Plaintiff M61e-2010 v Commonwealth of Australia & Ors

[2010] HCATrans 169

[2010] HCATrans 169

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, 25 JUNE 2010, AT 9.27 AM

Copyright in the High Court of Australia

__________________

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

MR S.P. DONAGHUE:   If your Honour pleases, I appear with MR D.F. O’LEARY on behalf of all defendants.  (instructed by Australian Government Solicitor – Sydney)

HIS HONOUR:   Ms Mortimer, can we begin with my attempting a better understanding of some aspects of it than I presently have.  First, is the form of application for order to show cause on which you would want to go forward that which was filed on 23 June?

MS MORTIMER:   Yes, your Honour.

HIS HONOUR:   Now, Dr Donaghue, will there be any opposition to the plaintiff having leave to amend to put the application in that form?

MR DONAGHUE:   There will not.

HIS HONOUR:   Yes, thank you.  Now, Ms Mortimer, can I just understand a couple of aspects of it and, particularly, some structural matters for this reason so that you know where the debate is heading.  I am alarmed, deeply alarmed, by the volume of paper.  My present inclination, which the parties will have to address, is that the factual issues of whether there has been some demonstrated ground which would, if available, attract relief by way of judicial review is not a matter fit to go to a Full Court.  It is too factually heavy, it is too document heavy and it is not right that those issues should go to a Full Court.

So the premise for the debate that is about to occur, which is a premise which you will later be invited to challenge, is that we need to do some dividing up and that some, but not all, of these issues would go to a Full Court.  So that is the premise.  That is where I am heading.  As I say, let us get to a debate about the premise after I have first understood, better than I think I presently do, the structure of the proceeding as proposed.

MS MORTIMER:   If your Honour pleases.

HIS HONOUR:   If we look at grounds 1 to 7 as they appear at pages 4 to 6 of the amended document, I would understand those to be grounds which, in a number of ways, raise as a general question, is there something amenable to judicial review, is there a decision which is amenable to judicial review?  Now, that is put in various ways with a number of elaborations.

MS MORTIMER:   Yes, your Honour, but that is essentially correct. 

HIS HONOUR:   Yes.  Can I leave aside ground 8, whether standing alone or coupled with grounds 18 and 22?

MS MORTIMER:   If your Honour pleases, yes.

HIS HONOUR:   Grounds 9 and 10 seem to me to be saying – under ground 9 – and this is putting it unduly briefly – seeking advice or, if you like, undertaking these processes does not comply with and is inconsistent with the identified provisions of the Act.  That provokes, to my mind, the further question put rather succinctly as “So what?”  Then ground 10 as an alternative to ground 9 says, in effect, the Minister has started on a process which has to be completed.

MS MORTIMER:   Yes, your Honour, that is right.

HIS HONOUR:   It seemed to me that at least grounds 1 to 7 and grounds 9 and 10 were matters that ought to go to a Full Court and that they are matters which would require reference to some, but not all, of the evidentiary material that has been filed. 

MS MORTIMER:   I accept that, your Honour.  Yes.

HIS HONOUR:   Then, at the moment, still leaving aside ground 8, whether with or without 18 and 22 where the question will be posed as the statement “I don’t understand what they’re saying”, we then come through ground 11, want of procedural fairness; ground 12 and perhaps 12, 13, 14, 15 and 16 can all be grouped as a collection saying “…..the wrong question in the course of review” and that is elaborated in various ways.

MS MORTIMER:   Yes, your Honour. 

HIS HONOUR:   Then ground 17 you used a template but what is not apparent from 17 to me is what ground of judicial review is thus said to be engaged.  Then in 19 to 22 we get, in effect, the same kinds of complaint, not about the review process but about the preceding process and we are then left with 8 coupled with 18 and 22.  Now, can I identify the kind of problem that I have that is provoked by these particular issues of whether, for example, there was a want of procedural fairness.

As I understand the ground it is the person who was taking the step in question should have, but did not, disclose reliance on certain information.  That provokes the question, is reliance on the information a matter of dispute?  If it is a matter of dispute, is that a dispute to be resolved by simply reading what that person produced as an end product – you would say a decision document?  Is the failure to disclose upon which you rely, a matter which is accepted as a matter of fact?

