) regime, and that did not change when he was unlawfully brought to the mainland from Christmas Island. The second argument ‑ ‑ ‑

HER HONOUR:   Do you accept that the plaintiffs are, although minors when they were detained on Christmas Island, are of an age where they would have the capacity to ask for removal?

MR HORAN:   I do not put that in issue.  Certainly, I think in Re Woolley there was discussion of the common law principles in relation to capacity of minors and in this case they are quite close to 18, but having said that, they are now in a position where they are suffering from potential psychiatric incapacity in terms of clinical conditions which may for different reasons affect that capacity.  But they are maintaining a claim to asylum under the Refugees Convention and the government has committed to assessing that claim under this new offshore processing regime.

HER HONOUR:   Just before you go any further, perhaps I should inquire, have you completed your submissions in relation to the extension of time issue?  Is there any further point you wanted to make?

MR HORAN:   No.  I think anything else can be dealt with in reply.

HER HONOUR:   In reply, yes.  Yes, thank you.  Well, please continue.

MR HORAN:   I have already, in effect, commenced some of the questions on interlocutory relief.  The order that is sought effectively is an order to restrain the detention of the plaintiffs by the defendants until the proceedings are heard and determined and I do not think there is any issue raised about the power of the Court to do that if ‑ ‑ ‑

HER HONOUR:   No, that is not in contest.

MR HORAN: So that, in effect, the real question is whether there is a serious issue as to the current lawfulness of the detention and the authority to detain under the Act. Now, the ‑ ‑ ‑

HER HONOUR:   Can I just be clear?  Is there any relief you seek by way of alternative on the contingency that your argument about the unlawfulness of the detention may fail?

MR HORAN:   Well, we do seek relief in relation to the initial detention decision and declarations in relation to part periods of detention.

HER HONOUR:   No, I mean for interlocutory purposes.

MR HORAN:   No.

HER HONOUR:   No.

MR HORAN:   No, the interlocutory relief is purely related to current ‑ ‑ ‑

HER HONOUR:   The argument that the detention in Melbourne is unlawful for the reasons identified.

MR HORAN: Yes, and it must be determined on the assumption that it is – or on the common ground that there is a serious question as to the validity of their initial detention on Christmas Island and that means that there must be a serious issue as to the legality or lawfulness of the defendants’ actions in taking the plaintiffs from Christmas Island to the mainland because that can only have been done as an incident of the control conferred by lawful detention. So the critical question then is the effect of those two matters on the current authority to detain the plaintiffs. I mentioned that there were two arguments that the plaintiffs rely upon in terms of serious questions and they are both questions of construction and neither question is foreclosed by authority and, in fact, to my knowledge there are no previous decisions which directly address the meaning and operation of section 189(3).

HER HONOUR:   Well, I think that the defendants have invited me to assume for the purposes of this application that the Christmas Island detention decisions and their validity raises a serious question to be tried, insofar as that means for these purposes a prima facie case has been identified satisfying the relevant principle in Beecham’s Case.

MR HORAN: The point is that there is no authority on the effect of that concession on what the current position is in relation to subsection (1) of section 189. To that having been purportedly detained under subsection (3) and then purportedly brought to the mainland pursuant to that detention, there is no authority on whether that brings in to operation, as soon as they cross the border or at some subsequent time, section 189(1).

HER HONOUR:   Well, the plaintiffs are brought to the mainland in the context that they are unlawful non‑citizens.  There is no debate about that.

MR HORAN:   No.

HER HONOUR:   Who have not applied to be removed.

MR HORAN:   Yes, but they did not choose to come to the mainland and while on Christmas Island they were subject to a different power that derived from subsection (3) and that was a new and special power introduced to confer a discretionary power to detain rather than a mandatory duty.  So that the mandatory detention regime which had existed since 1992 was qualified in 2001 to introduce the discretionary regime for excised offshore places and that was done as part of the package of amendments relating to the excision of offshore places from the migration zone which is an aspect of the same legislation that was considered by this Court in M61 but not on this issue. The point is that section 189(3) ‑ ‑ ‑

HER HONOUR: Well, the present position is that the correct construction of section 189(3) has not been determined judicially.

