Plaintiff S180-2010; Plaintiff S217-2010; Plaintiff S254-2010 v Commonwealth of Australia

[2010] HCATrans 343

[2010] HCATrans 343

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S180 of 2010

B e t w e e n -

PLAINTIFF S180/2010

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

First Defendant

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Defendant

JOHN GODFREY

Third Defendant

JUNE LEE

Fourth Defendant

Office of the Registry
  Sydney  No S217 of 2010

B e t w e e n -

PLAINTIFF S217/2010

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

First Defendant

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Defendant

JANET DUCKMANTON

Third Defendant

PAUL GATTO

Fourth Defendant

Office of the Registry
  Sydney  No S254 of 2010

B e t w e e n -

PLAINTIFF S254/2010

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

First Defendant

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Defendant

JANET DUCKMANTON

Third Defendant

PAUL GATTO

Fourth Defendant

Applications for an order to show cause

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY 

ON TUESDAY, 14 DECEMBER 2010, AT 9.29 AM

Copyright in the High Court of Australia

__________________

MR J.F. GORMLY:   I appear for the plaintiffs, your Honour.  (instructed by the plaintiffs)

MR S.P. DONAGHUE:   I appear for each defendant, your Honour.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Mr Gormly, is it convenient to deal with matters 1, 2 and 3 at the same time?

MR GORMLY:   Yes, it is, your Honour.

HIS HONOUR:   Now, Mr Gormly, you have said that the parties had reached some agreement.

MR GORMLY:   They have, your Honour.  Terms of consent orders have been agreed, except that the plaintiffs in each of the matters do not contend that section 91X applies to them, and do not seek to have their names suppressed and would prefer that the proceedings be known in their own name rather than the pseudonym given them by the Court.

HIS HONOUR:   Yes, well that may be their preference, but do you apply to change the title of the proceeding, or what is your position exactly?

MR GORMLY:   We would seek a direction that the proceedings be known in the names of the plaintiffs, as they were commenced.

HIS HONOUR:   Yes.  On what basis would that be?  So you say that 91X is not engaged.  Let it be assumed for the purpose of argument that that is right – and I will have to hear what Dr Donaghue has to say about that – assuming that the proceedings in each matter raised issues of the same kind as were agitated in the offshore processing case ‑ ‑ ‑

MR GORMLY:   They did, your Honour, yes.

HIS HONOUR:   It would be, would it not, that each applicant contended that the Minister had embarked upon consideration of the exercise of power, either under 46A of the Migration Act or under 195A of the Migration Act, perhaps both.  It is then to be observed that under those sections, if that power, the power given by the section is exercised by the Minister, the Minister must do certain things including table a statement in each House of the Parliament.  I notice that the statement that must be tabled must not include the name or any information that may identify the person concerned.  What, if any, significance attaches to that fact in determining what should be the fashion in which the proceedings are styled in this Court?

MR GORMLY:   Well, in each of the plaintiffs’ cases section 46A(2) applies.  There has been no written notice that section 46A applies to the plaintiffs.  It is just not – section 46A(5) is not engaged in the cases of the plaintiffs.

HIS HONOUR:   Yes.  Perhaps if I hear what Dr Donaghue has to say.  Yes, Dr Donaghue.

MR DONAGHUE:   Thank you, your Honour.  The Commonwealth’s position is that it accepts that section 91X does not, in its terms, apply to the offshore cases on the basis that until the bar set by section 46A(2) is lifted, the person is not, or does not have a capacity as a person who has applied for a protection visa.  They are a prospective or hopeful future applicant for a protection visa, but they have not yet acquired that status.

That said, your Honour, we submit that, depending on the precise nature of the application that has been made, it would seem probable that your Honour has a discretion as to whether or not to substitute for the existing name of the proceedings some different name and we would submit that the appropriate course is not to take that step. 

Essentially, your Honour, we take that position because it necessarily follows from the nature of the plaintiff’s application that the plaintiff hopes to be a person in the future who will apply for a protection visa.  If the outcome of any reassessment that occurs, following this Court’s decision in M61, is not favourable to the plaintiff then there remains a risk that the plaintiff would be returned and any publication of their name may create a danger to them. 

Furthermore, there would, in any future application for a protection visa, be an issue that the decision‑maker at that point would have to grapple with in relation to the operation of section 91R of the Act, subsection (3) of that section, in respect of any risk that might be created by publication now, in Australia, of the fact that the plaintiff had sought protection here.

Now, how the merits decision‑maker would deal with the possible application of that subsection is, of course, a matter for them, but it is a complication that may operate to the disadvantage of the plaintiff if they have suffered some risk or if they contend in the future that they have suffered a risk by reason of the publication of their claim for refugee status, but the decision‑maker then determines that they cannot take account of that risk.  That complication would be avoided if the name of the proceeding remains as it presently is and we submit there is no reason to change it in circumstances where the parties are otherwise content that orders should be made finally disposing of the proceedings.

