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

[2013] HCATrans 265

[2013] HCATrans 265

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

THE MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

Directions hearing

FRENCH CJ

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO SYDNEY

ON THURSDAY, 7 NOVEMBER 2013, AT 8.59 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 for the defendants.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Robinson.

MR ROBINSON:   Your Honour, we move on the summons that was filed on 30 October this year.  Essentially, your Honour will recall that we are seeking to file a further amended statement of claim within the next couple of days or perhaps soon.  That draft document is attached to the summons itself.

HIS HONOUR:   I notice the amendments are not marked on the document.

MR ROBINSON:   Well, your Honour, I went back to square one.  I have restructured most of it and moved everything around and, as my learned friend has characterised it, made significant amendments to the document so in that ‑ ‑ ‑

HIS HONOUR:   So you did not feel you had to – this is not a substituted statement of claim you are offering.  This is a draft further amended statement of claim.

MR ROBINSON:   Correct, your Honour.

HIS HONOUR:   Ordinarily, Mr Robinson, I would expect the courtesy of a marked‑up copy so I am not left to guess what has changed and what has not.

MR ROBINSON:   Your Honour, most of it has changed.

HIS HONOUR:   Yes, all right.

MR ROBINSON:   We also seek limited discovery and some of it has already come to us so I can take your Honour through that on the summons if that is convenient.  We received submissions from the other side yesterday afternoon.  Can I say broadly these remarks – we are not able to meet the attempt of the defendants to engage the Court in a merits attack on grounds of judicial review and constitutional grounds that are not yet filed.  There simply is not time.  There has not been time in one afternoon to enable us to deal with that today. 

We can meet the challenge to the existing grounds such as legal unreasonableness, but again, there has been insufficient notice to give us the ability to do that and it is not really in the proper form.  It should be done by way of a proper strike‑out application.  If the defendants wish your Honour to strike out certain grounds of the existing pleading, that ought to be done in the proper fashion and not as a side wind while responding to a draft further amended claim.

Can I take your Honour to the summons itself?  As to discovery broadly, paragraph 2(a), we are content for the moment that the defendants believe they have complied with their obligation.  As to 2(b), they have not and there is a ministerial briefing note which is in the material discovered by the other side and which we have put on in, regrettably, a very large affidavit of Mr Adrian Phillip Joel that was sworn on 1 November and was filed in the Court on 4 November this year.

I would ask your Honour to accept for the moment – I am happy to take your Honour to it, it is in volume 1 of four volumes of the exhibit to that affidavit, but it is the ministerial briefing note that led to the designation decision, the subject of these proceedings.  The Department staff tell the Minister that there were consultations with the Australian Government, the Prime Minister and Cabinet, Attorney‑General’s Department and so on, as set out in (b) of that document.

We simply want those.  They have not been provided.  They are not included in the material that was given to us under 2(a) of the summons and they are expressly referred to in this document so we would like that.  Now, 2(c) your Honour is familiar with.  We still have not received the whole of our client files.  We received only a few pages from them – select pages ‑ ‑ ‑

HIS HONOUR:   What are they relevant to?  What issue are they relevant to?

MR ROBINSON:   Well, your Honour, my client is the plaintiff ‑ ‑ ‑

HIS HONOUR:   I know he is the plaintiff.  What issue are they relevant to?

MR ROBINSON:   They are relevant to the habeas corpus issue.  They are relevant to Australia’s ability to bring him back.

HIS HONOUR:   I am asking you to direct me to what issue on the face of the proposed amended statement of claim your client’s files are relevant to.

MR ROBINSON:   In the draft document, your Honour, you will see that in annexure A the relief claimed at paragraph 7 – we are seeking a “constitutional writ of prohibition or a mandatory injunction restraining the defendants . . . from taking any action as a result of the . . . decision” in paragraph 6 ‑ ‑ ‑

HIS HONOUR:   That decision, you say, is invalid.

MR ROBINSON:   Yes, your Honour.

HIS HONOUR:   For reasons which have nothing to do with the personal circumstances of your client.

MR ROBINSON:   We do not know that, your Honour.  There may be some reasons which ‑ ‑ ‑

HIS HONOUR:   The designation decision.  I am talking about the designation decision, that is the country designation decision.  That is what referred to.

MR ROBINSON:   Your Honour, there is a designation decision – the taking direction and the taking decision as we have termed it in the pleading.

HIS HONOUR:   But your challenge to the taking direction is based upon the invalidity, is it not, of the designation decision?

