Plaintiff M47/2018 v Minister for Home Affairs & Anor

[2018] HCATrans 246

[2018] HCATrans 246

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M47 of 2018

B e t w e e n -

PLAINTIFF M47/2018

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 21 NOVEMBER 2018, AT 9.31 AM

Copyright in the High Court of Australia

MR J.W.K. BURNSIDE, QC:   If your Honour please, I appear with my learned friend, MS A.M. BATTISSON, for the applicant.  (instructed by Human Rights For All Pty Ltd)

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia:   If the Court pleases, I appear for the defendants.  (instructed by Australian Government Solicitor)

HER HONOUR:   Thank you.  I have read what is proposed.  Is there anything else that needs doing before the matter is referred?

MR BURNSIDE:   No, but we have prepared some proposed orders.

HER HONOUR:   Well, I am about to gazump you.  Unless there are absolute hurdles which are insurmountable, the Court proposes that the matter be heard in the second week of February, and the timetable it would propose would be as follows – and what I propose to do is to read out the orders and then you can tell me what hurdles there are, if there are any.

MR BURNSIDE:   Can I mention a hurdle which is very apparent to me?  I will be overseas most of January and through to the end of the second week in February.  Now, I am not the only person ‑ ‑ ‑

HER HONOUR:   Right.  Well, the difficulty about it is twofold, Mr Burnside.  One is that – and this is why they are insurmountable hurdles – this case, your client, has been in detention for a long time; that is the first.  The second is that the Court’s workload in March and April is extraordinarily large and so, in the circumstances, the Court thinks that it would be in a sense the only opportunity and window to hear what I suspect is a one‑day case in the second week of February.

MR BURNSIDE:   Yes, I understand.

HER HONOUR:   So, I understand your predicament and I apologise, but it is critically important, I think, that this matter get on.

MR BURNSIDE:   Well, he has been in detention for almost nine years ‑ ‑ ‑

HER HONOUR:   I know.

MR BURNSIDE:   ‑ ‑ ‑ I do not want my convenience to stand in the way of his rights.

HER HONOUR: So the orders that I would propose ‑ and subject of course to adjusting Part 44 – would be as follows: that the plaintiff file and

serve his written submissions by 21 December; interveners in support by 7 January, if any; defendants by 18 January; plaintiff reply by 25 January; and then consistent with what I have done in the past I would impose the obligation on the defendants to prepare a special case book and a joint book of authorities, the special case book by 10 December and the joint book of authorities by 31 January.

MR BURNSIDE:   There is one slight twist to that, and that is that Mr Donaghue and I both agree that it would be desirable if the Court could be updated on the negotiations that are identified in the special case at the moment.  You would have noticed that in ‑ ‑ ‑

HER HONOUR:   I did notice, but the position is this:  it is going forward as it is and if you wish to agree additional facts then you will have to agree them.  I am referring it in on the basis of what I have been given.

MR BURNSIDE:   Yes.

HER HONOUR:   Is that fair?

MR BURNSIDE:   Yes.

HER HONOUR:   Mr Donaghue, do you have any objection to that course?

MR DONAGHUE:   I do not have any objection to that course.  It is really that there are a number of paragraphs ‑ ‑ ‑

HER HONOUR:   I saw.

MR DONAGHUE:   ‑ ‑ ‑ where we say we are waiting and thought the Full Court might like to know if we have got an answer.  But I accept that it should be referred on the existing basis and if we negotiate a supplementary special case or an amendment then we will come to that.

HER HONOUR:   You will do so.

MR DONAGHUE:   We will.  Your Honour, could I – I think your Honour said the second week of February.

HER HONOUR:   Yes.

MR DONAGHUE:   If your Honour was open to a little bit of latitude on the dates on our submissions ‑ I will be out of the country until 17 January.  I arrive back I think midnight on the 17th.  If we could have – we can do a lot of our work in advance but if we could have a few more days.

HER HONOUR:   Well, one of the things I was thinking about it is that – and I know now that Mr Burnside probably will not be appearing so it is difficult probably to raise this – was given that it is the December/January vacation, and I do recall what it is like, I wonder whether or not in effect the submissions could have been done before Christmas?  That is, between you, you could have done it in order to give yourselves the relevant break.  It would be difficult – impose an additional obligation on the interveners but I – it is not consistent with the usual normal practice now of this Court and I do not seek to impose it on you but I am not against that sort of idea if that would help.

MR DONAGHUE:   Well, I am certainly very open to negotiating with my friends about that.  It will put in the very short term more pressure on them than us.

HER HONOUR:   Well, that is why I raise it.  So at the moment I will leave it as – because I have got to leave room for the interveners, if any.

MR DONAGHUE:   It is very unusual in these Al‑Kateb cases for anyone to come.

HER HONOUR:   I know it is, but I have got to make provision for it.

MR DONAGHUE:   Provision for it.  But I just wonder, your Honour, whether we could – even if your Honour could give us until the following Monday, the 21st, I think it would be ‑ that would ‑ ‑ ‑

HER HONOUR:   All right.  Well, then I will just – that is fine, I will do that to the 21st and then the reply, the plaintiffs can serve their reply by Monday, 28 January.

MR DONAGHUE:   Thank you, your Honour.  Just for the avoidance of any doubt or so there is no misunderstanding, we do submit that it is appropriate that the special case be referred to the Full Court.  We do that on the basis that what we anticipate is being asked of the Full Court is that the Full Court will have to decide whether to draw the inference from the primary facts that are agreed in the special case as to whether or not he thinks that the point to enliven the Al‑Kateb issue has been reached.  So we do not – we are not agreed that that point has been reached but we are agreed that the material necessary for the Full Court to decide that question is there.  And so I would not want it to be thought that that will not be an issue in the case but your Honour understands our position.  Thank you.

HER HONOUR:   Thank you.  The orders I propose to make are as follows:

1.The special case filed by the parties on 15 November 2018 be referred to a Full Court for hearing.

2.The defendants file and serve 10 hard copies and an electronic copy of a special case book by 10 December 2018.

3.Part 44 of the High Court Rules 2004 (Cth) relating to written and oral submissions shall apply to this proceeding with the following variations:

(1)the plaintiff is to file and serve his written submissions by 21 December 2018;

(2)interveners, in support of the plaintiff, if any, are to file and serve their written submissions by 7 January 2019;

(3)the defendants are to file and serve their written submissions by 21 January 2019;

(4)the plaintiff is to file and serve any reply by 29 January 2019.

4.The defendants file 9 hard copies and an electronic copy of the Joint Book of Authorities prepared in accordance with the requirements of Practice Direction No 1 of 2017 by 31 January 2019.

5.The defendants serve one hard copy and an electronic copy of the Joint Book of Authorities on the plaintiff and any interveners by 31 January 2019.

6.        Costs be reserved.

MR BURNSIDE:   If your Honour pleases.

HER HONOUR:   Thank you very much, you are excused.

AT 9.39 AM THE MATTER WAS ADJOURNED