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

[2015] HCATrans 162

[2015] HCATrans 162

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

AT MELBOURNE ON FRIDAY, 26 JUNE 2015, AT 9.29 AM

Copyright in the High Court of Australia

____________________

MR R. MERKEL, QC:   If the Court pleases, I appear for the plaintiffs.  (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)

MS K.E. FOLEY:   May it please the Court, I appear on behalf of the third defendant in each matter.  (instructed by Corrs Chambers Westgarth Lawyers)

HIS HONOUR:   Mr Kennett.

MR KENNETT:   Your Honour, today, in a sense, is in the nature of a strike‑out application by us.

HIS HONOUR:   Yes.

MR KENNETT:   I had thought that we would go first ‑ ‑ ‑

HIS HONOUR:   Certainly.

MR KENNETT:   Although my friend may have a different view, given that he has given us written submissions in reply in the last 10 minutes or so.

HIS HONOUR:   Yes, I have seen those briefly.

MR KENNETT:   We are in your Honour’s hands in that regard.

HIS HONOUR:   Just before you start, I might ask Mr Merkel – Mr Merkel, in view of the legislation which I understand has now passed, is it proposed to further amend the draft statement of claim or is it to stay as it is?

MR MERKEL:   The short answer is it is to stay as it is, but I need to explain to your Honour why and what that legislation does because it is quite critical to the issue that is the subject of the declaration.

HIS HONOUR:   Yes.

MR MERKEL:   Can I hand up copies of the legislation, your Honour?

HIS HONOUR:   Thank you.  It is through both Houses of Parliament now, is it not?

MR MERKEL:   Yes, your Honour, and I imagine that Royal Assent will come shortly.  Can I just indicate before going there, your Honour, how it gets dealt with in our pleading at present – if I can just find that paragraph.  Could your Honour go to M68 – sorry, I was in the wrong one.  Does your Honour have ‑ ‑ ‑

HIS HONOUR:   This is the proposed further amended draft statement of claim?

MR MERKEL:   Yes, there is a 37A, your Honour, and I am just – I think it is M68 and it should be paragraph 37A.

HIS HONOUR:   Yes.

MR MERKEL:   Does your Honour see that the allegation there is that there was no statutory power or authority to engage in the prohibited conduct which essentially is a restraint on liberty and we refer to Subdivision B.  The amending Act, which I will take your Honour to in a moment, adds section 198AHA, which is in Subdivision B, so the issues raised, both on the constitutional and construction arguments – and I need to explain that briefly to your Honour - but particularly on the constitutional argument, will capture the amending legislation. 

So to the extent the amending legislation is not necessary, the other provisions that we were arguing about before this Act was passed apply.  To the extent that this Act has now been passed and is within Subdivision B, we have two arguments.  The constitutional argument still remains and therefore it has no effect and there is also a construction argument as to whether it effectively, as the government suggested, closes the loophole that they felt may have existed in the previous regime.  So the answer to your Honour’s question is no, we do not need an amendment because we would treat Subdivision B as picking up the amendment. 

But having said that, your Honour, can I take your Honour to what the amending legislation does because it does flesh out the constitutional issue of significance that we say was implicit in the legislative scheme.  Until now we have had to argue that the scheme did not authorise – can I use the words “restraint on liberty” as the shorthand for constraints on liberty and prohibited conduct.  What the government has now done is specifically purport to authorise executive restraint on liberty offshore and has done it as part of the legislative regime that we said was implicit. 

So your Honour will recall our construction argument was that there was an implicit limitation on 198AD because removal was for the purpose of removal and then release, but now the new section has enabled removal for the purpose of detention by or caused by the Commonwealth, which raises, I think I am accurate, but we have only had a short time to consider this, probably a question not previously considered by this Court and one of enormous importance, that is, to what extent is the alien power, if it captures this legislation, or external affairs power, if that is the heading under which this legislation falls, to what extent is it divorced from Chapter III and if not, what are the constraints of Chapter III in a Lim‑type sense for offshore dealings by the executive arm of government.

So what we will be doing, your Honour, is, once we have our statement of claim able to be served, we will be giving section 78B notices to all the States challenging the validity of this legislation as not being supported by the aliens power or the external affairs power.

HIS HONOUR:   Yes, I see.

MR MERKEL:   I should say these matters are of fundamental importance to the declaratory issue today which has, in a sense, been overtaken in a significant respect by this legislation because at the heart of this legislative scheme is the Transfield contract and, therefore, the cornerstone is the legislation is valid or invalid will be are the restraints on liberty authorised by this legislation, which find their expression in the Transfield contract, a valid exercise of power by the Commonwealth. 

We would expect because of the external affairs power that the States will no doubt intervene or may intervene and, as other cases have shown, the nature and extent of a matter and appropriate relief may depend on how the matter falls for hearing in due course.

I should say, your Honour, also that we will be pressing for the timetable your Honour foreshadowed last time for a hearing in October now that these issues are fleshed out and the central issue would appear to be the validity of this legislative scheme.  It either works or it does not and if it does not, it still leaves for argument whether there was a gap in the previous scheme, but that becomes a secondary point.  But can I explain to your Honour how this legislation appears to work?

HIS HONOUR:   Yes.

MR MERKEL:   To this extent it overtakes the construction argument because we now no longer have to look at 198AD and the other sections because 198AHA – that is on page 3, your Honour – has now been incorporated into the Act and what that section says is:

This section applies if the Commonwealth enters into an arrangement with a person or body in relation to the regional processing functions of a country. 

The Commonwealth in the explanatory memorandum relies on a body being a body politic and therefore a country so that the section applies in respect of any arrangement which is given a definition, which your Honour will recall in other legislative schemes – at the bottom of the page:

arrangement, agreement, understanding, promise or undertaking, whether or not it is legally binding.

So we have the broadest umbrella for the exercise of the powers in this section and then in (2) it says in relation to any arrangement the Commonwealth can do just about anything, but just in case restraint on liberty is not within the heading of “anything”, “action” in subsection (5) is defined as including:

(a)      exercising restraint over the liberty of a person; and

(b)      action in a regional processing country -

So this authorises expressly the very conduct in issue in our case which is the exercise of restraint of liberty by the Commonwealth acting through Transfield by its contract with Transfield.  We say that that raises, really, a very fundamental question of what are the constraints on that restraint and we would say, largely, very little.  So that takes us – sorry, there is a wide definition of “regional processing functions” over the page, your Honour:

implementation of any law or policy, or the taking of any action –

So that the reason I mention this at this stage is that the action at the heart of our case is the Transfield contract and the declaratory relief we are seeking and the source of the prohibition writ that we are seeking takes us back to the Transfield contract and the ultimate question is, has a valid law of the Commonwealth authorised the exercise of restraint over the liberty of the person by the Commonwealth directly, or indirectly by the Commonwealth entering into a contract with another person to exercise that restraint.

HIS HONOUR:   The attack is now going to shift to this amending legislation, is it not?

MR MERKEL:   Substantially, but not entirely.  There is a question, your Honour, which in the 24 hours or less we have not had time to think through, is whether subsection (1) would apply to an arrangement that is not one which the Commonwealth has legal capacity or authority to enter into.

HIS HONOUR:   Yes, I see.  That is going to require an amendment, is it not, assuming you want to advance it?

MR MERKEL:   I do not think so, your Honour, because at the moment we do not – the way we see it as progressing is as follows.  We currently say that this Act does not authorise the Transfield contract and the exercise of functions under it.  We will no doubt hear in the defence what the arrangement is that the Commonwealth relies upon for subsection (1).  It could be a memorandum of understanding between countries or it could be the Transfield contract.  We do not know.

