Plaintiff M46 of 2013 v Minister for Immigration and Citizenship and Ors; Plaintiff M76/2013 v Minister for Immigration and Citizenship & Ors

[2013] HCATrans 154

[2013] HCATrans 154

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M46 of 2013

B e t w e e n -

PLAINTIFF M46 OF 2013

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

THE OFFICER IN CHARGE, MELBOURNE IMMIGRATION TRANSIT ACCOMMODATION

Second Defendant

SECRETARY, DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Third Defendant

Office of the Registry
  Melbourne   No M76 of 2013

B e t w e e n -

PLAINTIFF M76/2013

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

THE OFFICER IN CHARGE, SYDNEY IMMIGRATION RESIDENTIAL HOUSING

Second Defendant

THE SECRETARY, DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Third Defendant

THE COMMONWEALTH OF AUSTRALIA

Fourth Defendant

Directions hearing

CRENNAN ACJ

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 10 JULY 2013, AT 9.31 AM

Copyright in the High Court of Australia

____________________

MR R.M. NIALL, SC:   May it please the Court, in each matter I appear for the plaintiff.  (instructed by Allens)

MR S.P DONAGHUE, SC:   May it please the Court, I appear with MR N.M. WOOD in each matter for the defendants.  (instructed by Australian Government Solicitor)

HER HONOUR:   Yes, Mr Niall.

MR NIALL:   If your Honour pleases, can I deal, firstly, with Plaintiff M46 and just describe to your Honour the position that matter is in?

HER HONOUR:   Yes.

MR NIALL:   Your Honour, we have provided a written submission belatedly which sought to set out the more recent history.

HER HONOUR:   I have read that, thank you.

MR NIALL:   There is nothing I really need to add to that, your Honour, other than to seek orders which would allow the plaintiff to determine whether he would seek to amend the proceedings so as to challenge the decision of the Minister made in late June.  To that end, can I hand to your Honour – which I have provided to Ms Musolino – a proposed order in both matters and dealing first with M46 it would give the plaintiff a week to 17 July to file a summons seeking leave to amend the application for order to show cause.

HER HONOUR:   Yes.

MR NIALL:   Then proceed – listing the matter for directions.

HER HONOUR:   I did have in mind, having read the papers last night and appreciating the urgency of the matters, that the next possible date for the return for directions – I had in mind 25 July, mainly because there had been a request that a date after 24 July might be appropriate in relation to the related matter.

MR NIALL:   Yes, your Honour.

HER HONOUR:   So I will just raise an inquiry – and as I understand matters, and I have had some inquiries made, both parties would be seeking a hearing date as early as possible.

MR NIALL:   Yes, your Honour.

HER HONOUR:   There are questions of detention raised, so inquiries have been made.  Although it would not be possible to have a hearing in August, there may be a possibility of a hearing that first week in September.  I am not confirming that just for the moment.  I am giving an indication.

MR NIALL:   Thank you, your Honour.

HER HONOUR:   From that point of view, to adjourn the two summonses for directions to 25 July might be highly desirable if it would meet your convenience.

MR NIALL:   Yes, your Honour, indeed.  It would.  Thank you for that indication, your Honour.

HER HONOUR:   Yes.

MR NIALL:   Perhaps if we work off M76 for the moment.

HER HONOUR:   Yes.

MR NIALL:   The first date – if that was to stay the same – this date in the second order would come back to 24 July ‑ ‑ ‑

HER HONOUR:   Yes.  Now, in relation to the second order, I would be inclined to commence the order with the last two words that are in the draft:  “If agreement is reached parties to file an agreed special case on or before 24 July 2013”.

MR NIALL:   Thank you, your Honour.

HER HONOUR:   Then the proceeding would be listed for further directions at 9.30 am on Thursday, 25 July next.

MR NIALL:   I would be indebted if your Honour would make those orders.  The position in relation to Plaintiff M46 – it may be that the proceedings are similar but not identical but raise issues ‑ ‑ ‑

HER HONOUR:   Yes, that have a degree of similarity.

MR NIALL:   That have a degree of similarity.

HER HONOUR:   Maybe they should be listed for hearing sequentially.  All those matters can perhaps be addressed on the return date on 25 July.

MR NIALL:   If your Honour pleases.

HER HONOUR:   There is the liberty to apply in each case, so that should deal with the matters.

MR NIALL:   Thank you, your Honour.

HER HONOUR:   So paragraph 2 will be altered to accord with the same adjournment arrangements in relation to paragraph 2 of M46 so that “The proceeding will be listed for further direction at 9.30 am on 25 July 2013.”  There would be a possibility – I only mention it as a possibility ‑ that the Registry might advise of a different date, but for present purposes that does not need to be part of the order.

MR NIALL:   If your Honour pleases.  Thank you, your Honour.  They are the only matters I would seek from your Honour this morning.

HER HONOUR:   Yes.  Yes, Dr Donaghue.

MR DONAGHUE:   Your Honour, we are broadly in agreement with all of that.  The only point that I would seek to raise in relation to M76 is in respect of the first order, the date for the filing of the agreed special case has come forward a week, but the date for the provision of the draft has not moved.  I think a week between receipt of the draft and filing is going to be very difficult for my clients to accommodate.  We note that the summons our friends had filed in M76 originally contemplated us getting a draft of the special case within three days of today.  Now, that might be a bit tight for them, but if we could move that date in order 1 forward, at least to, say 12 July.

HER HONOUR:   I was going to say perhaps the Friday prior.

MR DONAGHUE:   Yes.

HER HONOUR:   Yes.  Mr Niall, perhaps I should inquire – does that seem – Friday the 12th would bring it forward by virtually three working days.

MR NIALL:   Sorry, your Honour, I think we have ‑ ‑ ‑

HER HONOUR:   Sorry, this is paragraph 1 now of M76.

MR NIALL:   Yes, I think we have missed a week there because the directions hearing would be the 25th.

HER HONOUR:   Yes.

MR NIALL:   If we could get the draft to them by the 15th ‑ ‑ ‑

HER HONOUR:   Which is the Monday.

MR NIALL:   Monday of next week and that would give – we would do it by 12 o’clock on the 15th and that would give ‑ ‑ ‑

HER HONOUR:   On or before 12 on 15 July.  Yes, very well.  That might be the best we can do, Dr Donaghue.

MR DONAGHUE:   Yes, your Honour.  We are content with that, your Honour.  The only other thing I need to say is that we hear what our friend says about the possible commonality or overlap with M46 and M76.

HER HONOUR:   Yes.

MR DONAGHUE:   It is simply not possible to know at the moment what we will say about that.

HER HONOUR:   I think we all appreciate that and that is perhaps a matter to be further ventilated on the return date on 25 July when the position will be a bit clearer.

MR DONAGHUE:   Yes.  Your Honour, on that date, as we understand it, there will be hopefully a signed and agreed special case in M76 and an amended application, or an application to leave ‑ ‑ ‑

HER HONOUR:   Yes.

MR DONAGHUE:   Until we need the application, but nothing else ‑ ‑ ‑

HER HONOUR:   Yes.  There may be a fresh application, as I understand the papers so we will just have to wait and see.  For the moment let us keep the two matters in tandem, particularly in the light of the indication that an earlier hearing date is sought by both parties.  I will make orders as canvassed.  Nothing further?

MR DONAGHUE:   No, your Honour.

HER HONOUR:   Each of those summonses then will be adjourned till 9.30 am on 25 July next.  Adjourn the Court.

AT 9.39 AM THE MATTERS WERE ADJOURNED