Plaintiff S111a/2018 & Ors v The Minister for Home Affairs & Ors

[2018] HCATrans 118

[2018] HCATrans 118

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S111 of 2018

B e t w e e n -

PLAINTIFF S111A/2018

First Plaintiff

PLAINTIFF S111B/2018

Second Plaintiff

PLAINTIFF S111C/2018

Third Plaintiff

PLAINTIFF S111D/2018

Fourth Plaintiff

PLAINTIFF S111E/2018

Fifth Plaintiff

PLAINTIFF S111F/2018

Sixth Plaintiff

PLAINTIFF S111G/2018

Seventh Plaintiff

PLAINTIFF S111H/2018

Eighth Plaintiff

and

THE MINISTER FOR HOME AFFAIRS

First Defendant

THE DIRECTOR-GENERAL OF SECURITY AUSTRALIAN SECURITY INTELLIGENCE ORGANISATION

Second Defendant

THE AUSTRALIAN FEDERAL POLICE COMMISSIONER

Third Defendant

THE COMMONWEALTH OF AUSTRALIA

Fourth Defendant

INTERPOL

Fifth Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON FRIDAY, 15 JUNE 2018, AT 9.44 AM

Copyright in the High Court of Australia

____________________

MR J. WILLIAMS:   May it please the Court, I appear for the plaintiffs.  (instructed by Zali Burrows Lawyers)

MR P.D. HERZFELD:   Your Honour, I appear for the first to the fourth defendants.  (instructed by Australian Government Solicitor)

HER HONOUR:   Thank you.  While I have you, Mr Herzfeld, could I have a chat to you first, please?

MR HERZFELD:   Yes.

HER HONOUR:   Just so I understand the position of the first to the fourth defendants, it is, it seems to be, a large amount of agreement between the pair of you about what should happen this morning.  Am I right about that?

MR HERZFELD:   Yes.

HER HONOUR:   Is the position that there are, in effect, two categories of issues?  There are what I will call procedural issues to, in effect, put the application on a procedurally correct technical basis and then there are the substantive issues and what we do with those.

MR HERZFELD:   I understand the way your Honour has put that and I think that is a possible division, yes.

HER HONOUR:   So if I deal with what I will call the procedural issues, what are the orders I am to make, in this sense - I noticed that you consented to there being a litigation guardian appointed in relation to the children.  My problem with that is twofold.  First, and Mr Williams might take this on notice, I do not have consents in relation to those – that is, a technical piece of paper which satisfies the rules.  Secondly, on my reading of the papers – and I could have this wrong – only the seventh and eighth plaintiffs appear to be under 18 years of age.  Do I have the dates wrong?

MR HERZFELD:   I think perhaps Mr Williams can best assist you with that.

HER HONOUR:   I was asking because you consented to it.  You said you did not oppose those orders.  So I thought you might have turned your mind to it.

MR HERZFELD:   I confess, your Honour, we took the view that those kinds of orders were really a matter for your Honour’s satisfaction if they were sought and I confess I did not turn my mind to the question which your Honour has asked me.

HER HONOUR:    Let us work that out first, can we?  Mr Williams, am I right about the ages of the second to eighth plaintiffs?

MR WILLIAMS:   On a quick reading, yes, that is correct, your Honour.

HER HONOUR:  So is the position that there would only need to be a litigation guardian for the seventh and eighth?

MR WILLIAMS:   I would need to confirm that.  That would appear so, your Honour.  That is correct.

HER HONOUR:   I think you will need to work that out and I am not going to make orders today.  You will need to work that out and you will need to get consents from those who are going to act as their litigation guardians, consistent with rule 21.08 of the High Court Rules.

MR WILLIAMS:   Certainly, your Honour.  I will ask my instructing solicitor to attend to that as soon as possible.

HER HONOUR:   All right.  Then what other procedural orders do we need, other than that – I mean, procedural in terms of non‑substantive?

