Plaintiff S195-2016 v Minister for Immigration and Border Protection (Cth) & Ors

[2016] HCATrans 315

[2016] HCATrans 315

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S195 of 2016

B e t w e e n -

PLAINTIFF S195/2016

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION (CTH)

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

BROADSPECTRUM (AUSTRALIA) PTY LTD

Third Defendant

BELL J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON WEDNESDAY, 21 DECEMBER 2016, AT 9.31 AM

Copyright in the High Court of Australia

MR T MOLOMBY, SC:   If it please the Court, I appear for the plaintiff in that matter.  (instructed by O’Brien Solicitors)

MR G.R. KENNETT, SC:   May it please the Court, I appear with MR P.D. HERZFELD, for the first and second defendants.  (instructed by Australian Government Solicitor)

MS H. YOUNAN:   May it please the Court, I appear for the third defendant.  (instructed by Corrs Chambers Westgarth)

HER HONOUR:   Yes, Mr Molomby.

MR MOLOMBY:   Yes, your Honour, might I inquire if documents sent yesterday by the parties to the Registry have got to your Honour?

HER HONOUR:   Yes, they have.

MR MOLOMBY:   Being two versions of the stated – of the special case.

HER HONOUR:   Yes, they have, Mr Molomby.  I see there has been some progress.  The difference between you and at least the Commonwealth parties would seem to be the proposal in the draft that you have prepared that the Court answer the question of what, if any, relief claimed in the amended application to show cause the plaintiff is entitled to and in order to determine that question you propose setting out a number of further facts in the special case based, as I would understand it, on Ms Moy’s affidavit of May 2016, is that the ‑ ‑ ‑

MR MOLOMBY:   That is very much so, your Honour, yes.

HER HONOUR:   Yes.

MR MOLOMBY:   Might I say – and I do not say this by way of any complaint, but we received the draft late on Monday so in the very limited time we put in perhaps out of hyper caution rather more material than we might have needed.  I subsequently have a draft – I have not finally checked it – which reduces the three pages that we have inserted.

HER HONOUR:   Yes.

MR MOLOMBY:   The last three pages we have inserted to about half the length.  So in terms of length it is perhaps not going to be in the final form in which we put it forward as long as it is there before your Honour, but the essential issue is, as your Honour has said, the addition of the question of relief and the material we have added essentially goes to that.

HER HONOUR:   Yes. 

MR MOLOMBY:   And it is founded upon – we have tried to identify the source.  I think it is mostly founded upon Ms Moy’s two affidavits.

HER HONOUR:   Yes.

MR MOLOMBY:   Both back in May, and to some degree I think it might be founded upon material from another case, M68. 

HER HONOUR:   Yes.  Has there been any discussion between the parties touching on the matter that has been previously raised, Mr Molomby, and it is this?  In the written submissions filed on behalf of the Commonwealth parties on earlier occasions, the question of the relief claimed by way of habeas corpus and/or a mandatory injunction was said to be controversial.  The factual matters asserted by Ms Moy in her affidavit in the proceedings filed on behalf of Plaintiff S99 were not conceded to any longer state the factual position.  That is as I understand the submissions that were made. 

MR MOLOMBY:   Yes, I understood so, too, your Honour.

HER HONOUR:   Yes.  I do not know whether there has been any discussion about that matter or whether it remains that the facts which you would seek to have added to the draft special case prepared by the Commonwealth parties controversial, in which case we are not going to get very far today.

MR MOLOMBY:   There has been no detailed discussion of that aspect, your Honour.  My general understanding is they probably still are controversial, at least to some extent.

HER HONOUR:   I see.

MR MOLOMBY:   Controversial in the sense that they require checking rather than that they are necessarily disputed.

HER HONOUR:   Yes, very well.  I might at this stage just inquire firstly of Ms Younan whether the third defendant has any difficulties with the draft special case prepared by the Commonwealth parties.

MS YOUNAN:   No, your Honour.  We are in broad agreement with the draft as prepared by the Commonwealth.  We have some concerns with the amendments proposed by the plaintiff. 

HER HONOUR:   All right.  Perhaps the most convenient course is for me to hear first from Mr Kennett on that score and then I will come back to you, Ms Younan.  Mr Kennett.