Now, my concern is that that kind of issue, which may or may not be quite readily resolved, is one which is not apt for consideration before a Full Court.  It is better that that be dealt with at trial.  If there is dissatisfaction with the outcome at trial, so be it.  Appeal processes lie, but there is that process of digestion at trial before a single Justice, whether in this Court, or if it could be remitted on remitter, those are questions I do not stay to examine.

The big issues that are provoked by the application seemed to me to be at the moment those provoked by grounds 1 to 7 and 9 and 10.  Now, I have left out of consideration 8, plus or minus 18 and 22.  You may deal with those either at once or we can come to them at the tail end of debate, but do you see the premise which I want put on the table and examined?

MS MORTIMER:   I do, if your Honour pleases.  May I address 8 and 22 by initially responding to your Honour that the description of them as at the tail end is probably appropriate and it may be that they do not advance the argument significantly at all depending, your Honour, really on how the Commonwealth will put the interaction between this process and the Act.  That is really the large part of the debate that will arise in relation to grounds 9 and 10 and the interrelationship between what the Commonwealth seeks to rest on executive power and the way the Act is designed to operate and what parts of the Act the Commonwealth says it can, in erecting this kind of scheme, pick up and for what kinds of purposes.

Those grounds identify what may be difficulties with picking up parts of the Act that appear to be conferring powers for purposes related to the grant of a visa and whether, indeed, they are picked up and can be permissibly picked up in the scheme that is not, as we understand it on the Commonwealth’s argument, as yet directed at the grant of a visa.  So they may or may not, your Honour, become live depending on how, once we see in more detail, how the Commonwealth explains the scheme and supports it.  So we certainly would not urge, at the moment, that there need to be a great focus on that.

Your Honour, we accept that the large issues of principle arise in relation to grounds 9 and 10, read with grounds 1 to 7.  The way I would seek to persuade your Honour that something of the substantive issues around – if we are otherwise successful on those grounds - the judicial review areas ought to be considered by this Court is really because, your Honour ‑ ‑ ‑

HIS HONOUR:   But as a Full Court.

MS MORTIMER:   As a Full Court, because, as your Honour can see, there are a number of proceedings which have already been commenced about decision making under this process and there are likely to be more.

HIS HONOUR:   Yes, but the last thing you are going to get out of a Full Court is an advisory opinion about litigation generally in this area.

MS MORTIMER:   Of course, your Honour, but the considerations of how – if there is one – an obligation of procedural fairness operates, both as to its content and as to its discharge, within this process, in our submission, is something that it would be appropriate for a Full Court to consider in relation to one case. 

Similarly, your Honour, in our submission, in relation to what might be called our jurisdictional error grounds, the content of the law that is to be applied and the manner in which it is to be applied and again, in our submission, because of the likely application of what this Court as a Full Court might say on those issues to a series of decisions that are likely to come under challenge, would be instructive and would be useful and it would be appropriate in these circumstances where we are dealing with a kind of decision making, your Honour, that has not previously been judicially scrutinised at all and where there are large differences between the Commonwealth and the other parties about, not only the nature of this process, but we would anticipate its content.

One need only, your Honour, read the terms of what purports to be a record of either advice, recommendation or decision to see that there are significant issues raised about how Australian law is to be applied to this process.

HIS HONOUR:   Assuming that I were to accept everything that you have just said about the importance of issues of this kind, can I invert the question just to test an aspect of it?  If I were to refer for argument to a Full Court so much of the application as concerned the grounds I have identified, namely 1 to 7 and 9 and 10, are you disadvantaged in your argument under those heads in any way by dividing the case in that fashion, in particular, are you left in a position where you have an insufficient factual base?  I thought not.  Are you disadvantaged in some other way?

Can I again indicate where I am going so that you can deal with it as fully as you may?  If you were not able to point to some disadvantage that would be sustained at your end of the record – and I have to direct the same questions to Dr Donaghue later – if there is no disadvantage from shelling it out in this way and dividing it up in this way, the fact that there may have to be later and further litigation if you were to succeed in the grounds thus referred in to a Full Court is not, I think, determinative of whether I should put them all in at once.  Does that identify the kind of thought that is in play?

MS MORTIMER:   It does, your Honour, although, in our submission, there is a great deal to be said in the rather unique circumstances of these pieces of litigation for some authoritative guidance and for the initial – otherwise in the course that your Honour is proposing, if we were successful on the grounds that your Honour has identified, the first consideration – judicial consideration of the error issues could well be, if the matter falls out that way, in the Federal Magistrates Court.  In our submission, your Honour, quite frankly that is not appropriate.

