Plaintiff M68/2015 v Minister for Immigration and Border Protection & Ors; Plaintiff M80/2015 v Minister for Immigration and Border Protection

[2015] HCATrans 136

[2015] HCATrans 136

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

Directions hearing

NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO DARWIN

ON WEDNESDAY, 3 JUNE 2015, AT 9.36 AM

Copyright in the High Court of Australia

____________________

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

MR G.R. KENNETT, SC:   May it please the Court, in both matters I appear with MS A.M. MITCHELMORE for the first and second defendants.  (instructed by Australian Government Solicitor)

HIS HONOUR:   First, gentlemen, is it correct or is it agreed that matter M80 should go over pending the hearing and determination of matter M68, or do you want them to continue together, Mr Merkel?

MR MERKEL:   We would wish them to continue together, your Honour.  There may be differences, both in the contractual framework and also there will certainly be differences in the legal framework in Nauru and Papua New Guinea, so that it cannot be certain that the result in one will be determinative of the other, although it is likely to be so.

HIS HONOUR:   But it is a question of whether the Commonwealth has the power to fund and implement the offshore detention centres, is it not?

MR MERKEL:   It is, your Honour, but we expect that, by way of defence - and this is one of the reasons we seek leave and this is very important – we would expect that the Commonwealth would have to rely on the legal framework governing detention in Nauru and Papua New Guinea respectively, which have different legal frameworks, to say that their detention is lawful under the law of the country where detention is occurring.  Our case is that it would ultimately be irrelevant that that law governs detention.  The question ultimately is whether there is legislative power or executive power to contract for and, in effect, control detention overseas.       That raises a question of constitutional power and we say that cannot be solved by the law of the country that the detention occurs in. 

Our real concern, your Honour, is that as your Honour has seen from the submissions, we have a system of undertakings in place and there are a number of people affected, quite differently, on the prospect of return to Manus versus the prospect of return to Nauru and we do see it as necessary that the case ultimately go ahead, at least at this stage, in respect of both countries.  It may be, when we get to an agreement on how the matter should ultimately be resolved in this Court, that one might go forward rather than both if the result could be agreed to be binding, but it is important there be a determination in each case.

I should add, your Honour, that there are a number of other people in the same position as the plaintiffs in Australia who have solicitors acting, and whilst that need not trouble your Honour at this stage, the outcome in each case affects more than the people involved in each case and those that the solicitors in each case are representing.

HIS HONOUR:   Thank you.  Pardon me a moment – Mr Donaghue, I am sorry, I did not notice you.

MR S.P. DONAGHUE, QC:   Your Honour, I appear with MS K.E. FOLEY for the third defendant in both matters.  (instructed by Corrs Chambers Westgarth Lawyers)

HIS HONOUR:   Thank you very much.  At this stage, given the queries raised by the defendants, is anything more required than time for request for particulars and the provision of particulars?

MR MERKEL:   What we had thought, your Honour, is we have received our learned friends’ submissions, which are helpful, and what we were going to seek time for is leave to deliver an amended application to show cause as well as leave to deliver a statement of claim.  We intend having discussions with our learned friends to try and see if we can resolve any differences but what we would ask for is leave to deliver an amended application to show cause and to deliver a statement of claim within seven days.  We would suggest that there be a time fixed for defence but if our learned friends would rather the matter come back before your Honour before that, we do not have any objection.  We do not want too much time to pass, your Honour.

HIS HONOUR:   Very well.  I wanted to ask you one question.  Is it really necessary that we have Transfield on this proceeding?

MR MERKEL:   Well, your Honour, the answer is yes and no.  We had considered not having Transfield, but because they are directly – we do not have a cause of action against Transfield but because they are directly affected by the relief sought, namely, that their contract which involves substantial funds being paid by the Commonwealth to them, their absence would appear to be a deficiency for want of a party directly affected by the relief.  But we do not – we gave some thought to whether we needed to join them and we decided that without having them heard in respect of relief that would directly affect them may render the proceeding deficient in that respect.

HIS HONOUR:   Yes, I see.

MR MERKEL:   But we make it clear we are not seeking any relief against them, nor are we making any allegations that they are acting unlawfully.  The relief is entirely sought against the Commonwealth.

HIS HONOUR:   All right.  Thank you, Mr Merkel.  Mr Kennett, first of all, I take it that Transfield is not seeking to get out of the proceeding at this stage, as it were?

MR KENNETT:   Not as I understand it, your Honour.

HIS HONOUR:   All right.  What about Mr Merkel’s timetable?

MR KENNETT:   Your Honour, we hesitate to accept that my friend ought to have leave to amend – to file a statement of claim between now and the next directions hearing for essentially the reasons we put in our written submissions.  If the statement of claim addresses all of our concerns and makes everything clear, then fine, but if it does not then we would be back in the position of having to seek particulars and some further argy‑bargy about that.

HIS HONOUR:   What do you want – a draft statement of claim filed by a certain time and come back?

MR KENNETT:   That would be helpful, your Honour.  I mean, I am sure we can have discussions between now and the next hearing but we would suggest that all that need happen is that the case come back before your Honour in a couple of weeks and we go from there.

HIS HONOUR:   If I made an order giving to Mr Merkel say 10 days to prepare and distribute his draft application for order to show cause and his draft statement of claim and bring the matter back on 24 June when there is next an opportunity, would that suffice?

MR KENNETT:   Yes, it would, your Honour.

HIS HONOUR:   Thank you.  Mr Donaghue?

MR DONAGHUE:   We would be content with that as well, your Honour.

HIS HONOUR:   Thank you.  Mr Merkel, would that suffice for the time being?

MR MERKEL:   Yes, we are content with that, your Honour.

HIS HONOUR:   Thank you very much.

MR MERKEL:   We would also ask for liberty to apply.

HIS HONOUR:   Yes.

MR MERKEL:   Because at the moment we are on a 72 hour notice provision with the Commonwealth concerning removal of the plaintiff and other persons represented by the solicitors acting for the plaintiff in each matter.

HIS HONOUR:   All right.  I shall order that:

1.On or before 4.00 pm on 13 June 2015 the plaintiff file and serve a draft amended application for an order to show cause and a draft statement of claim. 

2.The further hearing of the summons for directions be adjourned to 24 June 2015 at 9.30 am.

3.Reserve liberty to apply to all parties on not less than 12 hours’ written notice. 

Nothing further, gentlemen?

MR MERKEL:   If your Honour pleases.

MR KENNETT:   No, thank you.

HIS HONOUR:   Thank you very much.

AT 9.44 AM THE MATTERS WERE ADJOURNED