MR ROBINSON:   Not only, your Honour.  We say separately, it is a bad decision and that is pleaded ‑ ‑ ‑

HIS HONOUR:   Can you just take us to the particular aspect of the taking decision which bears upon any personal circumstances of your client?  I am looking at paragraph 23 in annexure ‑ ‑ ‑

MR ROBINSON:   Paragraph 23 is the paragraph; correct, your Honour.

HIS HONOUR:   Yes.

MR ROBINSON:   There is nothing there that is personal to our client, your Honour, except that it was made in relation to our client specifically.  We have challenged that decision and we seek discovery.  Now, your Honour, we do not know what is in the documents precisely.  I indicated to your Honour last time what we suspect is in the documents, namely, a psychiatric assessment.  He instructs us he was assessed by a doctor on Christmas Island before he was removed.

In my submission, ordinarily a litigant is not required to provide more.  It is a far cry from a fishing expedition, in my respectful submission.  It is simply a matter that would go ordinarily, I would submit, by way of discovery.  It is something that my client would be entitled to obtain within 21 days under FOI, for example.

HIS HONOUR:   Yes.

MR ROBINSON:   In terms of the summons at 2(d) – we were given that yesterday afternoon by the defendants and we are content with that.

HIS HONOUR:   I am sorry, just let me understand that.  This is 2(b) – are you talking about 2(b) or 2(d)?

MR ROBINSON:   No, I am sorry, your Honour, 2(d).

HIS HONOUR:   So you are okay on 2(d)?

MR ROBINSON:   We are okay on 2(d).  2(e) – we need these documents, that is, the documents before the officers before they made the decision to remove him.  We do not even have a copy of the decision under review, as it were, that is specifically challenged in these proceedings in paragraph 23 but we do not have the document that says “You, Mr S156, you are going to Nauru and you may not be coming back.  You are not coming back” at the time he was taken.  So these documents are basic, your Honour.  In my respectful submission, if your Honour permits us to file a statement of claim then we ask for the order to be made.

The last document derives from a newspaper report in The Australian.  It is in Mr Joel’s affidavit in volume 3 at page 1223 and that media release describes in great detail this briefing note on Manus Island, the conditions on Manus Island as at about 18 July this year and, in my submission, it is highly unlikely that the Commonwealth does not have a copy.  It is directly relevant to the habeas argument and to the injunction argument that we seek to agitate.  I should say while your Honour has that page open, the second page of the summons ‑ ‑ ‑

HIS HONOUR:   What page is it, again?

MR ROBINSON:   At the second page of the summons.  While your Honour has that open ‑ ‑ ‑

HIS HONOUR:   I am sorry, I just wanted to look at the document you are referring to.  You said that is in volume ‑ ‑ ‑

MR ROBINSON:   Volume 3, 1223, your Honour should see some tents, some rain, a small river going through the compound.

HIS HONOUR:   Yes.  So this is said to be relevant to the designation decision, is it?

MR ROBINSON:   No, your Honour.  It was made after the designation decision.  The newspaper articles, 23 August this year, the designation decision ‑ ‑ ‑

HIS HONOUR:   Yes, but what is it relevant to?  What issue is ‑ ‑ ‑

MR ROBINSON:   It is relevant to our request to have him brought home once whatever decisions are made are in fact made and when we come to relief, so we say it is relevant to the relief that we seek.

HIS HONOUR:   Yes.

MR ROBINSON:   In 2(b) of the discovery that we seek, I did not give your Honour the page reference.  It is in volume 1 of the Joel affidavit exhibit at page 34.

HIS HONOUR:   Yes.

MR ROBINSON:   Now, can I take your Honour briefly to one or two matters which derive partly from my learned friend’s submissions which have caused us to look at annexure B to the proposed new pleading and make one or two changes?  Can I take your Honour to where they are?

HIS HONOUR:   Yes.

MR ROBINSON:   It is embarrassing to do this, your Honour, but at page number 10 on the bottom right‑hand corner, which is paragraph 14(m) ‑ ‑ ‑

HIS HONOUR:   Yes.

MR ROBINSON:  ‑ ‑ ‑ Christmas Island, of course, is not the issue, it is Manus Island.

HIS HONOUR:   So you want to strike out Christmas Island and put ‑ ‑ ‑

MR ROBINSON:   Yes, your Honour.

HIS HONOUR:  ‑ ‑ ‑ Manus Island.  Yes.