We would then, by way of reply, and it would not take long, raise the point whether subsection (1) applies – whether it applies in this case, but at the moment if we try to challenge subsection (1) without knowing what the arrangement is that the Commonwealth is relying upon in the context of the present case, it would be pre‑empting the defence to try and identify how we approach subsection (1).  But we do not see it as raising any issue of difficulty. 

The source of the problem in this case for the Commonwealth, of course, is Williams (No 1) and Williams (No 2) which relate – and that is another important point, your Honour, that something has been put about expenditure and entering into the contract.  Under Williams (No 1) the challenge to the chaplaincy program ran at two levels.  Because the source of the power exercised by the Commonwealth was the appropriations legislation, that was for the expenditure of money.  What Williams (No 1) required was legislative authority for the source from which the expenditure of money stemmed which was the chaplaincy contracts.

So Williams (No 1), in effect, required legislative authority for the contract to spend money as well as the money spent pursuant to the contract.  So central to the Williams conception is this two‑sided issue – contract to expend and actual expenditure and legislative authority for both.  So that the relevance of all this, your Honour, is that this legislation takes us back to those two issues and it comes down to the simple question, not so simply answered, has the Commonwealth, under a head of power, validly given the authority for the Transfield contract and the performance of functions under it.

Now, it is in that context, we say, that it is probably premature for your Honour to be asked to deal with this standing issue.  We have a number of arguments about why it should be dealt with at this stage and if it is why it should be rejected, but we say that ultimately this matter is still at an evolving stage and we would hope that this question of what relief may or may not be granted is one that will ultimately be considered by a Full Court rather than at a summary level at this early stage.  But we say this legislation has, in effect, brought out clearly and distinctly the centrality of the Transfield contract to the matter before the Court.

HIS HONOUR:   You do not consider that this legislation, if it comes into force, makes redundant any aspect of the existing draft statement of claim?

MR MERKEL:   No, because we have two issues with it.  The first is that it is not supported by a head of power, therefore it has no effect.

HIS HONOUR:   Yes.

MR MERKEL:   Therefore, it does not constitute the requisite authorisation for restraint on liberty.  The second, which we have to await the defence for, is that the explanatory memorandum and the Act itself do not make clear what arrangement the Commonwealth is relying upon to respond to our case.

There is no doubt this Act is a response to this litigation, but what we do not know is that arrangement – can I just, looking ahead, your Honour, we still have the argument which may or may not be a good one that even if there was power to enact this legislation, what it does not do is authorise an arrangement which itself is unlawful. 

We say under Williams the MOU or the Transfield contract is not a lawful arrangement if it is said to support the Transfield contract.  That would take us back to the earlier regime and therefore the statement of claim under either heading would still stand because this legislation would not be an answer to our pleading.

HIS HONOUR:   But that point is still in the future.

MR MERKEL:   It is in the future, your Honour.  The central issue will be the validity of the legislation.  There can be little doubt about that.

HIS HONOUR:   All right, thank you very much.  Mr Kennett.  Now, it is, in effect, your application to strike out a draft statement of claim, albeit that it is Mr Merkel seeking leave to file it.

MR KENNETT:   Yes. 

HIS HONOUR:   It is appropriate, therefore, you go first.

MR KENNETT:   Yes.  Well, your Honour, I do not want to take issue very much with – perhaps at all with what my friend has said about the effect of the new legislation on the pleading.  That seems more or less right to us, that the pleading will not have to change very much, if at all, and the central legal issue is very likely to become the validity of the new provision or the validity of the subdivision as a whole with that provision inserted into it. 

That, however, does not, as we see it, have any bearing on the issue which we came this morning to agitate, which is whether the prayer for relief should be permitted to go forward insofar as it seeks a declaration directed at the lawfulness of things that happened in the past.

HIS HONOUR:   Yes.

MR KENNETT:   That centres very much on ‑ ‑ ‑

HIS HONOUR:   I am sorry, just to interrupt at that point, I take it you are now satisfied by reason of what Mr Merkel said the other day, and also the document in, I think, late that day as to the basis of invalidity, which is contended for?  It seemed fairly clear to me what was being alleged.

MR KENNETT:   We put it this way, your Honour.  We do not seek to agitate that any further at this point.

HIS HONOUR:   Thank you.

MR KENNETT:   If your Honour goes to the proposed further amended application in M68 and to prayer 2, your Honour will have seen that this lists a number of forms of conduct, including imposing what are called constraints on liberty, but also entering into contracts expending moneys and so forth.

HIS HONOUR:   Yes.

MR KENNETT:   The chapeau is in the form of a declaration that that conduct was, from a date in the past, is and would be unlawful.

HIS HONOUR:   Yes.

MR KENNETT:   What we take issue really is the “was” – what we take issue with is, on grounds of standing, the inclusion of “was” which then directs attention – or directs the force of the declaration to things which have occurred in the past as well as things which have occurred in the future.  We do not question the plaintiff’s standing to seek declarations that these things would be beyond the power of the Commonwealth if they were sought to be done to her in the future.

HIS HONOUR:   In the future, yes.

MR KENNETT:   We are prepared to meet that and an aspect of that may be for the plaintiff to say the Transfield contract provides no effective authorisation or requirement for these things to be done because it is not a valid contract.  She can put that submission and she can go back in time to the time when the contract was made and the scope of the Commonwealth’s powers at that time in order to make good that submission.  It does not follow, we would say, that declaratory relief in the form of a declaration that the entry into the contract was invalid is necessary or appropriate to vindicate her position in relation to future acts.

The position is clearer, we would say, in relation to the other forms of conduct which are referred to in prayer 2 because they are really things that are over and done with.  We have given your Honour some references to some of the fairly well‑known authorities on this which I was not proposing to go through this morning in any detail, but if I could perhaps just make a couple of fairly general points about it.

The concept of standing and the existence of a matter in the Chapter III sense are very much two sides of the same coin in that to say that a person has no standing to seek certain relief is another way of saying that that relief would not quell any real concrete controversy as to the person’s legal rights, the concrete controversy being one which affects the person’s rights or in some instances their existing or future interests.

That principle is really the basis for the statements that we have set out, that of Justice Gaudron in Truth About Motorways which refers back to Gardner.  We have given your Honour a quotation from Justice Mason in that case.  The point being made in Gardner we would say was not just that the arrangements that were being debated in that case were no longer in force, it was a broader point, namely that the proposed declaration would not have grounded any right to recompense or any other right and the applicant in that case was really seeking no more than to have the Court agree with him.  An exercise of that kind is not, as Justice Gaudron put it later in Truth About Motorways, part of the administration of the law.

HIS HONOUR:   But there the legislation had changed since, had it not?

MR KENNETT:   It had changed since.

HIS HONOUR:   There was no dispute as to the validity of the replacement legislation?

MR KENNETT:   No, no.

HIS HONOUR:   It was plain, too, I think, was it not, that there was no right to any relief in respect of the past invalidity, whereas here is it contended that there would be?

MR KENNETT:   Well, it is contended by the ‑ ‑ ‑

HIS HONOUR:   Plaintiff.

MR KENNETT:   Well, it is hinted at by the plaintiff.

HIS HONOUR:   At least that it is conceivable that she might be entitled to some substantive relief.

MR KENNETT:   Well, we say not, your Honour.  Certainly none that is apparent to us.  There is no – it is alleged that this conduct is unlawful and to focus in on the constraints on liberty, which is really probably the most significant part of the case ‑ ‑ ‑

HIS HONOUR:   Yes, I should think so.