MR WILLIAMS:   Well, in terms of the Interpol orders to file an appearance, your Honour, that would seem to be the major controversy.

HER HONOUR:   I cannot compel anyone to file an appearance.  I mean, they either file an appearance or they do not.

MR WILLIAMS:   Yes.  In terms of the attempts to serve on Interpol, they have been made.  You will note the affidavits by Ms Burrow and by Ms Knowles which depose that the AFP fund, host and staff Interpol.  The Interpol constitution provides that there will be an Australian body and that is Interpol Canberra.  All reasonable steps have been made to serve Interpol at the Australian Federal Police headquarters in Canberra.  We would seek an order to that effect, your Honour, regularising service.

HER HONOUR:   I cannot make an order unless – two things happen, as I understand the Rules, Mr Williams, and you may be able to show me otherwise.

MR WILLIAMS:   Certainly.

HER HONOUR:   First is you have to prove service and it is apparent that whatever constitutes Interpol in Australia has not been served, and secondly, if you wish to seek an order which deals with service in a different form then you make application in the usual way.

MR WILLIAMS:   Certainly, your Honour.  We have made those inquiries.  We would say that service has been effected on Interpol Canberra as per the affidavit of Ms Burrows.

HER HONOUR:   Well, if it has, then you will have to prove it at the trial or at the hearing and it will be addressed.  The question is they have not appeared so that is the problem for you, I think.

MR WILLIAMS:   Yes, most definitely, your Honour.  There are some complexities in serving Interpol in France at the headquarters.  It has to be done according to the domestic laws of that country.  The documents have to be translated into French and then they have to be arranged to be served over there.  That is going to be quite ‑ ‑ ‑

HER HONOUR:   I think there are simpler ways than that, Mr Williams. 

MR WILLIAMS:   We are most definitely looking at that, your Honour, at this point in time.  With regard to Interpol’s role in this matter, your Honour, my friend and I perhaps have a disagreement on whether that might cause some complexity to the matter and perhaps frustrate the prospects of a special case.  We are in the process of amending the application and the draft special case is well under way.

There might be simple questions with regard to Interpol.  It might be whether this Court has jurisdiction over Interpol, whether Interpol has any privileges or immunities in Australian law, in international law or indeed French law.  Those controversies may need to be resolved by way of special case.

HER HONOUR:   Can I ask a question about all of that, just so I am clear?

MR WILLIAMS:   Certainly, your Honour.

HER HONOUR:   I have a very strong view that – and this is my personal experience – that in order to facilitate and have the Court in a sense determine whether or not this matter is appropriate to be dealt with in this Court and in this way, it is very important that counsel who are going to be appearing at the final hearing, whatever form that is it is in – I mean no disrespect to you, but who is going to lead you in this and are they going to be involved in that, because they must be?

MR WILLIAMS:   Certainly, your Honour.  At this point of time, unfortunately senior counsel was not available today and ‑ ‑ ‑

HER HONOUR:   No, no, who is that person so that they can come along to the next hearing.

MR WILLIAMS:   Well, your Honour, originally Bret Walker SC indicated that if he was available, subject to his commitments as the Royal Commissioner ‑ ‑ ‑

HER HONOUR:   Right, yes.

MR WILLIAMS:   Unfortunately Mr Walker came back last week saying that he was not available.

HER HONOUR:   I understand.

MR WILLIAMS:   Whether that ‑ ‑ ‑

HER HONOUR:   It is not just today.

MR WILLIAMS:   Whether that frees up ‑ ‑ ‑

HER HONOUR:   Yes, that is right.

MR WILLIAMS:   Yes.

HER HONOUR:   The question is, I think – the way I see it working is this.  It is very important that whoever is going to be the person standing on their feet making the arguments is actually involved with you and Mr Herzfeld and I assume the Solicitor‑General, if it is the Solicitor‑General, in resolving the form and content of what comes up because there are important issues here.  The question is what we are going to do with them and how we are going to deal with them.

