Plaintiff S193/2018 v The Judges of the Federal Court of Australia & Anor

[2019] HCATrans 23

[2019] HCATrans 023

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S193 of 2018

B e t w e e n -

PLAINTIFF S193/2018

Plaintiff

and

THE JUDGES OF THE FEDERAL COURT OF AUSTRALIA

First Defendant

MINISTER FOR HOME AFFAIRS

Second Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO SYDNEY

ON TUESDAY, 26 FEBRUARY 2019, AT 9.29 AM

Copyright in the High Court of Australia

MR V.A. KLINE:   If your Honour please, I appear for the plaintiff.  (instructed by William Deane Chambers)

MR C.L. LENEHAN:   I appear for the Minister, your Honour.  (instructed by Australian Government Solicitor)

HER HONOUR:   What is the position?

MR LENEHAN:   Has your Honour seen the email that was sent to the Registry yesterday at 5.35 and copied to Mr Kline?

HER HONOUR:   I have.  It did not really progress things very much.

MR LENEHAN:   No.  What it does tell your Honour is that there is now a process whereby the exercise of the power under 501A(2) is to be considered and a timeframe at least for the submissions in response to the notice inviting Mr Kline’s client to put on submissions in respect of that notice – there is a timeframe for that to take place.

HER HONOUR:   What does that mean for us?

MR LENEHAN:   In my submission, your Honour, it is obvious that the factual substratum for the application is changing.  My submission would be that it is appropriate to adjourn this matter until there is a decision one way or the other on that possible exercise of power.  Obviously Mr Kline’s client is in detention.  There will be, in the background of that decision‑making process, an imperative for that to happen in a timely manner.  We accept all of that, but given as I said the changing facts, it would be, in my submission, appropriate to take that course.  It is unclear whether Mr Kline will need to amend his originating process.  It is somewhat open‑ended as your Honour may have seen.

HER HONOUR:   Could you just say that again, please?  I missed what you just said then; I could not quite hear you.

MR LENEHAN:   In addition to the submission that I have just made, it seemed to us that it may be that Mr Kline will need to amend his originating process.  That is not quite clear.  His claim in his summons is a little open‑ended and perhaps I will let Mr Kline speak to that, but that would be a further reason for adjourning the current application.

HER HONOUR:   All right, thank you.  Mr Kline, is that your view as well, that we should adjourn this for a period?

MR KLINE:   No, no, not at all, your Honour.  If I can take a couple of moments of your Honour’s time to explain what our position is.  I need to go back one step, if I may.  The parties originally ‑ ‑ ‑

HER HONOUR:   Sorry, you will have to speak really clearly because the connection is not fabulous.

MR KLINE:   Sorry, your Honour, it is the same this way as well, I am afraid.

HER HONOUR:   Is that right?  I will speak up as well.

MR KLINE:   Thank you, your Honour.  How is that, your Honour, is that a little better?

HER HONOUR:   I think we are doing better than we were before, let us put it that way.

MR KLINE:   Thank you very much.  The parties sought, by consent, for this Court to adjourn these proceedings sine die whilst the merits review application in the General Division of the AAT was taking place.

HER HONOUR:   I know that, yes.

MR KLINE:   Yes.  It was my understanding – and I may have – and I assumed it was the understanding of the second defendant, but it may never have been so I should not talk for the second defendant – it was my understanding that the purpose of that was so that if the plaintiff were able to be successful in the AAT that would bring the matter to an end and this Court would be saved the time and expense of hearing the summons, the plaintiff’s summons.  Obviously that is not the case because the Minister is – the second defendant is now seeking to exercise his power under section 501A of the Act, which my friend has explained to your Honour last week. 

HER HONOUR:   My problem, Mr Kline, is this.  At the moment, as I understand Mr Lenehan’s position, what you have just put to me may remain the position depending upon what happens under 501A(2) and I am not minded at the moment to let it out of my control so it may be that it is actually better to adjourn it for a period so I can ensure that the matter has been given appropriate attention.

MR KLINE:   I am hoping to give your Honour better reasons not to let it out of your control and they are these.  If this matter were to be adjourned again, pending the Minister’s decision, it is beyond doubt that the plaintiff would remain in detention for another 18 months.  My friend can talk about the Minister ‑ ‑ ‑

HER HONOUR:   I am sorry, I do not quite understand why 18 months.

MR KLINE:   Well, because first of all the Minister will take his time to make a decision.  He has taken four months to get to this point, but be that as it may ‑ ‑ ‑

HER HONOUR:   I know that, but, Mr Kline, just stop for a moment.

MR KLINE:   I am sorry, your Honour.

HER HONOUR:   I thought there was a period of 20 something days.

MR KLINE:   Yes, it was 28 days – the Minister – for us to put in our submissions.  The Minister has no timeframe or no time limit under the Act to make his decision thereafter, but be that as it ‑ ‑ ‑

HER HONOUR:   That was one of the reasons why I would quite like to keep it in the list.

MR KLINE:   Yes.  So if I may just expand on that.  The steps in that proceeding would be that the Minister would take whatever period of time he chose to take after the 28 days to make his decision.  The matter would then go on judicial review to the Federal Court, would go on appeal to the Full Federal Court and perhaps even someone would be seeking special leave to appeal to this Court.  That is 18 months, without a doubt.

HER HONOUR:   Mr Kline, I am an optimist by nature.  I have understood what Mr Lenehan proposes to do.  It seems to me that it is in everyone’s interest that it be adjourned for a period – and I mean a short period after the 28 days so that I – in a sense at least the time gaps are minimised.  What happens substantively is a different question.