MR KENNETT:   It is alleged that that is unlawful, but that term “unlawful” needs some unpacking, we would say.  It does not seem to be pleaded that the conduct was tortious or otherwise contrary to the law of the place where it happened.  It is said to be unlawful, as we understand it, in the sense that the Commonwealth lacked the legal capacity to bring it about, which is a different matter.  A declaration recognising that proposition does not found, as we see it, any right to any further relief, does not form the basis of a claim sounding in damages for unlawful imprisonment ‑ ‑ ‑

HIS HONOUR:   Not as pleaded.

MR KENNETT:   Not as pleaded, no and any such claim would have to proceed by reference to the laws of the places where the allegedly unlawful imprisonment happened and our friends have not attempted to show that what occurred was unlawful in those places.  It is difficult to see how they could in the light of what is accepted about the laws of those places in the pleadings.

That is really an example, I suppose.  To say that is not necessarily to deal with the broader point, although it is illustrative of it, that the declarations as to past conduct do not or would not ground any additional or further relief.  They would not establish or affect any existing right of the plaintiff.

HIS HONOUR:   What do you say about Mr Merkel’s broader considerations advanced in the reply document, such as, for example, if it were held that the previous conduct was unlawful, it may inform the Minister’s attitude as to what should happen to the plaintiff after the case is decided and, perhaps more broadly than that, it is in the public interest, not to too grandiloquently express it, to have determined the lawfulness of the conduct in the past.

MR KENNETT:   Your Honour, the public interest would be a discretionary factor which might move the Court in that direction if the case were one where there is otherwise some real basis for – or some real effect on the plaintiff’s rights or interests.

HIS HONOUR:   Yes.

MR KENNETT:   Recalling that, in the passage we set out from Justice Gaudron’s judgment where her Honour referred back to Ainsworth, I think it was, and Gardner, she said that this was not a matter of discretion because eventually – or not always a matter of discretion, at least, because you do reach a point where you are outside the proper bounds of judicial power and no matter how strong the public interest is, the Court just does not go there.

HIS HONOUR:   You say we cross the line?

MR KENNETT:   We do, in this case, yes.  As to the possible – the other matters that our friend refers to, and bearing in mind that we saw this just minutes before coming in, I understand that ‑ ‑ ‑

HIS HONOUR:   Well, you are not Robinson Crusoe, Mr Kennett.

MR KENNETT:   Yes.  In M61, the Court saw utility in making a declaration that recommendations that had been made to the Minister by people who were retained to assess people’s refugee claims that those recommendations were effected by legal error, that had been established, and the Court saw utility in making that declaration.

HIS HONOUR:   But there was no, as it were, legal obligation on the Minister in that case to do it again, was there?

MR KENNETT:   That is right.

HIS HONOUR:   It was just that he might do it.

MR KENNETT:   He might do it.

HIS HONOUR:   And knowing that he had done it improperly in the past may inform, I suppose, a better noted approach to the re‑exercise of the discretion.

MR KENNETT:   There was no mandamus available because the relevant power of the Minister was one which was completely discretionary.  He had no obligation legally to consider exercising ‑ ‑ ‑

HIS HONOUR:   Might it conceivably not be the case here too, even if there were not an obligation to reconsider whether this woman is deported or removed from Australia, to use a neutral term, to know that what was done in the past was unlawful might conceivably affect the decision?

MR KENNETT:   I suppose there are two answers to that, your Honour.  One is that those questions would be addressed by the Minister by reference to arrangements – current arrangements in the relevant country and whether ‑ ‑ ‑

HIS HONOUR:   Put it this way.  If she has been subjected to unlawful detention for months, if not years, it is conceivable that it might be a factor that a decision‑maker would take into account in deciding whether to be beneficent or otherwise, is it not?

MR KENNETT:   The test for the exercise of those powers is the public interest. 

HIS HONOUR:   Yes.

MR KENNETT:   There may be scope for the Minister in exercising those powers to have some regard to an assessment that has been made of what was done to this particular person in the past. 

HIS HONOUR:   You would think so.

MR KENNETT:   I cannot rule that out.  The point, though, is this case does not go as far as M61 because in M61 there was a quite – “rigid” is the wrong word, but there was an elaborated set of procedures which, in the view of the Court, meant that the recommendations which were in issue were to be regarded as things done under the statute and they led, under this elaborated set of procedures, to consideration by the Minister of whether to exercise his discretionary power.

HIS HONOUR:   Yes.

MR KENNETT:   So there was a possible exercise of discretionary power lying in the future and a possible exercise which, in the context that had been established in that case, one would expect would take place on the basis of the recommendations that had been made to the Minister so that the Court, in those circumstances, saw that there was utility in declaring that those recommendations were flawed.

This case does not go that far because there is not that regime leading to a highly likely exercise of power.  One simply has a set of speculation about things that the Minister might wish to do or not do in the future and that really is very similar to Gardner where the best that the plaintiff could say in Gardner was that if his propositions were vindicated as to the past he might be able to persuade the Executive to take certain action in the future. 

That is the kind of territory that we are in, we would submit, with our friends’ suggestions that the Minister might do things under his discretionary powers in the future.  That is what we would say about that, your Honour.  I think everything else that we would have wanted to say has been set out in writing.

HIS HONOUR:   There is just one thing I wanted to ask you about.  The law of Vanuatu is obviously foreign law ‑ ‑ ‑

MR KENNETT:   Of Nauru?

HIS HONOUR:   Question of fact.  I do not know what it is.  Why should I assume, contrary to the, as it were, position of the plaintiff that it would not yield her a cause of action were it declared to be unlawful for the Commonwealth to do what it has done?

MR KENNETT:   Well, that is not the plaintiff’s position and the plaintiff has pleaded various provisions of ‑ ‑ ‑

HIS HONOUR:   I am sorry, at the moment as you rightly say the plaintiff does not allege a cause of action for wrongful imprisonment.

MR KENNETT:   And she has pleaded provisions of the law of ‑ ‑ ‑

HIS HONOUR:   Australian law.  You make the point, as I understand it in your written argument, that the wrongfulness, if it were wrong, of the detention in Vanuatu would be determined by the lex loci delicti of Vanuatu.

MR KENNETT:   Yes.

HIS HONOUR:   Why should I not just assume that it is either the same as Australian law or at least not sufficiently different to deny her a cause of action for false imprisonment?

MR KENNETT:   Well, one reason, your Honour, is that she has pleaded provisions of that law – Nauruan law - the effect of which is to require her to hold a particular kind of visa, conditions of which require her to remain in the processing centre.

HIS HONOUR:   I appreciate that, but is that not on the assumption that the Australian end of the action is valid?

MR KENNETT:   Well, no, your Honour.  The effect of the provisions that the plaintiff has drawn attention to is that pursuant to the law of the place where she was and the place where she would be taken back to she was

required to stay in a particular place and not to leave.  That is at least a reason not to assume that the restraints on her liberty would have been tortious under the law of that place. 

She was, as I think Dr Donaghue has emphasised on the occasions he has been here, to the extent that the same remarks would apply to Plaintiff M80 in Papua New Guinea, to the extent that those people are detained in the sense of deprived of their right to be free, they are detained by force of laws of those places.  There is sufficient in the plaintiff’s own pleadings, we would submit, to indicate that, to indicate that it would not be appropriate to proceed on the basis that they do have a cause of action in those places.

HIS HONOUR:   Thank you.  Ms Foley, do you have any interest in this aspect of the matter?

