Plaintiff M61/2010E v Commonwealth of Australia & Ors; Plaintiff M69 of 2010 v Commonwealth of Australia & Ors [2010] HCATrans 177

[2010] HCATrans 177

[2010] HCATrans 177

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

Office of the Registry
  Melbourne  No M69 of 2010

B e t w e e n -

PLAINTIFF M69 OF 2010

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Defendant

SUE ZELINKA

Third Defendant

SECRETARY, DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Fourth Defendant

Directions hearings

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 15 JULY 2010, AT 2.28 PM

Copyright in the High Court of Australia

__________________

MR R.M. NIALL:   May it please the Court, I appear for the plaintiff.  (instructed by Allens Arthur Robinson Lawyers)

MR S.P. DONAGHUE:   May it please the Court, I appear with MR D.F. O’LEARY for all defendants.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Now, Mr Niall, I have looked at the documents that have most recently been filed.  We have, amongst others, the joint submissions on directions.  That, I understand, to be on behalf of both parties, is that right, Dr Donaghue?

MR DONAGHUE:   It is, your Honour.

HIS HONOUR:   Yes, thank you.  We have the digest of factual material.  We have a draft index of reference.  There are 78B notices as well.

MR NIALL:   Yes, your Honour.

HIS HONOUR:   Can I just take up a couple of matters that are provoked by the documents.  First, the digest of factual material – its purpose is sufficiently described, I think, in paragraph 1, is it not?

MR NIALL:   Yes, your Honour.

HIS HONOUR:   Yes, and it is an agreed document, agreed, that is, in its terms.

MR NIALL:   It is, your Honour.

HIS HONOUR:   Yes.  It follows, does it not, that this digest of factual material encapsulates the limits of any factual controversy between the parties and, in particular, should be understood as recording that neither party seeks to supplement the material presently on file and in particular that which is referred to in here by further evidence, whether evidence‑in‑chief or evidence by way of cross‑examination?

MR NIALL:   That is correct, your Honour.

HIS HONOUR:   Yes.  Then, if I could just turn a moment to the application book – I do not want to go through some quasi exercise of settling contents, but look at the draft index – I wonder whether the digest of factual material might not usefully appear in two places – one in the application books, probably as what would be item 5, but also attached or filed with or filed at the same time as your side’s written submissions.

MR NIALL:   Yes, your Honour.

HIS HONOUR:   It just occurs to me that it might be useful for the members of the Court if they have it, not only in the application book but also together with the written submissions.  If I may say so, I am grateful for the evident work that has been put into this document by, I assume, both counsel and their instructing solicitors.  Documents of this kind do not just happen.  They represent a great deal of work and, if I may say so, I am grateful for it. 

If we are to include it with the written submissions, and this should be understood as a question, not as an interrogative statement, is there any utility in further annotating it to give cross‑references, whether to appeal book pages or to paragraphs of submissions or the like?  If you are going to follow that path, what I would suggest is do it in the margin, do not do it so as to alter the pagination.  Let us keep the pagination intact otherwise we will spend hours in the hearing saying “What page was that?”  But if there is utility, do it.  If the parties think there is not utility or there is not sufficient utility, do not do it.  But it just occurred to me that maybe some cross‑referencing might help.  Two other matters I wanted to raise with you are you want to refer in all except ground 17 and to set over ground 17 for later hearing if needs be, in effect.

MR NIALL:   Yes, your Honour. 

HIS HONOUR:   I am not saying that that is inappropriate, but I think that a consequence of that is that probably both sides need to give quite careful and precise attention to the forms of order they would say the Full Court should make according to the possible outcomes and the possible permutations and combinations of outcome that could occur.  I am not sure that there is any difficulty about it, but I would rather that the parties have given some explicit thought to what happens, for example, and I pluck this out as purely hypothetical – assume you were to fail on every one of the referred in grounds.  I would assume, but do not know, that the Full Court would then order that the application, insofar as it concerns grounds X to Y, stands dismissed but otherwise stands adjourned for trial of the issues presented by ground 17.  Now, I think that is likely the form of order, but I speak off the cuff without having given it the attention which the parties might usefully give to it.

MR NIALL:   We will do that, your Honour.

HIS HONOUR:   It is, as I say, simply trying to look ahead to get issues away and off the table if they can be.  The only other question I have is, do we yet have any indication of intervention?

