Plaintiff M61-2010E v Commonwealth of Australia & Ors

[2010] HCATrans 148

[2010] HCATrans 148

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M61 of 2010

B e t w e e n -

PLAINTIFF M61/2010E

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Defendant

STEVE KARAS

Third Defendant

TERRY LEW

Fourth Defendant

Directions hearing

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 4 JUNE 2010, AT 10.13 AM

Copyright in the High Court of Australia

__________________

HIS HONOUR:   Before the matter is called, I would apologise to counsel, to the solicitors and to all concerned for the delay that has been occasioned.  It is, I think, the longest delay I have encountered in 18 years as a Judge, but the joys of technology have, if they have not defeated us, gone a long way towards defeating us.  So I apologise to all concerned.

MS D.S. MORTIMER, SC:   If your Honour pleases, I appear with my learned friends, MR R.M. NIALL and MS K.E. FOLEY LOWE, on behalf of that plaintiff and also on behalf of the plaintiffs.  (instructed by Allens Arthur Robinson Lawyers)

MR S.J. GAGELER, SC, Solicitor‑General of the Commonwealth of Australia:   If your Honour pleases, I appear with MR S.P. DONAGHUE and MR D.F. O’LEARY for the defendants.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Now, Ms Mortimer, it is your summons for directions, I think, is it not?

MS MORTIMER:   It is, your Honour.

HIS HONOUR:   Do you read any of the affidavits in support of that summons?

MS MORTIMER:   Your Honour, the affidavit of Alexia Mayer that was filed and sworn with the amended application I think is the only one that is critically before the Court.

HIS HONOUR:   Yes.  Is there any objection to receiving that, Mr Solicitor?

MR GAGELER:   No, your Honour.

HIS HONOUR:   Yes, I have looked at that affidavit.

MS MORTIMER:   Your Honour, we have, between the parties, a relevantly agreed position to put to the Court about the manner in which this matter should proceed and that is substantially in accordance with the proposals that are in the submissions filed on behalf of the Commonwealth at paragraph 14.

HIS HONOUR:   Yes.  Can I say two things about those proposals.  First, the Court has already fixed cases for the sittings commencing in Brisbane on Monday, 21 June and for the sittings commencing in Canberra on 27 July.  As at present advised, I do not think that the Court could fix these matters for hearing before the sittings that are to be held in Canberra commencing on Tuesday, 24 August.

MS MORTIMER:   Your Honour, those are the sittings which the orders which we would propose would contemplate – in paragraph ‑ ‑ ‑

HIS HONOUR:   Now, the second comment I would make is one which is really an interrogatory.  How confident are the parties that there will be no dispute as to fact?  Until we have seen all the affidavits, is it plain that (a) there is no dispute and (b) there is a sufficient factual base for this matter to go forward to a Full Court?

MS MORTIMER:   Your Honour, for our part we would anticipate once the Commonwealth files its affidavit and we file ours to complete the record in terms of what was before each of the decision‑makers in M61, we would anticipate that this would be able to proceed without any disputes as to facts.

HIS HONOUR:   And on a sufficient factual basis, at least from your point of view?

MS MORTIMER:   Yes.  In our matter, yes, your Honour, because ours is presently structured as a judicial review, principally, and in that sense we will have all the reasons, we will have the records of the decision‑makers and we should have from the Commonwealth a full account of the offshore process through their affidavit.

HIS HONOUR:   As to that, and this may be a matter which I should take up with you, Mr Solicitor, rather than with you, Ms Mortimer, are you able to say – and the question is a question, not one which you should feel obliged to answer if for any reason you thought it not right – but are you able, as part of this preparatory process, to file any statement that would identify, as far as possible, statutory or other bases, whether found in the Migration Act or elsewhere, which the defendants would wish to say either permitted them or obliged them to implement or apply any particular part of

what has been called the offshore processing regime in their dealings with or relating to the applicant and which are the dealings the subject of this application?

