Plaintiff S116-2010 v Commonwealth of Australia & Ors

[2010] HCATrans 150

[2010] HCATrans 150

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S116 of 2010

B e t w e e n -

PLAINTIFF S116/2010

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

First Defendant

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Defendant

CHRISTOPHER KEHER

Third Defendant

PETER CARNELL

Fourth Defendant

Office of the Registry
  Sydney  No S121 of 2010

B e t w e e n -

PLAINTIFF S121/2010

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

First Defendant

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Defendant

CHRISTOPHER KEHER, AS A CONTRACTOR OF THE MINISTER FOR IMMIGRATION AND CITIZENSHIP

Third Defendant

ANKICA ROMIC, AS DELEGATE OF THE MINISTER FOR IMMIGRATION AND CITIZENSHIP

Fourth Defendant

LISA GOBBO, AS DELEGATE OF THE MINISTER FOR IMMIGRATION AND CITIZENSHIP

Fifth Defendant

DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Sixth Defendant

For mention

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON FRIDAY, 4 JUNE 2010, AT 10.58 AM

Copyright in the High Court of Australia

__________________

HIS HONOUR:   Now, that I think deals with the matters in the Melbourne Registry and then counsel in Sydney, who have been hearing but little of what counsel have been saying, thanks to the joys of technology, are interested in two other matters.  Perhaps if we call first Plaintiff S116/2010.

MR S.E.J. PRINCE:   Your Honour, I appear for the plaintiff in that matter.  I do not know if your Honour can hear me.  (instructed by SBA Lawyers)

HIS HONOUR:   Yes, Mr Prince.

MR S.J. GAGELER, SC Solicitor‑General for the Commonwealth of Australia:   Your Honour, I appear with MR S.P. DONAGHUE and MR D.F. O’LEARY for the defendants.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Now, Mr Prince, you have heard at least the outcome of the discussions that have been occurring, if not the content of the discussions.  Do you need me to fill in any of the gaps in the discussion so that you are in a proper position to make submissions to me?

MR PRINCE:   Not at this stage, your Honour.  It may be we will receive a transcript in due course and that will be of assistance, but the directions that your Honour has set in the other matters, if your Honour were to set the same directions in my client’s matter, then given that there is a further directions hearing in late June, I would thought that any matters could be accommodated in that way.  We would be content with that timetable that your Honour proposed in the other matters.

HIS HONOUR:   What is it that your client’s application will add if we push it forward in that way, that is, what will it add to the litigation that is constituted in proceedings M61 and M69?

MR PRINCE:   It is a little difficult to know at this stage, your Honour, until we have seen the evidence from the defendant in respect of our case.  Each of these cases have been dealt with separately by the mechanisms that are in question.  I do not know whether there are different aspects of each of those decision‑making processes that might become relevant once they have been more fully exposed.

HIS HONOUR:   I have little doubt, Mr Prince, that the particular facts of course raised in your client’s application will differ in some respects, some of which you may wish to say are quite important respects from the factual foundations of the other pieces of litigation.  Do you seek, though, to make any different claim or advance any different legal as distinct from factual argument from those that are, as far as you know it, agitated in the other two proceedings?

MR PRINCE:   It may be premature to say at this stage, your Honour.  I do not mean to not answer your Honour’s question, but ‑ ‑ ‑

HIS HONOUR:   If you cannot answer, Mr Prince, that is reason enough not to answer.  I understand that.

MR PRINCE:   Yes, your Honour.  There is still some fluidity which your Honour’s directions seem to contemplate may be crystallised in late June, hopefully.  So we may end up going down slightly divergent paths once that material becomes apparent.

HIS HONOUR:   As at present advised, and I say this not only to you, Mr Prince, but to counsel more generally, I see no advantage in putting more than one matter before a Full Court unless additional or different points of principle are raised for consideration in that other matter.  The fact is M61 was first issued.  It is the one that, at least as at present advised, would be the first that would go forward simply because it was first issued. 

So I will, of course, hear what the defendants have to say about the desirability of going down the procedural path you have indicated, but just to have in mind the end play that you are going to have to deal with at the directions hearing when next it comes on, all parties are going to be asked, what advantage does a Full Court get from having more than one matter referred in for its consideration?  Should not all the other matters wait until the Full Court has spoken and then be dealt with according to their own particular facts in accordance with the principles that are enunciated by the Full Court?  So that is a problem for another day, Mr Prince, I know.  In light of that, do you say I should still order directions of the kind you have heard me give in the other cases?

MR PRINCE:   Yes, your Honour, I do.