MS FOLEY:   The third defendant adopts the submissions made by the Commonwealth, your Honour.

HIS HONOUR:   Thank you.

MR MERKEL:   Your Honour, can I just go straight to the heart of the matter of consequences, although we say it does not arise.  I want to give this application a context, but it seems to us that there is a short answer anyway on the suggestion that it has no foreseeable consequences.  There are many answers to it.

“Foreseeable consequences” is the phrase used in a number of the cases.  It is not to be read as consequences in terms of a legal right of the plaintiff.  It is broader than that and if that were wrong then many of the cases such as Ainsworth and cases that followed it would be wrong, including the Tobacco Institute Case which we talked about.  There are legal consequences because of the public interest involved in a matter.

Can I just give this a proper context?  At the moment, your Honour, there are, I am told – and I may be corrected on the accuracy – 25 cases issued in the Court in circumstances that are identical to the plaintiff with undertakings from the Commonwealth not to remove those persons without, I think it might be 72 hours’ notice, and the persons involved, including children – many of the people who have come here have come for the birth of a child or for medical reasons and that is why they are in transit.  There are some 45 or more people whose outcome will depend upon the outcome of this case.  That is the first point.  So whatever happens in this case will have consequences directly for those people because their proceedings are in this Court.

HIS HONOUR:   But that would be true if it were limited to present and future conduct, would it not?

MR MERKEL:   Not with respect to the matters that I want to come to, your Honour, because this case has consequences for the plaintiffs, for the others here and also for the others who have been returned or who may be here facing return.  The consequences are, your Honour, firstly, my learned friend has created this false imprisonment context as if it were the only one, but the case is directed to the wrongful removal from Australia under 198AD.  If there was no power to remove, the question is what are the legal consequences for the wrongful removal and subsequent detention of those persons in Nauru?

Your Honour, the plaintiff’s cause of action is to seek prohibition to prevent her being sent back.  That raises all of the issues in the case in the statement of claim, none of which are really challenged.  The determination by the Court as to whether the removal is wrongful by reason of the Transfield contract being unlawful, of course can give causes of action to the plaintiff and others for wrongful removal and damages in Australia.

The fact that damages have not been claimed in this case may or may not disqualify the plaintiff if there were some issue estoppel because she should have claimed damages, can have no consequence for others, but, with respect, whether it was reasonable for the plaintiff to put a damages claim on in this case is a question for the future, not now. 

HIS HONOUR:   Did you mean issue estoppel or Henderson/Anshun estoppel?

MR MERKEL:   Anshun, sorry, Anshun estoppel.  But the real point is, your Honour, this is not brought primarily, or even incidentally, to get damages.  It is to determine what the law is in respect of a matter which has enormous public importance.

HIS HONOUR:   I understand.

MR MERKEL:   It is not just the detention of those seeking to prevent their removal.  It is the detention of many hundreds, possibly thousands of people who have been removed under 198AD if this amending legislation is invalid.  So it is not just a matter of Nauruan law.  It really comes down to, under Australian law if this conduct is unlawful, can it have foreseeable consequences for the plaintiff and others?  Yes.  Is the unlawfulness a matter of public interest?  Of course.

Your Honour, it is odd for us to hear the Commonwealth, who time and again would come before this Court and say of course we would observe and accept a declaratory judgment about whether our conduct is lawful or not, and of course the Commonwealth would be expected, and time and again the Court has not been forced to issue an injunction on the basis that the Commonwealth would recognise declaratory relief by the Court would require it to render lawful what it was doing that was unlawful in the past.

So that takes us to a second round of possible consequences to the plaintiff of a declaration of unlawfulness concerning the Transfield contract which we have sought to outline in our submissions, your Honour, I think at paragraph 10 which puts us on an analogy which is very direct with M61. 

Your Honour has already adverted to this with my learned friend, but we have tried to spell out possible consequences beyond the Ainsworth or Tobacco type of consequence, which is a public interest consequence, with no legal consequences but in paragraph 10 of our reply, your Honour, the Minister may make a determination – and this may be the matter your Honour was adverting to and my learned friend recognises – if there was a long term of wrongful detention the Minister may make a determination under 198AE not to remove her under 198AD.

HIS HONOUR:   I understand that.  Just to come back to that removal point, you say, do you, that even if it were the case – which you do not accept, as I understand it – that the allegation, if there were one, of false imprisonment in Vanuatu were determined by Vanuatan law alone, because, you say, the removal was unlawful there would be, conceivably, a cause of action for some sort of substantive relief in respect of that?

MR MERKEL:   Yes, your Honour.

HIS HONOUR:   Not only for you, but for the others, as it were.

MR MERKEL:   All the others that have been removed under that section.  We are talking about a very large number of people.

HIS HONOUR:   Yes, I understand.  Thank you.

MR MERKEL:   So that is one foreseeable consequence.  Section 198AE is another in respect of the plaintiff and others.

HIS HONOUR:   I am reminded I said Vanuatu.  It is Nauru, I think – a different place, happier circumstances.

MR MERKEL:   Well, it may be the next regional processing country, your Honour.  We just do not know.  Then, of course, it could cause the Minister to consider whether the designation of Nauru should be revoked because the Transfield contract, which governs Nauru, is unlawful.

HIS HONOUR:   But I do not think that helps you much.  What the Commonwealth does not want to have to deal with is a claim in respect of the unlawfulness of past conduct.  It does not object to you saying that the contract into which you entered with the provider was unlawful.

MR MERKEL:   With respect, your Honour, the designation of Nauru leads to the Transfield contract, so if the Transfield contract were declared to be invalid because it was not able to lawfully impose restraints on liberty, the government may reconsider its designation of Nauru because the sole operation in Nauru was conducted pursuant to the Transfield contract.  But, again, your Honour, this is just to show these are more concrete outcomes if you want than M61 could produce because these affect substantive rights of the plaintiff and others.

HIS HONOUR:   Yes.

MR MERKEL:   Your Honour, we have confined our application to the plaintiff, so it is the contract in relation to the plaintiff, because we did not want to have an argument about “and others” when the rights of the plaintiff will determine the rights of others.  In this Court, on some occasions, there were representative proceedings and because it was unnecessary, particularly in relation to constitutional issues or the Commonwealth to have to have a representative claim and the claim of the individual would determine the rights of others, we had in mind that it was clear that because we raise all the issues of law and validity by reference to the application of the contract and the conduct of the Commonwealth in relation to the plaintiff, it was not a concession that it would not apply automatically to others.  It clearly would.

HIS HONOUR:   I understand that, which leads me to a question I have been meaning to ask you for a while.  Why do we need M80 as well as M68?

MR MERKEL:   Your Honour, that is a good question.  I was thinking about it myself and I think the problem is – and it is a minor point but it may be significant – to the extent that the laws of the host country may be relevant – and I am not sure to what extent that will arise, the laws of Nauru and PNG are different.  Now, one matter, for example, that I am aware of and again I could be corrected on this because it is a moving feast over there – there are some constitutional protections in Nauru, but my understanding in PNG, for example, is that the constitutional protections given under the Bill of Rights do not apply to refugees.

So, just as an example, if there were some prohibition against cruel and unusual treatment, or degrading treatment in Nauru, it may not apply in New Guinea.  When this Court comes to consider the operation of Chapter III in an offshore context, the lack of protection in the law of another country may be a relevant matter to show how unconstrained this constraint on liberty is. 