MR KENNETT:   Well, I think your Honour will have already worked out that our draft was intended to isolate the purported exercises of statutory or executive power that we refer to in questions 1 to 4, and include sufficient facts to raise their validity so that that can be determined.  Then question 5 is slightly broader but, as we understand it, might point the way to perhaps deciding other issues in the case.  Your Honour is aware that we have some problems with the claim for habeas corpus or a mandatory injunction, so the question of relief which our learned friends have included as a further question really has two steps to it – a relatively simple step and a much more complicated step.  The simple step would be what declarations or other relief flowed from the answers to questions 1 to 3.

HER HONOUR:   Yes.

MR KENNETT:   We thought that, although it promises to be relatively simple, it was best dealt with at the end of a case in the light of everything.  The difficult step in determining relief, of course, is is there an entitlement to habeas corpus or an injunction.

HER HONOUR:   Yes.

MR KENNETT:   As to that, we are not yet sure how the claim is framed and therefore what facts are necessary.  It seems to us there would at least need to be some facts about the degree of control that is exercised over the plaintiff and who exercises it, possibly more.  We apprehend that those matters will be complicated to ascertain and to agree and that is why we have not sought to include it in the document in the special case for determination at this stage.

HER HONOUR:   The ‑ ‑ ‑

MR KENNETT:   Now, we understand – I am sorry, your Honour.

HER HONOUR:   No, not at all, Mr Kennett.  It seemed to me that the additional material in the plaintiff’s draft is directed to establishing the conditions under which the plaintiff is presently residing, to use a neutral term, at the facility and the restrictions on his movement that are said to still be in place including a curfew.  Now, on the face of it, one would think that there should be no difficulty on agreeing on the facts as to the present conditions of the facility.  Is there some difficulty?

MR KENNETT:   Well, I suppose, your Honour – this is not a direct answer to your Honour’s question, but we have not really tried yet.  We can certainly obtain from our side of the record instructions as to circumstances on the ground in Manus.  Now, the plaintiff’s representatives may have other sources of information which may or may not agree with ours, we just do not know.

HER HONOUR:   Yes.

MR KENNETT:   I suppose a further problem with this is that we would not wish to place before the Full Court a special case which was not sufficient to decide the questions that have been asked and the plaintiff, if he is subject to detention, is detained in another country, purportedly under laws of that country, and there is an issue about how relief runs against the Australian authorities which may need some further factual material and it is not clear to us how our friends propose to argue that. 

So there is, I suppose, a good deal more work to be done and discussions to be had if our friends do wish to include that further question or something along those lines.  I cannot say it is fruitless at this point.  We are in your Honour’s hands as to what further steps ought be taken, but plainly it is not going to be done today or any time before the end of term.

HER HONOUR:   Yes.  The first matter that you raise, Mr Kennett, as to the possible difference between the instructions that the plaintiff may provide concerning the circumstances of his residence and the results of inquiries that the Commonwealth parties might make, just looking at the material in the draft document that was supplied to my chambers yesterday, it seemed to me – although I do not claim to have checked paragraph by paragraph, but that it did seem to be dependent upon the account given by Ms Moy in May of this year. 

In other words, I did not detect paragraphs based on assertions outside the statements that Ms Moy had made concerning the conditions, so that just inclines me to think it may be possible for the parties to reach agreement on what, if any, restrictions presently apply to the plaintiff’s residence at the facility.  I understand that there are then lively issues about the entitlement to the relief claimed in prayers 4 and 5 of the application, but were the plaintiff to succeed in the challenge that he makes to the authority of the Commonwealth to have entered into the arrangements and in relation to the taking decision under section 198AD, the question of what consequences flow from that will have to be dealt with at some time.  I am just not sure, Mr Kennett, and maybe I am missing something, about why it cannot be dealt with on the one occasion.

MR KENNETT:   It may be possible, your Honour, and would probably be desirable if it were.  We have understood from what has fallen from our friends on earlier occasions that the central issue in the case is the effect of the Namah decision of the Supreme Court of Papua New Guinea.  Now, if our questions 1 to 5 were answered negatively ‑ ‑ ‑

HER HONOUR:   Yes.

