Plaintiff M73a-2019 & Ors v Minister for Home Affairs & Anor; Plaintiff M76-2019 v Minister for Immigration, Citizenship and Multicultural Affairs & Anor

[2019] HCATrans 140

[2019] HCATrans 140

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M73 of 2019

B e t w e e n -

PLAINTIFF M73A/2019

First Plaintiff

PLAINTIFF M73B/2019

Second Plaintiff

PLAINTIFF M73C/2019

Third Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Melbourne  No M76 of 2019

B e t w e e n -

PLAINTIFF M76/2019

Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON WEDNESDAY, 26 JUNE 2019, AT 9.30 AM

Copyright in the High Court of Australia

____________________

MR C.J. HORAN, QC:   May it please the Court, I appear with MR R. CHAILE and MR G.B. AYRES for both of the plaintiffs.  (instructed by Asylum Seeker Resource Centre and Allens)

MR P.D. HERZFELD:   Your Honour, I appear for the defendants in both matters.  (instructed by Australian Government Solicitor)

HER HONOUR:   Thank you. 

Both of these matters, M73 and M76 of 2019, were filed in late May of this year, some six months after the High Court Rules2004 (Cth) were amended. The amendments came into effect from 1 November 2018.

Except for an infant plaintiff in M73, both matters concern persons who have been found to be a refugee under Pt 2 of the Refugees Convention Act 2012 (Nr) and who were brought from Nauru to Australia for urgent medical treatment.  Each matter seeks, among other relief, a constitutional or other writ.

Under the amended High Court Rules, r 25.07.1 now requires that a “defendant file and serve a response within 28 days from service of the application” for a constitutional or other writ.

In each matter, the parties have filed a consent which indicates that the defendants, a Minister of the Commonwealth and the Commonwealth of Australia, will not comply with that rule.  I note that the deadline for the defendants’ response in M73 is, on my calculation, today, 26 June and the deadline for the defendants’ response in M76 is 28 June.

At least in these cases, and there are many apparently similar other cases filed in this Court, it is not enough, without further explanation or justification, for the parties to file a consent seeking to stand the proceedings out of the list. 

We cannot allow so many matters to lie in the Court with no steps being taken. 

In the circumstances, the question is why should I not set a timetable for further steps to be taken to prepare the matters to a point where the further conduct of each proceeding can be properly assessed or determined.

Put simply, either there is a dispute between the parties that needs to be resolved or there is not.

Mr Horan.

MR HORAN:   Yes, your Honour, anticipating some of the matters that your Honour has raised, the parties have reached agreement on some proposed short minutes of order which would allow the steps under the rules to proceed with the filing of a response and a reply under slightly extended timeframes and then to revisit the future progress of the matter in the light of those.  If I could perhaps hand that up.

The proposal is, given the time that has been lost to date, that the dates for the response be fixed on 17 July in each matter and then any reply be filed within seven days, which is in accordance with the time fixed by r 25.08.  It will then, we assume, become clearer whether there is a dispute and what the nature of the dispute is between the parties and where the matter should progress from there.

HER HONOUR:   Do you want a date?

MR HORAN:   A date for directions.  I think at this stage we are not seeking a date.  Your Honour will see from the application that the broad nature of the proceedings is that the plaintiffs – or each of the plaintiffs

contend that there is currently no power to return each of them to Nauru or to any other regional processing country and that is in circumstances where to date no undertaking has been given by the defendants not to remove or not to remove without giving ‑ ‑ ‑

HER HONOUR:   72 hours’ notice.

MR HORAN:   ‑ ‑ ‑ 72 hours’ notice.  It may be the defendants’ position will become clearer once their responses are filed as to whether or not there is a current live controversy about the power to remove or whether that is a point that has not yet been reached, in which case the parties and the Court will need to decide what happens to these proceedings from there.  What we have proposed, consistently with what your Honour has raised, is to ensure that the timetable under the amended rules is fulfilled and then assess what should happen after that.

Now, as I say, we do not necessarily – at the moment there is no urgent need to bring the matter on for directions after that point so we are in the Court’s hands as to how expeditiously the matter should be relisted for further directions.

HER HONOUR:   Well, as I said, the matters cannot continue to lie in this Court, and there are many of them.

MR HORAN:   Yes.

HER HONOUR:   So it seems to me that as a result of having received – or undertaken steps 1 and 2, then it is apparent in both matters, it seems to me, that the parties should identify – and I think they should come on together, so let us not split them up and incur additional costs, let us just keep them together if we can – a date which is suitable to both of you for the matter to be determined.  As I said, either there is a dispute between you that needs to be resolved or there is not.  Mr Herzfeld, do you have any objection to that course?

MR HERZFELD:   No, I must say I had assumed we would fix a date today, it is just the infelicity of three – obviously, when we prepared this we did not know what the date would be and so I had anticipated that during the course of the directions today we would fix a date, including simply for everyone’s calendars, to know when the matter would come back; so, no, no objection at all.

HER HONOUR:   As most of you at the Bar table know, August sittings start on 5 August, so it seems to me it is either in the week commencing 29th which may not be sufficient time to consider the matter – it is a matter ultimately for you – or after the August sittings.

MR HORAN:   I think I would be available on either approach but perhaps the week following the August sittings would be more convenient.

HER HONOUR:   Mr Herzfeld, did you have any objection?

MR HERZFELD:   No, your Honour.

HER HONOUR:   All right.  Well, I will list it for Tuesday, 20 August at 9.30 but my expectation, not my hope, is that either – I mean, there is no point in attending if the matter can be resolved or if the parties are agreed about the way to go forward.

MR HORAN:   Yes.

HER HONOUR:   So if something is achieved before the August sittings and you wish to have it sent up then, of course, by all means, do so.

MR HORAN:   Yes, of course, your Honour.

HER HONOUR:   Anything else, Mr Herzfeld?

MR HERZFELD:   No, your Honour.

HER HONOUR:   In matters M73 of 2019 and M76 of 2019, the orders of the Court are:

1.The defendants to file and serve a response under r 25.07.1 of the High Court Rules 2004 (Cth) on or before 17 July 2019.

2.The plaintiffs may file and serve a reply under r 25.08.1 of the High Court Rules 2004 (Cth) on or before 24 July 2019.

3.The matter be relisted for further directions at 9:30am on 20 August 2019.

4.There be liberty to apply.

5.Costs be reserved.

Thank you all for attending.  Adjourn the Court.

AT 9.39 AM THE MATTER WAS ADJOURNED