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

[2013] HCATrans 253

[2013] HCATrans 253

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

Directions hearing

FRENCH CJ

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO SYDNEY

ON WEDNESDAY, 16 OCTOBER 2013, AT 9.01 AM

Copyright in the High Court of Australia

MR M.A. ROBINSON, SC:   If the Court pleases, I appear with MR J. WILLIAMS.  (instructed by Adrian Joel & Co)

MR S.P. DONAGHUE, SC:   If the Court pleases, I appear with MR N.M. WOOD for the defendants.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Robinson.

MR ROBINSON:   Your Honour, we have two matters which we seek to agitate today.  Firstly, before I come to them, your Honour last ordered that the parties confer.  They did confer and there was a draft document between the parties which the Commonwealth has presented to you in the submissions with large tracts of material which we wish included, omitted in that particular draft, but at least your Honour can see that the parties have come some significant distance to presenting draft facts and questions referred.

In the process of discussions between the parties, discovery of sort happened.  The Commonwealth initially gave us a small bundle of documents before the Minister in what we call the “designation decision” and we have something to say about that.  They also gave us a single document relating to what we call the taking direction, which is a ministerial direction to send people to either Nauru or to Manus Island.  We saw that for the first time only a week or two ago.  Then they gave us three or four documents relating to the plaintiff in Australia, his physical check by, I presume, a doctor or a nurse, and one other document.

What is missing, your Honour, is the material that we asked for on the last occasion, basically discovery of the client file of all of the matters and documents relating to the client in Australia, his psychological assessment which our client told us about, the warnings that were given to him and the description of the process that was given to him by the Commonwealth.  We would like to see, basically, the client file and we have asked for that – if I can take your Honour through the numbering - in our submissions five or six times and it still has not been provided.  That puts a damper on the parties’ continued discussions as far as the plaintiff is concerned.

The discovery is a significant issue, as your Honour will see in the papers before you, and we maintain that it is appropriate for us to seek discovery of the Commonwealth.  The Commonwealth made certain undertakings last time, but be that as it may, we have been drip‑fed material for the last few weeks, your Honour, and we basically want the client file and all documents before the Minister in relation to two decisions, one decision which they have only just given us.

The second issue is an amendment of the pleading.  Your Honour has received a separate document headed “Draft Further Amended Statement of Claim” and it should say under the heading “Third Version” dated yesterday, “4.30”.  Does your Honour have that document?

HIS HONOUR:   Yes, I do.

MR ROBINSON:   We ask the Court to permit that document to be filed.  It can be filed today or tomorrow and then we are certainly happy, subject to the receipt of discovery, to continue to discuss with the Commonwealth to fashion an appropriate statement of facts for the Court.  The draft orders that we propose would change in light of the fact that there is a new decision that we are challenging.  We have always challenged the removal decision, or what is now called the “taking decision” because that is the description in section 198AD of the Act so it is appropriate to call it a taking decision. 

We have always challenged the taking decision.  We do not have the documents in relation to it except the ministerial direction, but apparently someone took our client to Papua New Guinea and we know nothing about it, your Honour.  Apparently that decision‑maker made decisions by reference to the ministerial direction or the taking direction of the Minister and we know nothing about it.  So, in my submission, it is entirely appropriate to call for these documents and it is proper that they be produced by the Commonwealth. 

This document, particularly this draft, this third version of this document is something which has been written in response to, in part your Honour’s comments on the first return of the summons, and also in response to the correspondence from the solicitors for the defendant, which are attached to the parties’ written submissions.

So, your Honour, in summary, what we would like in terms of discovery is at paragraph 23 of our written submissions that were filed on 15 October.  Down the bottom is a summary.  We ask for the documents that were before the Minister in the making of the designation decision firstly, your Honour.  That is the decision of 9 October. 