MR ROBINSON:   At page 12, paragraph 19, after the word “Further”, these few words should go in:

Further to the matters listed in 18 above ‑

and in the particulars of 19, your Honour sees it says “(a) to (h) of paragraph 16”, that should be paragraph 18.

HIS HONOUR:   Right.

MR ROBINSON:   Your Honour, otherwise it looks like a stand‑alone assertion that a mere violation of Australia’s obligations under international law or customary international law is effectively a ground of judicial review in and of itself but it is really pleaded as part of 18, as a further matter at 18.  In terms of ‑ at paragraph 22, my learned friend has kindly picked this up, paragraph 22, the particulars there refer to paragraph 16 and they should refer to paragraphs 18 and 19.

HIS HONOUR:   Yes.

MR ROBINSON:   I apologise for that, your Honour.  Otherwise, we move on that document.  My friends have raised arguments about all of this, saying that it is hopeless and that raises a significant quandary.  Firstly, we have not had sufficient time to look at the 30 or 40 cases that they have raised in their submissions and formulated a proper response to your Honour, but the dilemma is this:  is it appropriate to respond to a proposed argument where your opponent says it is hopeless at the threshold, rather than simply file the document and if it truly is hopeless, which we do not accept, then to deal with a strike‑out application.  In my submission, it is appropriate to simply file the document.  If the Commonwealth wants to move a strike‑out motion, or a summons requesting a strike out, of course, then let them do that.

For example, they say that the implication argument is hopeless, yet I have three cases here.  I accept that they are all his Honour Justice Murphy, but they articulate the principles which underpin the constitutional implication or, in this case, constitutional limitation that we are trying to seek through the new pleading.  There is some support for it and, in my submission, it is simply incorrect to say it is without any foundation whatsoever.

HIS HONOUR:   You are seeking to file what amounts to, as I put it to you and I think you accept it, a substituted statement of claim.

MR ROBINSON:   Yes, your Honour.

HIS HONOUR:   I suppose they can resist it on the various bases upon which one would, in any event, seek a strike out.  I suppose what they could do is file a motion to strike out the existing statement of claim in whole or

in part and resist without a separate motion your summons to file this substituted statement of claim.

It seems to me that we have to face up to the issues which they have raised, and they have to be dealt with earlier rather than later.  I accept that you say you have not had time to respond to their submissions, which were filed I think yesterday, and much hangs off the statement of claim and what you are permitted to plead in terms of discovery and so forth.

MR ROBINSON:   I accept that, your Honour.

HIS HONOUR:   It seems to me that, subject to hearing from Mr Donaghue, an appropriate course might be for me to direct that you file your written submissions in reply within some specified time and Mr Donaghue can file a short reply to those, and I will deal with those submissions, as it were, on the papers, and then give a decision in relation to your proposed amendment, or your proposed substitution.  It seems to me we really have to deal with this pleading issue, because a number of the matters that are raised are matters of substance and I want to give you time to respond to them properly.

MR ROBINSON:   We are content with that, your Honour.

HIS HONOUR:   So how soon would you be in a position to file written submissions in response to those of the defendant?

MR ROBINSON:   Fourteen days would be appropriate, your Honour.

HIS HONOUR:   I will just speak to Mr Donaghue first before we go any further.  Mr Donaghue, you do not actually have a strike‑out summons on in relation to any existing pleading.

MR DONAGHUE:   Not in relation to the existing pleading, no.

HIS HONOUR:   Because we have assumed that we are going to proceed on an amendment basis, but some of the points that you are taking are really in the territory of no reasonable cause of action or frivolous or vexatious, are they not?

MR DONAGHUE:   They are.

HIS HONOUR:   So it would seem that their points which are in part directed to the existing pleading, and in part directed to resisting the proposed substituted pleading ‑ ‑ ‑

MR DONAGHUE:   That is so.  They are mainly directed to the proposed substituted pleading, but I accept because it was not clear whether this document was a completely new substituted document, or whether it was ‑ ‑ ‑

HIS HONOUR:   Well, I think we have got to treat it as a substituted statement of claim, in effect.

MR DONAGHUE:   A claim, yes.

HIS HONOUR:   That is how Mr Robinson is putting it.

MR DONAGHUE:   Yes.  We have taken the course that we have because we did not think that we needed to file a strike‑out summons in relation to a pleading where leave had not been granted, that we could resist leave on the basis that if the pleading was susceptible ‑ ‑ ‑

HIS HONOUR:   Well, you can certainly resist leave on the basis of your written submissions.  The question is if you succeed in that ‑ ‑ ‑

MR DONAGHUE:   What happens, yes.