I am finding it very difficult at the moment to work out what orders to make, not knowing and not having the person in front of me so that I can have a discussion with them about how we are going to deal with these very issues.  It is no disrespect to you.

MR WILLIAMS:   I do understand ‑ ‑ ‑

HER HONOUR:   Yes.

MR WILLIAMS:   I appreciate that, your Honour, and I do appreciate your Honour’s views and concerns.  Your Honour, we are making all reasonable attempts to engage senior counsel.  Unfortunately, that is proving rather difficult.  I do understand the need for senior counsel to be

involved in this process.  To the extent that we cannot resolve that then I will be acting and appearing and I will be involved in large part – obviously in a very large part with regard to settling a proposed special case.

Your Honour, the key factual bases of the special case are not that controversial and I think the parties there in large part agree about what they are.  There has been a shifting – or fluctuating ground with regard to the Minister’s decision and ASIO’s decision.  We only recently got those.

HER HONOUR:   No, I accept all of that.  That, in effect, is another complicating factor but it is trying to distil into very precise terms the factual basis it has agreed with you, whether or not you can agree the facts and if you cannot agree the facts then we will have to determine that.  But, in a sense, as you know, it goes hand in glove with what are the issues that you will have this Court consider.  That is why I am concerned to make sure that there is at least some involvement with those appearing at the beginning so we do not waste – not really waste time but we do not get lost in trying to resolve it.

MR WILLIAMS:   Most certainly, your Honour.

HER HONOUR:   Maybe I will have a chat to Mr Herzfeld and see what he has to say.

MR WILLIAMS:   Certainly, your Honour.

HER HONOUR:   Mr Herzfeld, is the Solicitor‑General leading you in this matter?

MR HERZFELD:   Not at this stage, but if it is suitable for the matter to proceed by way of special case, I am confident that he will likely come in to the matter and your Honour can assume that he is being kept informed of the progress and ‑ ‑ ‑

HER HONOUR:   It is a bit more important than that.  You heard my conversation with Mr Williams, I am trying to get it on to some proper basis and I do not want there to be any suggestion that it is not going to be – I do not want to waste time and then suddenly have to come back because someone who is going to appear does not like the look of it.

MR HERZFELD:   No, and what I was going to say, your Honour, if a special case is in the process of being drafted, the Solicitor‑General will be consulted and involved in settling that draft, so I understand your Honour’s concerns and we will be sure to address those.

HER HONOUR:   I wonder if, in the circumstances, and I do not seek to put words into Mr Williams’ mouth, but it may be possible for either the Solicitor‑General or someone even to speak to Mr Walker and ascertain his availability and also his input into the draft.

MR HERZFELD:   I understand your Honour’s concern and I am not sure that I can put words into the Solicitor‑General’s mouth either but I am sure what your Honour has said will be passed back appropriately. 

HER HONOUR:   Thank you.

MR HERZFELD:   In terms of this morning, does your Honour have the plaintiff’s updates which, I think, was filed 14 June?

HER HONOUR:   I do, but I am not prepared to make those orders without knowing what is going to happen.  It seems to me that I am better off just adjourning the hearing to a date and you can between you work out what is going to happen. 

MR HERZFELD:   The only suggestion I was going to make is it does seem on any view necessary for the plaintiffs to prepare an amended application for an order to show cause.

HER HONOUR:   I know, but guess what?  That is going to depend upon also what goes into the stated case, is it not?

MR HERZFELD:   That is why, in a sense, we have suggested, and I think the plaintiffs have picked up the suggestion, that both the filed version of that and a draft special case be served at the same time.  I have no difficulty with your Honour’s suggestion of simply adjourning the matter over but we were also conscious that at least some of the subject matter of the case might suggest some level of speedy resolution and it was for that reason that we had thought some timetabling orders might be suitable.  I am simply raising that as an option for your Honour but if your Honour’s preference would simply be to adjourn it over, there is no difficulty with that from our perspective either.