They have given us a small bundle and what we have done in our correspondence is ask them basically to look again and to consider that there may be some documents that might not be there, for example, the joint experts’ report, which your Honour may be aware of generally is something that is not before the Minister when he made the declaration decision.  It is not in the bundle of material that we have been given.  We have not seen it and I have not seen it, your Honour, and, in my submission, it is something which must have been before the Minister when he made his decision.

Also documents from at least 20 international organisations have not been provided, none of them and it may be that if they look again there will be something to produce.  If there is nothing else to produce we will accept that, your Honour.

The second category is documents regarding the taking direction of the Minister.  They sent that document to us, the direction, only on 4 October this year and we now know what it is.  We saw invalidity on the face of the document as well as other invalidity and we have included that in the new pleading.

The third category is, as I have mentioned before, the taking decision documents.  Basically, this would involve – would preferably involve the client file so that we can see what happened in relation to our client and what officer of the Commonwealth determined and why he should be removed to Papua New Guinea.  He was only here for about a week, your Honour, I think less than a week.  It cannot be a very large file and we have only been given pages from what is obviously a client file.

The expanded version of that, your Honour, was at page 24 of our bundle, the large numbers at the top right‑hand side.  Your Honour will see at the bottom of the page at paragraph 19 and over the page sets out – the next two pages set out in a bit more detail what has been in the correspondence sent to the Commonwealth on at least two occasions in the last few weeks.  That is effectively an expanded view of what I have just taken to your Honour.

HIS HONOUR:   The point of departure has to be the pleading because that defines the issues which you raise.

MR ROBINSON:   Yes, your Honour.

HIS HONOUR:   If I could just go for a minute to see where you are proposing to take this action in terms of the proposed further amended statement of claim and I am looking at annexure B – so grounds upon which relief is claimed.  Now, paragraph 1, I take it is a challenge to the validity of section 198AB of the Migration Act?

MR ROBINSON:   Correct, your Honour.

HIS HONOUR:   Yes.  Now, you are proposing a lot of particulars about the consequences of the said provision and the relevant government policy.  You make assertions about detention in PNG:

for five or more years according to the “no advantage principle” –

How do these particulars, any of them, (a) to (h) and (j) inform the validity of 198AB, that is to say the question whether that section is supported by a head of Commonwealth legislative power?

MR ROBINSON:   In short, your Honour, our case is twofold on this point.  Firstly, we say that the Commonwealth cannot pick up a man or woman who has just arrived at Christmas Island and deliver them to another country.  Our second case is ‑ ‑ ‑

HIS HONOUR:   That sounds like a speech, Mr Robinson.  I need better than that and I expect better than that from you, from senior counsel.  I do not need rhetoric.  I need some focus on the legal issues in this case.  Now, what is the relevance of these particulars to the question whether section 198AB is within the legislative power of the Commonwealth?

MR ROBINSON:   Your Honour, our case is that the Commonwealth is not constitutionally empowered to remove a person to a third place in conditions where there is – in punitive conditions, that is the essence of it, your Honour.  Whilst it might be arguable that the Commonwealth, for example, under its external affairs powers can remove an alien at its borders to another place, it is not permissible, we say, to remove him or her to another place where the conditions are punitive.  That is the essence of it, your Honour.

HIS HONOUR:   Where does that limitation come from?  How do you source that limitation on the power?

MR ROBINSON:   We say that is evident on the face of the constitutional provisions or it is implied, but in any event we say it is simply not within the power of the Constitution. It is not envisaged by the Constitution, a removal of that nature.

HIS HONOUR:   It is not an express limitation, is it?

MR ROBINSON:   No, your Honour, I accept that.

HIS HONOUR:   We have a power to make laws with respect to immigration and then…..has a power to make laws with respect to aliens, so there is nothing express which reflects the limitation for which you contend.  Are you then contending that there is some implication?

MR ROBINSON:   It may be an implied power, your Honour, yes.

HIS HONOUR:   Well, if it is not an implied limitation, what else could it be?

MR ROBINSON:   I accept that, your Honour.

