Plaintiff S111A/2018 v Minister for Home Affairs & Ors; Plaintiff S111A/2018 v Director-General of Security & Ors

[2023] HCATrans 114

[2023] HCATrans 114

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S93 of 2023

B e t w e e n -

PLAINTIFF S111A/2018

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

DIRECTOR‑GENERAL OF SECURITY

Third Defendant

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

KIEFEL CJ

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON MONDAY, 11 SEPTEMBER 2023, AT 2.15 PM

Copyright in the High Court of Australia

____________________

HER HONOUR:   In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR D.A. WARD appears for the plaintiff/applicant in both matters.  (instructed by Zali Burrows at Law)

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

HER HONOUR:   Mr Ward, unfortunately you are appearing by telephone.

MR WARD:   Yes, your Honour.  Obviously, for that reason, I cannot tell when I am interrupting a question that you are proposing to ask, so I apologise if I appear discourteous as a result.

HER HONOUR:   Do not worry.  Perhaps if we focus on the matter brought in the original jurisdiction in the first place, that is in S93/2023, an extension of time is necessary for the bringing of that application, which I notice is unopposed.  Mr Herzfeld.

MR HERZFELD:   Yes, your Honour.

HER HONOUR:   The extension of time is granted, Mr Ward.

MR WARD:   Thank you.

HER HONOUR:   Mr Ward, the applications sought leave to amend the writ and statement of claim, I think, on the basis of the respondents’ then‑denial in the special leave application.  The changed adverse – the updated 2023 security assessment renders the matter of appeal in the special leave application now utile rather than lacking utility, as was originally contended.

MR WARD:   Your Honour, that is correct, and to be fair to my learned friend, it was an apprehended denial.  That is, it had never been expressed.  It had never been articulated by the respondents in the S31 matter that they squarely ‑ ‑ ‑ 

HER HONOUR:   Accepted that there was now a utility because of the further security assessment, whereas with the 2018 refusal, there was still the 2020 adverse security assessment to overcome.

MR WARD:   Correct, your Honour, and as a result of the position that is now being articulated by my learned friends at paragraph 10 of their written submissions on the question of the utility of the challenge to the 2018 adverse security assessment, my client does not dispute that the way forward in the S93 matter, that is, the matter in the original jurisdiction, should be as proposed by the defendants to that matter, that is ‑ ‑ ‑ 

HER HONOUR:   That is, just to stand the matter over?

MR WARD:   Correct, your Honour.

HER HONOUR:   Yes.  Well, that would seem to make sense, because whether or not it proceeds any further, including as to whether or not there is need for a special case, hinges upon your success in the application for special leave, does it not?

MR WARD:   Yes, your Honour, the need for the special case, in my respectful submission, has gone away on the basis of the position that has now been articulated by the respondents at that paragraph to which I adverted.

HER HONOUR:   So, the only order then sought in relation to S93 is that the matter be adjourned generally to a date to be fixed?  Or do you want some orders as in terms of paragraphs – you do not need to file an amended written statement of claim now, you would just adjourn it over, pending the outcome of the special leave application.

MR WARD:   I would be content with that, your Honour, subject to what my learned friend has to say.

HER HONOUR:   Mr Herzfeld, is there a need for any further orders?

MR HERZFELD:   No, there is not, your Honour.

HER HONOUR:   All right.  There will be orders in those terms.  Turning, then, to the application for special leave, there is only a need to update the matters to put in what the respondents now seek to bring before the Court, in relation to their position.  What do you say, Mr Ward, in relation to the dates and the vacation of the special leave hearing date?

MR WARD:   Your Honour, the applicant in S31 opposes the orders that have been proposed by my learned friends in relation to that matter.

HER HONOUR:   Well, to save you a little bit of time, I have to say that I do not see why the listing need be vacated.  The respondents know what their position is, they have drawn documents to reflect it.  I would have thought that the steps necessary to be taken could be taken a lot sooner, so that the date could be maintained.

Unless there is a particular reason for it, I would not have thought there was need for a replacement application book, you would just – orders 2 and 3 change with the dates changed, for instance, Mr Herzfeld, I had in mind that on or before 14 September, which is this Thursday, the respondents file and serve any affidavits on which they wish to rely and a replacement response to the special leave application, and that then on or before 21 September the applicant file and serve a replacement reply.  I think, if those documents were made available to the Court, that would overcome the need for a replacement application book.  It would simply be drawn to the panel of Justices that those documents are replacements.

MR HERZFELD:   Your Honour, there has been a slight development, which was that the applicant, subsequent to these submissions, proposed to us that he no longer seeks to press any challenge to the 2020 ASA, and if that is the case, it seems to us that it would be necessary for there to be a replacement application, that is, a replacement special leave application.

HER HONOUR:   Yes, I see.