MR NIALL:   I can inform your Honour that the 78B notices have been served and I have an affidavit of service which will be filed in due course.  We have had two responses, from the Northern Territory and Western Australia, neither of whose Attorneys will intervene.

HIS HONOUR:   Yes.

MR NIALL:   I think Western Australia was slightly qualified in the sense that it said that if the matter was remitted it might revisit it, but no intention to intervene in the Full Court.  The others are awaiting.

HIS HONOUR:   I am not surprised that that should be so.  I just wondered whether there was anything that might emerge.  There is nothing else I would wish to raise.  Is there anything you would wish to draw to attention about the proposed joint submissions or about the matter more generally?

MR NIALL:   No, your Honour.  If your Honour pleases, we would invite your Honour to make those directions by consent.

HIS HONOUR:   Yes, thank you.  Dr Donaghue.

MR DONAGHUE:   Your Honour, there is nothing I seek to add to what has been said.

HIS HONOUR:   Yes.  I should perhaps wait and see what happens in M69 before making the orders in this matter, but my present inclination is to make orders substantially in the terms of the joint submissions.

MR DONAGHUE:   Your Honour, I was going to address the Court on the question of joint or sequential hearings in the context of M69.

HIS HONOUR:   Yes.  Well, if it would be convenient, we might call M69 at this point.

MR S.G.E. McLEISH, SC:   If the Court pleases, I appear with my learned friend, MS L.G. DE FERRARI, for the plaintiff.  (instructed by Holding Redlich)

MR S.P. DONAGHUE:   If the Court pleases, I appear with MR D.F. O’LEARY for all defendants.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Mr McLeish.  Again, I think we have documents substantially mirroring those I have earlier described in connection with M61.  We also have, do we not, an affidavit most recently filed of Malissa Margaret Dryden sworn, I think, today?

MR McLEISH:   We do, your Honour.

HIS HONOUR:   Yes.

MR McLEISH:   And that was, as your Honour may have seen, largely directed to some facts that were outstanding in relation to the constitutional points.  As luck would have it, there is a matter that has arisen from that affidavit this morning and we have asked our learned friends for some further information.  I can describe it as in short compass, but the final exhibit to the affidavit discloses that Ms Zelinka – perhaps I should take your Honour to it.  It might be contentious quite what it does disclose.  It is exhibit MMD‑14 and ‑ ‑ ‑

HIS HONOUR:   Just a moment.  Yes, I have 14.

MR McLEISH:   The second page of that affidavit, which is a narration of the work done by Ms Zelinka, has a series of dot points under the heading “Work includes the following components for 15 separate decisions” and the one that caught our attention was the fifth one:

Sending draft decisions to legal advisors at RRT –

We have asked our learned friends if it is possible to obtain copies of the communications between Ms Zelinka and the RRT.  As we understand the position, Ms Zelinka is back on Christmas Island and it has not been possible to communicate with her in time for this afternoon’s hearing.  There may be a question of privilege once there has been a communication with her.  At all events, my learned friend, Dr Donaghue, and I – he will speak for himself, of course – but we have discussed the matter.  Certainly for our part, my part, I think there is – the factual record is complete subject to the further provision of this material.  We will get whatever we get or do not get from the Commonwealth and ‑ ‑ ‑

HIS HONOUR:   By that do you acknowledge the possibility that there might be a valid claim for privilege that would preclude you getting it, or am I reading too much into what you say?

MR McLEISH:   It may be that the answer is that the communications with the RRT did not concern this particular case.  As to privilege, I think it is fair to say that both sides’ positions are in the early stages of formation.

HIS HONOUR:   Yes.

MR McLEISH:   It may well be that privilege belongs to the Commonwealth.  In any case there may be issues about that.

HIS HONOUR:   There are questions which are not yet capable of instant resolution.

MR McLEISH:   Yes, but, first of all, we do not expect this to lead to yet further facts.  It seems to be a discrete issue so although this has arisen out of one request for facts for evidence we are as confident as we can be that the answers will not produce further areas of controversy.

HIS HONOUR:   To which of the grounds of the proposed amended originating process would this material go?