MR HORAN:   No, nor impact on or relating to which subsection ‑ ‑ ‑

HER HONOUR:   And I daresay when it is construed in accordance with authority, that it will be construed having regard to the context which will include the Migration Act and provisions such as section 198A, I presume.  I make nothing other than a presumption about that.

MR HORAN:   Precisely.  But the important point is that that subsection was put in there not as an independent measure but as part of this excision package and it was described in the explanatory memorandum ‑ ‑ ‑

HER HONOUR:   Do you have a copy of that?

MR HORAN:   I do.

HER HONOUR:   Yes, Mr Horan, thank you.

MR HORAN:   If I could just take you to paragraphs 4 and 5.

HER HONOUR:   Thank you.

MR HORAN:   There were two.  This is the Consequential Provisions Act and what that did was amended 189.  It also added the new 198A dealing with removal of offshore entry persons to another country.  That is a specific strategy provision.

HER HONOUR:   This is when 189(3) was inserted?

MR HORAN:   Yes, in the same Act, and also section 494AA restricting legal proceedings by offshore entry persons.  Now, in a separate Act, the actual Excision From Migration Zone Act, had related amendments which introduced the definition of “excised offshore place”, the definition of “offshore entry person” and section 46A which was the provision considered in M61 precluding visa applications by offshore entry persons.  I am not sure why some provisions were in one Act and some were in the other, but the point of those paragraphs is that it is quite clear from the EM to the Consequential Provisions Bill that the powers that were contained in those amendments were for dealing with unlawful non‑citizens who entered Australia at an excised offshore place after the relevant excision time without a visa, which would include each of the plaintiffs in the present case. 

So these powers were specifically put in to deal with that situation and they were no longer subject to mandatory detention, instead, they were subject to a discretionary detention regime.  Now, in practice, in the main substance of the final relief the plaintiffs’ submission or contention is that that had not been implemented or exercised or administered as a discretionary detention regime.  It has been administered as a mandatory detention regime, perhaps subject to some latitude in favour of the Minister not to detain in particular cases, but in relation to persons such as the plaintiff they are all mandatorily detained on arrival.

HER HONOUR:   Well, I assume for the purposes of the interlocutory application that a serious question has been raised in respect of the Christmas Island detention decision.

MR HORAN:   Yes.  Now, the relevance for the interlocutory relief is whether that means that that new power that was put in continues to apply to such persons effectively until either they are removed, granted a visa or, on the plaintiffs’ submission, receives a favourable exercise of – rare exercise of decision not to detain and that is put in issue by the Minister as to whether or not, having exercised the discretionary power to detain, there is an ongoing discretion not to but the plaintiffs’ submission is subsection (3) is the applicable power and the whole response to there is a serious issue is dependent upon the Minister’s submission that subsection (1) currently authorises detention.  The affidavit material relied on goes no further than saying that an officer currently has a reasonable suspicion.  There is no evidence that there has been any act of detention under subsection (1) pursuant to that decision, but in relation to the plaintiff being currently held in detention, which we say is purported detention, they now seek to rely on subsection (1).

Interestingly, in the material the Department appears to have treated the detention as continuing under subsection (3) at least until September last year when it was suddenly realised that they might resort to subsection (1) and a note was created purporting to transfer the detentions in subsection (3) to subsection (1).  That did not happen on their arrival to the mainland.  It happened six months afterwards pursuant to an administrative Act.  The defendants do not rely on that record.  They rely on an affidavit simply deposing ‑ ‑ ‑

HER HONOUR:   About the relevant suspicion.