HIS HONOUR:   But that is a question about remitter, is it not?

MS MORTIMER:   Your Honour, it is and it is not, but it is also a question of the bifurcation of the proceedings in circumstances where these people are very close to being removed, we are only on five days working notice from the Commonwealth and in circumstances where there is a procession of people that are going to be coming through this process and because of the uniqueness of it and because of the novelty of it, in some respects, in our submission, it is preferable for an entire matter to be decided by a Full Court.  But, your Honour, may I address the disadvantage issue ‑ ‑ ‑

HIS HONOUR:   The difficulty about that is I have about 18 inches of paper and that is not an appropriate footing, I think, on which to present the matter to a Full Court because the Court is then left to glean the relevant facts from 18 inches of paper and that is not an appropriate use of curial time.

MS MORTIMER:   Your Honour, I completely accept that.  Probably about 16 and a half inches of that bundle is country information which the Court will not need to be taken to, other than to particular parts of it.  Your Honour, that is why in this application we have, as best we could, concisely particularised the procedural fairness grounds so that the volume of material with which your Honour is rightly concerned, I accept, comes into play only on procedural fairness.  At the moment because of the compressed timetable, as I understand it, we have been under, the Commonwealth certainly has taken the view that it should put everything in, but there is then a filtering process, your Honour, that will, I am confident, make the argument of those grounds not only manageable but also appropriate.

HIS HONOUR:   Do not misunderstand me.  I am not criticising either side in this litigation for putting on this amount of paper.  I am not saying it was an unnecessary step, but take, for example, the procedural fairness question.  Is there going to be at a hearing – wherever the hearing occurs – a fight about what the, you say, decision‑maker took to account and what the person, the subject of, you say, the relevant decision to be, was told was being taken into account.

MS MORTIMER:   Your Honour, there will only be three factual sources that will be required and if your Honour looks, for example, at ground 11(a), to take that as a working example, there is a paragraph in the reasons that is identified and so the principal source will be the reasons, or what we are presently calling the reasons.  There is then an apparent reliance on a piece of country information, which can be readily identified and is not large, and then there may be, to make good the denial, a reference to the transcript of the interview.  Those will be the principal sources and they will be repeated for the grounds, but they are, your Honour, in our submission, confined.  In that sense, we would not wish the Court to be alarmed about the volume of material because ‑ ‑ ‑

HIS HONOUR:   Too late, Ms Mortimer, too late.

MS MORTIMER:   Well, I seek to dispel the alarm, your Honour, because it is certainly not the way that we – and I am sure the Commonwealth would agree – envisage the case would ultimately be presented.  The procedural fairness grounds would be targeted and involve a very small amount of material.  There is no affidavit evidence, your Honour, for example, from our client about denial of procedural fairness so we are not in that kind of contested territory.

HIS HONOUR:   No, but are we in a position where you would be before the Full Court saying the plaintiff complains as follows and the defendant does not deny that this is what happened?  Unless you are in that position, those points have to go to trial, I think.

MS MORTIMER:   Well, when your Honour proposes to me whether the Commonwealth will accept this is what happened, I do not understand there to be any dispute about the accuracy of the sources.  Now, there may be a debate about how that paragraph of the reasons is properly to be understood.  Your Honour, that is a stock standard debate in any judicial review which obviously, in our submission, is something that could be had before a Full Court, but in terms of the Commonwealth saying that is not an accurate reflection of the transcript of the interview or that is not the piece of country information that the supposed decision‑maker was referred to, we do not understand there will be any factual disputes along those lines.

HIS HONOUR:   Yes.

MS MORTIMER:   Your Honour, in relation to your Honour’s question about whether we will be disadvantaged if the case is divided up, I have to give your Honour, I think, a tentative answer to that but the answer ‑ ‑ ‑

HIS HONOUR:   I am putting you on a spot which probably I should not, Ms Mortimer, but if you could point to this advantage, and recognising that you may be in a position where you cannot now point to disadvantage is not necessarily conclusive, but if you can point at once to any disadvantage then that will assist me in my deciding what to do.