HIS HONOUR:   The proceeding in each case was commenced in the name of the applicant - that is say the application to show cause - for an order to show cause and the supporting affidavit I think in each case named the plaintiff by his or her proper name.  It was, I assume, through administrative act within the Registry of the Court that the plaintiff in subsequent proceedings has come to be known by the pseudonym.  I am not conscious, at least, of any order of the Court in any of the cases requiring or directing the adoption of a pseudonym.  Now, if a plaintiff files process giving his or her proper name, and if there is an administrative step taken which, as I understand it, you say is a step not supported by 91X, where does that leave me?

MR DONAGHUE:   Your Honour, we accept the force of all of that, and it is not clear to us either how precisely the proceedings go from being commenced with a certain document to having that designation – file number designation given to them.  They have all been administratively listed in that way and the documents are all headed in that way and this proceeding is no different than M61 or M69 or all or any of the others.

HIS HONOUR:   Yes.

MR DONAGHUE:   But I accept, your Honour, that – and that is why I prefaced my observations by saying it is not clear to us exactly what application is being made.  If there is nothing to change, because the name of the proceeding still is the name of the plaintiff, then that, I accept, leaves your Honour in a position where, unless you affirmatively suppress publication of the name ‑ ‑ ‑

HIS HONOUR:   Yes, but it would be as well that the point is put beyond doubt.  It would be unfortunate if the parties left the Court not quite sure whether it was right or not right to refer to the proceedings in a particular fashion.

MR DONAGHUE:   I accept that, your Honour.

HIS HONOUR:   Can I ask whether you, from your side of the record, point to any difficulty, disadvantage or detriment that your side of the record would rely on as tending against saying to the plaintiff, “Well, you started it in that fashion.  You say you want to go on in that fashion.  If that brings problems for you, those are matters for your choice, no one else”.

MR DONAGHUE:   Yes.  Well, your Honour, I think the answer to that question is no.  It is only the fact that in the future it might turn out to be the case that the plaintiff points to a risk arising from having brought this proceeding and a decision‑maker may say the Act precludes us from having regard to that.

HIS HONOUR:   That is 91R(3), and there you are.

MR DONAGHUE:   We would not want them to walk into that without being conscious of that possible consequence of the course of action they are now taking.

HIS HONOUR:   Yes.

MR DONAGHUE:   But other than that nothing.

HIS HONOUR:   Yes, thank you, Dr Donaghue.  Now, Mr Gormly, you have heard the discussion that we have had.  Dr Donaghue says there may be some traps.  He does not say there are some traps.  He says there may be some traps into which your side of the record is walking.  Those are matters for your choice, not, I suspect, mine.

MR GORMLY:   Yes, that is the plaintiffs’ position.  There is sufficient protection against sur place claims under 91R(3).  That is not – if my friend is suggesting that that is the purpose of the application.  The plaintiffs have been detained for a long time now and they just feel quite uncomfortable about being given a pseudonym for no reason that they can see.

HIS HONOUR:   Yes.

MR GORMLY:   So it is a sense of security for them and they feel that they are – the submission is that they are entitled in the absence of any reason, and I have not heard one from my friend.

HIS HONOUR:   No.

MR GORMLY:   Good reason.

HIS HONOUR:   Is each of the plaintiffs a male person, Mr Gormly?

MR GORMLY:   Yes, your Honour.

HIS HONOUR:   Yes, and the agreed orders are that there should be a declaration in the terms agreed and I think – is there any other order to be made.

MR DONAGHUE:   Your Honour, I can hand up the document if that would assist.  It is the same as the documents that have been ‑ ‑ ‑

HIS HONOUR:   That is no order as to costs, I think, is it not?

MR DONAGHUE:   It is.  Well, it is the plaintiffs – the first and second defendant pay the plaintiffs’ costs.

HIS HONOUR:   Pay costs, yes.  So declaration in the terms agreed and orders in the terms agreed.  Yes, thank you.  Well, subject to anything that counsel may say as to the form of the order, I am minded to order that in each case the name of the plaintiff in the title of the proceedings should be in the form stated by that plaintiff in his originating process, but otherwise there should be a declaration in the terms agreed by the parties and in the form of the consent which appears on the file and otherwise there should be orders in the terms agreed as will appear in the minute that appears on the file.  Is there anything counsel would wish to say about those forms of order?

MR GORMLY:   No, your Honour.

HIS HONOUR:   Thank you, Mr Gormly.  Dr Donaghue.

MR DONAGHUE:   No, your Honour.

HIS HONOUR:   Thank you. 

AT 9.44 AM THE MATTERS WERE ADJOURNED