MR HORAN:   Of a reasonable suspicion.  Now, be that as it may, it may be that that is sufficient to attract subsection (1), but it cannot be said that there is not an arguable issue as to whether or not subsection (1) applies in circumstances such as this.  There is a specific power introduced as part of a separate regime and the plaintiffs’ first submission is that that power continues to apply and the defendants cannot seize somebody whose – well, there are two hypotheses.  Assume someone is lawfully in detention under subsection (3) on Christmas Island.  I would concede, at least for present purposes, that there would be authority to take that person to the mainland.  It seems to be on the authorities recognised that the power of detention includes the power of control and that includes, subject to judicial review, a power to move detainees from one place to another.  There have been cases where detainees have resisted being moved from Sydney to Perth and vice versa.

Let us assume they are lawfully in detention, they could be lawfully brought to Australia, subject to judicial review, but is it the case that on being brought they go from being under a discretionary detention regime to suddenly losing the benefit, or potential benefit, of a discretion to relief?  Quite apart from being granted a visa, quite apart from a residence determination, they can simply be not detained, which on Christmas Island, at least arguably, is the case.  On our submission, it is arguable that that continues to be the case if they are subsequently brought to the Australian mainland. 

The second hypothesis is, what if they are not lawfully detained under subsection (3), they are purportedly detained under subsection (3)?  Now, on that hypothesis there is no lawful authority to bring them to the mainland and certainly there is a much stronger argument there that the defendants cannot cure an unlawful discretionary decision to detain under subsection (3) by seizing the plaintiffs and bringing them to the mainland and then relying on subsection (1).  So it is for those reasons that the regimes should be regarded as separate and subsection (3) is the provision that is brought in to deal with people in the position of the plaintiffs and they remain.  If they are to be detained at all, it must be pursuant to a conscious exercise of discretion, not pursuant to some reasonable suspicion that they are unlawful non‑citizens and therefore should be automatically detained.

The second argument which perhaps overlaps with the first, is that section 189 is an arrest power.  It is a power to take someone into immigration detention, but it does not confer authority to keep someone in immigration detention.  That has been held to be the case in the Full Court of the Federal Court in the case of VFAD 125 FCR 249 at 276 to 277.

HER HONOUR:   Am I right in thinking that in that case there was an argument that continuing detention was unlawful because a visa has been granted?

MR HORAN:   Yes.  The question was, was that draft decision record a draft or an effective one?  For the purpose of interlocutory relief, that distinguishes the case from the present because the contention there was that the applicant in that case was an unlawful non‑citizen and therefore not within section 196.  In the present case there is no contention that the plaintiffs are unlawful non‑citizens, but the decision in VFAD illustrates a more general principle which is that a person who raises a serious question regarding the lawfulness of their detention can be released on an interlocutory basis.  The only difference in the present case is the argument relied upon to establish that unlawfulness.  VFAD, in terms of jurisdiction, cannot be confined to its facts.

HER HONOUR: Do you accept that section 189(1), as operating not on the facts of this case, as operating in relation to unlawful non‑citizens on the mainland, requires that detention continue until the occurrence of one of the events mentioned in 196(1)?

MR HORAN: Section 196(1) requires that. Section 189 authorises ‑ ‑ ‑

HER HONOUR: Yes. Well, that is what I am suggesting, that the scheme of the Act and 196(1) requires that.

MR HORAN: Yes. And before the introduction of 189(3), there was perhaps applied to correlation between those two provisions, but now that there is a discretionary detention regime, it becomes a very difficult question as to how that interrelates with section 196(1) which, on one view, appears to assume a duty to detain.

HER HONOUR:   Well, it indicates, I think, that the legislature has taken a view that it is necessary to detain until ‑ ‑ ‑

MR HORAN:   Yes, but it only covers ‑ ‑ ‑

HER HONOUR:    ‑ ‑ ‑ one of those events occurs.

MR HORAN:   Quite importantly, and this was accepted by Chief Justice Gleeson and Justice Gummow in Al‑Kateb, section 196 only authorises lawful detention.

HER HONOUR:   Yes.  As I understand their Honours, circumstances might arise where continuing detention becomes arbitrary in the sense touched upon in Lim’s Case and also in the minority judgments in Al‑Kateb.