HIS HONOUR:   Okay.  Now, what do you say is the basis of the limitation for which you contend, as a matter of constitutional interpretation?

MR ROBINSON:   Yes, your Honour, these are the factual substratums that inform the Court in making its determination in this particular case, but my client ‑ ‑ ‑

HIS HONOUR:   No, I am asking about the scope of the power.  You say there is an implied limitation on the Commonwealth’s legislative power which works to prevent it from passing a section in terms of section 198AB of the Migration Act.  I am asking you to tell me what is the source upon which you base your contention that there is such an implied limitation on Commonwealth power.

MR ROBINSON:   The source would be fundamental principles of humanity and – I cannot say human rights, of course, your Honour, but it would be a fundamental principle of humanity and dignity.  We have signed a dozen international instruments that reflect that but they do not assist, I accept that, in the constitutional interpretation.

HIS HONOUR:   Yes.  The same approach is taken, I take it, in relation to the validity of section 198AB(5) in ground 2 ‑ ‑ ‑

MR ROBINSON:   Correct, your Honour.

HIS HONOUR:   ‑ ‑ ‑ and in relation to section 198AD of the Act generally in ground 3.

MR ROBINSON:   No, your Honour.  I am not pressing 3, your Honour.

HIS HONOUR:   You are not pressing what?

MR ROBINSON:   Ground 3, that is an administrative decision.

HIS HONOUR:   Yes, 3 says that ‑ ‑ ‑

MR ROBINSON:   I challenge ‑ ‑ ‑

HIS HONOUR:   I am sorry, I am looking at 3 at the moment: 

The “taking decision” . . . is invalid in that those provisions are not supported by ‑ ‑ ‑

MR ROBINSON:   Your Honour, it is an administrative decision; 3 can be removed and will be removed.

HIS HONOUR:   All right, so 3 and all the particulars incorporated by reference into 3 is not pressed?

MR ROBINSON:   Correct.

HIS HONOUR:   Yes.

MR ROBINSON:   The remainder is a judicial review case, in essence.

HIS HONOUR:   Which seems to me heavily factual.

MR ROBINSON:   Yes, your Honour, but much of it is facts on the basis of the documents themselves.

HIS HONOUR:   We can spend a lot of time with you proposing amendments to the statement of claim and the Commonwealth objecting to your amendments and collateral arguments about discovery.  The threshold question which is raised in the pleading in its original form, and now in its amended form, is as to the validity of certain provisions of the Migration Act under which the designation and taking decisions were made.

MR ROBINSON:   Yes, your Honour.

HIS HONOUR:   If either of those provisions were to be found invalid, then presumably that would yield a result which – whether it in terms of ultimate relief would yield any result is another question because of the difficulties of relief, but that would be a substantial aspect of your argument, would it not?

MR ROBINSON:   Yes, it would, your Honour.

HIS HONOUR:   Yes.  What I am wondering is whether I should not, if the parties are unable to agree a case stated, simply refer questions to the Full Court as to the validity of sections 198AB and AD on the basis of the statement of claim, either in its amended form or some further amended form which properly identifies the issues underpinning the question of validity from your side.  The other aspects can be left for further consideration and possible remitter.

MR ROBINSON:   I hear your Honour.  The remitter aspect is difficult in that, as both parties have said to your Honour, the designation decision itself may not be – is not able to be considered by the Federal Court because it is not a migration decision.

HIS HONOUR:   That is an argument we need not have now.  What I am looking at is, as it were, splitting off the major questions of validity and whether that is a practical and useful option.

MR ROBINSON:   Your Honour, it is something that I would need to take instructions on.  It is not a matter which I wish to determine on my feet.  It is certainly something that I would like a few minutes to ‑ ‑ ‑

HIS HONOUR:   I am not asking you to answer immediately rather than giving an indication.

MR ROBINSON:   In essence, your Honour, if the other matters were kept alive here, or lawfully sent to another place, we would not likely cavil with it.