MR GAGELER:   Of course we are prepared to do that in any form that your Honour would consider appropriate.  The affidavit that we would propose to file would give the entirety, we think, of the factual basis for what has occurred.  In explaining the factual basis, the legal understanding of the Commonwealth will, we believe, emerge but if some further articulation in a formal way of the basis of the refugee assessment procedure is thought desirable we are happy enough to do that, your Honour, in advance of other steps if necessary, but, as between the plaintiff and the defendants in M61, we are seen to be content that we sufficiently understand each other’s position and that the facts will be sufficiently before the Court with a certain amount of co‑operation between the parties to allow the matter to be referred to the Full Court at an appropriate time.  Your Honour may think it is premature to refer it now, but we believe that it will be ready for the Full Court comfortably.

HIS HONOUR:   Reading the papers, Mr Solicitor, it occurred to me – and this is an uninformed reflection – that given that part of the relief that is claimed is mandamus, yes, there is certiorari and prohibition as well, but there is mandamus to do it again as one form of relief.  It occurred to me that a question that related to a claim for that form of relief included what, if anything, obliged particular departmental officers – there is then the complication presented by there being a contractor engaged – but what obliged a departmental officer to take the steps which he or she did in connection with the applicant and it occurred to me, again, as an uninformed reflection, that presumably the officer is acting on the direction of superiors, ultimately up to the Secretary, perhaps on the direction of the Minister and that the chain of obligation is one which, perhaps, has a link in it in the public service legislation, perhaps has links in it which are more deep seated than that.  Now, if you say to me that these are not matters that I should be fussed about or inquiring about, so be it, but ‑ ‑ ‑

MR GAGELER:   I am certainly not saying that, your Honour.

HIS HONOUR:   But it occurred to me that if these are matters about which one might wish to know, it is better that they be stated and stated early so that the parties can at least accommodate their arguments to what is thought to be the legal structure that underpins what has occurred.  Now, it occurred to me that a solution, again an uninformed reflection, would be that at the time of your side putting on such further affidavit of the kind as you have described, which I would understand to be essentially fact based ‑ ‑ ‑

MR GAGELER:   Yes.

HIS HONOUR:   ‑ ‑ ‑ there may be some utility in your side putting on a statement of the kind I identified and, just so that your juniors might make a note of it and you might reflect on it, the statement is one that would identify as far as possible – that is, an intention to make it comprehensive – the statutory or other bases – we are not confined to statute; it may be that we go to other and deeper sources – whether found in the Migration Act 1958 (Cth) or elsewhere which the defendants would say permitted or obliged the defendants, or any of them, to implement or apply any identified part of the offshore processing regime in the dealings relating to the applicant which are the subject of this application. My intention was to draw it in a rather all‑embracing form and I suspect as an interrogatory the answer “too wide, fishing, vexatious and embarrassing” might well be the immediate riposte of the pleader, but ‑ ‑ ‑

MR GAGELER:   No, the answer is “Understood” and the riposte is “It is a very elegant formulation which we can work within”.

HIS HONOUR:   Yes.  Is there utility in having that done?

MR GAGELER:   There is utility in doing that and, as to the timing, the appropriate time would be when we produce the affidavit which ‑ ‑ ‑

HIS HONOUR:   You put on your affidavit and this statement ‑ ‑ ‑

MR GAGELER:   And this statement, yes.

HIS HONOUR:   Would you expect, subject to whatever appears in the applicant’s further material, that that would conclude your side for the material?

MR GAGELER:   Yes.  Our intention was, in the affidavit, to fully explain the present position in respect of the offshore processing system and also to explain its historical evolution, which is really part of the important story.  Once that was done, we believe the only material that would need to be assembled would relate to the particular circumstances of the plaintiff in this matter.  In that respect, I have had some discussions with my learned friend and we could do that in a co‑operative way to make sure that in one affidavit or in an exhibit we put before the Court there will be a complete record.  That would seem to us to be something that can be sensibly achieved in the same way as a record is made for any other migration case really.