It is only in that context at the moment that I see a difference because we see that the contract with Transfield is essentially the same.  We have not pleaded the Wilson contract in PNG because we do not have a copy of it, but we expect that that may be something we can agree upon because there is – or if there is not, we believe there is.  Other than that I do not see a difference.  So we would seek to have both cases go forward but we do not see that as expanding the ambit of the argument, save in the respect that I have indicated to your Honour.

HIS HONOUR:   Yes, thanks, Mr Merkel.

MR MERKEL:   Your Honour, so they are the potential consequences.  There is the question of damages for false imprisonment.  That is the Anshun estoppel point and we say that that itself is a vexed question but it is another – it cannot be dismissed as a foreseeable consequence.  Of course, there is the final point, your Honour, which is if disapproval of the Court of the Crime and Misconduct Commission’s report concerning Mr Ainsworth because it is harmful to his reputation with no other consequence is a legitimate basis for a foreseeable consequence, we say the Court would have to overrule the approach in Ainsworth to say disapproval of unlawful conduct restraining the liberty of individuals by the Commonwealth is not a comparable basis for the Court to express, not its disapproval, but to declare that this conduct of the Commonwealth is unlawful.

So we say it is a misconception when you look at the cases, such as the Tobacco Institute, Ainsworth – and also we did refer to Einfeld, your Honour, to show that when Justice Gaudron and Justice Gummow talked about the animating principle behind section 75(v) – and this is relief in a section 75(v) matter – the notion underlying all is that the government must act according to the rule of law and be brought to account when it does not, which is all that this declaratory relief is seeking to do.

So, your Honour, we say that the “foreseeable consequences” line of argument is simply not correct.  But can I indicate this?  There is a problem which is more a procedural – but significantly an important procedural problem in what the Commonwealth are seeking to do and we need to give this a context.

Your Honour indicated to my learned friend that this was a challenge to the statement of claim, but, of course, it is not.  My learned friend has not identified any paragraph in the statement of claim that should be struck out or not allowed to proceed and there is not one because the statement of claim has to date defined the matter.  What the Commonwealth is seeking is to strike out ‑ ‑ ‑

HIS HONOUR:   The application.

MR MERKEL:   ‑ ‑ ‑ one small part of the claim for relief in the amended application, which was in the amended application from the start.  We have narrowed it.  We do not say that the Commonwealth cannot do that, but the criterion for striking it out at this stage would have to be that it is not an arguable claim for relief.  Can I remind your Honour - we took this journey down in the East West Link Case and I took your Honour to Wickstead v Browne.

HIS HONOUR:   Yes.

MR MERKEL:   Wickstead v Browne is an unusual case because it is reported in the Court of Appeal.

HIS HONOUR:   Not in the High Court?

MR MERKEL:   It was in, I think ‑ ‑ ‑

HIS HONOUR:   It is very hard to find, is it not?

MR MERKEL:   No, it does not come up on the internet.  We have a copy of it – I do not have it on me but ‑ ‑ ‑

HIS HONOUR:   It is emblazoned on my heart, I think, Mr Merkel.

MR MERKEL:   It was in David Solomon’s High Court reporter and, of course, what happened in that case is Justice Kirby had dissented in the Court of Appeal where the majority had struck out a claim – I think it was for breach of duty of care of a fiduciary on the basis ‑ ‑ ‑

HIS HONOUR:   Trustee, yes.

MR MERKEL:   ‑ ‑ ‑ that the common law duty of care applied and existing authority was to that effect.  Justice Kirby said that the striking out of the claim, notwithstanding the strength of the argument that it does not have the support of authority, would not narrow the ambit of the claim and it would be wrong to strike out a claim merely because it was doubtful or, in

normal circumstances might be struck out, when the matter would go ahead anyway on determination of the substantive issues.

There was a special leave application and on the special leave the Court granted special leave, heard the appeal instanter and said Justice Kirby’s approach was correct.  It was a wrong exercise of discretion to strike out a claim and therefore prevent it being agitated, say, at the full High Court level if that were to be when, in fact, there was no utility whatsoever to the conduct of the litigation in striking it out.

So we have a similar, but even more blatant circumstance here because, as I indicated to your Honour from the outset, the legality of the Transfield contract is at the heart of the dispute and will have to be determined – and my learned friend accepts that.  So the matter as defined to date by the statement of claim will be the matter before the Court.  So striking out this claim for past relief will not affect the conduct of the matter in any way at all.

In a sense it is undesirable for your Honour, particularly when it is likely that the matter will go before a Full Court - it would be, we say, not a proper exercise of discretion to strike it out even if your Honour had doubts, which we say to your Honour you should not, when the matter can be agitated and will be agitated in the usual course before the High Court and it would not be assisted by your Honour having a determination that it is not arguable.

But we say, in any event, unlike Wickstead v Browne, there is simply no authority that could be cited to be directly against us.  Gardner is being relied upon but, of course, Gardner is a totally different case, as your Honour has already indicated to my learned friend and as we have pointed out in the submissions.

So we say, your Honour, that my learned friend’s application should be refused and we do say that it should be refused with costs, being costs in relation to today’s application because it relates solely to this strike‑out aspect.

HIS HONOUR:   Thank you.  Mr Kennett, any reply?

MR KENNETT:   Yes, your Honour.  Many of the points that my friend made about the importance of this litigation to his clients and to other persons are really points which are accommodated by the prayers, which we do not quibble with, as to present and future conduct.  So propositions, for example, that the Commonwealth normally acts in accordance with a declaratory judgment if the prospective detention – or prospective arrangements in Nauru are held to be beyond power or present arrangements held to be beyond power, that would be a declaration that the Commonwealth would naturally act in accordance with.  It is not necessary also to have a declaration about events in the past.

So it is important to keep in mind in dealing with this that it is only a section of the prayer for relief that we seek to dispense with and what remains will well and truly serve the function of holding the Executive to account for the lawfulness of that which it seeks to do.  In relation to the factual ambit, we would not be here for no reason and our instructions and understanding is that a significant amount of work would be added by the necessity to ascertain and agree facts in relation to the – not the contract itself, but the arrangements pursuant to which people have been accommodated in Nauru and in Papua New Guinea at various times in the past.

The practicalities of those arrangements have changed from time to time.  If it is a question of agreeing the set of facts about what is happening at the moment and what will happen in the near future, then that is a relatively confined task, but if it is an issue of agreeing to a set of facts about what has happened since March 2004, that is a much larger exercise and that is one reason why we say it is – if the claim be bad in relation to past events, that is something which it is appropriate to deal with now at the threshold.

HIS HONOUR:   Which of the arrangements in the proposed draft statement of claim are relevant to that last submission, Mr Kennett?

MR KENNETT:   Your Honour, the section of the statement of claim that begins at paragraph 10 deals with both past and apprehended arrangements, so paragraph 10 deals with the past.

HIS HONOUR:   Presumably we know what the circumstances of the plaintiff’s detention in Nauru were for the relatively brief time she was there, would we not – or you?

MR KENNETT:   It is, of course, ascertainable, your Honour, but it is a larger task to ascertain that because things have changed from time to time.

HIS HONOUR:   It is only last year.  You would just ring up Transfield and say what were the circumstances, would you not?  Or even better, Transfield here, they know what the circumstances were.  They were running the show.

MR KENNETT:   That is obviously true in a general sense, your Honour, but, for example, things like “surrounded by a high metal fence”- paragraph 12 – and then in paragraph 14(e), for example, was “supervised and guarded by security personnel at all times”, was “subject to movement restrictions”, “could be monitored at all times” – nitty‑gritty stuff like that would involve more of an exercise to ascertain at past times than simply in terms of current arrangements.