HIS HONOUR:   I have power under section 18 to refer questions of law to the Full Court.  The real issue is whether, on the face of this pleading and perhaps any defence that might be filed by the Commonwealth, questions of law can be defined with sufficient precision to warrant that course.  I mean the better alternative might be a case stated if you and the Commonwealth were able to agree, as it were, focusing on those questions.

MR ROBINSON:   Your Honour, I am fairly confident that if the Commonwealth gives us the documents that it is plainly holding aback we will be able to sit down with them and complete a stated case within a couple of weeks.

HIS HONOUR:   What additional documents would you say are necessary, relevant to the questions of the validity of those two provisions that I have mentioned?

MR ROBINSON:   There would not be a lot, your Honour.  The documents that were before the Minister in the taking decision would be all that we – not the taking decision, the documents that were before the Minister in the taking direction, that is the ministerial direction of 29 July 2013 – we have the direction, nothing else.  If we had the documents that were before the Minister in relation to that then it would be, maybe, some of those that we wish to put before the Court, but otherwise nothing more than that which is in the draft before your Honour.

HIS HONOUR:   What about the designation decision?  Could that be the subject of – given that that is not particular to your client; that is a decision about the country.

MR ROBINSON:   Yes, your Honour.

HIS HONOUR:   Could that also be the subject of a convenient referral?

MR ROBINSON:   Your Honour, to a very large extent that is already dealt with in the agreed facts and in the documents which would go with it, so I would think that a large part of the work is done there, yes.

HIS HONOUR:   All right.  I might hear from Mr Donaghue and then we will get back to you.

MR ROBINSON:   If the Court pleases.

MR DONAGHUE:   Thank you, your Honour.  Can I turn to the proposed amendments to the statement of claim first and then the discovery issues after that?  Your Honour has, I think, indicated that you have the third version from 4.30 yesterday that was provided.  That postdates the written submissions we have provided.  So there is a disconnect between the paragraph numbers, I am afraid.

HIS HONOUR:   Yes, I understand.

MR DONAGHUE:   Can I just draw your Honour’s attention to a few points about that document.  First, just a minor point in relation to annexure A which is on page 5.  Your Honour will note that the relief claim there repeats the formulation that was used in the original version that was before the Court and in respect of which your Honour commented last time that it seems to be some sort of combination relief by way of rolling together declarations and certiorari.  We have asked for that to be clarified and the plaintiff has refused to clarify it, but we submit that it should be made clear what relief is actually sought.

In respect of annexure B, there are, we submit, numerous problems.  If I could start with paragraphs 1 and 2, my friend just indicated to your Honour that these paragraphs are intended to raise the validity to the sections themselves.  You will note, however, that the introductory words of paragraphs 1 and 2, which really seems to us to be the only difference between those paragraphs, refer to the “designation decision” that was purportedly made and to the “taking direction” that was purportedly made.  So that the way that the provisions are drafted seems to introduce them as if it is a challenge to those individual decisions on a ground that the legislation is invalid rather than that the section is itself invalid.

HIS HONOUR:   Yes, I took that to be a badly drafted attack on the validity of the provisions.

MR DONAGHUE:   We are happy to read it in that way as well, your Honour, but if that is the correct way to read it, it then runs into the difficulty that all of the particulars talk about PNG and people being taken to PNG and the circumstances in which they are taken to PNG.  But those matters cannot be relevant to the validity of the section.  They all depend upon a particular designation having been made and then particular circumstances existing in the country so designated.  But the sections are a framework.  They just provide for any country potentially to be designated and we struggle to see how the validity of the framework can depend upon the particular designation made and the circumstances in the designated country.

So we are left in circumstances where we have no idea why it is said that these sections are invalid and for that reason we have asked for proper particulars to be provided and, again, we have been rebuffed.  But we submit that while in principle we have no difficulty with your Honour’s suggestion that a question could be referred – or we think on validity a stated case could be agreed, we do say that there needs to be some proper identification of the basis for the challenge before that occurs.