MR HORAN:   I do not rely on that aspect of their construction, which was a minority view on the construction of the subsection, but the principle, I would submit, is authoritative, that section 196 authorises for someone to be kept in detention where they are lawfully detained under section 189, not simply because they are purportedly detained under section 189.  So in the case of VFAD, section 196 did not authorise detention nor did it prevent a court from ordering relief because the contention there was that the applicant was not an unlawful non‑citizen. 

In this case, however, the contention is that section 189(3) had not been validly exercised, so that the plaintiffs are not detained under section 189 for the purposes of section 196. They have never been detained under section 189(1) as a matter of law and possibly as a matter of fact. So if that is true and, as the Full Federal Court has said in Al Masri:

The sphere of operation of s 189 is complete once a person is obtained in immigration detention and that thereafter continuing detention is provided for by s 196.

But the consequences of that is that section 196 only authorises detention which is lawful in respect of persons who have been lawfully taken into detention under section 189 and the plaintiffs have raised a serious question that they were never lawfully taken into detention under section 189(3). The defendants concede that in relation to the initial detention under 189(3), but the argument is that because it is an arrest power, there has been no occasion for section 189(1) to apply. Even if it is capable of applying on the mainland, it certainly cannot apply in relation to someone who is already in detention. In other words, this is another way of arguing that the invalidity of the initial decision continues to undermine the continued authority to detain.

HER HONOUR:   That is really the crux of the argument, as I understand it.

MR HORAN:   Yes.  There are two courses.  There may be more courses to that conclusion, but the crux of the plaintiffs’ argument is that initial invalidity, which is conceded is a serious issue by the defendants, arguably continues to undermine authority to detain and that is a serious issue.  It is not precluded by authority.  It is not even really directly addressed by any authority and the Minister accepts that these proceedings should be referred to a Full Court for determination of issues, including these issues.  Now, how it can be said that in those circumstances that there is no prospect or insufficient prospect to raise an arguable case in circumstances where the Minister has or the defendants have themselves proposed that these matters be determined by a Full Court, it is difficult to understand.

So as a result of those arguments, we say there is a serious issue as to the lawfulness of detention especially when that is viewed in light of the overwhelming uncontested position on balance of convenience and, in fact, it is not even really a balance of convenience.  The considerations all point one way and the Minister and the Commonwealth do not raise any point of inconvenience in relation to the grant of these orders.  On the contrary, as I referred to earlier, it is fully consistent with government policy.  Now, I do not want to detain the Court by going through in detail the sources of that government policy but ‑ ‑ ‑

HER HONOUR:   I have read A Last Resort?, a text which is a report of the National Inquiry into Children in Immigration Detention and which I believe is referred to in the proceedings commenced by writ and statement of claim.

MR HORAN:   Yes.  That, of course, is not an official government position in that report, but in the light of reports such as that there are a number of places where one can find definitive statements of the current government policy in relation to detention of children.  I will only refer to two. The first is a government policy announcement which was made on 18 October 2010.  I can hand to your Honour a copy of the media release.

HER HONOUR:   Yes.

MR HORAN:   This has an immediate context to the present proceedings and application.  In short, the basis of this media release is an announcement by both the Prime Minister and the Minister for Immigration and Citizenship of a commitment to move people, including children, out of detention into community detention or community based accommodation.

HER HONOUR:   As I think I might have put to you before and I would like to be corrected if I am not right, the legal analysis that would seem to apply there is that the government has a policy of moving persons from lawful detention in detention centres to lawful detention in a place declared to be a place of detention which is not a detention centre?

MR HORAN:   Yes.  It is perhaps slightly different in one respect, your Honour, because there are two ways of implementing community detention and one is alternative places of detention, sometimes acronymised as APOD, and that is closer to what your Honour was suggesting of defining a place of detention to be whether it is a motel or, I think, potentially a house.  That is done pursuant, I think, to the definition of “immigration detention”.

