Plaintiff S111A/2018 v Director-General of Security & Ors

[2023] HCATrans 137

[2023] HCATrans 137

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S31 of 2023

B e t w e e n -

PLAINTIFF S111A/2018

Applicant

and

DIRECTOR-GENERAL OF SECURITY

First Respondent

MINISTER FOR HOME AFFAIRS

Second Respondent

COMMONWEALTH OF AUSTRALIA

Third Respondent

Application for special leave to appeal

KIEFEL CJ
STEWARD J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 13 OCTOBER 2023, AT 11.30 AM

Copyright in the High Court of Australia

____________________

KIEFEL CJ:   In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MR B.W. WALKER, SC appears with MR D.A. WARD for the applicant.  (instructed by Zali Burrows at Law)

MR P.D. HERZFELD, SC appears with MS A.M. HAMMOND for the respondents.  (instructed by Australian Government Solicitor)

KIEFEL CJ:   I understand from recent affidavits and correspondence that the respondent has suggested that an adjournment is appropriate because the Minister is to give further consideration to this matter.  Mr Walker, in the most recent emails that we have been provided with, it does not appear that you are concerned with the notion of an adjournment, but rather with it being too lengthy.

MR WALKER:   Yes, your Honour.  With respect, your Honours could well appreciate what I will call the general apprehensions of a client in the position that our client is.  The appropriateness of the Commonwealth position is, with respect, tolerably plain, but I am not in a position, as I say, to support the application.  That does not amount to casting any pall of any kind of resistance to it at all.

KIEFEL CJ:   I see that the respondents have agreed to pay the applicant’s costs of the adjournment.

MR WALKER:   Yes, your Honour.

KIEFEL CJ:   Mr Herzfeld, are you able to say how long the adjournment is – how long it is sought?

MR HERZFELD:   We are not.  The reasons are these:  the Minister’s exercise of power means the applicant can now make an application for a temporary protection visa, which has to be done, I think, within seven days.  It seems to us that, for various reasons I will not go into unless your Honours wish me to, that means that the special leave application no longer has any utility.  There needs to be time for the applicant to consider whether he agrees with that position, and if he does, for the parties to discuss, and hopefully agree, how the application should be disposed of, including as to costs.  If he does not agree, there will need to be some orders made for supplementary written

submissions.  Frankly, given that this all only happened yesterday, we have not had an opportunity to discuss with those on the applicant side of the record what an appropriate length of time would be for the steps I have mentioned to occur.

KIEFEL CJ:   What are you proposing, then?  That the matter be adjourned generally, or adjourned to, say, the December sittings, and the parties can contact the ‑ ‑ ‑

MR HERZFELD:   I am sorry, your Honour.  Either of those courses would realistically be appropriate.  The December sittings would be sufficient time for the steps that I have mentioned to occur, and so we would be content with that proposal.

KIEFEL CJ:   Mr Walker?

MR WALKER:   We are in the Court’s hands.  I cannot say there is any pressing reason against that.  If there were an earlier time at the end of November, perhaps your Honours would consider that.  Otherwise, I have nothing to say.

KIEFEL CJ:   Yes, thank you.  The Court will adjourn to consider the course that it will take.

AT 11.34 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.40 AM:

KIEFEL CJ:   The Court adjourns this application for special leave to the list of applications for special leave to appeal to be heard in the December sittings of the Court.  The respondents are to pay the applicant’s cost of the adjournment and the parties have liberty to apply.

MR WALKER:   May it please the Court.

KIEFEL CJ:   The Court will now adjourn until 1.00 pm.

AT 11.40 AM THE MATTER WAS ADJOURNED