HER HONOUR:   Let us just play this through, Mr Herzfeld.  Let us be blunt about it.  Making those orders without input and consultation between the two of you is of little benefit, it seems to me.  That is the problem.  So, I can make those orders on the assumption that there is going to be discussion and negotiation.  That is what normally happens, as you both know.  That is why I said what I said earlier.  I am trying to get this on a footing that you do not come back in a month and we have wasted another month because you do not like what is being delivered up.  That is my problem.

MR HERZFELD:   I understand and Mr Williams and I have already had some discussions about some of the issues and complexities that we have identified in the submissions which your Honour will appreciate we sought to raise, really, directed to the same end as your Honour which is to identify some things which might preclude a special case and really invite the plaintiffs to slim down some of those issues.

HER HONOUR:   Another way of looking at it rather than the – and I do not mean to tell you how to do your job but one of the ways is rather than slimming down and saying what is difficult is actually identifying what might go forward.

MR HERZFELD:   Well, that is so, but perhaps discussions between the parties rather than submissions on the orders sought are a better way of doing that and we have had some – I am sorry, your Honour.

HER HONOUR:   I agree with that and that is the reason why I think that (a) should happen but (b) it has to happen by those appearing. 

MR HERZFELD:   Well, for our part, as I have said to your Honour, there is no doubt that if a special case process is being progressed that the Solicitor‑General will be involved in that.  So, from our perspective, what your Honour says will happen.  I cannot obviously speak for the plaintiff’s side of the record if they do not actually have a senior counsel briefed at the moment which, as I understand it, is the position. 

So, as I say, from our perspective if your Honour’s preference is simply to adjourn the matter over on the basis that in that time the kinds of discussions that your Honour has referred to ought to occur, there is no difficulty with that from our perspective. 

The alternative is to fix a date for an amended application and a draft special case but I understand what your Honour says about the potential lack of utility of that and so I am not pressing that on your Honour if your Honour’s preference is simply to adjourn the matter over. 

Just one issue with that might be this - obviously the position of Interpol does complicate any drafting and negotiation of a special case because if Interpol is an entity and has been validly served then they may seek to be involved in the negotiation of the special case and that is another factor which perhaps tends in favour of your Honour’s preferred course of simply adjourning the matter over rather than making any further orders about it.

HER HONOUR:   Well, Interpol is a separate issue and there is a question about substituted service, I would have thought.  Now, I do not know whether that is a mechanism that is available or what the position is or whether or not that is still a live issue and I do not want to get into it for the moment.  You have heard what I have said to Mr Williams but that needs to be resolved as a matter of urgency.

I think in the circumstances and given the fact that these issues in relation to these plaintiffs need to be dealt quite quickly, my preference is to adjourn it for a short period of time for three reasons.  One is so Mr Williams can fix up the litigation guardians in relation to what I think is only the seventh and the eighth, rather than all of the children.  That is a practical question and that needs resolving and needs compliance with the Rules. 

The second is for the Interpol issue to be resolved either by way of Interpol and ‑ I do not seek to have you answer this question – either taking to be effectively served or, secondly, Mr Williams dealing with that issue in the appropriate manner, and, third, to deal with this potential draft special case which of course, as I said, will ultimately affect the content of the amended application to show cause. 

Now, I accept that yesterday things changed or the day before so it is difficult to get on top of it all but I think they are the three issues that need resolving.  The first two are procedural and then two and three are both substantive.  The question is how long I wait.

MR HERZFELD:   Well, from our perspective, we are really in your Honour’s hands.  We have no difficulty with that suggestion.  In part, it might be affected by Mr Williams’ expectation of timing in terms of getting a silk involved and an ability to then engage meaningfully with some of the issues which might frame a special case.  So, I am not sure if Mr Williams wants to address your Honour on the timing question.  I think he does, your Honour.

HER HONOUR:   Well, assuming that someone can be engaged in the way we have described, I will hear from Mr Williams, but do you have a view about how long you would like?