MR McLEISH:   Well, your Honour, it really goes to the relationship, or the status of Ms Zelinka and her relationship with the Commonwealth and it really depends what the substance of the communications is.  At one level – and we were already aware that the protocols provided for legal advice to be given to Ms Zelinka – that may not prove terribly much.  If the nature of the request was more substantive and indicated involvement with other Commonwealth parties in the making of the decision, that may be something different.  So it is not that it goes to any specific ground – if I can put it that way.  It is part of our attempts to characterise just what the decision‑makers – Ms Taylor and Ms Zelinka – what was the status of their activities in relation to the Commonwealth which goes to the judicial review aspects. 

As Ms De Ferrari points out to me, ground 12 is the obligation to determine the application according to law and afford natural justice.  All those things flow, on one view of the case, from the capacity in which Ms Zelinka was acting when she made the decision.  We say that depending on the nature of the communications the involvement of persons unknown at the RRT might affect that question.  We cannot put it any higher than that, your Honour.

HIS HONOUR:   No, I understand.

MR McLEISH:   It may turn out to be of no relevance.

HIS HONOUR:   I understand that.  What then do you say I should do today with this question unresolved?

MR McLEISH:   Your Honour, we still urge your Honour to make the orders in the joint submissions because insofar as there is this gap to be plugged, if it can be plugged in the factual record, as we understand it, it should be possible to communicate with Ms Zelinka relatively soon.  The parties can then see what the answers are and if there is a need for a further affidavit that can be prepared.  If not, then the matter stands ready.  Because

it is that confined issue and because we do not foresee any further inquiries being necessitated, whatever the answer, we do not see that as standing in the way of your Honour making the orders today.  It is unfortunate.  It is a matter of timing unfortunately.

HIS HONOUR:   It is simply an event that has happened.  There is no point in my attempting to say that is something that should or should not have happened or might or might not have happened.  It has, and there we are.  Nothing I say should be understood as attributing blame to anyone.

MR McLEISH:   We nearly got to the end ‑ ‑ ‑

HIS HONOUR:   It is the circumstances.

MR McLEISH:   The second‑last page of the affidavit.

HIS HONOUR:   Yes.

MR McLEISH:   Dr Donaghue can speak better than I can about the difficulties in contacting Ms Zelinka on Christmas Island, but that is the outstanding issue.

HIS HONOUR:   Yes.  Perhaps I should hear from him on this aspect before I deal more generally with the matter, Mr McLeish.

MR McLEISH:   Yes, if your Honour pleases.

HIS HONOUR:   Dr Donaghue, what do you say I should do, having regard to this question?

MR DONAGHUE:   We also submit that the matter should have orders made in the same terms as are proposed in the joint submissions.  We are hopeful that the matter will be able to be – indeed, we are confident the matter will be able to be resolved in negotiations or discussions between the parties, particularly given the progress we have made up to this point in negotiations of that kind.

HIS HONOUR:   Have you any present guess about the time that might be involved in that?  I know it will be a guess.

MR DONAGHUE:   In getting an answer, your Honour, or ‑ ‑ ‑

HIS HONOUR:   In (a) getting an answer and then (b) taking it through to an end. 

MR DONAGHUE:   It seems to us, your Honour, that one very possible answer – given that that invoice relates to 15 decisions – is that not all of them were sent for legal advice and if the plaintiff’s was not sent for legal advice then that would be an answer that disposes entirely of the question.

HIS HONOUR:   Yes.

MR DONAGHUE:   That answer I would hope we could get within a matter of a couple of days.  I cannot be certain of that because Ms Zelinka is in Christmas Island until, I think, 25 July.  If the records that she has – whatever they may be and at the moment I have no instructions about that – are not with her on Christmas Island, which must be a distinct possibility, then the answer that we get might be that she cannot give us an answer until she returns from Christmas Island to Sydney and so that will take perhaps a matter of – well, it is a week and a half until she will get back to Sydney and then there would be the question of her searching her records, locating whatever there may or may not be and us dealing with it.  So it could take some time. 

We do say though, your Honour, that while ultimately it is a matter for our friends, it is apparent on the face of the material, including not just the paragraph in the exhibit that Mr McLeish has taken your Honour to, but also paragraph 19 of Ms Dryden’s affidavit, that there is a capacity for independent merits reviewers to seek legal advice from the RRT.  So at that level that fact is not contentious.

HIS HONOUR:   But there is capacity.