HIS HONOUR:   Yes.  Now, is there any expectation on your side of the record – and I will shortly ask this question of Ms Mortimer – whether the

Full Court would go on to deal with the merits of the judicial review application, that is, if it were to be concluded that any of the pleaded grounds of review are available in this case, would you expect the Full Court to go on and conclude whether they are made out?

MR GAGELER:   We thought it best to place before the Court the totality of a test case or test cases so there are any number of ways that the case could potentially ‑ ‑ ‑

HIS HONOUR:   The wisdom of that I do not challenge, Mr Solicitor.

MR GAGELER:   The answer is yes, your Honour.

HIS HONOUR:   Yes.  No doubt the Full Court will ultimately steer the course it collectively chooses, but I see the wisdom in putting real live facts, real live claims about a specific case to raise the issue or issues which it is sought to agitate.

MR GAGELER:   Yes.  We have sought in relation to the cases in which Ms Mortimer appears to have the plaintiffs choose what they believe to be the best test vehicle.  That is why M61 is before your Honour today.

HIS HONOUR:   Yes, I understand that.  Yes, thank you, Mr Solicitor.  Now, Ms Mortimer, you have heard the discussion I have had with the Solicitor.  First, as to the putting on of a statement identifying statutory or other bases, do you wish to make any submission about either the desirability of doing that or the formulation that I have proffered?

MS MORTIMER:   Your Honour, we would submit it is appropriate.  We would submit that because, in part, as your Honour will have seen from our application, there is a degree of speculation by us as to the legal framework and it would be more helpful for us and for the Court, in our respectful submission, if we knew a little bit more about that legal framework, not only 10 days ahead of the hearing when the defendants’ submissions come in.

HIS HONOUR:   Yes.

MS MORTIMER:   It will focus the issues greatly, with respect, your Honour.  Your Honour, in relation to the manner in which we would submit the Full Court should deal with the matter, we would respectfully submit the Full Court should deal with the entirety of the matter, including the merits of the judicial review if it sees it appropriate.

HIS HONOUR:   Yes.  If the grounds pleaded are available, then go on to decide them.

MS MORTIMER:   Yes, your Honour.

HIS HONOUR:   Yes.  Now, have you, on your side – let there be no doubt about this, what I am doing is verballing you – have you settled your claims for relief?

MS MORTIMER:   Your Honour, it is very early on in the proceeding.

HIS HONOUR:   Exactly so, Ms Mortimer.

MS MORTIMER:   This is quite a critical juncture, your Honour, in terms of us now being completely aware about how the matter is to proceed ‑ ‑ ‑

HIS HONOUR:   What I really need to know is, do you want to hold in your back pocket the possibility of reframing your claim?

MS MORTIMER:   Just for a little while, your Honour, as to the relief.

HIS HONOUR:   How long?

MS MORTIMER:   Well, your Honour, on the timetable that we are jointly to put to your Honour, the plaintiff will be filing and serving his further affidavit material, essentially to complete the record, your Honour, on 18 June, so that is not very far away.  We would be content to add to that a requirement to file the final version of any application that we seek to make.  So that is only a couple of weeks, your Honour.

HIS HONOUR:   At what point am I going to be in a position to know because counsel tell me so that (a) the factual record is complete; (b) their grounds are complete; and (c) the matter is fit to go into a Full Court?

MS MORTIMER:   Your Honour, on our timetable it would be on 21 June.  There is some symmetry to my suggestion about the 18th for a final application, your Honour, because of course by then we will have had the defendants’ affidavit and we will have had the defendants’ statement and then we will be in the best position we can be to be informed about whether our application is as we see it should be.

HIS HONOUR:   What I would like to aim towards is a directions hearing late in the week of 21 June.  I cannot remember now how the Brisbane sittings works, but the Thursday or the Friday, and it would be my hope that by that stage the directions hearing would be entirely formal.

MS MORTIMER:   Your Honour, that seems entirely appropriate, if I may say so, on the plaintiff’s part, and we would anticipate that the necessary steps would have all been completed by then.