MR HERZFELD:   Well, from our perspective, it would seem that the longer the parties have to thrash out some issues with the special case, the more likely that we will be able to come back to your Honour, even if we do not have a finalised draft, but to be able to say, well, here are the issues.

HER HONOUR:   That is called a barrister’s answer, Mr Herzfeld.

MR HERZFELD:   Well, I was working up to a time.  I think we had suggested four weeks for the drafting of the special case and that would be my suggestion.

HER HONOUR:   Which takes you to when - 28 July?

MR HERZFELD:   I think that is right, your Honour.

HER HONOUR:   All right, well we may leave it over to the first week of August.  I will just see what Mr Williams’ position is.  Mr Williams.

MR WILLIAMS:   Yes, your Honour.

HER HONOUR:   What is your view about (a) that procedure and (b) the timing of it?

MR WILLIAMS:   Certainly, your Honour.  Those three points that your Honour has pointed out are very helpful.  Indeed, the litigation issue can be resolved very quickly.  The Interpol service can be likewise.  The draft special case, your Honour, the plaintiffs have been now in detention for over six years.  They have spent the last 20 years in one form of detention in four different countries. 

The strict instruction by the plaintiffs is to proceed. I have attempted to engage other senior counsel, given Mr Walker’s unavailability and his busy time frame as the Royal Commissioner.  A number of silk have come back saying they just cannot do it in that timeframe.

Your Honour, I then sought those instructions from the plaintiff directly whether he wants to proceed or wait and his instructions are to proceed.  Whether that is with me or with a senior counsel, so be it.  So your Honour, I am more hopeful than my friend.  I believe we could have a draft special case to my friend within the week and we could have a response within the week.

HER HONOUR:   I doubt that, Mr Williams.  I could not do it in a week.

MR WILLIAMS:   No, I mean I could have a draft special case to my friend.

HER HONOUR:   I am surprised you could do it in a week.

MR WILLIAMS:   Your Honour, I have been working on this matter over the last year or so and the draft statement of claim has been done.  That needs reform and it could always be improved.  The amended application needs to be now admitted in light of the recent decision by the Minister.  But in terms of the broader questions and the factual basis, it is not that complicated.

We now have the benefit of the protection visa decision recorded yesterday which sets out a lot of the factual bases.  I am sure we could reach agreement.  Mr Herzfeld and I have worked on S195 in this special case before.  We worked productively and with goodwill.  I can give an undertaking to the Court to have it done within a week and my friend would have time to consider it.

The approach by the Court in terms of giving an adjournment is there but perhaps the plaintiffs would benefit by having something a little bit more fixed in time.

HER HONOUR:   You are having it fixed in time.  The question is how long to make sure that it is productive so we do not waste time and come back again with everyone saying they cannot agree.  What would happen would be this.  Whatever time I give you would be on condition that, if it was not going to work out after having given it best efforts, someone would come and tell me and we would come back to court.  So it is not just an adjournment at large; it is an adjournment in order to effect, in proper form, real advancement so the matter can be listed for hearing if necessary – that is, final hearing.

MR WILLIAMS:   Yes, I do understand that, your Honour.  The suggestion in the plaintiff’s update yesterday was to have the amended application and a draft special case by 29 June.  That is achievable.  Both my friend and I have discussed those dates and that timetable and we put them there because we believe it is achievable.

HER HONOUR:  What I would like to you to do though, Mr Williams, is, whether it is you and/or the silk appearing, before you file them, to talk to the defendant so that there is at least some prospect of not having to go back and revisit them.  The whole point of it is ‑ ‑ ‑

MR WILLIAMS:   It is very important, your Honour.

HER HONOUR:   It is very important and that is why – so giving you a week to file it is of not much assistance because even assuming that you have it filed within a week, it may very well need substantial amendment.  So I think you are better off taking the month to actually think about it and work with Mr Herzfeld in order to secure the best you can in the circumstances.