HER HONOUR:   I think that has been done initially, and again I would like to be corrected because I may be wrong, I think that has been done in terms of a motel and a hospital for the purposes of providing necessary services of some sort to plaintiffs in detention.

MR HORAN:   Yes.

HER HONOUR:   I think subsequently to that exercise of the power available under paragraph (b)(v) of section 5(i) persons in detention centres have on occasions been released by the Minister into, as you say, I think, homes or other places designated as places of detention.

MR HORAN:   Yes.  I think, and this arises from the evidence ‑ ‑ ‑

HER HONOUR:   So that has been done in the past and the Minister in this case has conceded that the balance of convenience considerations favour the grant of relief which would seem to be relief of that sought although the relief sought is all predicated on the argument that the present detention is unlawful.

MR HORAN:   Yes.  In these proceedings that is the only way to obtain that relief, but it could be rendered moot on an interlocutory basis if the Minister were prepared to exercise their powers.  I would not rely on the alternative place of detention per se because my understanding is that can potentially be quite a technical course in designating places and I think the evidence suggests that that may even be used to allow unaccompanied outings by the plaintiffs in this case that involved a very bureaucratic process of designating people and designating places, but what has been ‑ ‑ ‑

HER HONOUR:   Well, that may be so, but I suppose such a strategy deals with issues such as deteriorating mental health in a detention centre.

MR HORAN:   Definitely, but the appropriate power is now, in my submission, 197AB, which is slightly different because that ‑ ‑ ‑

HER HONOUR:   How is that different, Mr Horan?

MR HORAN:   It is different because instead of designating an alternative place of detention, it allows persons to reside at a specified place and that deems to be immigration detention, but apart from that deeming provision, it is not a place of detention at all and subject to any conditions that are placed on the residence determination, it in theory could be unconditional and would allow the plaintiff to effectively be at liberty in the community subject only to the possibility that it could be revoked.

HER HONOUR:   I think also in your submissions you have indicated that reporting conditions may be appropriate.

MR HORAN:   Yes.  Certainly conditions can be imposed and, in effect ‑ ‑ ‑

HER HONOUR: Just let me get this straight. Section 197AB, instead of designating or, I suppose, declaring a place other than a detention centre a place of detention – how does it work? Where does the deeming aspect come from?

MR HORAN:   Subsection (1)(a), (b) is the making of the determination and section 197AC provides for the effect of the determination and while in force:

a person who is covered by the determination and who is residing at the place specified in the determination –

the Act and regulation applies:

if the person were being kept in immigration detention at that place in accordance with section 189.

There are provisions allowing – in subsection (2) it contemplates that the person can temporarily stay at another place and subject to any conditions on the determination, so that ‑ ‑ ‑

HER HONOUR:   Does this require a bridging visa?

MR HORAN:   No.  The core requirement would be that it would have to specify a place at which the plaintiff would have to reside but would not necessarily have to remain at all times and could, in effect, temporarily stay elsewhere if that did not alter the place of residence.

HER HONOUR: In a practical sense, the outcome that might be achieved under section 197AB is similar to the relief sought, although there is ‑ ‑ ‑

MR HORAN:   It is almost identical.

HER HONOUR:   It is almost identical, but it is predicated on removal from lawful detention in a detention centre of an unlawful non‑citizen to an alternative place.

MR HORAN:   Yes, but that does not trouble the plaintiffs on an interlocutory basis because both questions are matters for final determination, but just as the Minister cannot say that the plaintiffs are currently lawfully detained – the defendants cannot definitively say that because that is a matter for final determination.  I cannot definitively say that they are not.  So it does not trouble the plaintiffs if the Minister jumps in and exercises his power and the proceeding goes on without the pressing interlocutory matters that are raised.  But if the Minister does not exercise those powers, it does require the Court to turn its mind to whether, as a matter of judicial power, its overwhelming balance of convenience involving significant harm and risk of further harm, whether that should be addressed by an interlocutory order not based on a conclusion that their detention is unlawful, but based upon a serious issue that that detention is unlawful.