HIS HONOUR:   All I would need is for juniors or solicitors to be armed with information that, one, the factual record is complete; two, there is no factual dispute; three, the grounds are final.  There is no bar in the view of the parties to the matter going into a Full Court.

MS MORTIMER:   I understand.

HIS HONOUR:   That can be done, as I say, formally if that is the stage which the parties have reached.  I would want to look towards doing it at 9.30 on the Friday, but that is very much E and OE.

MS MORTIMER:   Your Honour, for our part we would be confident we would be able to give your Honour those assurances by that day.

HIS HONOUR:   If World War III were to be breaking out at that point, that is the time at which I need to know that war has been declared.

MS MORTIMER:   We will come armed, your Honour, yes.

HIS HONOUR:   I will need to know the casus belli, too.

MS MORTIMER:   Yes.  Your Honour, would it be convenient if I ran through the timetable that we propose?

HIS HONOUR:   Yes, please.

MS MORTIMER:   Your Honour, there is one additional matter, if I might just raise in terms of an order that we would seek, purely a formality that your Honour dispense with the requirement of rule 22.02 about the filing of affidavits of service in all our proceedings because there have been appearances filed.

HIS HONOUR:   Yes, you may take that order.

MS MORTIMER:   If your Honour pleases.  Now, in relation to the timetable, the first step in the timetable would be that the defendants file and serve an affidavit setting out the essential features of the offshore processing regime on or before 15 June, together with the statement that your Honour has proposed.

HIS HONOUR:   Yes.

MS MORTIMER:   The second step, your Honour, would be that the plaintiff file and serve any further affidavit evidence on or before 18 June 2010.  We would anticipate then that that would complete the filing of factual material on the record.  Your Honour, there should also be an order that the plaintiff file and serve any amended application on or before 18 June.  Then, your Honour, the next step would be that the parties to issue notices under section 78B of the Judiciary Act on or before 21 June.  Now, your Honour, I should say that, for our part, we do not anticipate that that is necessary.

HIS HONOUR:   I would, nonetheless, want to make that direction so that there is a clear date by which you would have to put on 78Bs, that is, to decide whether you are going down the constitutional path or whether a constitutional path has opened up willy‑nilly.

MS MORTIMER:   Again, your Honour, because we will have the defendants’ material, we will be in a position to make that judgment.  That would still be an order that would need to be complied with before the directions hearing which, in my submission, is probably appropriate.

HIS HONOUR:   Which would entail adjourning for further directions on 25.

MS MORTIMER:   My learned friend is suggesting that that might be a little early and, perhaps, your Honour, the suggestion is the 78B notices be filed on or before 23 June, if that is convenient. 

HIS HONOUR:   Or, if you like, we can leave them over until the further directions hearing and the further question which whoever attends that directions hearing will need to be in a position to answer is whether 78Bs are necessary.

MS MORTIMER:   Yes, your Honour.

HIS HONOUR:   That, I think, is probably the neatest solution so that if those who are to attend the directions hearing add to the shopping list of questions that additional question.

MS MORTIMER:   If your Honour pleases.  Then, your Honour, we have the proposed directions about submissions, and what we would propose about that is that the plaintiff file and serve written submissions 12 working days prior to the hearing.  So we are going to work these backwards from the date the matter gets listed, if that is convenient.

HIS HONOUR:   Yes.  Could we, though – is it going to discommode counsel too much if I fix them by reference to the commencement of the sittings on 24 August, if we just fix dates that will give you a timetable that will be geared as if the case were to be listed first on 24 August.  I do not know that that will be so, but if we were to gear it accordingly we are all safe.

MS MORTIMER:   Yes, your Honour.  My learned friend is suggesting that perhaps we do not set submissions timetables now, we wait for the directions hearing.

HIS HONOUR:   Yes, by all means do that, but if you would do it recognising, first, that it is a timetable that will have to close before the commencement of the settings and, second, that it is a timetable which I think may be better set with rather more protracted times than the rules and practice directions provide.  So please do not come saying “Here’s the practice direction times”.  I would much prefer it to be longer, for the benefit of the Court and the benefit of the parties.  I know it seems counterintuitive to do it in that way, but I think there is advantage.