MR WILLIAMS:   Your Honour, there may have been a misunderstanding.  It was not to file it within a week; it was to provide my friend with a copy or a draft so he and the defendants have an opportunity to peruse it and come back with any suggestions.

HER HONOUR:   That is not actually the way I am even – what I am trying to suggest to you is you sit down together, that someone sits down and works it out, that we do not have this sort of filing of papers, we do not like it, because I find in these sort of circumstances that if there are discussions between the counsel who are ultimately going to appear we actually end up with a better product.

MR WILLIAMS:   My intention would be to work very closely with my friend, as we did in S195.  I am certainly available to do that over the next fortnight, subject to my friend.  My friend is very busy and so am I but these are obviously very important issues and time for the plaintiffs is obviously very important.  I could have a draft to my friend for consideration within a week and my friend could come back to me within the week after that.  My friend is shaking his head.  Perhaps your Honour would like to ‑ ‑ ‑

HER HONOUR:   I have heard what Mr Herzfeld has said.  I am trying to be realistic.  There are two things I am trying to do.  I may be being very flat‑footed about it but I am trying.  The first is to put in place a procedure which is the most effective to bring about working out whether or not we are going to push this into a Full Court.  The only way we can do that is by having an agreement or a stated case, so a special case or a stated case.

At the moment, we are a long way away from that and the question is how do we go about it in the most effective manner and, as I said, it requires whoever is appearing, whether it is your silk or you or otherwise to determine and yes, you will have to prepare a draft but you will have to sit down to discuss it.  It may very well be it is worthwhile having some discussions up front with Mr Herzfeld and, in his usual co‑operative manner, he will assist, and the question is ‑ ‑ ‑

MR WILLIAMS:   I am certainly hopeful of that your Honour, yes.

HER HONOUR:   Once that has happened, then the matter can come back and we can look at it.

MR WILLIAMS:   Your Honour, then, in those terms it would appear that 29 June is too optimistic but perhaps the amended application and a draft to go to my friend by 29 June and a response by 27 July.  That puts it out to where your Honour was suggesting.

HER HONOUR:  I think, Mr Williams, you and I are at cross‑-purposes.  I am not really looking at papers and then replies; I am looking at co‑operation between you to give rise to a document that we can agree.

MR WILLIAMS:   Your Honour, I am sorry if I have misunderstood that or I have conveyed that.  I am certainly willing to work with goodwill at an expeditious rate with my friend to bring this on as quickly as possible in the best interests of the plaintiffs.  I can do so at the earliest time and I can do so at a time suitable to my friend.

It would seem to me that 27 July is around the benchmark.  That would give us nearly two months, eight weeks, to enter into fruitful negotiations and to come back and advise the Court one way or another.  Then perhaps with the benefit of that draft special case or an agreed special case, the Court might be in a position to state one if they cannot agree.

HER HONOUR:  I do not know about that.  I am definitely not in a position to even consider it at the moment.

MR WILLIAMS:   I do not want to overcomplicate it, your Honour.  I am sorry, but I would have thought 27 July seems like an appropriate date, around that time.

HER HONOUR:   All right.  I think what I will do is this.  I will adjourn the matter for hearing until Tuesday, 31 July at 9.30, but what I think would be useful is if the Court could have an indication, say by 16 July, as to whether matters are progressing.

MR WILLIAMS:   Certainly, your Honour.

HER HONOUR:  Mr Herzfeld, is that all right by you?

MR HERZFELD:   It is, your Honour.  That gives sufficient time also for some of the other procedural issues to be addressed as well.  Having regard to what your Honour has said, it does seem to us that there might be some issues which could be suitable for a special case.  Would it assist your Honour to understand what at this stage we see might be suitable?

HER HONOUR:   It would assist me if it assists Mr Williams.  Have you explained these to Mr Williams?