MS MORTIMER:   Your Honour, it does seem to us that there is at present a rather difficult process of understanding to be gone through about the relationship between what the task that these two individuals, whether you take at first instance or on review, are engaged upon.  In part, the nature of that task will arise from looking at the statutory framework and then the non‑statutory framework which has been constructed.  But, in our submission, it will also arise by looking at the end product which are the two decision records that have been produced and looking not only at the language that they use and what they appear to say on their face but what they disclose about the decision‑maker’s understanding of his task as well.

Part of that, in our submission, will involve looking at what the decision‑maker understands is the law that the decision‑maker was applying and for what purpose, as well as looking at why it was that the decision‑maker understood that some kind of procedural fairness needed to be extended.

Now, your Honour, take the review decision.  There is a contract in evidence that appears to impose, by way of contractual obligation, obligations in the nature of procedural fairness and we would say the nature of the decision‑making process is such that those obligations are imposed outside the contract.  It may be, your Honour, that once we start looking at this decision‑making process in detail, understanding the nature of the tasks being performed and the errors that may arise in the performance of that task is not so easily separated from looking simpliciter at what the authority is in the Commonwealth to erect the process.

HIS HONOUR:   Can I, perhaps, invite your attention to this kind of question and do so by a reference to the Commonwealth’s statement concerning the legal basis for the offshore processing regime?  Do you, by any chance, have that readily available to you?

MS MORTIMER:   I did, your Honour.  I will just turn it up. 

HIS HONOUR:   I forbear from saying there is so much paper that you may not have it.

MS MORTIMER:   Thank you, your Honour, I have a copy.

HIS HONOUR:   If you go, say, to paragraph 8, page 2, the RSA process was applied to the plaintiff in the first instance by the fourth defendant engaged by the Secretary under section 22.  That assessment was conducted by reference to a procedural manual.  Do you, in this case, seek to say that a departure from procedures identified in that procedural manual is legally significant?  Before you answer that, and it may be that that is a question you say you should not be required to answer yet, but there would be the further question, assume that there were departure from compliance with the manual, what is the legal significance of that?

If there were no departure from the procedures required by the manual, but there were, on your side of the record, said to be a departure from a more generally formed notion of procedural fairness than one whose content is found within the four corners of this internal government document, what is the legal consequence of that observation?

Now, those are, I think, different questions I think at the moment, and I suspect but do not know that they are questions which are not yet, at least to my mind, clearly articulated or their relevance to be discerned without first examining the issues, at least of the general kind, which you seek to tender in connection with grounds 1 to 7, perhaps also in connection with the issues you seek to tender with respect to grounds 9 and 10.  Again, if we go forward on the whole show, I would fear at the moment the swamping of those issues in a Full Court trial of two days.

MS MORTIMER:   Your Honour, I accept those two ‑ ‑ ‑

HIS HONOUR:   Because the first set of issues are, as I understand it, critical to your case and are, as you have said, issues of a kind which, at least from your side of the record, you say have not hitherto been considered by the court.

MS MORTIMER:   That is so, your Honour, and there may well be a concern, particularly in the example that your Honour has given me about how one might deal with compliance or non‑compliance with those procedures manuals, of the debate being had in a vacuum, so to speak.  If the concrete grounds, the judicial review grounds, if I use that shorthand, your Honour, are severed, then it may well be that debate before the Full Court ends up either being conducted in a vacuum or being conducted slightly hypothetically, your Honour, which would not be desirable, in my submission.  What would be preferable is that the court is addressing those issues by reference to an articulated ground of judicial review.

HIS HONOUR:   Yes.

MS MORTIMER:   In my submission, that would be much more appropriate – because these will be quite fluid matters of debate, it would be much more preferable for them to be tied to, well, let us look at this particular allegation and look at what the procedures manual requires to be done and what was actually done. 

HIS HONOUR:   The force of that seems to me to be quite strong.  The consequence of that proposition seems to me to be the need for great precision of identification of the kinds of allegation that you are making at two levels.  First, do you say that what was done departed from the manual or departed from some more generally articulated or derived obligation?  That is something that you would ordinarily expect to find in the written submissions, not in the grounds, I think.  But what I live in fear and dread of, Ms Mortimer, is that we get into a Full Court and that we find we have a hot dispute of fact about what happened or did not happen in this process and that is not appropriate for a Full Court to deal with. 

MS MORTIMER:   I accept that, your Honour.