MR DONAGHUE:   But there is capacity to seek advice and insofar as that fact has a bearing upon the characterisation of the scheme as a whole, we do not dispute that that fact is there and whatever can be made of it can be made of it.  The detail of the question of whether, if there was advice given in this case in relation to these reasons, what can be made of that, it seems to us, with respect, to be a second or third order question and one that, if there turns out to be a document of that kind, it may well be a document that would prima facie attract a privilege claim.  So there are possible complexities if there turns out to be that material but they are not, in our submission, complexities that bear on the large questions that the Full Court is asked to resolve in this matter.

HIS HONOUR:   Do not answer this question if its answer would, or even might, embarrass you.  Are you able to indicate now whether – how can I put it – the capacity – go back a stage.  Paragraph 19 of the relevant affidavit reads:

Further, the quality assurance check is separate from the capacity of independent merits reviewers to seek legal advice from the Refugee Review Tribunal if that is required.

That sentence as drafted provokes in my mind the question, well, legal advice about what - legal advice about matters bearing immediately upon the decision that is to be given by the independent merits reviewer, legal advice about questions of power, obligations, duties, et cetera of the independent merits reviewer?  Now, let me preface my question, as I say to which you need feel no obligation whatever to give an answer, is that I see some force in your proposition that what matters is that the reviewer has this capacity, whatever it is, and whether exercised or not in the particular case, may be less important than that there was capacity, but there remain, at least at the moment in my mind, some questions about well, capacity, yes, capacity to seek legal advice, capacity to seek legal advice about what aspects of the task.

MR DONAGHUE:   Yes.  I can certainly at least give your Honour a partial answer to the question.  There is in the material that has been filed – I do not need to take your Honour to it, but in Mr Metcalf’s affidavit there is exhibited a copy of what is called the guidelines for the independent merits review.  It is exhibit AM‑8 to Mr Metcalf’s affidavit.  At page 13 of that document under heading 5, the following paragraph appears:

The RRT will provide access to country information and legal advice regarding the interpretation of the Refugee Convention and related law.  This service will be provided under a Memorandum of Understanding (MOU) signed between the Department and the RRT.  The Departmental contact officer . . . will provide the Independent Reviewer with the contact details of the nominated officers at the RRT. 

In response to a request from our friends, we sought the memorandum of understanding.  Your Honour will recall that these documents are still in draft form and that memorandum has not – negotiations have not been concluded.  If they had been that perhaps would have provided a way through, but certainly what is contemplated in the guidelines that are in evidence is that the advice relates to the interpretation of the Refugee Convention and related law.  If it would assist my friends, I am confident that I can get some instructions that might allow us to provide them with a formulation of the ambit of the advice that is sought ‑ ‑ ‑

HIS HONOUR:   Is available.

MR DONAGHUE:   That is available, yes.  That is available pursuant to the arrangement and we can put that before the Court in a form that the parties agree.

HIS HONOUR:   The most convenient point to do that, ultimately, though it would have, I think, probably to be found within an affidavit, but then ultimately to find reflection in the digest, I suspect.

MR DONAGHUE:   Yes, indeed.  Well, we could file an amended version of the digest or a document of that kind.  So we are certainly more than willing to co‑operate in resolving this problem that did only arise this morning and we are confident that we can do so.

HIS HONOUR:   Yes.

MR DONAGHUE:   That being the case, we would urge your Honour to deal with both matters today in placing them before the Full Court.

HIS HONOUR:   Yes, thank you, Dr Donaghue.  Mr McLeish, I do not want to nail you to the floor on this and you should tailor your answer accordingly, but as at present advised, do you, on your side of the record, presently think that you need more than a statement about what I have called the capacity to seek legal advice, as distinct from whether advice was in fact sought in this case?

MR McLEISH:   I think I can probably best answer that by saying that we can see the attraction of it at this time, but part of our difficulty – well, it depends what the statement says.  It would have to go beyond what is in the document your Honour has just been taken to which does not, to us, envisage review of draft decisions, for example.  If the statement is sufficiently particular, that may well meet our requirements.  It depends a little on what is being reviewed in the draft decision.  It is one thing to review a general statement of the law.  It would be another to review the whole reasoning of the decision, perhaps.  So depending on the specificity of what might be told to us that may well cover the point.  At the moment, a statement in paragraph 5 of exhibit AM‑8 is sufficiently general as to be perhaps not terribly useful, so if what our learned friends are proposing is something more precise, then that might well meet the situation.