MR HERZFELD:   We have had some discussions about them, but I thought if your Honour wants to I can bring your Honour into the secret.  I do not seek to do that if it would not assist your Honour.

HER HONOUR:   No, no.  As you know – I think I was being quite blunt with you, Mr Herzfeld – I think it is time for the defendants to assist with this little process, so why do you not enlighten me?

MR HERZFELD:   Yes.  It seemed to us that there might be two issues.  They are really the Migration Act issues.  One might be that if all of the facts can be agreed – I know Mr Williams is optimistic that there is no disagreement about them, but that may not be a common position – but if they can all be agreed it might be a question of law arises whether various decisions were taken within the time required, that is, within a reasonable time or as soon as reasonably practicable.  That might be one question or a suite of questions.

The other might be whether, if decisions were not taken within the time required, that gives rise to the consequence that the detention became unlawful and that there is therefore a right to claim damages.  It is possible that that second question alone might be able to be separated out.  For example, it might be possible ‑ ‑ ‑

HER HONOUR:   Is that because you would accept that they were not taken within reasonable time?

MR HERZFELD:   The question could be conducted on the premise that the plaintiff alleges that, the defendant denies it, but the defendant also says even if the plaintiff is correct, it does not lead to the consequence that the detention was unlawful.  That would be more of a pure question of law, and that might require fewer facts.  It would need facts to show that the controversy has arisen but might not require this Court to determine whether a reasonable time had elapsed.

At any rate, those are the kinds of questions which might usefully be able to be separated out, and they are really the Migration Act questions.  But it does seem to us that issues to do with Interpol, however interesting they might be, are really collateral to that and would raise not only some procedural complexities ‑ including not just service on Interpol but the question of whether it is to be recognised as a body corporate in Australian law – but also the reason that the plaintiffs seem to want to agitate that question is really in order to claim negligence against Interpol and, more precisely, against the actions of the Egyptian, UK and Australian National Central Bureaus. 

But as your Honour will have seen from the materials, those are not so much arms of Interpol but, rather, arms of the local police.  The plaintiffs’ claims about negligence with regard to the Egyptian NCB, for instance, really would involve claims of negligence against the Egyptian police.

HER HONOUR:   They may be able to be limited to the Australian.

MR HERZFELD:   It might be, but in that case it is really not so much about Interpol but, rather, about the AFP which was why I ‑ ‑ ‑

HER HONOUR:   That is what I meant.

MR HERZFELD:   Indeed.  But that really falls within those Migration Act issues ‑ I have used that term broadly – that might be able to be separated out.  So it does seem to us that there is a possibility of those kinds of questions being separated out but they really would, it seems to us, require some simplification, in particular really just the plaintiffs focusing on those rather than the Interpol claims, if I can put it that way.

HER HONOUR:   If those two questions or something along those lines were there, then if one takes out the word “Interpol” and uses the AFP’s conduct in relation to the red notice as part of the factual background to those cases, then I would have thought Mr Williams’ complaint about those issues is fairly before the Court in the sense that the substance is - what the legal consequence is of course is a different question.

MR HERZFELD:   Yes, what your Honour says is entirely right, but it would not include, for example, the conduct of the Egyptian police in relation to the red notice.

HER HONOUR:   No, Mr Williams would understand that.

MR HERZFELD:   Yes.  So, certainly from our perspective – and as I say, I have had some discussions with Mr Williams about this – that is the kind of possible direction that we see the issues might head in from the perspective of a special case.  All of that being so, that is not something which certainly from my perspective I could do in a week.

HER HONOUR:   I am not asking you to do it in a week.  I think that was (a) very helpful but (b) it reinforces the need I think for there to be these continued discussions.  Mr Williams no doubt heard that and, as I said, I think it was very helpful.  If you can let me know between you by a joint communiqué how you are going by 15 July and if it is all on track in the sense that it is worthwhile waiting until 2 August, then so be it.  Now, the only question I have for both of you is, are you not taking barrister’s breaks?