HIS HONOUR:   Yes.  Mr Solicitor, what do you say I should do?  If, Mr Solicitor, you could positively bellow at me, Mr Prince might be able the better to hear you.

MR PRINCE:   Thank you, your Honour.  Yes, I would still ask your Honour to make those directions notwithstanding ‑ ‑ ‑

HIS HONOUR:   No, I was inviting the Solicitor to bellow, not you, Mr Prince, I fear.

MR GAGELER:   Our answer to your Honour’s question of what would this case add in terms of questions of principle to M61 is nothing.  Certainly nothing has been identified in anything that appears in the application which, on our reading, has been substantially transposed from the application in M61 to the circumstances of this plaintiff and nothing has been articulated today which would suggest any difference of principle.  It would be possible for your Honour to make directions in this matter which mirrored the directions in M61, but it would be our position that there is not sufficient utility demonstrated on the face of the application or in the submissions that have been made to your Honour to warrant that course at this stage.

MR PRINCE:   Your Honour, can I just say that I did not hear any of that ‑ ‑ ‑

HIS HONOUR:   Well, none of it, Mr Prince, was to your advantage.

MR PRINCE:   Just as well, your Honour.

HIS HONOUR:   Let me attempt to capture, as shortly as I may, the essence of what the Solicitor said.  As I understand it, the submission is that judged on the footing of the application, there is nothing in your application that can yet be identified as raising any fresh or different issue from those which arise in M61 and that in light of that fact, there is no utility in giving directions of the kind that I have given in M61.  That I think captures the essence of what the Solicitor said to me.

MR PRINCE:   Can I just say to that, your Honour, that, first, we are at such a preliminary stage that it is possible that at the end of these directions that your Honour has contemplated that, as I said, there may be some divergence and my client should not be shut out of that possibility.  Secondly, my client is also entitled to be heard and ought not be shut out of his case at such an early stage.  If it comes to the further directions hearing at the end of June and there is some case management to be done, perhaps it

is best to be considered at that stage, but at such an early stage I think it would be premature to not make the directions and to effectively not require the defendant to do any work in respect of my client’s case in the circumstances.

HIS HONOUR:   Yes.  Well, before I rule on this issue, I should hear also, I think, in Plaintiff S121 - perhaps if I take the appearances in S121.

MR S.D. GLASS:   May it please the Court, I appear for the plaintiff.  (instructed by Gilbert + Tobin Lawyers)

MR S.J. GAGELER, SC, Solicitor‑General for the Commonwealth of Australia:   Your Honour, I appear with MR S.P. DONAGHUE and MR D.F. O’LEARY for the defendants.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Mr Glass, you have heard what has transpired with Mr Prince.  Do you in S121 point to any different or additional issue that is raised in that application from those which, as you understand it, would be agitated before a Full Court in M61?

MR GLASS:   Your Honour, I am not able to answer that question now, but I would expect that following the parties complying with the directions that you have made in the other matters, and we would request you make in this matter as well, it will be possible then for all of us to see which issues are raised by which matters, which matters have factual disputes and which ones do not.  I think the next directions hearing on 25 June would be the most convenient time for all to make an assessment of which matter or combination of matters are the most convenient vehicles for determining the issues that they raise.  My submission would be that the directions that you have made in the other matters should be made in this as well and that on 25 June, in addition to the other issues you have asked the parties to be ready to answer, they also be ready to answer the question you have just asked me.

HIS HONOUR:   If I could say to both you, Mr Glass, and you, Mr Prince, do you have available to you the documents that would constitute the several stages of the decision record in respect of your clients?

MR PRINCE:   For my part, your Honour, we have some documents but they do not appear to be complete.  There is a reference to some annexures in one of the decisions which is called the review decision which is not ‑ ‑ ‑

HIS HONOUR:   Yes.  The reason for my question is this.  What I have in mind is, if needs be, directing the defendants in both of your matters to make available to your side copies of the decision‑making papers if those

are intended to be produced in M61 and simply stand over your applications until the further directions hearing when, with benefit of what you will have learned from the other litigation, you can see whether in truth you do seek to make some different case in principle.  I am not minded, I think, to require all of the directions that are made in the other two cases yet, but simply to get you to a position where you have sufficient information by that directions hearing to know whether you are going to agitate some different question of principle as distinct from a particular factual question appertaining only to your particular clients.

MR PRINCE:   Your Honour, that objective might be achieved if your Honour were to make directions 2 and 3 that were made in the other proceedings.