MR KENNETT:   ‑ ‑ ‑ then it seems to us at least that that issue is resolved and that ought be enough to dispose of the case.  A different answer would leave questions hanging that would have to be determined in some other way, but 1 to 5 would dispose of the case ‑ if answered in our favour would dispose of the case as we understand it.  It is, I accept, not completely satisfactory to have a special case that only deals with part of the issues in the matter but that seemed to us to be the most efficient way of proceeding at the moment, although we are obviously content to seek to explore what more can be done.

HER HONOUR:   Thank you, Mr Kennett.  Ms Younan, before I come back to you, perhaps I might raise something with Mr Molomby.  Mr Molomby, what do you say to the proposal that in a sense the most expeditious way to proceed would be to confine the special case to the questions proposed by the Commonwealth parties?  In the event those questions were answered favourably to the Commonwealth parties, I think it would be accepted that that would bring the matter to an end.  In the event that those questions were answered favourably to you, I think the Commonwealth accepts that consideration would have to be given to the consequences and it is a question of how this litigation is to be progressed in the most efficient way.  Now, what is your response to that?

MR MOLOMBY:   Your Honour, there is considerable attraction in terms of expedition in the course urged by the Commonwealth parties, I accept, and plainly if the plaintiff cannot get the answers the plaintiff wants to those questions, the case is over.

HER HONOUR:   Indeed.  If the plaintiff can get the answers that he seeks to those questions, there would be a series of further considerations that would have to be addressed raised by the relief that is claimed, but one can see some sense in the idea of proceeding to determine the issue that all along there has been central to this application and that is the effect of the Namah decision on the arrangements and the taking decision and the like. 

MR MOLOMBY:   Yes, your Honour, I do see the attraction of that course, and I say this without any complaint, but there has been limited time to consider the approach taken by the Commonwealth parties just in the last day.

HER HONOUR:   Yes.

MR MOLOMBY:   There would need to be some time to consider which course we took, recognising that there are arguments in favour of both, your Honour.

HER HONOUR:   What do you seek to have me do today?

MR MOLOMBY:   Might I, your Honour, if the course advocated by the Commonwealth parties were taken, your Honour, I imagine that today one could really embark on where the case goes in the future and how soon it might be heard.

HER HONOUR:   What I had in mind, if the parties were agreed on the special case in the form of the draft proposed by the Commonwealth parties, was that directions could be given firstly for the filing of the amended application to show cause ‑ ‑ ‑

MR MOLOMBY:   Yes.

HER HONOUR:   ‑ ‑ ‑ confined to the prayers for the relief and the grounds, I think, up to paragraph 13.  That order could be tidied up. 

MR MOLOMBY:   Yes, your Honour.

HER HONOUR:   There could be directions respecting the filing of the special case and submissions in accordance with ‑ broadly with the terms of Part 44 of the Rules and the matter referred to the Full Court. Now, as to when that would lead to a hearing date I cannot say but it would be the most efficient and prompt way that the matter might be brought before the Full Court for a hearing on the issue which is central to any ultimate claim for relief that the plaintiff might seek.

MR MOLOMBY:   Yes.  I am sorry, your Honour, I am just taking a moment to reflect, if I may.

HER HONOUR:   By all means, Mr Molomby.  Mr Molomby, I do not know how Ms Younan and Mr Kennett are situated but I have a further matter in the list.  This could be stood down if it would assist, if Mr Kennett and Ms Younan are agreeable to that, to enable some further short discussion between you and the parties.

MR MOLOMBY:   Yes, your Honour, might we take that course.

HER HONOUR:   Yes, by all means.  I will just stand the matter down and I will call it again after I have dealt with Mr Markus’ matter.

MR MOLOMBY:   Thank you, your Honour.

AT 9.53 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.20 AM:

MR MOLOMBY:   If it please the Court, we are all here again.

HER HONOUR:   Yes, Mr Molomby.

MR MOLOMBY:   Thank you for the adjournment, your Honour, it was very useful.  The plaintiff will accept the course proposed by the Commonwealth defendants – that is, to proceed on the special case that has been provided, subject to a number of refinements, I understand, which yet need to be made.

HER HONOUR:   Yes, but those are of a minor nature, would that be fair, Mr Molomby?

MR MOLOMBY:   As I understand it, your Honour, but I should leave Mr Kennett, I think, speak to that exactly.  There is one matter that I have raised seeking clarification and I think there are some other matters on which the Commonwealth parties wish to check.