HIS HONOUR:   Can I say this to you, Mr McLeish, and again, do not take it as a point of criticism for I am not presently minded to refer this in while this controversy remains, I am not presently sufficiently confident that we will not have a point of fact remaining in dispute which is a point of fact which your side rightly regards as sufficiently important to merit pursuit.  Now, what I would be minded to do – and I should have looked at my diary earlier – is to bring it back on on Monday or Tuesday or thereabouts next week and do so on the understanding that by then the parties have decided their position.  As I say, do not for a moment take what I am saying as any criticism of either side in this litigation.  It is simply the nature of the litigation that we are confronted with.

MR McLEISH:   Yes, your Honour.  I had raised with our learned friends the possibility of that.  I think it is really ultimately a question of whether the likelihood of being able to communicate with Ms Zelinka before then ‑ ‑ ‑

HIS HONOUR:   But there are two ends to this communication, Mr McLeish. 

MR McLEISH:   Yes.

HIS HONOUR:   There is the RRT end and there is Ms Zelinka’s end.

MR McLEISH:   Well, we had focused on the RRT end until the possibility of a privilege claim was raised, which I suppose might make the RRT feel it could not assist, unfortunately.

HIS HONOUR:   Yes, I understand that, but telephones exist, do they not?  Even satellite phones exist to Christmas Island.

MR McLEISH:   I would not answer that question, your Honour.  It seems to be more difficult than I had appreciated in all events.  But I can see merit in the idea of coming back when we know something more than we know now.

HIS HONOUR:   Hitherto I have thought it valuable to have both cases go forward together because there are some aspects raised in this case that are not raised at least in the same form in 61.  I remain of the view that there is advantage to be had from putting both through to the Full Court for hearing either together or one after the other and that is a question to which we will have to come.  But I will not put it through until I am at a point of comfortable assurance that we will not have a factual brawl breaking out in the Full Court.  That is unsatisfactory for everybody.

Now, I presently have a directions hearing fixed, I think, for 2.15 on Tuesday, 20th.  I think that directions hearing may itself be adjourning over, but this might have to slot in in its place if that is not grossly inconvenient to counsel.  As always, I think, the juniors are doing a deal behind your back, Mr McLeish.

MR McLEISH:   It is all happening without me, your Honour.  Perhaps while that is happening there were some other matters I could perhaps sell the Court.

HIS HONOUR:   Yes, please.

MR McLEISH:   I am instructed that my instructors have received responses from all States except South Australia and Queensland indicating that they will not be intervening, except for Western Australia with that qualification that your Honour has already heard about.

HIS HONOUR:   Yes.  Do you have a view about manner of hearing, that is, would the Full Court call on one case, hear it through, then call on the other case or would it call on both together, hear argument from the plaintiffs in both, then a single argument from the defendants?

MR McLEISH:   We thought both together would be more efficient, your Honour.

HIS HONOUR:   Yes.

MR McLEISH:   Even though the judicial review grounds are discrete, the framework is the same, of course.

HIS HONOUR:   Yes.

MR McLEISH:   That may well bear on the availability of the judicial review grounds in both cases.

HIS HONOUR:   Whether or not heard together or sequentially I am fairly confident to say that the Court would not take kindly to repetition of what has already been said by one party acting in generally the same interest as another.

MR McLEISH:   It depends how absorbing it is, your Honour. 

HIS HONOUR:   Just so.

MR McLEISH:   We will take your Honour’s point on board.  The other matter, of course, your Honour will have seen is that there is a further amended application which we have sought leave in relation to.  I do not think I need to take your Honour through ‑ ‑ ‑

HIS HONOUR:   Do I understand the essence of that to be one, to enlarge the challenge to the whole of the relevant section – 46A, not just subsections (1), (2) and (7) and to deal perhaps rather differently with what might be called the judicial review grounds, but are those the chief changes that have been made?

MR McLEISH:   Yes.  The particulars seem to us not to be in quite the right place, so they would move, but there is also the apprehended bias ground which is 13(c) on page 8.

HIS HONOUR:   This depends on statements by Ministers.

MR McLEISH:   Yes.

HIS HONOUR:   At various points.