HIS HONOUR:   Those being the ‑ ‑ ‑

MR PRINCE:   The affidavit setting out the essential features of the offshore processing scheme and also the statutory or other basis upon which the decisions were made.  I am paraphrasing, your Honour, very badly, I am sorry.  We should be able to see that material, otherwise we are not really going to be in a position to make our own assessment as to what ground, if any, we may wish to agitate which perhaps the representatives of the other plaintiffs may or may not include in their claims.

HIS HONOUR:   Yes.  Well, Mr Solicitor, is there any difficulty about your simply topping and tailing the affidavit which is to be sworn in the other matters and serving it in these matters?

MR GAGELER:   We could do it that way, your Honour.  The more appropriate direction, in our submission, given that in S116 there is at most a bare possibility that some different point might be taken by the legal representatives of the plaintiff, the more appropriate course, in our submission, would be that the affidavit and statement that we are to file in M61 be copied to them.  So far as the other matter is concerned, your Honour, S121, we would be content with a direction in similar terms, that is, that the M61 affidavit and statements be copied to the plaintiff’s solicitors.  Your Honour does not have the file, I suspect, in S121.

HIS HONOUR:   Yes, I do.

MR GAGELER:   Your Honour need not find it, but there is a voluminous affidavit that has been filed in that matter.  It is a factually intense case if it were to run and it seemed to us for that reason to be probably not appropriate as a test vehicle.  The position of the plaintiff in S121 as articulated in the application is really quite different factually from the plaintiffs in any of the other matters.  The allegation of want of procedural

fairness, if your Honour were to look towards the end of the application, raises some difficult questions of proof.  It your Honour were to look, for example, at paragraph 32 in the particularisation, I do not really want to go into the detail, but there is a documentary trail which may involve documents in a variety of locations.

HIS HONOUR:   Yes.  What was said, if I can translate that for the Sydney end of the proceedings, is, first, as to S116 what is proposed by the Solicitor is that copies of the affidavit about essential features and the statement be supplied to the solicitors for the plaintiff in that matter at the same time as they are served on opposite parties in the other two proceedings.  The same procedure might usefully be followed in Plaintiff S121.  It is suggested by the Solicitor that Plaintiff S121 is a factually intense matter which of itself may be reason enough to make it unsuitable as a vehicle for consideration by the Full Court.  I do not at the moment wish to go into that question of the factual intensity of S121 and whether that, standing alone, may be reason enough to hesitate before referring it to a Full Court, but I am minded to say to the parties in both S116 and S121 that I am inclined to the view that there should be directions:

1.That the defendants serve on the solicitors for the plaintiff a copy of the affidavit material and statement directed to be filed and served in matter M61 of 2010 forthwith after filing those documents in that matter.

2.I would be minded to give a direction that on or before 18 June 2010 the plaintiff in each matter file and serve any proposed amendment to the plaintiff’s application together with any further affidavit upon which the plaintiff seeks to rely.

3.To adjourn both S116 and S121 for further directions at 9.30 am on 25 June 2010 in Melbourne, or such other time as may be fixed.

4.To make the costs of this day costs in the proceeding.

Mr Prince, is there any reason why I should not make directions in those terms?

MR PRINCE:   No, your Honour.  Those directions seem, with respect, very sensible in the circumstances.  There is one matter that your Honour raised earlier which is the defendants providing all the decision related material to the plaintiffs.  I do not know whether your Honour contemplated that one.

HIS HONOUR:   I should tell you, Mr Prince, since there is much shaking of heads here on the Commonwealth side of the Bar table, if that is to be raised, I suspect you may have to raise it separately and on notice to the other side.

MR PRINCE:   I see.

HIS HONOUR:   I do not foreclose you from either applying or, if applying, I give no indication of what outcome that will have.  That will be a separate matter, but it is, it seems, a separate and disputed area of debate.

MR PRINCE:   Thank you, your Honour.  Thank you for the visual reference.  Thank you, your Honour.  Those are all the directions that I would seek.

HIS HONOUR:   Mr Glass, is there any reason I should not make those directions as indicated in S121?

MR GLASS:   No, your Honour, we would be happy with those directions.

HIS HONOUR:   Yes.  Well, there will be directions in S116 and S121 in the terms I have indicated.

MR GLASS:   If the Court pleases.

HIS HONOUR:   Do counsel who are present in Melbourne have any further matter to raise in connection with the earlier matters that arises out of what has happened in the two Sydney matters?

MS MORTIMER:   No, your Honour, in M61.

HIS HONOUR:   Thank you, Ms Mortimer.  Well, I will adjourn.  Thank you, counsel, for your forbearance as we fought the joys of technology.

AT 11.21 AM THE MATTERS WERE ADJOURNED