So those comments apply both to paragraphs 1 and 2.  Paragraph 3 is no longer pressed and then 4 introduces a series of challenges to other decisions.  Now, your Honour has asked can the designation decision challenge be referred into a Full Court and, in principle, we cannot see why that could not occur because we think that the facts that are relevant to that question are narrow, but as we read it, paragraphs 5 through to 14 of this document then identify various different challenges to the designation decision.

Some of them are probably reasonably straightforward, although we have sought particulars and not been provided them, so with respect to paragraph 5, for example, the ground is clear enough.  We have asked what international obligations and PNG domestic laws are said to be the mandatory relevant considerations.  We submit that the plaintiff should identify them.  Again, they have refused to do so, but they should.  With respect to paragraph 7, again the – specifically, the matter that is said to be a mandatory relevant consideration should be identified. 

More problems arise at paragraph 8 and following, though, because there is an allegation that the Minister had particular evidence before him of various things.  We have told the plaintiff, and the special case records this, exactly what material was before the Minister when he made the designation decision.  There was a submission.  It had a series of attachments to it.  The Minister signed the submission, signed the statement of reasons and so forth.

We have asked what evidence is being referred to in all of these paragraphs and how these grounds are said to lead to invalidity in any event.  The response that we received was that it is a matter for submission and we know.  Now, unfortunately we do not know what is being referred to there and it is not clear to us to what extent – and this I think bears, your Honour, on the question can the designation decision properly be dealt with before the Full Court because if it can be dealt with on the basis that the documents that were before the Minister is what was before the Minister and this is what he considered when he made his decision, that is easy.  We have already agreed those facts.  But if there is some wider controversy about what is said to have been before the Minister we need to know what that controversy is.  We have not been told.

With respect to ground 11, this is a sort of grab bag ground that existed in the original application and elicited some comment from your Honour on the last occasion.  Mr Robinson on that occasion said they had not been asked for particulars but they could give them if asked.  We did ask.  Particulars were refused.  So we do not know what is sought to be being raised by that ground.  Grounds 12 and 13 are no evidence allegations and 14 seems to overlap very heavily with 1(j) but perhaps if 1(j) is to be read just as a challenge to the validity of the sections then we can sufficiently identify what that means.

Now, moving from the designation challenge, your Honour, to the other challenges, paragraphs 15 and 16 challenge what has been called the taking direction.  This is the direction under 198AD.  Does your Honour have the Migration Act with you on the bench?

HIS HONOUR:   Yes.

MR DONAGHUE:   If your Honour turns to 198AD(5) you will see that – or perhaps 198AD(2) first.  Section 198AD(2) imposes a duty to “take an unauthorised maritime arrival” to whom the section applies “to a regional processing country”.  Subsection (5) deals with how that duty works if there happens to be more than one regional processing country and it imposes a duty on the Minister to give a direction specifying which of the countries a person is to be taken to. 

It is that direction that the plaintiff now seeks to challenge.  But they seek to challenge it, it seems to us, looking at 15(b) on the footing that exactly the same matters are relevant to that kind of direction as are relevant to the original decision to designate a country, with no differentiation in the way that it is pleaded.  That, we submit, is unsatisfactory because the powers are of such a manifestly different kind that it would be surprising, to say the least, if there is exact congruence between the matters that have to be considered in relation to both sections.  But our friends have not paid regard to the nature of the power that they are attacking and identified with adequate precision the grounds upon which it is said that that direction was flawed.

Then, and perhaps this is the most important point in terms of the submissions I will make in a moment about discovery, your Honour, if you look at paragraph 17, which is the challenge to the taking decision, this is the taking to PNG under 198AD, the challenge is, we submit, entirely derivative on the challenge to the taking direction.  That is expressly so in 17(a) but 17(b) and (c) are, on examination, criticisms of an officer for acting in accordance with the taking direction, but 198AD(6) of the Act specifies that once a direction has been given, the officer must comply with the direction.