HIS HONOUR:   I suspect we have explored these matters, perhaps, as far as we can, at least immediately, and what may or may not be appropriate – if there is more you wish to say, then do not for a moment think I am stopping you, you should say it.  But it may be that I should explore these matters also with Dr Donaghue, but what course do you think I should now follow?

MS MORTIMER:   Your Honour, I accept that is appropriate.  One of the assurances or comforts I would seek to give your Honour is that hitherto this proceeding has been conducted co‑operatively and your Honour is entitled to expect and can expect that to continue.  There are some gaps, your Honour, in the Commonwealth’s statement which would assist us, I think, in being able to give your Honour the assurances that we want and it may be that consequent upon some discussions between counsel we can reach a better understanding of the Commonwealth’s position so that we would be in a better position to give your Honour some assurances about

the absence of any factual contests of the kind that properly concern your Honour.  That may be a process that we can undertake between counsel, even if your Honour were to stand the matter down for a little while.

HIS HONOUR:   I am not sure that that is the best course to follow.  I think it would be better that you have time to deal with it and time to think and get instructions about it, but I understand the general idea.

MS MORTIMER:   I am conscious of the expedition, your Honour, here.

HIS HONOUR:   I understand that, but the present intention of the Court is that this matter and 69 should go in for hearing on 24 and 25 August.  That is the present intention.

MS MORTIMER:   If your Honour pleases, we will ‑ ‑ ‑

HIS HONOUR:   But at the moment it has to pass through me as gatekeeper.

MS MORTIMER:   Yes, your Honour, and what goes in I accept is still a very live issue.

HIS HONOUR:   Yes.

MS MORTIMER:   But, your Honour, I do not think there is anything more that I can assist your Honour with at the moment, if your Honour pleases.

HIS HONOUR:   Yes, thank you.  Now, Dr Donaghue, you have heard me talk far too much and give counsel far too little an opportunity to respond.  What do you have to say about the kinds of issue I have raised?

MR DONAGHUE:   Your Honour, can I start by saying that we respectfully agree with the comments your Honour made to Ms Mortimer about the possibility, if appropriate, of bifurcating the issues such that some issues go to the Full Court and other issues remain to be resolved either by a single Justice here or elsewhere.  Indeed, in some of the other matters, if the Court is minded to refer them in, that will be what we submit should happen in order to avoid there being a factual dispute that cannot be resolved in the Full Court

That said, your Honour, we do agree with much of what Ms Mortimer said about the importance of there being a concrete substratum for the matters in the Court.  If I could invite your Honour to turn up the proposed amended application to show cause – I should also say, your Honour, we agree with the way your Honour has broken the categories into groups.

The first group, the 1 to 7 group, really highlights the fact that in some respects this document is an odd amalgam of things.  It is a little bit like a pleading and a little bit like an application to show cause.  Some of those paragraphs are not obviously identifiable as grounds in that the legal consequences of what is said to follow do not clearly move, but when one gets to paragraph 7 there is a reference back to 4, 5 and 6 saying that the lawfulness of both decisions are reviewable by this honourable Court.

So the question is, are they reviewable?  Well, your Honour, we submit that it is impossible to answer that question at that level of generality because you need to ask, we submit, on what grounds and you need to ask what remedy.  Those two questions may well deliver different answers, particularly in the context of a review of executive power.

Indeed, the remedy question was partly the reason that the Commonwealth urged both M61 and M69 to be referred in because M61 is a constitutional writ case and M69 is a declaratory relief case, principally.  There is some overlap, but it might be that the Court would reach the view that certiorari and mandamus cannot go for whatever reason but other relief is available.  So we submit that in order to get a useful answer out of that first group of questions there needs to be some particularity as to grounds of relief and that seems to us to require some of the substantive grounds to go.

HIS HONOUR:   If that is right, is it possible to set aside the doubts and fears I have by the Commonwealth putting on – whether it is a pleading, an
answer, a statement – something which identifies, perhaps co‑operatively with the plaintiff, the factual footing upon which debate about the grounds would go forward?  Now, that is not a question I suspect you are in a position to answer at once.

MR DONAGHUE:   I do have some difficulty answering it.  I think, your Honour, that I can say that to a large extent I agree with Ms Mortimer’s submissions on the point that the essential facts, from our point of view, will be the recommendation record or the decision record which will identify what it is that the decision‑maker says that they did, either in terms of taking country information into account or in terms of the law that they applied and in terms of the claims that they considered.

