Plaintiff S156/2013 v Minister for Immigration and Border Protection and Anor

[2014] HCATrans 216

[2014] HCATrans 216

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S156 of 2013

B e t w e e n -

PLAINTIFF S156/2013

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

Summons for reinstatement

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 1 OCTOBER 2014, AT 10.01 AM

Copyright in the High Court of Australia

MR M.A. ROBINSON, SC:   If the Court pleases, I appear for the plaintiff and the plaintiff’s solicitor.  (instructed by Adrian Joel & Co)

MR A. MARKUS:   May it please the Court, I appear for the defendants.  (instructed by Australian Government Solicitor)

HER HONOUR:   Yes, Mr Robinson.

MR ROBINSON:   Your Honour, I move on the summons filed on 8 August this year and I read the affidavit that was filed with that summons, that is the affidavit of Adrian Phillip Joel, affirmed on 8 August this year.

HER HONOUR:   Yes.  Mr Markus, any objection to any part of the affidavit?

MR MARKUS:   No, your Honour.

HER HONOUR:   Yes, thank you.  You may take that as read.

MR ROBINSON:   Thank you.

HER HONOUR:   Yes.  Well, Mr Robinson ‑ ‑ ‑

MR ROBINSON:   An application under rule 6, your Honour.

HER HONOUR:   Yes.  Mr Robinson, I note the submissions filed by Mr Markus.  Notwithstanding the absence of attaching the letter of advice, it is accepted that substantial compliance with the Rules appears to have been established.  I do not need to hear from you on that.  What as to the balance of the proceedings?

MR ROBINSON:   Well, your Honour, there were three decisions challenged in the main proceedings.  Two of them went up to the Full Court.  It was heard and determined.  The last one is the subject of a possible remitter.  If the court determined that it could be remitted, presumably it should be remitted to the Federal Magistrates Court, it cannot go to the Federal Court.

HER HONOUR:   Yes.  Mr Robinson, as I read the defendant’s submissions, the suggestion is in light of the determination of the constitutional questions the balance of the relief claimed is futile and the defendant submits that an appropriate course is for me to dismiss the proceedings.  I take it you oppose that.

MR ROBINSON:   I am not going to oppose it, your Honour, because I do not have instructions.

HER HONOUR:   Yes.

MR ROBINSON:   But I can say this to assist your Honour.  It was not and is not dependent on the constitutional question.

HER HONOUR:   That is, there are some issues concerning judicial review of the taking decision that are distinct from the determination of the validity of the taking.  Is that the issue?

MR ROBINSON:   Correct.  The issue is, in short, in the taking direction which this Court ruled on was valid, that is, the Minister’s direction to his officers as to where to take them, he said certain things were to happen.  We say firstly that it was not valid because the taking direction was not valid – well, we lose that of course.  But we also said that the conditions that he did specify were not fulfilled.  That is a factual question that the Chief Justice ‑ ‑ ‑

HER HONOUR:   I understand, Mr Robinson.  I will hear from Mr Markus.  Mr Markus, my preliminary inclination is to think I would not dismiss the proceedings without notice.  Do you wish to be heard on that, or is the real area for controversy giving you an opportunity to apply for an order for dismissal before any consideration of remitter?

MR MARKUS:   Your Honour, I understand what your Honour is putting to me.  The question ultimately is this.  Does the judgment of the Full Court necessarily require dismissal of the proceedings because if it does then there is no point in even giving an opportunity to the plaintiff to deal with these matters.  Can I just ask whether your Honour has a copy of the Full Court’s judgment?

HER HONOUR:   Yes, I do, just bear with me a moment.  Yes, Mr Markus.

MR MARKUS:   My friend has conceded that two of the decisions or determinations that have been challenged, or the challenge to two of the decisions or determinations, must fail and therefore that part of the proceeding which takes issue with those matters has to be dismissed.  He submits that the challenge to the taking decision itself need not fail. 

Now, we accept, as we must, that the answers given by the Full Court to the questions reserved do not necessitate the dismissal of the challenge to the taking decision, but we say that the judgment itself does.  Can I just draw your Honour’s attention – apart from the fact that there are three bases in paragraph 19 upon which the taking decision is challenged.  I am sorry, your Honour has a copy of the further amended statement of claim?

HER HONOUR:   Just bear with me a moment. 

MR MARKUS:   I can hand up a copy if that is easier, your Honour.

HER HONOUR:   Thank you, Mr Markus, I do have one.

MR MARKUS:   Thank you.  Your Honour will recall that the way that this document is drafted there is the body of the document which is four pages and then there is annexure A which is the relief claim.

HER HONOUR:   Yes.

MR MARKUS:   Then annexure B which is the grounds.

HER HONOUR:   Yes.