So we submit that on analysis the only ground upon which this application says that there was anything wrong with the taking is if the whole section is invalid or if the taking direction under AD was invalid, but not on any other ground.  For that reason we have said to the plaintiffs on a number of occasions we do not understand how any documents on the client file, as my friend calls it, have anything to do with any issue in this proceeding.  With respect, that question has never been answered.  We have just been told “Give us all of this material, we want all of this material” and we have indicated that until its relevance is explained then we do not see the basis upon which any further discovery would be warranted.

So if your Honour would turn then – and I am now moving to the question of discovery – to the attachments to my friend’s written submissions – there is a bundle of material attached to those submissions – and if your Honour turns to the last two pages of that bundle – I think it is pages 25 and 26 of the bundle.  This is the list of material where discovery is sought.  Does your Honour have that?

HIS HONOUR:   Yes, I do, thank you.

MR DONAGHUE:   Yes, so at the top of page 25 you will see paragraph a:

All documents that were before the Minister in the making of the “designation decision” of 9 October 2012. 

Well, we say we provided all of those documents over a month ago, but then you get the words, “In particular” and it adds a whole list of documents that were not before the Minister when the designation decision was made and we say the relevance of those documents has never been explained and that there is no basis therefore upon which the Commonwealth should be required to produce them.

In respect of paragraph b, at present there is no challenge in this proceeding to the taking direction and therefore we submit that an order of that kind is premature.  It suffers again the same problem with the “In particular”.  It is one thing to order the production of the documents that are before the Minister, but quite another thing to then add all of these additional categories.

In respect of paragraph c, we submit that because, as I have just pointed out in relation to paragraph 17, the ground is wholly derivative, there is no basis for an order of that kind.  Then in respect of paragraph d, there is what appears to us to be a blatant fishing exercise where the plaintiff has listed all of the organisations that they can think of that have any connection to Manus Island and said give us all of the documents that you have ever received, as far as we can tell, from any of those people.  We have objected to that request on the footing that there is no issue in this proceeding to which it has been shown that any of those documents relate.

So we submit that the documents that are relevant have all already been provided and that for that reason there is not any basis for our friend’s complaint with respect to discovery.  With respect to how the matter should proceed from here, we respectfully submit that our friends really need to have another go at pleading this matter in a way that reveals the nature of the constitutional challenge and that if that is done then it may well be that, at least with respect to the challenge to the validity of the sections and the designation decision, what is needed is really no different from what is already there in the special case that we have attached to our submission, which we have given to your Honour, but the material is all there.

If our friends can persuade your Honour that there is something that is missing, then that can be addressed, but we respectfully do not see that there is anything missing and that a Full Court could determine the questions of validity and the validity of the designation on that factual framework with appropriate referred questions.

HIS HONOUR:   I suppose there are three options, at least, are there not?  There is a special case on agreed facts, which is the aspiration that we discussed at the last directions hearing.  There would be a non‑consensual referral under section 18 of questions which I would have to identify on the basis of having had regard to submissions from the parties and I suppose if neither of those options were open, there would be the possibility of a demurrer process, although that perhaps is the least satisfactory.

MR DONAGHUE:   Yes, I think that might be difficult having regard to the way that the matter is pleaded at the moment.  But, your Honour could state a case and then refer questions under section 18.

HIS HONOUR:   Yes.

MR DONAGHUE:   Stating the case and attaching all of the documents, the ministerial submissions and the other documents that were before the decision‑maker at the time the designation was made.

HIS HONOUR:   That is on the basis that that is common ground that those were the materials before the decision‑maker.

MR DONAGHUE:   Yes, or we could put on an affidavit deposing to that fact and your Honour could so find in the absence of any evidence to the contrary.

HIS HONOUR:   Yes, all right.  So your specific propositions are first of all that you are resisting the orders for discovery sought in paragraph 19 of the plaintiff’s submissions.