Now, those three things seem to be the main prisms through which the attack is being made and all of those – you get the starting point from the decision record.  In terms of was the information adverse, we would expect that the debate would be conducted by reference to the information identified in those decisions and we agree that that can be found.  The Court has been swamped with country material and that is because we did not feel at this point that we were in a position to say ‑ ‑ ‑

HIS HONOUR:   No.  As I say, do not misunderstand me as directing criticism at either side of the litigation.  I am not. 

MR DONAGHUE:   We do hope, your Honour, though, that once one gets to the level of particular complaints, it will be said this piece of country information contained adverse information that you did not give to us.  The question of whether it was provided will be able to be answered by reference, we think, to the transcript of the relevant hearing and no other document.

HIS HONOUR:   Yes.

MR DONAGHUE:   So the debate, as we see it, is likely to come down to a fairly confined debate within the parameters of that material.  The one additional, possibly relevant fact might be submissions made by the advisers of the applicants to the review process because they may show that particular facts were, in fact, known ‑ ‑ ‑

HIS HONOUR:   Is it possible to digest between you that kind of information so that you identify where the debate rests?  We agree that the relevant passage of the decision which will tell you whether it was taken into account is found at.  We agree that the information referred to is this information.  Here it is.  We disagree about whether it was adverse information.  We say it was sufficiently put, see transcript of proceedings, page X, line Y.  We say that was not sufficient putting says the other side.  But is it possible to digest it in that kind of way?

MR DONAGHUE:   In principle, your Honour, I cannot see why not.

HIS HONOUR:   How long and detailed a process am I then imposing on the parties if I say try and do that?

MR DONAGHUE:   Your Honour, I have not discussed this with Ms Mortimer, but listening to the exchange between you this morning, it did strike me that the critical thing here is having a concrete example of the grounds.  It does not need to be multiple or the concrete example of the grounds, and it might well be that the question your Honour just put to me can be narrowed by selecting particular complaint about country information ‑ ‑ ‑

HIS HONOUR:   Give me your best, or the two best cases.

MR DONAGHUE:   We go through the process your Honour just debated and that will be sufficient to enable the Court to get to the real issue of principle.

HIS HONOUR:   Again, to foreshadow what I have in mind so that you can bear it in mind, I will not be available before 13 July.  What I have in mind is coming back some time soon after 13 July and, in effect, seeing where you are at and, in particular, treating that week of, say, 13 to 16 July as a real drop‑dead time.  By then we are going to have to decide whether only some or all goes forward and if the parties want all of it to go forward, they are going to have to persuade me that it can be put forward in a digested and otherwise digestible form for a Full Court.

MR DONAGHUE:   Can I ask your Honour, does your Honour have in mind that what we are producing here is a special case or a stated case or was it still ‑ ‑ ‑

HIS HONOUR:   No, the objective would be to refer the whole matter in.  I understand that that is the preferred course.  If, in the course of preparation the parties said “No, look it’s just not going to work, the best thing for us to do is to do it by special case or stated case” then, to a large extent, I will be guided by the parties on that.  But what I am looking for is something that would permit me to refer the whole matter in, but with some better assurance (a) that the Court does not need the blizzard, (b) that the Court will not encounter the difficulty of a factual brawl.

MR DONAGHUE:   Your Honour, for my part, that mode of proceeding would appear to require the plaintiff to abandon some marginal or peripheral fact intense parts of their case and then we reach agreement on the core.

HIS HONOUR:   Now, if the plaintiff says – and I can well understand that a plaintiff may wish to say, “No, I’m not going to abandon anything”, then that is starting to push you down stated case or special case territory, I suspect.  I do not know that that is so, but – so nothing is off the table, Dr Donaghue.

MR DONAGHUE:   Yes.

HIS HONOUR:   I came in this morning thinking that the better course was likely to refer part but not all.  I see the force in what the parties tell me about the need to have a concrete factual base.  My riposte to that is you have to digest it better than you have.

MR DONAGHUE:   Yes.

HIS HONOUR:   Now, the form in which you digest it and the consequence of that digestion is a matter where the parties know much more about it than I do and you each have a boat to row in particular directions.  I do not.