MR McLEISH:   So that has been added, your Honour.  I think those are the only matters.  I think your Honour did ask some questions of my learned friend, Mr Niall, of the digest of factual material.

HIS HONOUR:   Yes.

MR McLEISH:   I do not want to put my head in the lion’s mouth by trying to answer those questions.  I have not been asked them, but we thought it was ‑ ‑ ‑

HIS HONOUR:   You were about to be, Mr McLeish.  You were about to be.

MR McLEISH:   We thought it was appropriate to file a similar document.  It relates to the judicial review grounds only. 

HIS HONOUR:   Yes.

MR McLEISH:   So it does not – it will not take the place of the evidence insofar as there are other facts for the constitutional matters, but as your Honour will have seen from the index we have tried to confine those matters as much as possible.

HIS HONOUR:   What I am anxious to ensure is that the Court can comfortably work from the digest as its road map for determining the judicial review grounds if that is necessary to the decision.  It seems to me, at the moment at least, that there are framework questions and questions of basic principle which, if answered in one sense, would make the judicial review grounds unnecessary to answer; if answered in the opposite sense would require you to then go on to examine the particular judicial review grounds and the digest would give the Court the road map to the positions that are being maintained.

MR McLEISH:   That is its purpose, your Honour.  Now, although there would be a need to refer to the affidavits in relation to the constitutional aspects, with two exceptions we do not expect a need to refer to the evidence for the judicial review grounds.  The exceptions arise because in paragraph 4b of the digest and similarly in paragraph 8b, there is reference to the manual – the RSA manual and the IMR guidelines respectively which were followed or taken into account.  The parties could not agree on a statement as to whether there was an obligation to do that, or whether, if there was, what the nature of it was.  We would submit that an obligation emerges from other evidence.  It is an inference from other evidence.  Our learned friends would have a different view, so there may be a few small matters like that where other materials need to be referred to.

HIS HONOUR:   I am not surprised by the fact that there will be a need to refer to other material in the application book, but I am anxious that the members of the Court have available some assistance by way of road map.

MR McLEISH:   Yes, your Honour.

HIS HONOUR:   Now, again, if questions of annotation of this document can be considered by your side of the record, I suspect, for example, it would be very helpful to have annotated against, say, 4a, given a copy of the RSA manual, volume X, appeal book pages Z to ZZ, would at least give us an even better road map.

MR McLEISH:   Yes.

HIS HONOUR:   But, as I say, whatever final form of digest is fixed upon, do not, please, adjust the pagination.

MR McLEISH:   No, we understand, your Honour.  The only other matter I wanted to raise is that if indeed the matters were to be heard together, it may be desirable to avoid duplication in the application books and that may be the case whether they are together or sequential.  It seemed to us that at least the affidavit of Mr Metcalf, which is common, ought to be – this is a matter of some detail.  Maybe I do not need to trouble your Honour with it at all, but it should be dealt with ‑ ‑ ‑

HIS HONOUR:   No, I understand why you do.

MR McLEISH:   Should be dealt separate in its own volume so that the Court need not have two copies of that different pagination.

HIS HONOUR:   Is it possible – again, this is question, not interrogative statement – is it possible to batch the affidavit material that is effectively common to both proceedings in a separate book?

MR McLEISH:   That is really what we were thinking would be desirable.

HIS HONOUR:   If it is, that might work, but look, your end of the process will know much better than I do what is going to be a simple and useful process to follow.  As I say, I am deeply conscious of the amount of work that has already been put in by counsel and solicitors to getting to the point we have got to so far.  All I am asking for is another 100 yards.

MR McLEISH:   If your Honour pleases, those were the matters we wanted to raise.

HIS HONOUR:   Thank you.  Dr Donaghue, you have heard me say to Mr McLeish that I am not presently minded to refer it in.  What do you want to say about that question?

MR DONAGHUE:   Your Honour, we obviously have heard what you said and there seems to be little purpose in addressing submissions against what your Honour has said in the circumstances.  It does appear, as I understood what has fallen from your Honour, that the concern relates specifically to this one legal advice point and that but for that ‑ ‑ ‑

HIS HONOUR:   No.  My concern is general and should not be misunderstood.  My concern is that this case will not go to a Full Court if there remains open live factual controversy that would require trial.

MR DONAGHUE:   Yes, I understand, your Honour.

