Plaintiff M68-2010 v Commonwealth of Australia & Ors

[2010] HCATrans 149

[2010] HCATrans 149

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M68 of 2010

B e t w e e n -

PLAINTIFF M68 OF 2010

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Defendant

SUE ZELINKA

Third 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

Office of the Registry
  Melbourne  No M70 of 2010

B e t w e e n -

PLAINTIFF M70 OF 2010

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Defendant

SUE ZELINKA

Third Defendant

Application for special leave to appeal

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON FRIDAY, 4 JUNE 2010, AT 10.45 AM

Copyright in the High Court of Australia

MS L.G. DE FERRARI:   If the Court pleases, I appear with MR P.D. HERZFELD for the plaintiffs in all three matters.  (instructed by Holding Redlich)

HIS HONOUR:   Yes.  If we deal first with M68.

MR S.J. GAGELER, SC, Solicitor‑General of the Commonwealth of Australia:   Your Honour, if it pleases, I appear with MR S.P. DONAGHUE and MR D.F. O’LEARY in all three matters.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Ms De Ferrari, it is again your summons for directions, I think.  You read the affidavit of Ms Vines.

MS DE FERRARI:   I do, your Honour.

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

MR GAGELER:   No, your Honour.  Yes, Ms De Ferrari.

MS DE FERRARI:   Your Honour would have read our submissions.

HIS HONOUR:   Yes, I have.

MS DE FERRARI:   It might be that the steps that are contemplated to be taken by the Commonwealth will address our reservations at this stage about the suitability of the cases going forward in the way that the parties in M61 are envisaging.

HIS HONOUR:   There are two questions I think I would pose for you immediately, Ms De Ferrari.  The second of them is one that you should feel complete freedom of refusing to answer.  The first is, if I were to give directions more or less along the lines followed in the first matter, would it be suitable to defer consideration of whether this matter should go into a Full Court either with or immediately following the other matter until that second directions hearing?

MS DE FERRARI:   Yes, your Honour.

HIS HONOUR:   The second question is, as I say, one you should feel free not to answer.  It was not instantly apparent to me what consequence would follow if, as is suggested in the papers, the Court were to conclude that there is a want of power, whether under section 61 or otherwise, to engage in the activities that are collected as the offshore processing regime.  That seemed, at least at once to my mind, to leave your client in a position where the regime under which he or she was dealt had no footing and that rather cleared decks in a way which seemed to me to lead to other consequences about the engagement of the Act, but, as I say, these are matters that you may say to me await development at a hearing.

MS DE FERRARI:   I would gratefully adopt that answer for the moment, your Honour.

HIS HONOUR:   Yes.  If these questions are better left over, if I were to make directions generally along the lines, more particularly according to the timetable agreed in the other matter, what would you say as to that?

MS DE FERRARI:   That timetable would suit our matters as well, particularly since the issue of the 78B notices are left to the next directions hearings, your Honour. 

HIS HONOUR:   Yes.

MS DE FERRARI:   Your Honour would have seen we already flagged amendments to our application in any event.

HIS HONOUR:   Yes.  Now, again at the further directions hearing I am highly unlikely to consider referring the matter into a Full Court if the factual footing for the application is not complete and uncontroversial and if the grounds are still in a state of flux, but you have heard what I have to say about that and you will no doubt take account of those matters.

MS DE FERRARI:   Can I indicate to your Honour perhaps a small matter, but the matter of M68 was listed for directions on the basis of the defendants approaching the Court, but if the same approach of choosing a test case was to be adopted in our matters, then it would be M69 and not M68.

HIS HONOUR:   I see.  So, would you have me adjourn or simply stand M68 out of the list but give directions in M69?

MS DE FERRARI:   Yes, your Honour.

HIS HONOUR:   Yes.  Well, perhaps we will hear generally from the Solicitor what course he says we should take.

MR GAGELER:   We chose M68 because it appeared to us to raise more grounds than M69.  My learned friend says M69 is a more appropriate vehicle from the plaintiff’s perspective.  We are content with that.

HIS HONOUR:   Yes.  As to the course of giving directions in one of them and standing the others out of the list, Mr Solicitor, what do you say?