MR HERZFELD:   Yes, but your Honour, 15 July I think is a Sunday which even during ‑ ‑ ‑

HER HONOUR:   I meant the 16th.  I apologise.

MR HERZFELD:   Yes, just so that I have the dates, 16 July – I think your Honour originally suggested 31 July, but your Honour then just mentioned 2 August.  From my perspective ‑ ‑ ‑

HER HONOUR:   Sorry, I meant 31 July.  I apologise.

MR HERZFELD:   Yes.

HER HONOUR:   So, 16 July to let me know, and then I will adjourn if it is possible and convenient to both of you to 9.30 on 31 July.

MR HERZFELD:   That is convenient from my perspective and, as I say, that will give time for the procedural issues in which I include the Interpol service issue because it may be, for instance, that that issue effectively goes away if the focus of the proceeding is shifted to the Commonwealth’s conduct and then Interpol ‑ ‑ ‑

HER HONOUR:   Well, I think that is the – sorry to interrupt.  That is the reason why I think there should be discussions between you, because the more the discussions are, the less issues will arise and there will be less work to do, but at the same time these important issues can be ventilated.

MR HERZFELD:   And that was why I sought to articulate the issues in the way that I did because, as your Honour has appreciated, if the special case were directed in those directions, the Interpol service and entity issues, it seems to us, would really disappear.

HER HONOUR:   Thank you very much.  Mr Williams, are those dates all right by you?

MR WILLIAMS:   Certainly, your Honour, those dates are fine.  I am not sure what a barrister’s break is, your Honour, I do not have one and I am available.  Your Honour, in terms of those very helpful submissions by my friend in terms of clarifying those, say, two or three significant issues with regards to the Commonwealth defendants, certainly they have been our conversations and we have an understanding of those issues. 

I did provide your Honour with those submissions outlining the three issues in those submissions.  If we could put Interpol aside, there were two reasons - obviously, the plaintiffs press their matter against Interpol because they have suffered what they say is the negligence and catastrophic injury to their lives. 

There is that issue of Anshun - there is a requirement that they plead out everything now as soon as possible.  There might be that Interpol can be remitted back but there are also some very, very, important questions around what your Honours identify – the legal personality of Interpol, whether they have immunities here.  They might form in terms of a broad basis of some questions which is accepting Interpol accepts service and appear. 

But, putting that aside, then you have those three proper issues with regard to the ASIO assessment whether it was done within a reasonable time or not and then you have, obviously, the Minister’s decision.  I have cited some authorities there, the three broad authorities.

HER HONOUR:   I know, Mr Williams, I thought – I have read those.  The problem is you are not going to get agreement on all of those matters and so what I am trying to do is trying to work out whether or not this can go forward in this Court in a way which addresses the critical issues.  So, for me listening to Mr Herzfeld was interesting and I am sure there will be some negotiation between you but it has been an articulation which will pick up a lot of the factual matters upon which your clients rely. 

So, I ask you just to think about that and I must say I am much heartened by the fact that there has been this level of co‑operation and discussion so far and I have not closed my mind.  I just was trying to work out whether there was at least a basis for going forward because I do not want this matter to sit here and suddenly decide it has to go elsewhere.

MR WILLIAMS:   Most certainly, your Honour, yes.

HER HONOUR:   All right.  So, if you can let me know by joint communiqué how you are going by 16 July and whether or not you need to come back in.  I assume that you will not and then I will see you at 9.30 on 31 July and if there is a draft that I can look at before then, then I would be grateful to receive it.

MR WILLIAMS:   May it please the Court.

HER HONOUR:   Anything else?

MR WILLIAMS:   Nothing else, nothing further, your Honour.

HER HONOUR:   Mr Herzfeld?

MR HERZFELD:   No, your Honour, thank you.

HER HONOUR:   Thank you very much for your appearance and your assistance.  Adjourn the Court.

AT 10.22 AM THE MATTER WAS ADJOURNED