Plaintiff M76/2013 v Minister for Immigration and Citizenship & Ors

[2013] HCATrans 162

[2013] HCATrans 162

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M76 of 2013

B e t w e e n -

PLAINTIFF M76/2013

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

THE OFFICER IN CHARGE, SYDNEY IMMIGRATION RESIDENTIAL HOUSING

Second Defendant

SECRETARY, DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Third Defendant

COMMONWEALTH OF AUSTRALIA

Fourth Defendant

Directions hearing

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 2 AUGUST 2013, AT 9.30 AM

Copyright in the High Court of Australia

____________________

MS K.L. WALKER:   If the Court pleases, I appear on behalf of the plaintiff.  (instructed by Allens)

MR N.M. WOOD:   Your Honour, I appear on behalf of the defendants in this matter.  (instructed by Australia Government Solicitor)

HIS HONOUR:   Yes, Ms Walker.

MS WALKER:   Your Honour, I imagine, will be aware that the special case was filed in the Court on 1 August.

HIS HONOUR:   Yes.

MS WALKER:   And I understand your Honour might also have been provided with a proposed amended application for an order to show cause on the basis that the amendments proposed are by consent.

HIS HONOUR:   Yes.

MS WALKER:   Can I perhaps hand up to your Honour proposed orders which are also ‑ ‑ ‑

HIS HONOUR:   Before you come to that, can we turn a moment to the amended application for an order to show cause – if the parties are agreed upon that so be it – and note the amendments that are made at paragraphs 15A and 15B.

MS WALKER:   Yes, your Honour.

HIS HONOUR:   They may well raise a point that requires consideration.  It occurs to me, however, that there may remain implicit in what is alleged an allegation that may require, or at least benefit from, more explicit articulation.  Having regard to what was the undisputed factual basis upon which offshore processing was decided - and it may be that in this matter it becomes a matter of dispute, I do not know - the Minister had embarked on consideration of 46A power - it would appear implicit in the amended application that the plaintiff would say that the Minister, having embarked on the exercise of that power, did not perform it lawfully. 

Whether or not some officer of the Department could, should, might have given advice to the Minister, put papers before the Minister, thought about it further, may be important, may be legally significant, I simply do not know, but is it clear on the proposed amended application whether there is a dispute in this matter about the legal significance, if any - and let me be quite blunt - I express no view, I do not know whether it has legal significance – but the legal significance, if any, of the Minister embarking on the exercise of a power, doing so in a manner which does not accord with law and then, as I understand the position, saying, “Well, I’m not exercising that power any more”. 

Now, if that comes out of the amended application in the views of the parties, so be it.  If it does not, and it should not, again so be it.  This is the parties’ litigation, not the Court’s, but I do not want this to get to a Full Court, have this point emerge onto the table and the parties to then fall into heated dispute about whether it is or is not on the table.  I want this sorted out before it hits the Full Court.

MS WALKER:   I certainly appreciate what your Honour has said.  The opening words of 15B were intended to direct attention to the point that your Honour has made, but it may be that they are not doing so sufficiently.

HIS HONOUR:   Given that there have just been a few things occupying me recently other than this it may well be that my reading of this is insufficient and all I am anxious to ensure is that if there is some latent dispute between the parties it is brought to the surface and either identified as a matter in controversy or brought to the surface and identified as a matter not in controversy.  I do not want these things coming to the surface for the first time in the Full Court and the parties rightly saying, well, there is a fight about that and what is worse, not only is there a fight about it, there are factual issues that bear upon it.  It is a waste of the parties’ time; it is a waste of the Full Court’s time.  That is what I want to avoid.

MS WALKER:   I certainly understand your Honour’s point.  Can I suggest perhaps, your Honour, that the matter be stood down so that there could be some discussion between the parties about ‑ ‑ ‑

HIS HONOUR:   No, I am not going to have it done on the run.  What I am presently minded to do is simply to grant you the leave you seek, subject to anything that Mr Wood may say.  This special case will go in, will be referred into a Full Court and a timetable will be fixed.  If, following discussions, without the clock ticking in your ear and knowing that there is a judge sitting out the back wanting to get on with it, you decide that there is a problem, bring it on pursuant to liberty to apply.  If it got to the point where the case had to be unglued and unfixed, well that is the worst of all outcomes but better it happen beforehand than that it happen in the middle of a hearing in the Full Court.

MS WALKER:   Yes, your Honour.  It seems unlikely that that would eventuate.

HIS HONOUR:   Well, I do not anticipate it happening, but that is why there will be liberty to apply a reserve.  That if, on cooler reflection and consideration without immediate pressure of time upon counsel, it seems that a wheel has come off the cart, then fine, you have to come back under liberty to apply and we cope with the fact that there is a wheel running down the highway ahead of the car, which is always an excitement, but let us see where we get to.

MS WALKER:   Yes, your Honour.  Before then turning to the proposed orders, would your Honour like to hear from Mr Wood on this issue?

HIS HONOUR:   Mr Wood, you have heard what I have to say.  Is there any reason not to pursue a course of the kind I have described?

MR WOOD:   No, your Honour, I think that would be appropriate.  We would be content for the case to be referred today, but mindful of the issue your Honour has raised and we will certainly give that due attention and ‑ ‑ ‑

HIS HONOUR:   Can I simply emphasise, with as much force as I may, my concern is wholly driven by the need to avoid these problems falling out often enough in reply in the Full Court.