HER HONOUR:   I see, yes.

MR MOLOMBY:   That is, the correctness of some facts ‑ ‑ ‑

HER HONOUR:   I understand.

MR MOLOMBY:   ‑ ‑ ‑ in the document.  Your Honour, perhaps I should – well, I am in your Honour’s hands as to whether Mr Kennett now addresses that position or might I just say this? 

HER HONOUR:   Yes.

MR MOLOMBY:   The plaintiff would be seeking a timetable now for the disposal of the matter.

HER HONOUR:   Yes, thank you, Mr Molomby.  May I just inquire, is Ms Younan content with the special case in the form prepared by the Commonwealth parties?

MS YOUNAN:   Yes, your Honour, we are content.  There are some matters of tinkering, including the matter mentioned by Mr Molomby earlier regarding the nature of the variation to the contract, that we were happy to provide that detail.

HER HONOUR:   Thank you, Ms Younan.  Yes, perhaps Mr Kennett.

MR KENNETT:   Yes.  Your Honour, my friend is right about the nature of the tinkering that needs to occur.  The time of year is awkward, of course.

HER HONOUR:   Yes.

MR KENNETT:   We would propose that an agreed document be filed by 10 February.  For our part, we are agnostic as to whether it is appropriate to fix a further timetable now or to come back for directions a couple of days after the document is filed.  We thought it might – one possibility was that your Honour might wish to exercise some quality control, as it were, having seen the final document, rather than commit to a course of action now, but we are in your Honour’s hands on that.

HER HONOUR:   I had understood the plaintiff was desirous of the matter being dealt with as expeditiously as possible and if the special case conforms in broad terms to the draft that the Commonwealth parties have presented – I appreciate there may be some need for some tinkering and confirmation of the factual accuracy of some of the material that is referred to in the document, but in essence I had not seen a difficulty in an order providing for the special case to be filed on or before a certain date and I would make the order now referring that special case into the Full Court, and it seemed to me, Mr Kennett, that we might today then set a timetable for submissions with a view to the matter coming before the Full Court at the earliest date.  I am very open to suggestion, Mr Kennett, if that is seen as a course that presents difficulty.

MR KENNETT:   I do not want to say anything against that, your Honour.

HER HONOUR:   Well, can I just confirm then with Mr Molomby, are you content with the date, 10 February, for the filing of the special case, taking into account the  ‑ ‑ ‑

MR MOLOMBY:   Yes, your Honour.

HER HONOUR:   Yes, very well.  All right.  Mr Molomby, just whilst we are working out orders, I think it is necessary for you to have leave to file the amended application to show cause.  Are you content with an order giving you that leave in relation to the amended application, comprising the prayers for relief and the grounds set out in paragraphs 1 to 13 of the document filed on 15 November 2016?

MR MOLOMBY:   Yes, your Honour.

HER HONOUR:   Yes, very well.  Well, now, in terms of the timetable for submissions, ordinarily the special case is filed by the plaintiff.  Have the parties agreed on some variation such that the Commonwealth parties might file the special case?

MR MOLOMBY:   Your Honour, that has not been discussed.

HER HONOUR:   That has not been discussed.

MR MOLOMBY:   Might I just have a brief word to Mr Kennett now?

HER HONOUR:   Yes.

MR MOLOMBY:   Your Honour, it is accepted – well, your Honour, it is accepted that that course should be taken by all parties – that is, that the case be filed by the Commonwealth parties.

HER HONOUR:   Yes, all right.  Now, what is proposed in terms of the timetable for submissions?

MR MOLOMBY:   Might we have a moment, your Honour?

HER HONOUR:   Yes, by all means.

MR MOLOMBY:   Your Honour, might the date for submissions for the plaintiff be 3 March?

HER HONOUR:   3 March for the plaintiff, yes.

MR MOLOMBY:   And I will have in a moment perhaps a view for the other parties.  I think Mr Kennett has a position, your Honour.

HER HONOUR:   Yes.

MR KENNETT:   Your Honour, because instructions are never as fast as one would want them to be from a Commonwealth agency, so we would wish to have three weeks, after our friends file their submissions, if that is suitable, which would make the 24 March.

HER HONOUR:   Yes, very well.