HIS HONOUR:   It is provoked by this one matter.

MR DONAGHUE:   Yes, I put that badly, your Honour.  What I submit is that it seems to me that the likely best and fastest way to resolve this dispute is to take up the matter that I discussed with your Honour that your Honour discussed with Mr McLeish and for us to endeavour to get instructions for an agreed formulation that meets the plaintiff’s needs.

HIS HONOUR:   Yes.

MR DONAGHUE:   If we can do that, I would imagine we can do it with some speed, and that we could then file an amended version of the digest which would allow your Honour to be in a position to be confident that the possibility ‑ ‑ ‑

HIS HONOUR:   No, for me to be in a position where I verbal counsel that there is no remaining dispute.

MR DONAGHUE:   Understood, your Honour.  Well, perhaps, your Honour, if you want to verbal counsel again when we get to that point then my suggestion had been that your Honour might have been prepared just to make the orders in the event that you received a document of that kind.  If your Honour would like attendance again, of course we will attend.

HIS HONOUR:   No.  It is important that we cut out costs if we can.  If the parties agree upon an amended digest, if they file it, I will act on the assumption that its filing indicates that, as I earlier put it, the factual controversy, such as it is, is totally encapsulated in the digest and not to be supplemented by further evidence, whether in‑chief or by cross‑examination.

MR DONAGHUE:   Yes, your Honour.

HIS HONOUR:   Now, if you can attempt to arrive at that result before 2.15 on Tuesday, it would not be necessary to attend for further directions.  I will, in that circumstance, make orders generally in the form of the agreed draft submitted, varied to take account of the filing of the amended digest, of course.  If you cannot get to that point, then I will adjourn the directions hearing in 69 to 2.15 on Tuesday next.

MR DONAGHUE:   Only in M69, your Honour.  I should say my instructions ultimately would be that the Commonwealth would seek to have M61 referred in, even if M69 is not suitable to go.

HIS HONOUR:   Yes.

MR DONAGHUE:   I am happy to wait until an appropriate time to make those submissions given that we are not there yet.

HIS HONOUR:   Adjourn them both over, I suspect.  Adjourn them both over, unless you, Mr Niall, indicated that regardless of the outcome of 69 you wanted 61 to go in.  What is your position or do you not yet have one?

MR NIALL:   We do, your Honour, but we will attend at 2.15 if it is required to assist the Court if we can.

HIS HONOUR:   I think it better.  It is simply innate caution that dictates waiting until we can see where these two are both up to, but I do hope that we can get this final wrinkle ironed out in a way that obviates the need for still further attendance by counsel.

MR NIALL:   If your Honour pleases.

MR DONAGHUE:   Your Honour, in that event can I join with Mr McLeish in submitting that, from the Commonwealth’s perspective, we think there is much to be said for joint hearings of these matters so that the Commonwealth comes after both plaintiffs.  That seems a more efficient way of avoiding the repetition.  On the question of application books, we similarly think that there would be much to be said for attempting to group the common affidavits and the separate ones, that the bulk of the material in the case we think will come down to Mr Metcalf’s affidavit and exhibits and rather than burden the Court with two versions of that it seems preferable to go down that path.

HIS HONOUR:   Yes.

MR DONAGHUE:   So the indexes that have been filed would, in conjunction with the Registrar, need some modification to take into account of that possibility.

HIS HONOUR:   Yes, and whether you colour code covers or do whatever you like to set them apart, your end of the deal knows much better than me how best to end up with a set of useable documents that we can work with in Court.

MR DONAGHUE:   Your Honour, I do not have any other submissions, unless I can assist further.

HIS HONOUR:   Yes.  Well then, the only order I will make today is to adjourn both matters for further directions on Tuesday next at 2.15 pm.  Costs of today should be costs in each of the proceedings.  As I have said to counsel, if, in the meantime, there is filed in M69 an amended digest together with any further affidavit that may be thought desirable or necessary to support the facts recorded in the amended digest then I would be disposed to make the orders without need for attendance of counsel.  It is likely that I would make those orders in open Court rather than by way of consent orders, but counsel and solicitors should not feel obliged to attend in that event unless notified to the contrary.

As I say, I am indebted to counsel and their instructors.  Adjourn the Court.

AT 3.15 PM THE MATTERS WERE CONCLUDED