MR DONAGHUE:   Yes.

HIS HONOUR:   You want the plaintiff to further consider its pleading, having regard to the kinds of criticisms that you have made of it.

MR DONAGHUE:   That is right, and in the interim we are resisting their application for leave to amend in the form that your Honour now has before you.

HIS HONOUR:   Yes, I understand, but you would not resist leave to amend – leave to file a further amended statement of claim within some short specified period of time that we could then come back and look at?

MR DONAGHUE:   Yes, I would resist leave in advance but I have no – but if the order is that they file a summons seeking leave ‑ ‑ ‑

HIS HONOUR:   Yes.

MR DONAGHUE:   Yes, in a particular form then we would be content with that.  The final point, I should note, your Honour, really by way of housekeeping is that the name of the first defendant has now changed and if we could seek an order changing the name of the first defendant to the “Minister for Immigration and Border Protection”.

HIS HONOUR:   Right.  That has come out of administrative orders of some kind, has it not?

MR DONAGHUE:   Yes, your Honour.

HIS HONOUR:   Yes, all right.  Thank you.  Yes, Mr Robinson.

MR ROBINSON:   Could I take your Honour to the amended statement of claim that was filed on 9 September this year.  Does your Honour have that document?

HIS HONOUR:   Yes, I do, thanks.

MR ROBINSON:   On the second page of the amended statement of claim, paragraph 3(a), you will see we challenge the direction – the declaration decision and 3(b) we challenged the removal decision which we now know was not in August – that it was 2 August this year that my client was taken to Papua New Guinea.  Your Honour, we have challenged ‑ ‑ ‑

HIS HONOUR:   Sorry, I just want to make sure I am looking at the right document here.  I am just looking at a document called “Further Amended Statement of Claim” which was attached to your submissions filed on 15 ‑ ‑ ‑

MR ROBINSON:   No, not that, your Honour, the actual filed current amended statement of claim.

HIS HONOUR:   Just a minute, that is the one attached to the summons of 27 August?

MR ROBINSON:   It was amended and it was filed on 9 September 2013.  It is the same text that I am taking your Honour to.

HIS HONOUR:   Yes, I just want to make sure I have the right document, just a minute.  Yes, I have that, thank you.

MR ROBINSON:   Thank you, your Honour.  That is the current pleading.  On the second page at 3(a) we challenge the declaration decision and 3(b) we challenge the validity of the removal decision.

HIS HONOUR:   Yes.

MR ROBINSON:   That is mentioned also in paragraph 8 down below where we mention that decision there.  So, your Honour, for us to say we want the client file relating to his removal involves matters that are already before this Court and have been since the original writ of summons and statement of claim was filed.  We have simply asked for discovery about that.  For my learned friend to say you have been given everything that is relevant, your Honour should hear that as we have been given everything that the Commonwealth thinks is relevant.  We simply want the file as a matter of basic discovery and we do not wish to be given individual documents from that file, one or two at a time. 

In my submission, it is entirely appropriate for the Court to make a direction that the Commonwealth simply discover documents relating to the decisions that we have challenged.  If my learned friend says there is nothing else in relation to the designation decision, as I said earlier today, we are content with that call and will accept that there are no further documents.  We do want documents relating to what we now call the taking direction.  It has been pleaded initially and it has been challenged in the original pleading and there is no reason why they should not give us those documents today.

The new category relates to the taking direction, the ministerial direction under 198AD.  I accept that we have not challenged the validity of that.  We seek to do so in the further amended pleadings and discovery can wait until they have been served with a sealed amended pleading.

In terms of my learned friend’s suggestion that we be given more time, your Honour much of what my learned friend’s client has asked us to do in the correspondence that is attached to the submissions before your Honour has been addressed already in the current draft, in the further amended draft.  In terms of can the pleadings be improved, yes, of course they can, but not every paragraph that the defendants request is going to be adhered to, in my submission, because we have already pleaded the case that we want to plead.  We do not believe that we need to provide our argument in our pleading and we do not need to provide our evidence in our pleading.  We wish to provide something which assists the Court, defines the issues, but no more unless we are able to readily and easily, in my submission. 