MR GAGELER:   Well, that reflects the approach that was taken in relation to the previous batch of matters and it seems to us an appropriate course, your Honour.  Insofar as the timetable is concerned, we agree that the same set of directions that your Honour gave in M61 is appropriate to be given in M69 and in relation to the question that your Honour asked of my learned friend, we would see that as something that could appropriately be addressed and should appropriately be addressed in the contemplated amended application to be filed on 18 June.  So if we combine our statement with the amended application, hopefully we will have something like a set of pleadings that define the issues.

HIS HONOUR:   Yes.  It seems to me the plaintiff has to nail colours to a mast if there is to be some challenge to validity of something.  That has to be clear and identified by the time we come back if it is to go forward with this one.  Do you yet have a view, Mr Solicitor, and it may well be that you do not, about whether it is desirable, whether it is possible to have the two matters go forward together, that is the M61 and M69 together?

MR GAGELER:   We saw it as desirable to have at least these two cases before the Court, or cases similar to them, for this reason.  M69, unlike M61, directly raises a constitutional question about the scope of executive power and seeks, in addition to relief in the nature of mandamus, prohibition and certiorari, declaratory relief.  Those two considerations would seem to us to make it appropriate to have another vehicle before the Court for the issue to be tested.

HIS HONOUR:   At least as at present advised, do you see them likely to be capable of being heard together or would they have to be heard in sequence, do you think?

MR GAGELER:   We would hope that the one affidavit – and this may be the slight change to the directions, your Honour – that we would produce setting out the processing system would be able to be read in both proceedings and then there would be simply a set of particular decision‑making documents relating to the particular plaintiffs ‑ ‑ ‑

HIS HONOUR:   The individual.

MR GAGELER:   ‑ ‑ ‑ which would be separate, but that would be the overlap of the evidence and there will be some overlapping issues, significantly overlapping issues, but on the case as currently framed, there will be these additional issues in M69.

HIS HONOUR:   Yes.

MR GAGELER:   So I am not sure, your Honour.  I think that they could be heard together.

HIS HONOUR:   Yes.  Obviously we will not know definitely until the papers are at a further stage of preparation than they are now.

MR GAGELER:   That is right, or at least consecutively.

HIS HONOUR:   Yes, thank you.  I think that we would be wise, in forward planning, to think of the cases as two days together, do you think?

MR GAGELER:   Yes.

HIS HONOUR:   I suspect it is a day and a half, perhaps two days worth of litigation in the two cases.

MR GAGELER:   Yes, I would agree with that.

HIS HONOUR:   Yes.  Well, now, Ms De Ferrari, do you need the dispensation from rule 22.02?

MS DE FERRARI:   No, your Honour.  I am instructed that the affidavit of service was filed today.
Plaintiff M68 of 2010
Hayne J
Melbourne – 4/6/10

HIS HONOUR:   Yes.  So if I were to make directions in M69, not in M68, is that right?

MS DE FERRARI:   Yes, your Honour.

HIS HONOUR:   If I were to give directions in M69 that on or before 15 June the defendants file an affidavit deposing to matters of the kind earlier described, if on or before the same date the defendants were to file and serve a statement of the kind identified and then on or before 18 June your side to file and serve (a) any further affidavit and (b) any proposed amendment to your application, adjourn the matter for further directions to 25 June, liberty to apply on two days written notice and costs costs in the application, would that cover your circumstances?

MS DE FERRARI:   Yes, your Honour.  With the other two matters being stood ‑ ‑ ‑

HIS HONOUR:   We would stand M68 and M70 out of the list with liberty to restore on two days notice in writing to the other parties.

MS DE FERRARI:   Yes, your Honour.

HIS HONOUR:   Yes.  Now, Mr Solicitor, are you content with directions in those terms?

MR GAGELER:   Yes, certainly, your Honour.  Perhaps, rather than file two affidavits in identical terms, would it possible for the one affidavit in M61 to ‑ ‑ ‑

HIS HONOUR:   Could I trouble your side to keep the records running separately, Mr Solicitor.

MR GAGELER:   Yes.

HIS HONOUR:   Just I have in mind that if we do not, one case inevitably falls over and you are left with reference over and it becomes a nightmare.  I know it is a fuss, but it would be a convenient fuss.  Thank you. 

AT 10.58 AM THE MATTERS WERE ADJOURNED