The claim in relation to M80 goes back to - your Honour, I accepted in my submissions in‑chief that if it were held that the plaintiff had been wrongfully detained for a period in the past that might be something the Minister could consider in the exercise of his discretions in the future.  Of course, I cannot rule that out, but in making that proposition, it is useful to recall what is involved in the term “wrongful” here.  “Wrongful” was a term that my friend used in his submissions.

The plaintiff’s detention, if that is what it is, in Nauru has not been said to be unlawful under the law of that country.  It is alleged to be unlawful in a very narrow sense in that the Commonwealth had no capacity to participate in it, so when the Minister came to exercise discretions about the plaintiff in the future, it is not the case that he would be presented with somebody who had been locked up for a year who should not have been locked up.  It is a narrow – it is a much more confined sense of wrongfulness than that.  So the prospect that that could influence exercise of discretion exists – I have to accept – but should not be overstated.

HIS HONOUR:   Thank you.

MR KENNETT:   A lot has been said about damages, claims, potential claims for damages and I do not want to add very much to that, but we have suggested in the written submissions that really if there is a claim for damages in the wings, it ought to be brought forward and this Court’s processes should not be used to fire an opening salvo in a tort claim because a tort claim ought to be pleaded and dealt with as a tort claim.  It would not be right to have a sort of preliminary skirmish in this Court and then go away and plead the claim.

HIS HONOUR:   It would have to be remitted anyway, though, would it not?

MR KENNETT:   Yes.

HIS HONOUR:   We would have to deal with the constitutional aspect of the matter first and then send it somewhere else to decide a tort claim.

MR KENNETT:   Yes, but that, of course, has not been taken ‑ ‑ ‑

HIS HONOUR:   So, in substance, what is the difference, apart from the fact that you have the benefit of an arguable Anshun as against the plaintiff?

MR KENNETT:   Pleading a tort claim would expose the other issues that that claim would have to confront – principally, choice of law.  There could be various other reasons why there is no cause of action that one could decide and not have to deal with a constitutional claim.  This Court has always had a practice of not pronouncing on constitutional issues unless it is necessary to do so.

HIS HONOUR:   But simply by establishing that the plaintiff does not have a cause of action for wrongful or false imprisonment is not going to get rid of the constitutional argument, is it?

MR KENNETT:   Not if it can be brought in some other way and it is brought here, properly, we accept, as a forward‑looking exercise.

HIS HONOUR:   Yes, I see.  Thank you.

MR KENNETT:   Those are the matters in reply.

HIS HONOUR:   Thank you.

This proceeding was instituted by an application for an order to show cause filed on 14 May 2015.  In substance, the relief sought in the application is:

1.A writ of prohibition to prohibit the Minister and other officers of the Commonwealth:

(a)from taking steps to take, remove, deport or surrender the plaintiff or other persons to the Republic of Nauru under section 198AD of the Migration Act 1958 (Cth) if the purpose or likely effect of those steps is detention at the Nauru Detention Centre;

(b)from making payments to the third defendant, Transfield Services (Australia) Pty Ltd, pursuant to an agreement made between the Commonwealth and Transfield of 24 March 2014;

(c)alternatively to (b), from making payments to Transfield for a purpose, or which are likely to have the effect, of imposing, enforcing or procuring the detention of the plaintiff or other persons at the Nauru Detention Centre;

(d)from giving effect to the Transfield agreement;

(e)alternatively to (d), from giving effect to provisions of the Transfield agreement that provide for the imposition, enforcement or procurement of the plaintiff’s, or other persons’ detention in the Nauru Detention Centre; and

2.A declaration that such conduct committed in the past was unlawful, and that such conduct, if committed in future, would be unlawful by reason of it not being authorised or sufficiently authorised by any law of the Commonwealth or supported by or based on a valid exercise of the executive power of the Commonwealth under section 61 of the Constitution.

On 14 May 2015, the plaintiff also filed a summons seeking leave to file and serve a statement of claim in the form annexed to the summons; an order that the defendants be required to file and serve a defence or demurrer within such time as the Court should direct; and, in effect, directions leading to an expedited hearing of the proceeding before the Full Court.

The matter first came on for directions before me on 3 June 2015.  By that time, a volume of correspondence had passed between the parties’ legal representatives about the form of the application and proposed statement of claim.  Evidently, there was also some recognition on the part of the plaintiff’s legal representatives that both documents might profitably be amended.  The principal concerns appeared to be whether the plaintiff had standing to seek relief on behalf of other persons and whether the basis for contending that the conduct earlier referred to was, and would be, unlawful, was sufficiently disclosed.

At the request of all parties, therefore, I put the further hearing of the summons over to 24 June 2015 to enable them to attempt to reach some measure of agreement on the form of the application and statement of claim.  When the matter came back on for hearing on 24 June 2015, the plaintiff sought leave to file an amended application and an amended form of statement of claim that were apparently designed to overcome the defendants’ objections to the original forms of the documents.

In the course of the further hearing, however, it emerged that the first and second defendants (to whom, for convenience, I shall refer to as “the Commonwealth”) maintained their objection that the documents did not sufficiently disclose the basis for the allegation that the conduct was and would be unlawful, and they disputed the competence of the plaintiff’s claim for a declaration as to the lawfulness of the past conduct, as opposed to present and future conduct.  I therefore put the matter over again until this morning so that those objections could be argued out in full. 

The objection as to lack of specificity has since been resolved by the plaintiff’s written outline of argument, which was filed on 25 June 2015 in anticipation of this hearing. The plaintiff contends that the conduct was, or would be, unlawful because the Commonwealth’s constitutional power to detain without court order can only be exercised for limited purposes and because, although one such purpose is the removal of aliens from Australia pursuant to section 198AD(3)(a), (b) and (d) of the Migration Act 1958 (Cth), upon its proper construction, the section does not extend to, or alternatively it must be read down so as not to extend to, detention incidental to a taking where the taking has the purpose or likely effect of causing detention outside Australia under the Commonwealth’s effective control.

It remains, however, to resolve the question of the plaintiff’s standing to seek a declaration in relation to past conduct, as opposed to present or future conduct.  The Commonwealth accepts that the declaration which is sought in relation to past conduct could, in theory, conceivably produce foreseeable consequences such as, for example, an entitlement to damages for false imprisonment.

The Commonwealth submits, however, that the courts would not ordinarily, and in this case should not, entertain a claim for declaration simpliciter.  More specifically, in the Commonwealth’s submission, if the plaintiff wishes to claim damages or other substantive relief, the plaintiff should be required to plead her cause of action for that relief so that the existence of any other issues that might render the question of lawfulness of detention academic may properly be considered.  Alternatively, if the plaintiff does not propose to claim any such substantive relief, the Commonwealth contends that the question of whether the past conduct was unlawful would be academic and, therefore, should not be entertained.

I am not persuaded by the Commonwealth’s argument.  Prima facie, the claim for a declaration as to the unlawfulness of the past conduct satisfies the criteria articulated in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581 - 582 per Mason CJ, Dawson, Toohey and Gaudron JJ. The claim is directed to the determination of a legal controversy, as opposed to answering an abstract or hypothetical question. The plaintiff alleges that, as from 24 March 2014 until she was brought to Australia for medical attention later last year, she was unlawfully detained in the Nauru Detention Centre pursuant to section 198AD of the Act. The Commonwealth contends that the detention was not unlawful. There is, therefore, a real legal controversy as to the lawfulness of the plaintiff’s past detention and the determination of that controversy has the potential to produce some real legal consequence for the plaintiff: cf Truth About Motorways Pty Ltd v Macquarie Infrastructure Management Ltd (2000) 200 CLR 591 at 613 [52] per Gaudron J. She has a real interest in raising the issue and the first and second defendants present as natural contradictors.