MS MORTIMER:   Yes, your Honour.  We will take those matters into account and ensure the timetable meets them.

HIS HONOUR:   The further consideration that will then emerge and for consideration at the directions hearing will be whether your 78Bs are on the table.  We will need to factor in the possibility of intervention and, of course, if this were not the only matter to be going forward, that raises issues related to those at issue in this application.  It may be that there are 78Bs necessitated in other matters and the timetable that will be set will be a single timetable to which all matters which relate to these issues, whether that is your matter or your matter and others, will be expected to abide.

MS MORTIMER:   If your Honour pleases.  Your Honour, for those reasons it is even more appropriate that there be no directions as to submissions at the moment then. 

HIS HONOUR:   Yes.  What is the rule you need dispensation from?

MS MORTIMER:   Rule 22.02, your Honour.

HIS HONOUR:   Yes.

MS MORTIMER:   The only remaining matters from our perspective, your Honour, are there may be a need for liberty to apply to be reserved, if your Honour pleases.

HIS HONOUR:   Yes, two days written notice.  Would that suffice?

MS MORTIMER:   If your Honour pleases, yes.

HIS HONOUR:   Whether you can summon a judge in two days written notice may be an entirely separate question.

MS MORTIMER:   Your Honour, so far as the summonses in the other matters are concerned ‑ ‑ ‑

HIS HONOUR:   Can I deal with those separately in a moment, Ms Mortimer?

MS MORTIMER:   If your Honour pleases.

HIS HONOUR:   Can I just deal with M61.  If I were to make orders and directions as follows:

1.Dispense the plaintiff from compliance with the provisions of rule 22.02 of the Rules of Court.

2.Direct that on or before 15 June 2010 the defendants file and serve an affidavit setting out the essential features of the “offshore processing regime”.

3.On or before 15 June 2010, the defendants file and serve a statement identifying, as far as possible, the statutory or other bases, whether found in the Migration Act 1958 (Cth) or elsewhere, which the defendants would say permitted or obliged the defendants, or any of them, to implement or apply any identified part of the offshore processing regime in the dealings relating to the applicant which are the subject of this application.

4.On or before 18 June 2010, the plaintiff file and serve:

(a)any further affidavit upon which the plaintiff seeks to rely;

(b)any proposed amendment to its application for relief.

5.Adjourn the matter for further directions to 9.30 am on 25 June 2010 in Melbourne, or such other time as may be fixed.

6.Reserve liberty for the parties to apply on two days written notice to opposite parties.

7.Costs of the directions today to be costs in the application.

Is there any party who would wish to be heard against orders in those terms or who would seek their modification?

MS MORTIMER:   No, if your Honour pleases, for our part.

MR GAGELER:   No, your Honour.

HIS HONOUR:   Thank you, Mr Solicitor.  Thank you, Ms Mortimer.  Ms Mortimer, we then have to deal with the other matters in which you are engaged.  They are, are they not, matters M73 and then the several Perth matters numbered 1 to 10.  Is that right?

MS MORTIMER:   No, your Honour.  Our matters go M73 through to M82.  Those are the only matters in which I and my learned friends appear.

HIS HONOUR:   Then, if I simply stand those matters out of the list with liberty to restore them to the list on, shall we say, two days written notice to opposite parties.  Would that be the appropriate course to follow?

MS MORTIMER:   Yes, your Honour.

HIS HONOUR:   Then there will be directions in those terms.  It may be, Ms Mortimer, that you may be interested directly in what is to be done in the remaining applications in the list that are listed for mention, so forgive me if I say that it may be in your interests to remain in the Court until I have dealt with those.

MS MORTIMER:   We have thought it might, your Honour.

HIS HONOUR:   You astonish me, Ms Mortimer.

AT 10.45 AM THE MATTERS WERE ADJOURNED