MR KLINE:   Certainly, but if I may just put to your Honour the alternative way to proceed, in our submission, and that would be that the Full Court of this Court hear the application.  If we were successful in that plaint, and particularly if this Court were minded to provide an expedited timetable, then the matter would be finally determined and probably in a short space of – what, three or four months if this – it is very much in the plaintiff’s interest to proceed with these proceedings now.  We have done our best to prevent this Court having to utilise its resources and I think we have done everything we can and properly so, with respect.  Now, it is a matter that needs to be heard, in my respectful opinion, by the Full Court.

My friend has said that we may need to amend, and that may be so.  What we are seeking is a writ of prohibition - what we were originally seeking was a writ of prohibition to prevent the Minister utilising his power under section 501.  That would now be to seek him – to prevent him utilising his powers under 501A.  Now, it seems to me that ‑ ‑ ‑

HER HONOUR:   That is a radically different proceeding, though, and that is the problem.  What I am concerned about is at the moment I have a proceeding in front of me that substantively deals with one issue and – there are two problems as I see it.  I have a timing problem and I have a substantive problem.  I know your client is in detention and has been in detention for a long time but the question which arises is how best to handle it, both from your perspective and also from the second defendant’s perspective.

MR KLINE:   If I may say so, your Honour, with respect, I do not believe that it is a radically different claim.  So if the Court were able to say that the Minister was not entitled to utilise section 501, step one, then by definition he cannot utilise step four down the track, 501A.

HER HONOUR:   I understand your argument.

MR KLINE:   This Court is entitled to address that 501 argument even if the Minister were not doing what he is doing now on those authorities that say if significant matters are at stake the Court may decide issues, even issues that are possibly moot, although we are saying that they are not, if costs are at stake and there are significant issues involved. 

Now, there are significant issues involved here – two significant issues, I would submit.  One is that we are arguing that a Justice of this Court inadvertently remitted a matter to the wrong court, and that is something that the Full Court must determine, in my respectful submission, and we are arguing a very important procedural fairness matter. 

In my submission we would be able to defeat the Minister’s current position on the current pleadings or on a very minor amendment to those pleadings.  It would not require the Court to address different issues.  All the issues would remain the same.  We could then have the matter dealt with in a short space of time and if we were successful the plaintiff would be out of detention.  He has been in detention for four years now.  Another 18 months would be nothing short of cruel.  I know I cannot plead that as a matter of law but what I will plead is that it is unnecessary.

HER HONOUR:   Anything else, Mr Kline?

MR KLINE:   No, nothing further.  Thank you, your Honour.

HER HONOUR:   Mr Lenehan, do you have anything in reply?

MR LENEHAN:   Your Honour, one thing is clear.  This matter is not appropriate to be referred to a Full Court for the very reason that your Honour gave, that depending on how things develop it could be, as your Honour said, a radically different proceeding.  There is no basis for what Mr Kline says about a delay of 18 months.  The Minister will have in the background, as I have submitted before your Honour – in your Honour’s words “an optimist” – but with that imperative which will guide the time for that decision‑making process.

HER HONOUR:   Just so that I am clear on the way in which you put it in the email to the Court late yesterday evening – or your solicitors did – has the notice gone to the plaintiff?

MR LENEHAN:   Can I just check that matter, your Honour?

HER HONOUR:   Yes.

MR LENEHAN:   I do not know the answer to that question.  I think the answer is no, but it will go today.

HER HONOUR:   Right, and they will then have 28 days to provide the information set out in that notice or respond to the information set out in that notice.

MR LENEHAN:   Yes.

HER HONOUR:   When do you propose this matter would come back before me?

MR LENEHAN:   I think, picking up on what your Honour said, it should be a relatively short time after that.

HER HONOUR:   I do not think that answers my question.

MR LENEHAN:   Could we suggest two weeks after that, your Honour?

HER HONOUR:   So that is 9 April?

MR LENEHAN:   Yes.

HER HONOUR:   Is that about right?

MR LENEHAN:   I am just checking that, your Honour.  Yes, that is correct, your Honour.

HER HONOUR:   In the circumstances, Mr Kline, and having regard to the matters that I have raised with you during the course of argument, my preference for the moment is to adjourn it to 9 April at 9.30, subject of course to your availability and Mr Lenehan’s.

MR KLINE:   Yes, I am available that day, your Honour.

HER HONOUR:   In the meantime you may turn your mind to – I am not suggesting you have to; I am not suggesting it is the appropriate course – but you may turn your mind to what, if any, amendments you propose to make to the claim, depending upon what happens or transpires in that period.

MR KLINE:   Yes, thank you, your Honour.

HER HONOUR:   Mr Lenehan, the adjournment until two weeks after the 28 days, again, provided on the assumption that I will have a certain, clear answer about what the position is.

MR LENEHAN:   Yes, that was on my understanding as well.

HER HONOUR:   All right.  For those reasons I will adjourn this directions hearing until 9 April at 9.30 by video link – I suspect I will be in Melbourne that day rather than elsewhere, but the link will be from Sydney.  If the position happens to change then perhaps one or both of you can let me know.

MR LENEHAN:   Yes, your Honour.

MR KLINE:   Thank you, your Honour.  If the Court please.

HER HONOUR:   Adjourn the Court.

AT 9.43 AM THE MATTER WAS ADJOURNED