The Commonwealth relied on the decision of this Court in Gardner v Dairy Industry Authority of New South Wales (1977) 52 ALJR 180 at 188, which was referred to with approval in Ainsworth, that declaratory relief in respect of past conduct should be refused because it could produce no foreseeable consequences for the parties.  But Gardner is distinguishable on the basis that the past arrangements which were there said to have been unlawful had been superseded by repeal of the impugned legislation and replacement with legislation of which the validity was not in dispute, and also because the applicants there were without any legal right in debt or damages in respect of the past arrangements.  In contrast, in this case, the arrangements which are alleged to have been unlawful are still in operation and it is conceivable that, if they were unlawful, the plaintiff might be entitled to some sort of substantive relief in respect of her past detention. 

The Commonwealth also relied on observations of Justice Heydon in Williams v The Commonwealth (2012) 248 CLR 156 at 291 – 293 [329] – [331] to the effect that the plaintiff in that case had no standing to challenge Commonwealth expenditures relating to a previous period of time. But Williams is distinguishable, too.  The point of Justice Heydon’s observation was that Mr Williams had no standing to challenge expenditure between 2007 and 2009 because his children had not been at school at that time and because the arrangements under which the expenditure had been incurred were no longer in operation.  In contrast, here, the plaintiff is directly affected by the past conduct and the arrangements relating to the past conduct appear still to be in operation.

The Commonwealth prayed in aid that the plaintiff’s claim for declaration that her past detention in the Nauru Detention Centre was unlawful is, in form and substance, a claim that her detention was unlawful according to Australian law.  In the Commonwealth’s submission, since any claim which the plaintiff might have for damages, say, for false imprisonment within the Nauru Detention Centre, would be governed by the law of Nauru as the lex loci delicti commissi, John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 544 [102]; Regie Nationale des Usines Renault SA v Zhang (2000) 210 CLR 491 at 505 -506 [29]. Any determination of the lawfulness of detention as a matter of Australian law would be nihil ad rem.

Possibly that is so, but, as matters stand, it is impossible to say that it is so.  There is no evidence as to the relevant content of Nauruan law, which, of course, is a question of fact, Dicey and Morris, The Conflict of Laws, 10th Ed (1980), Rule 210.  Consequently, I am unable to exclude the possibility, even if it is slight, that in determining the plaintiff’s cause of action under Nauruan law, a Nauruan court would have some regard for the lawfulness of the alleged past unlawful conduct as a matter of Australian law.

There is also a further aspect of the matter relating to the removal of the plaintiff from Australia, the lawfulness of which is, of course, to be determined according to Australian law, and thus the possibility that the plaintiff might have some substantive cause of action governed by Australian law for relief in respect of her removal.  Furthermore, there is also a possibility that a declaration as to the unlawfulness of past conduct might conceivably inform the Minister’s attitude to the removal of the plaintiff from this country after the matter has been decided and there are, as well, broader considerations of the kind referred to in Plaintiff M61 v The Commonwealth - see and compare (2010) 243 CLR 319 at 359 [103] relating to public interest in the Commonwealth’s observance of lawful requirements in the exercise of relevant powers.

More generally, authority suggests that the Court should be slow to refuse declaratory relief which is designed to ensure that those possessed of executive and administrative powers exercise them in accordance with the laws which govern their existence.  And, although there is force in the Commonwealth’s submission that all of that can be achieved by a reference to present and future conduct, at this stage of the proceeding it is impossible to exclude that what occurred in the past may be a relevant consideration.  To that end, as Mr Merkel submitted, it is appropriate to bear in mind the conclusion reached in Wickstead v Browne (1992) 30 NSWLR 1 at 6, per Kirby P, in diss but affirmed on appeal (1993) 10 Leg Rep SL 2, that, where at an earlier stage of a proceeding, there are more than one claims proposed to be advanced of which only one is questionable, it is usually preferable to allow the questionable claim to go forward with the others so that, ultimately, it can be resolved in the context of all of the evidence which might be adduced at trial.

Needless to say, if there is any substance in the point of objection which has not yet been identified, it would be appropriate for the Commonwealth to raise it at the earliest opportunity by pleading or demurrer or both, so that all relevant considerations can properly be identified and dealt with before the matter proceeds any further.  At this stage of the matter, however, it is not something which I consider should delay the plaintiff filing the amended application and statement of claim in the forms which have been tendered.

Finally, the Commonwealth submitted that, were the claim in respect of past conduct to remain, it would add considerably to the Commonwealth’s burden in establishing the facts of the matter for the purposes of agreeing a special case so that the matter could be heard within the near future before the Full Court.  Senior counsel for the Commonwealth referred by way of example to paragraphs 12 and 14 of the statement of claim relating to measures which are alleged to have been in operation at the Nauru Detention Centre when the plaintiff was detained there last year, and submitted that it was likely, or at least possible, that to ascertain what those measures were then, as compared to now, would involve a degree of work which might better be avoided.

No doubt the ascertainment of what occurred in the past as opposed to what occurs now, or might occur in the future, would add to some extent to the burden of this proceeding but, given that we are considering only matters which occurred within the last 18 months, and that both parties principally responsible for the conduct of those arrangements are parties to the proceeding, I am not persuaded that it is likely that the need to establish the details will add considerably either to the work involved or the time taken.

In the result, therefore, I propose to grant the leave which is sought.  Subject to what counsel may wish to say as to the form of orders, I contemplate ordering as follows:

1.Granting leave to the plaintiff to amend paragraph 1 of her summons of 14 May 2015 by substituting for the words “in the form annexed to this summons” the words “in the form of the proposed further amended draft statement of claim filed 23 June 2015”.

2.Granting leave to the plaintiff to file and serve by 4:00 pm this day an amended application to show cause in the form of the proposed further amended draft application for an order to show cause which was filed on 23 June 2015 and a statement of claim, in the form of the proposed further amended draft statement of claim, which was filed 23 June 2015, but as amended to accord with the proposed further amended paragraph 31 which was tendered on 24 June 2015.

3.Directing the defendants to file and serve a defence to any statement of claim so filed and further, or alternatively, any demurrer by 4:00 pm on Friday, 3 July 2015.

4.Directing the parties to confer with a view to agreeing upon a draft special case which, if agreed, could be filed by 4:00 pm on Monday, 20 July 2015.

5.Adjourn the further hearing of the summons for directions until 22 July 2015.

Because there has been some give and take on both sides, I propose reserving all costs of all parties, both of the application for leave to file the statement of claim and also for what has been treated, in substance, in effect as the application to strike out aspects of the application relating to past conduct.

Gentlemen, lady, is there anything about those orders which needs to be amended or which requires addition?

MR MERKEL:   We would just raise, your Honour, whether a provision should be made for reply because we expect there will be reply along the lines I have indicated to your Honour that would respond to the arrangements relied upon in the amending legislation.

HIS HONOUR:   Yes.  If the other parties can get their defence in by 3 July, can you do your reply by 10?

MR MERKEL:   Yes, your Honour.

HIS HONOUR:   Thank you.

MR MERKEL:   Otherwise we are content with those orders.

HIS HONOUR:   Thank you very much, Mr Merkel.