HIS HONOUR:   ‑ ‑ ‑ we are back to square one.

MR DONAGHUE:   No, indeed, and it might perhaps be better in light of what your Honour said for us to – if your Honour would give us a couple of days, we could put on a summons to make sure that we were covering off on anything that overlapped with the existing statement of claim, or a strike out in relation to this substituted document.

HIS HONOUR:   Well, you cannot strike out a document for which leave has not been given to file.

MR DONAGHUE:   Yes.

HIS HONOUR:   But it seemed to me a number of the points that you have raised relate to issues in the existing pleading, so perhaps the best way to bring the whole thing to a head would be to deal with the question of the existing pleading and the question of the proposed substituted statement of claim.  Now, what you are seeking, I think, is that if your submissions were accepted in relation to the substituted statement of claim, which does not seek to resist the filing of the whole document but certain paragraphs, then a process would be instituted or initiated for a case stated to the Full Court on the validity questions.

MR DONAGHUE:   That is what we had in mind.

HIS HONOUR:   Yes.

MR DONAGHUE:   But on the footing that we think that that is only a viable course of action if the pleading ultimately goes forward in a much more focused state than the current document.

HIS HONOUR:   So perhaps the best course would be, in order to bring these things together, if you were to file any summons in relation to the existing pleading, supported by written submissions, within a very short time, and then Mr Robinson could respond both to that summons and to your submissions in relation to the substituted statement of claim.

MR DONAGHUE:   Yes.

HIS HONOUR:   It may be that he will say, well, it is all or nothing, it is a substituted statement of claim or nothing, he does not resist a summons, and that is one option for him, because really you are not seeking to say he cannot file a substituted statement of claim at all.

MR DONAGHUE:   No, indeed.

HIS HONOUR:   You are saying only in ‑ save for certain paragraphs.

MR DONAGHUE:   Exactly.  We had thought for that reason that it might be able to efficiently go forward on the basis that we proposed, but I accept what your Honour says, that formally we do have the existing statement of claim that we need to deal with and if Mr Robinson does not – well, if he does oppose our summons then I suppose we do need to deal with that.

HIS HONOUR:   I mean, I do not want to impose a procedure on you, I just want to find some neat way of ‑ ‑ ‑

MR DONAGHUE:   No, I understand what your Honour says, and I can see the force of that, so we are happy to do that.

HIS HONOUR:   All right.  So how soon could you file any further submissions?  I mean, you have already filed submissions I think.

MR DONAGHUE:   We have.  Could we have until Monday, your Honour?

HIS HONOUR:   So you would file any summons with respect to the existing statement of claim by ‑ ‑ ‑

MR DONAGHUE:   By Monday the 11th.

HIS HONOUR:   ‑ ‑ ‑ Monday, 11 November, together with submissions in support of the summons, and you stand by your existing submissions in relation to the proposed substituted statement of claim.  Then the plaintiff ‑ ‑ ‑

MR DONAGHUE:   Can I just say in that regard, your Honour, we will have to consider, we might seek to extend them slightly because one discipline on us in the approach we currently took is that in the main we thought if something was already there we could not properly oppose the grant of leave in respect of substituting the same paragraph.

HIS HONOUR:   Well, you will do all of that.

MR DONAGHUE:   Yes, we will do all of that on the 11th.

HIS HONOUR:   So file and serve any summons with respect to the existing statement of claim by Monday, 11 November, together with submissions in support of the summons and any amended submissions in respect of the proposed – I will go by its ‑ ‑ ‑

MR DONAGHUE:   Draft further amended statement of claim it is headed.

HIS HONOUR:   Draft further amended statement of claim.

MR DONAGHUE:   Thank you, your Honour.

HIS HONOUR:   The plaintiff to file and serve any submissions in reply on or before the – that will be 25 November.

MR ROBINSON:   Yes, your Honour.

HIS HONOUR:   Now, a question is are you content to have me deal with those things on the papers or should we bring it back for oral argument?

MR DONAGHUE:   We are content for your Honour to deal with that on the papers.

HIS HONOUR:   What about you, Mr Robinson?

MR ROBINSON:   We are content as well, your Honour.

HIS HONOUR:   All right.  So the plaintiff’s summons and any summons filed by the defendant to be determined on the papers.  All right, gentlemen – and costs today reserved.  Thank you.  I will adjourn now.

AT 9.25 AM THE MATTER WAS ADJOURNED