MR HERZFELD:   Now, I am not sure if that is still the applicant’s position, but if it is, then while I understand what your Honour says about truncating the timetable slightly – and I will say something about that in a moment – I think that firstly needs to be clarified with Mr Ward.

HER HONOUR:   Yes, I see that was not on the suggested orders.  Is that the case, Mr Ward, there needs to be an amended application?

MR WARD:   Your Honour, no, it is not.  That proposal had been made with a view to seeking a consent position in relation to the matter, in particular with a view to maintaining the current court date of 13 October.  That consent, unfortunately, was not forthcoming, and on that basis the applicant does not seek to alter his position in relation to the 2020 adverse security assessment.

HER HONOUR:   You say it has been overtaken, anyway, by the assessment this year?

MR WARD:   And in addition to that, your Honour, what has occurred is that the respondents – the respondents’ position appears to be that if that change were made by the applicant, there would need to be a wholesale updating of the application and the application book, and on that basis, the applicant’s position is unchanged in relation to the 2020 ASA.

HER HONOUR:   What do you say about the dates I have in mind, and just the steps that I have outlined, taken from the proposed orders 2 and 3 in the respondents’ submissions?

MR WARD:   Your Honour, I am, for my part, content with the dates that your Honour has proposed, those being 14 September and 21 September.

HER HONOUR:   Mr Herzfeld.

MR HERZFELD:   Yes.  Your Honour will appreciate that the subject matter of this application is one which involves security assessments, and so things just take time to ‑ ‑ ‑ 

HER HONOUR:   But what I really have in mind, Mr Herzfeld, is that the respondents’ position has already been set out in an affidavit for the purpose of this application – it is really not much different from what is required for the application for special leave, surely.

MR HERZFELD:   Well, we have set out the facts, but what that means in terms of argument on the special leave application is a little bit more than that, and as I say, because of the subject matter, it does just take time to get instructions necessary in circumstances where something speedier might be possible where security issues are not in play, so that date that your Honour has proposed, we would submit, is too soon.  Of course, if your Honour directs it, we will do our best to comply with it, but the date that we had selected of 25 September was not done arbitrarily, and so we would still seek that date, having regard to the matters that I have identified.

HER HONOUR:   I would still like to see the special leave listing date held, though.

MR HERZFELD:   Well, your Honour, if there is no need for an application book ‑ ‑ ‑ 

HER HONOUR:   Exactly.

MR HERZFELD:   Although it would not give the Justices comprising the panel as much time as, perhaps, one ordinarily would have, orders 2 and 3 as we have suggested them would still be before 13 October, which was the date.

HER HONOUR:   That is right.

MR HERZFELD:   So, if that was best, that – I am sorry, let me start that again.  The reference to the replacement application book by us was really, if I may say, for the benefit of the Court.

HER HONOUR:   Yes, I appreciate that.

MR HERZFELD:   If your Honour is content to proceed in a slightly ‑ ‑ ‑ 

HER HONOUR:   Just with the replacement documents – as long as they are brought to the attention of the Justices, I do not see that there is any difficulty.  Mr Ward, if the first date, 25 September, is held, could you file a replacement reply by 2 October?

MR WARD:   The short answer to that is yes, your Honour, and the slight elaboration on that response is that the current timetable proposed in fact gives me and my client more time to file a reply than even would be afforded under the Rules.

HER HONOUR:   All right.  Well, we will maintain the listing on 13 October, and I will direct that on or before 25 September 2023, the respondents file and serve, one, any affidavits on which they wish to rely, and two, a replacement response to the special leave application filed on 6 April; and the second order will be that on or before 2 October, the applicant file and serve a replacement reply.

MR HERZFELD:   And, your Honour, I should say, your Honour will have appreciated why we used “replacement” rather than “amendment” ‑ ‑ ‑ 

HER HONOUR:   Yes.

MR HERZFELD:   ‑ ‑ ‑ it is as to avoid unnecessary marking‑up, which is not going to be helpful for anybody.

HER HONOUR:   Yes.  No, I appreciate that, Mr Herzfeld, and I will have the Deputy Registrar – I am told that 2 October is a public holiday in New South Wales, so it will have to be 3 October.

MR HERZFELD:   I am content with that, your Honour.

HER HONOUR:   I thought you might be.  The Registry certainly would be happier.  I will have the Deputy Registrar draw to the attention of the panel of Justices hearing the application for special leave that there have been these changes, so their chambers are alert to it.

MR HERZFELD:   Thank you, your Honour.

HER HONOUR:   Yes.  Well, if there is nothing further, gentlemen, I will adjourn the Court.

MR WARD:   May it please the Court.

HER HONOUR:   Adjourn the Court.

AT 2.28 PM THE MATTER WAS ADJOURNED