MR DONAGHUE:   We would hope, your Honour, that the Metcalf affidavit that we have filed provides the factual foundation for many of the points of principle and that the area of debate, insofar as the blizzard can be reduced, we think it is the country information ‑ ‑ ‑

HIS HONOUR:   It is relief, relief, yes.

MR DONAGHUE:   Probably also the one possibility is the template ground that is raised which accounts for a large pile of decisions about people who are not the plaintiff in this proceeding, so there may be particular ways in which the amount of paper can be narrowed quite ‑ ‑ ‑

HIS HONOUR:   Yes, it is not instantly apparent to me what the consequence of the template ground is.  There are many judgments of many courts that seem to have some common features about the reasons for judgment.  You could not deal with a list of criminal appeals against sentence unless you had a certain framework within which you dealt.

MR DONAGHUE:   Your Honour, for our part, we are more than content to engage in discussion with the applicant with a view to attempting to produce perhaps an agreed statement of facts or something of that kind underlying the ‑ ‑ ‑

HIS HONOUR:   Whether it is an agreed statement of facts or a statement of what is disagreed about the facts which are agreed.  Again, as I say, nothing should be seen as off the table as the means to achieve an efficient and useful disposition of the proceeding.

MR DONAGHUE:   Yes.

HIS HONOUR:   That is what I am driven by.

MR DONAGHUE:   Accepting, your Honour, that the matter will need to come back for your Honour to be satisfied that we have made sufficient progress, we submit that in order for the matter to be ready for the hearing on the dates that your Honour has proposed, it would still be useful for steps to be taken or at least for the timetable that is required to be broadly foreshadowed or understood by the parties.  We had submitted some proposed orders which have been modified a little by agreement this morning.  If I could hand up another copy of those.

HIS HONOUR:   Yes, please.

MR DONAGHUE:   They will not be completely appropriate in light of what has fallen from your Honour this morning.

HIS HONOUR:   But the timetable first foreshadowed, which I take it has seen a bit of tweaking, looked to be generally apposite.  This would have 78Bs by 14 July.  Let me come back to questions of application book.

MR DONAGHUE:   Yes, well, that would now need to be dealt with differently.

HIS HONOUR:   Because that was what really provoked my fears.

MR DONAGHUE:   Yes, but the other dates, I think, would ‑ ‑ ‑

HIS HONOUR:   But 3, 16, 19.  Yes, 3, 16, 19, I think, would work as the dates to which we would be working.  Now, could I say then about that that it would be inappropriate, I think, to give those directions now, but any look of surprise on the face of counsel when, on an adjourned hearing, I suggest 3, 16, 19 will be received somewhat icily.

MR DONAGHUE:   That was all I was seeking to achieve, your Honour.  Your Honour, unless I can be of any further assistance, those are my submissions.

HIS HONOUR:   No, thank you, Dr Donaghue.  There are other aspects we will come to in time.  Ms Mortimer, where do you think we are now at?

MS MORTIMER:   Your Honour, in my submission it is appropriate that we work with the Commonwealth to provide a document to the Court that indicates with a high level of specificity the agreements as to the facts and the disagreements as to the facts.  I would be confident that if there are to be disagreements they will be sufficiently confined in a way that a Full Court would be able to deal with them.  I accept, your Honour, that it may be that some selection of representative grounds within the application may be a fair way on which the matter should proceed.

HIS HONOUR:   Whether it is a case of put forward your best aspect or your best two aspects, it will be a matter for you, of course, to determine and to judge.  I do not propose to say anything about it, but there is evident advantage.

MS MORTIMER:   There is significant advantage, your Honour, and as I stand here I cannot see any particular disadvantage, so we would be more than content to work with the Commonwealth on that basis and to produce something for the Court for the matter to be returned, your Honour, on – what date did your Honour have in mind?

HIS HONOUR:   It would start the August sittings.

MS MORTIMER:   I am sorry, your Honour, for us to come back for directions.

HIS HONOUR:   Come back during the week of 13 to 16.

MS MORTIMER:   So, in terms of the parties, your Honour, working to a timetable to produce something, we should be aiming to produce something by agreement between us to be filed perhaps on the 9th.  Would that be right?

HIS HONOUR:   In an ideal world that would be very desirable or you could have until 12 noon on the Monday, 12.

MS MORTIMER:   The weekend is always useful, your Honour.