MR MARKUS:   Now, if I can take your Honour to the last page of the document which is part of annexure B, your Honour will see that the grounds for challenging the taking decision are set out at paragraph 19 in subparagraphs (a) to (c).

HER HONOUR:   Yes.

MR MARKUS:   Your Honour will also note that both subparagraphs (a) and (b) rely on the purported invalidity of the taking direction.

HER HONOUR:   Yes.

MR MARKUS:   By necessity those challenges must fail.

HER HONOUR:   Yes.

MR MARKUS:   The last subparagraph provides that:

Alternatively, the necessary facilities, services and accommodation in PNG as were required to be satisfied by the conditions in the “taking direction” by the Minister were not in existence and/or available and the conditions set out in the said direction were not therefore met.

Now, that is the only possible challenge that could survive.

HER HONOUR:   Yes.

MR MARKUS:   Can I draw your Honour’s attention to paragraph 49 of the judgment of the Full Court where it is stated that:

Given that an officer must comply with a direction, there must be sufficient specification in the direction to enable the officer to comply with it.  The three conditions which the direction placed on removal involved simple enquiries, not an evaluative process as the plaintiff contends.  In the case of the plaintiff, as a single adult male, the effect of the direction was that he be taken to PNG, provided that there were facilities and services available for him there and that there was more accommodation for his class of UMAs there than in Nauru. 

Your Honour, there is that proviso at the end but what the paragraph clearly states that this is not an evaluative process, provided that there were facilities there which clearly there were.

HER HONOUR:   But that is the factual issue, as I understand it, Mr Markus.

MR MARKUS:   I understand.

HER HONOUR:   Mr Markus, I think I understand, on the face of it, the cogency of the challenge that you seek to make to the remitter but, in circumstances in which there has been no notice to the plaintiff of an application that the proceedings be dismissed rather than remitted and in circumstances in which Mr Robinson is not instructed in the matter, it does seem to me ‑ ‑ ‑

MR MARKUS:   I understand, your Honour.  In that case, we would wish to have an opportunity to make a formal application.

HER HONOUR:   Yes, I am disposed to grant you that.

MR MARKUS:   Thank you.  Can I raise two issues?

HER HONOUR:   Yes.

MR MARKUS:   Your Honour, the first is that as a consequence of the solicitor withdrawing, there is an issue about address for service and generally speaking how processes are to be served.  Ordinarily, notice of change of address needs to be filed.  I think the relevant rules are in Part 9.

HER HONOUR:   Yes.

MR MARKUS:   Part 9.07 deals with service out of Australia but that appears to apply to originating processes which in some ways probably extends to a summons seeking the dismissal of the proceedings.

HER HONOUR:   Mr Markus, in practical terms, is there a difficulty in effecting service on the plaintiff in ‑ ‑ ‑

MR MARKUS:   I do not believe so.  We can clearly have him located and have the document delivered to him.  I just wanted to make sure that there is not going to be any issue about the matter of service.  It will probably have to be done by personally delivering the document to him by a person somewhere on Manus Island.

HER HONOUR:   Yes, that would seem to be the appropriate course, Mr Markus.

MR MARKUS:   Yes.  The other issue that I wish to raise briefly is whether the Court would be minded at this stage to make orders about the parts of the proceedings which have to be dismissed following the Full Court’s judgment or whether that should wait.

HER HONOUR:   Mr Markus, is the convenient course for the matter to be stood over to enable you to serve your summons on the plaintiff and you might identify the relief – I withdraw that.  What I have in mind, Mr Markus, is serving the plaintiff with notice of your summons to dismiss and, in the event that it is unsuccessful, the relief to which you claim you are entitled in light of the decision of the constitutional questions and that way the whole matter can be dealt with on the next occasion.

MR MARKUS:   Thank you.  I should just add, your Honour, that we are likely to seek dismissal of all of the proceedings on two alternative bases and one would be a failure by the plaintiff to prosecute the balance of his claim.

HER HONOUR:   Yes, I understand.

MR MARKUS:   I just foreshadow that, your Honour.

HER HONOUR:   Thank you, Mr Markus.  Now, the only order that I need make is the grant of leave unless you have some further proposal, Mr Markus.

MR MARKUS:   No, your Honour.  Your Honour probably should grant leave for my friend’s instructing solicitor to withdraw and grant leave to my clients to file a summons or we may just ‑ ‑ ‑

HER HONOUR:   Do I need to do that?  I do not believe I do, Mr Markus.

MR MARKUS:   Thank you, your Honour.

HER HONOUR: In this matter, leave is granted to the plaintiff’s solicitor to withdraw as solicitor pursuant to rule 6.02.5(c) of the High Court Rules 2004 (Cth). Thank you, gentlemen.

AT 10.15 AM THE MATTER WAS CONCLUDED