So that of at the end of the proceedings the plaintiffs fail on that, they may win in relation to past detention and may fail in relation to current detention, but in that event, then of course the interlocutory order would terminate and they could be taken back into detention.  All that would happen by an exercise of the Court’s power, if the Minister does not do it himself, is to enable the plaintiffs to live in the community, to be outside the detention centre environment at MITA and to avoid the ongoing risk of significant psychological harm, and if, as I say, the Minister does not do it himself, then in the light of the serious questions raised by the application, it is incumbent on the Court to consider whether, as a matter of judicial power, that should be done by an interlocutory order.  It is by no means unprecedented.  Chief Justice Gleeson in Al‑Kateb referred to the fact that the grant of bail in habeas corpus proceedings is not uncommon. 

It does not pre‑empt any question about the lawfulness of detention. It does not create a new category of non‑citizens under the Act. It is no more than an ordinary exercise of the admitted judicial power of this Court to protect the subject matter of the proceedings and to protect the rights of the plaintiff, if they are ultimately successful in showing that their detention is unlawful, from being further impinged in circumstances where no reason at all has been put as to why that cannot be done.

HER HONOUR:   As I understand matters, and again I would ask you to correct me if I am wrong, in relation to the power under section 197AB, is there a provision that the Minister is not under any duty to consider that power?

MR HORAN:   Yes.  I think 197AE provides that the Minister does not have a duty even to consider.  Now, in effect, that really ‑ ‑ ‑

HER HONOUR:   I just raise for your consideration, that may raise the difficult issue for the Court in terms of a mandatory interlocutory injunction directed to the Minister, presumably, to consider the exercise of those powers. 

MR HORAN:   We do not seek any order in those terms.

HER HONOUR:   In those terms.  What is your position?  As I understood the written submissions, you seem to be suggesting in the context of the Minister to date not exercising those powers there might be some prima facie case in relation to a breach of guardianship duty.  Now, from what you said earlier, it seems you are not putting the case on that basis.

MR HORAN:   Well, I do put that but it is slightly more remote.  That is the question raised in the substantive application?

HER HONOUR:   Yes.

MR HORAN:   But it is slightly more remote from the interlocutory application because, on one view, it does not go to the authority to detain.  So that we certainly say that the Minister, as guardian, has duties and that those duties, in the circumstances of this case, require all available steps be taken to ensure that the plaintiffs are not detained in conditions which are detrimental to their health and wellbeing.

HER HONOUR:  The Minister, who is, as you say, the guardian in relation to those of the plaintiffs who are minors, has conceded for the purposes of these applications for interlocutory relief that the balance of convenience considerations, which are, as I say, the deteriorating mental health of the plaintiffs in the detention centre and the availability of an alternative place of detention or place for the purposes of section 197AB, the Minister has accepted that there is an alternative available which I would apprehend is based on the evidence of Sister Brigid (Marie) Arthur, which includes evidence that the premises owned by the Brigidine Congregation have been utilised before for persons in an analogous position to the plaintiffs, that is to say, unlawful non‑citizens who have been detained in a detention centre, but whether it is through the mechanism of a bridging visa or a declaration made pursuant to the powers the Minister has under paragraph (b)(v) of section 5(i) or whether it is achieved under section 197AB, the Minister has responsibly, I would have thought, conceded that the balance of convenience considerations favour the grant of relief of the kind sought.

MR HORAN:   We would say that does give rise to duty to consider, if not to exercise, those available powers, but it is difficult to – it may be the case ‑ ‑ ‑

HER HONOUR:  It would be difficult to maintain there had been a breach at the moment simply because the powers have not been exercised to date. The position, as I understand it, is the plaintiffs cannot apply for an exercise of powers under section 195A. There has not been a formal application in relation to the powers under section 197AB or the powers under paragraph (b)(v) of section 5(i) of the Act, but the Minister has responded to the balance of convenience evidence, which, as you say, is strong and I accept that, by not contesting it and by accepting that it would justify relief of the kind sought.