MR KENNETT:   Your Honour, we are in some difficulty producing a defence in a week.  I accept we have had some time to think about this already, and some work has been done ‑ ‑ ‑

HIS HONOUR:   If I may say so, with the greatest respect, it shows all of the signs that you have devoted considerable attention to ‑ ‑ ‑

MR KENNETT:   Yes.  At least one of my juniors is unavailable for all of next week.  I am not sure about Ms Mitchelmore.  We would be very grateful if we could have at least until the following Monday to file.

HIS HONOUR:   Very well – that would be Monday, the 6th.  I am sure Mr Merkel could still do his reply by the 10th.

MR MERKEL:   We do not have any problem with that.

HIS HONOUR:   Thank you very much.  Ms Foley?

MS FOLEY:   I can anticipate I might have some difficulty with the submission, your Honour, but from Transfield’s perspective, even the extended time that you have just offered in relation to the defence will pose us some difficulties.  Your Honour is right that we have obviously done some thinking about the legal issues raised by the plaintiff and I should say that has been a bit of a moving feast, but the factual matters are matters that we do need more time and we have been working as hard as we can but that timetable, in my submission, is too tight for us.

HIS HONOUR:   How much more do you need?

MS FOLEY:   We were hoping – we had anticipated that your Honour would be wanting to bring this back some time close to the 22nd and we were hoping to file our defence really just immediately prior to that directions hearing.

HIS HONOUR:   I am rather hoping, though, that you would have got well past defence to the draft special case by 20 July.

MS FOLEY:   I can see that from the orders that your Honour had contemplated, but I think it is important to be realistic, your Honour.  In my submission we simply need more time.  There are significant factual matters that require work that we have been progressing as much as we can, but that timetable, in my submission, your Honour, is too difficult.

HIS HONOUR:   Can the preparation of the stated case, assuming there is to be one, proceed at the same time as the preparation of the defence?

MS FOLEY:   To a large extent, your Honour.  I should say my learned leader flagged with you at the last occasion this week that there may be this factual issue that we may hit a difficulty with the plaintiff in relation to the effect of Nauruan law, but putting that aside, I cannot see why we cannot be progressing the special case as much as we can but the defence, in my submission, does need more time to be done properly.

HIS HONOUR:   Well, if I put off the defence, say to Monday, 20 July, which gives you another fortnight, Mr Merkel could then get his reply in by, say, 27 July.  If we leave the hoped date for the filing of the proposed draft stated case at 20 July, we are still doing reasonably well and it gives you a considerable extra period of time, does it not?  Would that help?  That would be 20 July for defences, 27 July for reply and if it can be agreed, the filing of the draft special case by – we will just have to put that out till, I do not know, 4 August, I suppose.  That is no good, we will not be here.  We will be in Canberra.  That is all right.  We could make the filing of the special case, say, by the end of the first week of August and we could have the further directions in the third week of August.  Would that not be too inconvenient to everyone?

MR MERKEL:   Your Honour, I was going to suggest an alternative.  With respect, we have indicated that Transfield’s presence is here because they are a party entitled to be heard, but no relief is sought against them.

HIS HONOUR:   I am tempted to say you have brought it on yourself, Mr Merkel.

MR MERKEL:   Well, no, your Honour.  We brought it on ourselves only because we thought that they would be here anyway, so it was unlikely that they would not want to be heard.  They could always leave if they wanted to.

HIS HONOUR:   They are only a private corporation.  They do not have the resources of the Commonwealth.

MR MERKEL:   Well, I am not sure about that, your Honour.  Without getting into that debate, what I was going to suggest, your Honour, is if the Commonwealth stayed on track for the 6th, because it is their defence that we are mainly concerned with, and if Transfield were given till the 13th, we could try and keep on track for the directions hearing on the 22nd.  If Transfield have difficulties, we can talk as between counsel about that.  We suspect the level of detail that my learned friend had referred to is not ultimately going to be of significance because the amending legislation has drawn out the critical question which is restraint on liberty and the manner and form of that restraint ultimately may now fall away because we do not have to be concerned about that.  The Transfield contract speaks for itself. 

So we would say that timetable that your Honour had indicated could still be met with the adjourned summons on 22 July, but your Honour can expect the parties to be reasonable and if there are problems in that timetable we can seek to put up amendments by consent.  But we would rather try and keep this matter on course as quickly as possible because there is a degree of urgency given the number of people involved, and many more may become involved.

HIS HONOUR:   I understand that.  On the other hand, I am told by Ms Foley Transfield really cannot do it by the 6th.  To give her another week is not a great deal of time in the scheme of things.

MR MERKEL:   With their resources and counsel, we would be surprised if they could not, your Honour, but as I have said, if that transpires not to be so we would expect to be reasonable and try and accommodate an extension.  But we think it is more important to try and keep it on track and see what Transfield is or is not able to do because these facts are entirely within their knowledge and all will be documented.  It is difficult for us to see why the level of detail should matter, particularly if the Commonwealth take a demurrer in respect of the pleading which may well occur given the legislation which is said to be a complete answer to our case.

HIS HONOUR:   Yes.  Well, we can be back here much faster if that is the case.

MR MERKEL:   We would be, your Honour, so it is really – we do not want to put Transfield out into another timetable so the 13th would at least give us the prospect of maintaining your Honour’s original program.

HIS HONOUR:   I will say the 13th, but I would entertain favourably any application reasonably based for further time if it proves absolutely necessary.

MR MERKEL:   If your Honour pleases.  Can I ask your Honour, is your Honour still leaving open the possibility of the matter coming on in the sittings in October – starting on 6 October?

HIS HONOUR:   I am, but we are cutting it very, very fine, Mr Merkel.

MR MERKEL:   I appreciate that, your Honour.

HIS HONOUR:   But yes, that is the objective.

MR MERKEL:   Thank you, your Honour.

HIS HONOUR:   I order as follows:

1.I grant leave to the plaintiff to amend paragraph 1 of her summons dated 14 May 2015 by substituting for the words “in the form annexed to this summons” the words “in the form of the proposed further amended draft statement of claim filed 23 June 2015”.

2.I grant leave to the plaintiff to file and serve by 4:00 pm this day an amended application to show cause in the form of the proposed further amended draft application for an order to show cause filed on 23 June 2015 and a statement of claim in the form of the proposed further amended draft statement of claim filed 23 June 2015, as amended to accord to the proposed further amended paragraph 31 tendered on 24 June 2015.

3.I direct the first and second defendants to file and serve a defence to any statement of claim filed and served in accordance with order 2 and further or alternatively, any demurrer by 4:00 pm on Monday, 6 July 2015 and I direct the plaintiff to file and serve any reply thereto by 4:00 pm on Friday, 10 July 2015.

4.I direct the third‑named defendant, Transfield, to file and serve a defence to any statement of claim filed and served in accordance with order 2 and further, or alternatively, any demurrer by 4:00 pm on Monday, 13 July 2015 and I direct the plaintiff to file and serve any reply thereto by 4:00 pm on Monday, 20 July 2015.

5.I direct the parties to confer with a view to agreeing upon a draft special case which, if agreed, should be filed in draft by 4:00 pm on Monday, 20 July 2015.

I digress from the order to observe that that is the same time for the reply to Transfield’s defence, which may well create difficulties.  If they do, they will have to be dealt with as they emerge.

6.I adjourn the further hearing of the summons for directions until Wednesday, 22 July 2015 at 9.30 am.

7.I reserve each party’s costs of the application and of this day’s hearing.

Anything further?

MR MERKEL:   No, your Honour.

MR KENNETT:   No, your Honour.

HIS HONOUR:   Thank you very much.  I am obliged to counsel for their assistance.  Adjourn, please.

AT 11.02 AM THE MATTER WAS ADJOURNED