I am happy with an idea of giving us another week or two to tidy this document up, to remove paragraph no 3 and to think about the issues again in light of your Honour’s comments and my learned friend’s remarks, but not much more, your Honour.

HIS HONOUR:   Yes.  It seems to me, Mr Robinson, that I want to see the statement of claim in the best form that it can be before I consider making any orders in relation to discovery of documents.  So I think the process which we will follow is that you file a summons seeking leave to amend your statement of claim and that we have a return date within a short period of time in which the matter – this proposed further amended statement of

claim only arrived on my desk this morning and I think Mr Donaghue got his yesterday. 

MR ROBINSON:   At 4.35 I think, your Honour.

HIS HONOUR:   Yes, we need to further consider that.  You need to give careful consideration to just what is the basis for your constitutional challenge as well as for the judicial review proceedings in relation to the particular administrative decisions, assuming validity of the relevant legislation.

MR ROBINSON:   Yes, your Honour.

HIS HONOUR:   Once we have that in the form that is as good as it is going to be then I will consider any further question of disclosure of documents, if there is still some contention about that.  So I think the thing to do is to require you to file a summons seeking leave to amend your statement of claim in a form to be filed with the summons.  How long would you need to do that to give you time to reconsider what you ‑ ‑ ‑

MR ROBINSON:   A fortnight would be convenient, your Honour.

HIS HONOUR:   All right.  First of all, you do not have any difficulty with the change of name of the first defendant, I take it?

MR ROBINSON:   No, your Honour.

HIS HONOUR:   All right.  So:

1.The designation of the first defendant is amended to “The Minister for Immigration and Border Protection”.

2.The plaintiff to file and serve a summons for leave to amend his statement of claim together with a proposed amended statement of claim on or before –

and today is the 16th so we are looking at 30 October.

MR ROBINSON:   Yes, your Honour.

HIS HONOUR:  

3.The summons to be returnable on –

Now, I am thinking in terms of – what about 4 November?

MR ROBINSON:   That is suitable.

HIS HONOUR:   Is that suitable to you, Mr Donaghue?

MR DONAGHUE:   Not for either me or my junior, I am afraid.

HIS HONOUR:   Later that week?

MR DONAGHUE:   Yes, your Honour, later that week is fine.  I think any of 6, 7 or 8 November, your Honour, would be fine with us.

HIS HONOUR:   I will make it at the moment – just bear with me a moment.  Yes, it will have to be 7 November at 9.00 am.  Now, Mr Robinson, if you want to file any further written submissions they should be filed with your summons.

MR ROBINSON:   Yes, your Honour.

HIS HONOUR:   Mr Donaghue, any response I would think within ‑ ‑ ‑

MR ROBINSON:   Perhaps by 5 November.

HIS HONOUR:   By the 5th, is that all right, Mr Donaghue?

MR DONAGHUE:   The 5th is a public holiday in Melbourne, your Honour.

HIS HONOUR:   Perhaps the 6th.

MR DONAGHUE:   Thank you.

HIS HONOUR:   All right, so the plaintiff to file and serve written submissions with the summons for leave to amend.  The defendant –

MR ROBINSON:   Your Honour, the 6th is the day before – could it be midday or ‑ ‑ ‑

MR DONAGHUE:   Yes, midday on the 6th is fine.

MR ROBINSON:   Midday would be preferable.

HIS HONOUR:   The defendants to file and serve their written submissions in reply by midday, 6 November.

MR ROBINSON:   If the Court pleases.

MR DONAGHUE:   Thank you, your Honour.

HIS HONOUR:   Costs today reserved.  Court will now adjourn.

AT 9.52 AM THE MATTER WAS ADJOURNED