MR WOOD:   Yes, your Honour.  No, I appreciate that.  Yes.

HIS HONOUR:   Now, you, I understand, do not oppose the application for leave to amend?

MR WOOD:   We do not.  We consent to that.

HIS HONOUR:   The timetable I have in mind is special case book to be filed on or before 21 August, because I think the special case book is simply a mechanical assembly, is it not?  It is not a matter of controversy.  It will be the originating process as amended, the special case – the annexures to the special case, as to which I will come in a moment, and the order referring in, I think.  I doubt there would be much more but those are matters to take up between the parties and Registry and then the timetable as indicated at the last directions hearing, namely 9, 23 and 28.

I still cannot commit the Court to a hearing date but we are looking to see what can be done for Wednesday 4/Thursday 5 September or thereabouts.  Do not put any of that in cement until you are told by Registry but that is what we are trying to see if we can achieve.  Annexures to the special case – SC 21, which is the list of countries, requires some special treatment but is there anything else in the special case that may require special treatment?

MR WOOD:   No, your Honour, except to say that following the directions hearing on the last occasion, which I was not in attendance, but I understand that the parties have together made a number of redactions to protect personal information and so forth, but there are no orders I think that need be made.

HIS HONOUR:   No, none needed for that.

MR WOOD:    Yes, so it is only the ‑ ‑ ‑

HIS HONOUR:   SC 21, the list of countries.

MR WOOD:   Yes.

HIS HONOUR:   Good.  Thank you for that.  Now, Ms Walker, you had a draft.

MS WALKER:   Yes, thank you, your Honour.  It omits the order that your Honour just mentioned in relation to the special case book - that was overlooked in the timetable - but otherwise it accords with the matters your Honour just raised with my learned friend.  There is a minor housekeeping order as order 1 which is a change of name, the leave to file the amended application and then the order referring the matter or setting it down for hearing by a Full Court, then order 4 is the proposed form of orders to deal with SC 21.

In relation to other aspects of the special case, I did foreshadow with your Honour at the last directions hearing that there may an application by the plaintiff in relation to confidentiality of some aspects of the special case. The plaintiff is still considering her position in that regard so no orders are presently sought.

HIS HONOUR:   Yes.

MS WALKER:   Then your Honour will see the timetable.  Your Honour, can I indicate perhaps, in relation to interveners, we have not yet heard from all of the Attorneys.  They have all been provided with a copy of the transcript indicating the likely timetable.

HIS HONOUR:   Nothing we can do.

MS WALKER:  Indeed, your Honour, but it is perhaps relevant to the amount of time that might be required for the hearing before the Full Court.  The view of the parties is that if there were to be no interveners the matter might be dealt with in a day, but if there were to be interveners then it would probably be a day and a half, your Honour.

HIS HONOUR:   Yes, all right.  My own estimate would be that it would be a full day in any event.

MS WALKER:   Absolutely, yes.

HIS HONOUR:   It might spill into a second, almost certainly would if there were substantial intervention.

MS WALKER:  That is correct, your Honour, yes.  That is the view the parties have reached as well.

HIS HONOUR:   Yes.  Which side is going to be responsible for preparing the special case book?

MS WALKER:   I would imagine, your Honour, that it will be the plaintiff.

HIS HONOUR:   The plaintiff is content to take on that task because there has to be a further order which would go in after the present order 4 that the plaintiff file and serve a special case book on or before 21 August, and file and serve the requisite number of copies of a special case book on or before 21 August.

MS WALKER:   Indeed, your Honour.  Unless my learned friend is going to stand up and offer to take on the responsibility, then ‑ ‑ ‑

HIS HONOUR:   He is sitting very firmly in his chair, Ms Walker.

MS WALKER:   He is, your Honour.  In those circumstances then the plaintiff will take on that role, being the plaintiff’s case.

HIS HONOUR:   Yes.  Now, Mr Wood, do you seek to be heard about the form of orders that have been provided by Ms Walker?

MR WOOD:   No, your Honour, only to note that we consent to them and certainly the additional order that your Honour has suggested, we are also happy with that of course.

HIS HONOUR:   Yes.  There will be orders in the terms of the draft minutes supplied by counsel which I have amended and may remain on the file. The amendment is to add after the present paragraph 4:  The plaintiff to file and serve requisite number of copies of a special case book on or before 21 August 2013.  There will then be consequential renumbering of the orders.

Now, as to the reservation of liberty to apply, as I say, the parties if needs be must exercise that liberty.  The Court will be sitting over the next fortnight.  It may be that I would want to bring it on - if there is something that has to be brought on I would want to bring it on and it may be that it will be by video link at some very unseasonal hour of the day, I am afraid, but it will be necessary if it has to come back on to bring it back on pretty quick.

MS WALKER:   Yes, your  Honour, of course should that become necessary we will be available.

HIS HONOUR:   Yes.  If there were to be some further amendment of the initiating process - I am not suggesting there has to be - if that were agreed we can deal with it by consent order but I do not want to have the parties coming back unless there is something in controversy that needs to be sorted out by a judge.

MS WALKER:   Yes, thank you, your Honour.

HIS HONOUR:   Good.  There will be orders in those terms.  I will adjourn the Court.

AT 9.47AM THE MATTER WAS ADJOURNED