HIS HONOUR:   Exactly.

MS MORTIMER:   I am sad to say, but yes, perhaps, I will take your Honour’s offer of 12 noon on ‑ ‑ ‑

HIS HONOUR:   Yes, 12 noon, Monday, 12, I think, just gives you the last chance to put it together and produce it.

MS MORTIMER:   Does your Honour have in mind a day for the directions, just because ‑ ‑ ‑

HIS HONOUR:   No, because I did not bring my diary in.

MS MORTIMER:   Is that a matter we can take up with the Registry?

HIS HONOUR:   Yes, please, if you could take it up with the Registry next week.  My memory is that I am reasonably flexible during that period and I will fit in as best I can with counsel’s convenience.  There is advantage to doing it sooner rather than later, but there are seven days in the week and 24 hours in the day and the most critical thing will be to get this together in a way that is useful.

MS MORTIMER:   If your Honour pleases, we will adopt that course.

HIS HONOUR:   Now, could your solicitors also bear well in mind – and this is something on which counsel’s views will of course be important – that at that stage we are going to want to be in a position to settle an application book very quickly and, therefore, proposed lists of contents can start to be thought about.  It is highly unlikely that a list of contents that sees this volume of paper will be greeted with speedy acceptance.  Less is best.

MS MORTIMER:   Yes, that message is understood, your Honour.  Perhaps I am being too ambitious on the part of my instructors, but what we may attempt to do and also provide by 12 noon on the 12th would be a proposed list so that both those matters could be considered by your Honour at the directions hearing.

HIS HONOUR:   If you can get to a proposed agreed list that would be ideal.  But again, it is real world out there.  I recognise this may or may not be achievable.

MS MORTIMER:   Well, that is what we will aim for, if your Honour pleases.

HIS HONOUR:   Now, 78Bs will have to go.  Is there some reason to delay the 78Bs until 14 July, that is, are we likely to need to have undertaken this refinement process before the 78Bs go?

MS MORTIMER:   No, your Honour.  No, I do not think so.

HIS HONOUR:   Because if that is not necessary, better the 78Bs get out soon, I think.

MS MORTIMER:   Yes, your Honour.  For our part, we would be content for that to be moved forward even to some date next week.

HIS HONOUR:   I am inclined to say 7 July if ‑ ‑ ‑

MS MORTIMER:   Yes, your Honour.

HIS HONOUR:   ‑ ‑ ‑ that can be done so that the 78Bs are meaningful.  I do not know whether this, of course, will attract intervention, but if it does the timetable is going to require the interveners and it may be that those who are giving the 78Bs might usefully inform interveners that it is likely that a timetable will be struck which will see the following dates fixed. 

MS MORTIMER:   I understand, your Honour.  We are content with 7 July, your Honour, as the date.

HIS HONOUR:   Yes.

MS MORTIMER:   Unless your Honour has any other matters ‑ ‑ ‑

HIS HONOUR:   What I would do today is direct the parties to issue any necessary notice under section 78B of the Judiciary Act 1903 (Cth) on or before 7 July 2010 and simply adjourn the matter for further directions to a date to be fixed and making the costs of today costs in the application. I simply inform the parties that the date will likely be fixed between 13 and 16 July.

MS MORTIMER:   May I ask your Honour to grant leave to the plaintiff to rely on the proposed further amended application for an order to show cause dated 23 June 2010.

HIS HONOUR:   Yes.  That is not opposed, as I understand it, Dr Donaghue, is it?

MR DONAGHUE:   It is not, your Honour, although it might, it seems to me, to be appropriate to direct that leave be given to file a further amended application by some date because we are going to need to be talking about a different document, I think.  Well, perhaps not.  For present purposes, I do not oppose leave to put it in the present form.

HIS HONOUR:   Well, you may have leave to amend, Ms Mortimer, and to amend in the form of the proposed further amended application for order to show cause filed on 23 June 2010.

MS MORTIMER:   If your Honour pleases.

HIS HONOUR:   Yes.  Now, Ms Mortimer, again, what happens in M69 will bear directly on what happens in M61 so if I might ask you to remain while we deal with M69 that would be convenient.

MS MORTIMER:   Thank you, your Honour.

HIS HONOUR:   Yes, thank you.

AT 10.22 AM THE MATTER WAS ADJOURNED