MR HORAN:   Well, if the Minister were of the view that that warranted the excise of the powers under 197AB, it maybe would have been good for the Minister to, at the outset, in his application indicate that having considered the balance of convenience that it was an appropriate case, but whether he put to our proof on the interlocutory application and ‑ ‑ ‑

HER HONOUR:  I suppose one difficulty is it would probably be difficult to persuade me that you had a prima facie case of breach of the Minister’s guardianship duties in circumstances where he has responded so quickly to the evidence you would expect to be placed before him in respect of any application under section 197AB. He has not made a decision to date, but he has conceded that the balance of convenience would justify orders of the kind sought. It just seems to me to raise evidence before me that an application under section 197AB would be dealt with speedily.

MR HORAN:   Well, I need to get instructions.  It may be the case that there has been an application.  I am not instructed one way or the other.  It certainly has been raised.  The other point is, this evidence did not come to the Minister without any forewarning of the condition of the plaintiff.

HER HONOUR:   No, I do ‑ ‑ ‑

MR HORAN:   There have been incidents in detention.  One of the plaintiffs attempted suicide and was taken to hospital in connection with that and was placed immediately back in detention, but then requesting psychological counselling.  MR Entwisle’s report makes it very clear that in relation to the plaintiffs who he diagnoses as having depressive illness and post traumatic stress disorder, that in one case the treatment is non‑existent.  He is not receiving any psychiatric or psychological treatment at this time.  In the case of M169, is not having adequate or current past treatment while detained.  He spoke of little in the way of supervision or assessment of his psychiatric status and functioning and he is not taking his antidepressant medication.  Now, these are plaintiffs who the Minister has known and the person appointed to conduct these detention centres on the Commonwealth’s behalf have known for some time that they have serious issues. 

HER HONOUR:   I think that is accepted by the Minister.

MR HORAN:   It is, but it is not something which has arisen only when the plaintiffs filed their evidence in support of this application and it is not something which – it is something which should have been addressed on the policy, which is at exhibit CC2 to the affidavit of Chelsea Clark.  There is a detailed police on minors in detention and under that policy these are matters which should have been addressed already.  Again, I did not want to go through that in detail, but ‑ ‑ ‑

HER HONOUR:   I would apprehend there are many minors in detention and ‑ ‑ ‑

MR HORAN:   Of whom a commitment has been given by the government now to release many, provided suitable community assistance can be found.  Now we are here saying ‑ ‑ ‑

HER HONOUR:  It is that latter point which suggests to me that you would expect – and I may be wrong. Mr Donaghue could enlighten me about this, but you would expect that an application would be made under section 197AB so as to put to the Minister a proposal in relation to an exercise of power under section 197AB. The material in this Court now, which was completed, as I have said, on 12 January, is the same material one would expect to see because it raises for the Minister’s consideration the alternative possibility under section 197AB.

MR HORAN:   The Minister has been quite aware of that alternative possibility for a long time and could I simply refer to the minors in detention policy, section 4 on guiding principles says, while ITA – that is Immigration Transit Accommodation – IRH – I think that is Immigration Residence Housing – and APOD – that is Alternative Places of Detention may be used for a short period, all minors will be identified for a residence determination as soon as they are detained.  Now, it is 11 months since these plaintiffs were detained and there should be no need for an application on the Minister’s policy. 

It is government policy that all minors will be considered for a residence determination as soon as they are detained and in paragraph 14.2, which deals specifically with the Guardianship Act it says that unaccompanied wards should be assessed for eligibility for release on a bridging visa as soon as possible after being placed in immigration detention.  If the grant of a bridging visa is not possible, the minor should be placed immediately in an APOD in the community or an IRH pending a potential community detention placement.  Where the Minister determines that a residence determination is not in the public interest, the case manager should consider appropriate placement.