MR KENNETT:   And Ms Younan has indicated that her client would like to file their submissions a week after ours – two weeks after ours, I am sorry, which would make it 7 April.

HER HONOUR:   Yes, very well, and where does that bring us in terms of the reply?  I do not have a calendar in front of me.  Well, Friday, 14 April for the reply?

MR KENNETT:   That is Good Friday, according to my calendar.

HER HONOUR:   Thursday, 13 April.

MR KENNETT:   Yes, that is suitable, your Honour.

HER HONOUR:   Mr Molomby, does that timetable suit?

MR MOLOMBY:   Yes, your Honour.

HER HONOUR:   Very well.  Now, there remains the question of the need for an order under section 486A in relation to at least some of the relief that is claimed.  Is it necessary to deal with that matter before the special case comes on for hearing in the Full Court?  The special case will deal, amongst other things, with a question touching on the taking decision under section 198AD, and I think that is a migration decision.

MR KENNETT:   Your Honour, I think it does need to be dealt with before a special case is referred.

HER HONOUR:   Yes. 

MR KENNETT:   Otherwise the status of the special case might be somewhat complex.

HER HONOUR:   That is the matter that concerns me, Mr Kennett. 

MR KENNETT:   It might be appropriate for your Honour to make an order granting an extension to the extent necessary to allow the filing and determination of the special case, or something along those lines, under 486A(2).

HER HONOUR:   Yes, is there any reason why I would not make an order under 486A(2) extending the 35‑day period, to the extent that it is necessary to do so, to 5 August 2016, being the date on which the application was filed?

MR KENNETT:   I do not think there is any reason not to do that, your Honour.

HER HONOUR:   Yes, very well, and there is, I take it, no objection, Mr Kennett or Ms Younan, to the grant of leave to file the amended application for an order to show cause comprising the prayers for relief and the grounds set out in paragraphs 1 to 13 of the document filed on 15 November last?

MR KENNETT:   Not from the Commonwealth defendants, your Honour.

HER HONOUR:   Ms Younan?

MS YOUNAN:   Nor from the third defendant, your Honour, no objection.

HER HONOUR:   Thank you, Ms Younan.  There will be the following orders:

1.First, to the extent that it is necessary to do so, the 35‑day period under section 486A(1) of the Migration Act 1958 (Cth) is extended to 5 August 2016.

2.The plaintiff have leave to file an amended application for an order to show cause comprising the prayers for relief and the grounds set out in paragraphs 1 to 13 of the document filed on 15 November 2016.

3.By agreement, the Commonwealth parties are to file a special case pursuant to rule 27.08 of the High Court Rules 2004 on or before 4.00 pm on 10 February 2017, which special case is to be referred for consideration by a Full Court.

4.Subject to any further or other direction, Part 44 of the High Court Rules 2004 relating to written and oral submissions with any necessary variations or adaptions shall apply to the proceedings, and on or before 4.00 pm on 3 March 2017 the plaintiff is to file and serve written submissions of no more than 20 pages and a chronology annotated to refer to the pages of the special case book, together with a list of authorities.

5.On or before 4.00 pm on 24 March 2017 the first and second defendants are to file and serve written submissions of no more than 20 pages and a chronology annotated to refer to the pages of the special case book, together with a list of authorities.

6.On or before 4.00 pm on 7 April 2017, the third defendant is to file and serve written submissions of no more than 20 pages and a chronology annotated to refer to the pages of the special case book, together with a list of authorities.

7.On or before 4.00 pm on 13 April 2017, the plaintiff is to file and serve written submissions in reply of no more than five pages annotated to refer to the special case book.

Now, I realise I have not made an order in relation to the filing of the special case book.  Can the Commonwealth parties file 12 copies of the special case book, including an unbound unperforated copy, on or before 4.00 pm on 10 February 2017?

MR KENNETT:   That was what we envisaged, your Honour, yes.

HER HONOUR:   Yes.  I so direct.  Are there any further directions that are required?

MR KENNETT:   As to costs, your Honour, if they could perhaps just be reserved.  It may be implicit anyway, but perhaps there should be liberty to apply.

HER HONOUR:   Yes, very well.  I make the following further orders:

8.The parties have liberty to apply on three days’ notice and costs are reserved.

Very well, would you adjourn the Court.

AT 10.40 AM THE MATTER WAS ADJOURNED