Plaintiff M68-15 v Minister for Immigration and Border Protection & Ors; M80-15 v Minister for Immigration and Border Protection

[2015] HCATrans 167

[2015] HCATrans 167

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M68 of 2015

B e t w e e n -

PLAINTIFF M68/2015

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

TRANSFIELD SERVICES (AUSTRALIA) PTY LTD (ACN 093 114 553)

Third Defendant

Office of the Registry
  Melbourne  No M80 of 2015

B e t w e e n -

PLAINTIFF M80/2015

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

TRANSFIELD SERVICES (AUSTRALIA) PTY LTD (ACN 093 114 553)

Third Defendant

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 22 JULY 2015, AT 9.29 AM

Copyright in the High Court of Australia

____________________

MR R. MERKEL, QC:   If your Honour pleases, I appear for the plaintiffs in both matters.  (instructed by Human Rights Law Centre and Stacks Goudkamp Solicitors)

MR G.R. KENNETT, SC:   May it please the Court, I appear with MR P.D. HERZFELD, for the first and second defendants.  (instructed by Australian Government Solicitor)

MR S.P. DONAGHUE, QC:   If it please the Court, I appear for the third defendant in both matters.  (instructed by Corrs Chambers Westgarth Lawyers)

HIS HONOUR:   Gentlemen, I have got the pleadings, of course, and have seen those, but I have not seen any sight or heard any sound of a draft special case.  Is it in the offing still?

MR MERKEL:   Yes, your Honour, the situation is this.  We have sought particulars, which has taken some time, of certain paragraphs of the defence, particularly about the role of different officers of the Commonwealth in Nauru and in PNG.  The parties have been active in trying to keep up with the timetable and the Commonwealth has delivered a draft special case which we had a conference about late yesterday.  The Commonwealth, your Honour, were proposing – and we are in negotiation about it because both cases have a degree of complexity about the detail which differs in each case – but the Commonwealth has asked for orders today that the defendants provide special case to the plaintiff by the 29th in M68 and by the 31st in M80, and they have asked for the directions to come back – sorry, for the parties to inform your Honour’s associate by 7 August about the terms of the special case and have the matter listed for directions.  I can hand up the timetable that is suggested by the Commonwealth, your Honour.

HIS HONOUR:   Thank you.

MR MERKEL:   Can I just explain our position is this, your Honour?  There are certain matters in the defence which our learned friends have said require some amendment and there are certain matters in the reply that we need to amend, but we have discussions about those and we have an expectation there will be no problem about the pleadings being resolved because they lay the groundwork for the special case.

Our position is this, your Honour.  We are very anxious to hold onto a hearing date in October for a number of reasons.  One is the Transfield contract does expire, as our understanding is, in October.  And two is there are quite a large number of people who are on 72 hours’ notice, including a number of women who have come with and have children here.  So we are quite anxious to get finality about the matter in October.

So if these directions put that at risk we would ask for the timeframe to be narrowed so that we still keep the option of an October date open.  For our part, we are in a position where the facts are all in the knowledge of the Commonwealth and Transfield, but particularly that relevant facts are within the knowledge of the Commonwealth.  We do not have a competing version of facts on the special case so we have an expectation that there should be no reason why we cannot reach an agreement with the Commonwealth on the underlying facts.

We do not have a different version of events in that regard so we do have a degree of optimism that we should be able to achieve the special case, but we do not want the timetable that is suggested here to blow out to put at risk the prospect of that happening.  We do not think the times are quite as long as the Commonwealth has requested but we do not want to

thwart the efficient conduct of the special case if these times can be met and still retain an October hearing.

HIS HONOUR:   I mean, obviously, if there were no more to it than what is proposed in these orders, the October hearing would be well within grasp, but after these steps you have got your submissions to prepare and the special casebook to prepare which would all have to be done effectively within the month of August, or perhaps the month of August and the first week of September.  Is that feasible?

MR MERKEL:   We would expect so, your Honour.  We think possibly that – we are able to respond within, say, three days of the special case being given to us because we will be in negotiation with the Commonwealth about the special case so those times could be brought forward, say, by some days.  We do not need, for example, from the 29th to the 7th.

HIS HONOUR:   No.

MR MERKEL:   We could narrow those times, your Honour.

HIS HONOUR:   Give me just a moment please.  Yes, thanks, Mr Merkel.  Mr Kennett, what do you think?

MR KENNETT:   Your Honour, it is right I think that there is no dispute as to primary facts.  We have some differences over the inferences or conclusions that one would draw from those facts and, therefore, as to what primary facts need to be in there so there is some work to be done on a special case.  We remain hopeful of agreeing one and remain of the view that that is desirable.  We certainly share our friends’ wish to have the case heard as soon as may be.  If a special case can be agreed within the timeframe that we have suggested in the draft orders then we anticipate that, for our part, we could have submissions done within the time that your Honour mentioned a moment ago.

HIS HONOUR:   Thank you.  Do you see it as being desirable to bring forward the response time, as Mr Merkel suggested?  You have got in M68, for example, the draft case being provided by 29 July.

MR KENNETT:   Yes.

HIS HONOUR:   Apparently not a response until the 7th.  Can that be hurried up or is it being unrealistic?

MR KENNETT:   That period is to allow for any further discussion that might be needed, your Honour.

HIS HONOUR:   Yes, I gathered that.

MR KENNETT:   So we think that is sensible because we just do not know what our friends’ reaction to our next draft is going to be.  I should note, your Honour has probably already noted this, but the dates for M80 are a couple of days behind just because ‑ ‑ ‑

HIS HONOUR:   Yes, what is the purpose of that?

MR KENNETT:   M80 has just become the second case in the queue, I think, so we are just a couple of days behind M68 in everything we do on that matter.  That is the only reason.

HIS HONOUR:   As to getting the case on the hearing, as I understand it, there is still a slot available in October but if we lose that I am not sure that there is any slot available this side of Christmas.  So it is a matter of not slipping a month or even two months but slipping by a very long period of time which sounds to be undesirable from all points of concern.  I daresay there is nothing that can be done to accelerate it.  As to the further directions though which might be important, we are going to be in Canberra in the second two weeks of August.  I suppose we could do it by remote control, could we not?

We will be in Perth, but we could do a further directions hearing by remote video link on the 12th.  It would be Perth time 8.30 because apparently that is the earliest time we are allowed to start using facilities there, which would be I suppose 10.30 here, would it not?  Could that be achieved?

MR KENNETT:   Certainly from our side, your Honour, yes.

MR MERKEL:   Yes, from us too, your Honour.

HIS HONOUR:   Well, what I will do is make the directions which have been suggested in the draft orders in each of matters M68 and M80, adding in order 3 that the further hearing of the directions will be on 12 August 2015 at 10.30 am Eastern Standard Time by video link to Perth.

MR MERKEL:   Your Honour, it would be taken to be implied, but we would ask for your Honour’s reserved liberty to apply in case something arises in the meantime.

HIS HONOUR:   I shall further order in each matter that liberty to apply be reserved to each party on not less than 12 hours’ notice.  Good luck, gentlemen.  Thank you for your assistance – sine die.

AT 9.40 AM THE MATTER WAS ADJOURNED