So the default is they will be considered for a residence determination if only the Minister actually determines not to make that that these alternatives should be considered.  Against that and the government policy announcement, there is an enormous gulf between the stated policies of this government and the practice in the present case and if it is to be said that the plaintiffs have only been kept in MITA because the Minister was not aware that they sought a residence determination and what ‑ ‑ ‑

HER HONOUR:   I certainly was not making that suggestion to you, Mr Horan.  What I was indicating to you is that the Minster has conceded that the balance of convenience consideration would justify the relief sought.

MR HORAN:   Yes.  Well, I have just been given instructions that the plaintiffs’ litigation guardian has been told that the plaintiffs are being considered for a residence determination.

HER HONOUR:   Thank you.

MR HORAN:   But we know no more than that and I cannot really – the problem is ‑ ‑ ‑

HER HONOUR:   That is all the plaintiffs, is it?

MR HORAN:   I believe so – and there is no need for them to apply.  But all I can say is that it is not a matter of waiting for a day or a week or a month until such time as the Minister or the Department get around to considering the exercise of these powers.  If that is not to be done ‑ ‑ ‑

HER HONOUR:   Well, there has been a concession made in these proceedings which would seem to me to mean that the consideration which has been given could be given expeditiously, that the Minister has already made a concession in relation to the balance of convenience consideration.

MR HORAN:   Yes.  Well, perhaps, if that is to be appropriate, then I would suggest that the Minister – or the defendants indicate that that will be expedited, that the matter be stood down until Friday morning, and if nothing is happening in the space of that time, then the matter should proceed and the Minister should explain why there is a serious issue when the matter is one suitable for referral to the Full Court and why, when the balance of convenience is all one way, there is any reason for this Court not to step in and do what the Minster should have done long ago, which is implement the policy to place the plaintiff in suitable arrangements for their accommodation outside the detention centre.  We are doing no more than ask for stated government policies to be applied in their terms to the plaintiffs.  In some cases there might be reasons why those policies should not be applied, but there is nothing put before the Court ‑ ‑ ‑

HER HONOUR:   There has been no evidence led before me as to why the balance of convenience considerations should not give rise to the relief of the kind sought.

MR HORAN:   Yes.

HER HONOUR:   Now, I have already made the distinction between the relief you have sought ‑ ‑ ‑

MR HORAN:   Which is based on an arguable ‑ ‑ ‑

HER HONOUR: ‑ ‑ ‑ which is based on an arguable case that the detention in Melbourne is unlawful. I have already made the point that there is an alternative which may be encompassed in some way – I do not know, I will leave it to you to think about – which is an implementation of section 197AB, which is not predicated on the Melbourne detention being unlawful and, as you say, it appears – and Dr Donaghue can confirm this – that the Minister is giving consideration to a determination of that kind in the process of doing it.

MR HORAN:   Yes.  If that were to be done, it would not, in my submission – cannot have any effect on the plaintiffs’ ongoing claim in relation to the period for which they have been detained, but it certainly ‑ ‑ ‑

HER HONOUR:   Well, no, there would be no prejudice for the argument ultimately that the Melbourne detention was unlawful, but in the interim ‑ ‑ ‑

MR HORAN:   It would mean it was unnecessary ‑ ‑ ‑

HER HONOUR:   ‑ ‑ ‑ for the purposes of the removal from the detention centre to the Brigidine Congregation premises on whatever conditions are appropriate, that is an outcome which maybe achieved irrespective of the reservation of your position that the Melbourne detention is unlawful.

MR DONAGHUE:   Thank you, your Honour.  Yes, I understand that.

HER HONOUR:   So you can operate on that basis.

MR DONAGHUE:   Thank you, your Honour.  The other matter, your Honour, is if the costs of today be reserved in the orders that we submit would be the ‑ ‑ ‑

HER HONOUR:   That would be appropriate, I would have thought.

MR DONAGHUE:   Thank you, your Honour.

HER HONOUR:   Very well.  Adjourn the Court.

AT 4.31 PM THE MATTERS WERE ADJOURNED