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

[2016] HCATrans 295

[2016] HCATrans 295

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 CANBERRA BY VIDEO LINK TO SYDNEY

ON WEDNESDAY, 7 DECEMBER 2016, AT 9.14 AM

Copyright in the High Court of Australia

MR T. MOLOMBY, SC:   If it please the Court, I appear with my learned friend, MR J. WILLIAMS, for the plaintiff.  (instructed by O’Brien Solicitors)

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

MR S.B. LLOYD, SC:   May it please the Court, I appear with my learned friend, MS H. YOUNAN, for the third defendant.  (instructed by Corrs Chambers Westgarth)

HER HONOUR:   Yes, Mr Molomby.

MR MOLOMBY:   Your Honour, there is one matter – I appreciate there is limited time, your Honour, but might I add one matter that your Honour would not be aware of and of which I became aware only yesterday, and that is that the plaintiff has been served with a deportation notice where he is.  I have asked for a copy of it and have not yet got that but I thought I should at the earliest opportunity advise the Court and the parties of that.  I am not in a position, of course, to predict what consequence, if any, it might have on the proceedings but plainly there could be some.  When I do receive a copy of the notice I will make it available to the other parties, your Honour.

HER HONOUR:   Thank you, Mr Molomby.  In the meantime, it seems that we have reached the position where on the part of the defendants it is accepted that there are at least aspects of the issues raised in paragraph 13 of your amended application that might be suitable for referral to a Full Court by way of special case.  The difficulty is that the amended application continues to suffer from the defects of which the first and second defendants have complained since earlier directions hearings and include issues of controversial facts that are referred to in paragraphs 14 and following described as particulars in the application. 

The proposal now is that I direct that the matter proceed by way of pleading.  In some respects, if the issue is the question of whether the arrangements between the Commonwealth and the Government of Papua New Guinea – to which reference is made in paragraph 13 – are beyond the power of the Commonwealth in light of the decision of the Supreme Court of Papua New Guinea in the Namah Case, in some respects, it is unfortunate if the matter cannot proceed along the path that I think was originally contemplated without the necessity for it to proceed by way of pleading.  But, to the extent that there are controversial questions of fact that are sought to be agitated, there seems little option to the proposal that is now common ground between the defenders.  What is the plaintiff’s position?

MR MOLOMBY:   Your Honour, we have been more optimistic of the hopes of a productive exchange which might have narrowed the issues, particularly in the context where much of what is said there is either beyond controversy or based on propositions which have already been accepted for the purposes of other cases and, therefore, almost certainly would be accepted for the purpose of this.  Which particular propositions are controversial have not yet been identified.

HER HONOUR:   Well, amongst them – if I could just point out – in, I think it is paragraph 13 h) of your pleading, there is reference to:

The decision by the Commonwealth defendants to continue to support the Regional Resettlement Arrangement –

and, as I would apprehend it, perhaps an issue concerning the present arrangements and how one characterises them.

MR MOLOMBY:   Your Honour, I concede that there well could be such an issue but no one has yet identified that there is.  That is all I was trying to say earlier.

HER HONOUR:   When you say that, Mr Molomby, I understood that the Commonwealth parties had, by reference to the submissions – it is paragraph 10 of the submissions filed on 10 November 2016, to which paragraph reference is made in the Commonwealth parties’ submissions filed on 10 December 2016, in which they call in aid those earlier submissions as identifying problems that, as I read the submission, are said to remain outstanding.

That is just one matter but it is a matter also that might bear on the other question that the Commonwealth parties raise concerning the question of the relief claimed in, I think it is prayers 4 and 5 habeas corpus or alternatively a mandatory injunction.

MR MOLOMBY:   Your Honour, we do not dispute there are likely to be some matters of controversy but fairly few.

HER HONOUR:   Mr Molomby, the difficulty as I see it is this.  On the last occasion when the matter was before me I had in mind that what would happen was that the plaintiff would take on board some of the criticisms that had been made in relation to the amended application and prepare a further amended application addressing those matters and have some discussions perhaps then about what might be agreed in terms of facts necessary for referral by way of special case, but nothing of that sort appears to have happened and one is left with a pleading that suffers from the defects that are the subject of the submissions by not only the Commonwealth parties but now Broadspectrum.

MR MOLOMBY:   Your Honour, we did endeavour to deal with what we understood were the criticisms in the revised document.  I had taken, and perhaps mistakenly, the burden to be that there was material in the particulars which did not obviously relate to the ground ‑ ‑ ‑

HER HONOUR:   Yes.

MR MOLOMBY:   ‑ ‑ ‑ and indeed, in the consequence of that, a considerable amount of material was eliminated from the document and there was some degree of internal reordering in it.  That is the document that ‑ ‑ ‑

HER HONOUR:   Has a document been filed that I am unaware of?  I am looking at the document filed on 15 November 2016.

MR MOLOMBY:   That is not the revised document, your Honour.  I am sorry, the document your Honour is looking at, I think is the document that was filed merely for the purpose of joining Broadspectrum which did nothing other than add Broadspectrum as a party.

HER HONOUR:   But, but ‑ ‑ ‑

MR MOLOMBY:   There was then subsequently a document supplied to the defendants ‑ ‑ ‑

HER HONOUR:   I see.

MR MOLOMBY:    ‑ ‑ ‑ not filed in court ‑ ‑ ‑

HER HONOUR:   I see.

MR MOLOMBY:   ‑ ‑ ‑ for the purpose of discussion between the parties and it is, in fact I should say, to be particular about it, your Honour, that document was provided in essence in two forms; at the end of the week on which we were in Court, that would be on Friday, 18 November.  It was provided perhaps pre‑emptively in the form of a special case.  When it was pointed out to us, I think early the next week, that what had been envisaged was a revised application ‑ ‑ ‑

HER HONOUR:   Yes.

MR MOLOMBY:   ‑ ‑ ‑ it was provided, although the core part of it was identical, in the form of a further amended application.  Now, therefore, the two documents provided were provided but in essence the operative part was the same and it is that document to which I was referring when I said that material had been eliminated and obviously your Honour has the disability of not having that document and if it is a document your Honour should have had, well, I apologise for that.

HER HONOUR:   Mr Molomby, plainly I can say nothing about the document to which you refer because I have not seen it but what is evident, it would seem, is that we are some way off any prospect of agreement on a special case.  What is suggested is that, in light of what I take to be the continued likely matters in controversy arising from the proposed form of pleading, that the way to progress the matter is for me to direct that it proceeds by way of pleading.  What do you say to that?

MR MOLOMBY:   Your Honour, I do not suggest for a moment that proceeding by way of pleading is not one way in which the difficulties could be resolved.  I am optimistic enough to hope that, by some more productive process of exchange between the parties, we might get there rather sooner than that would result in – that is all.  If it was to proceed by way of pleadings, I would seek a timetable perhaps somewhat earlier than that proposed.  But, in the end, we had hoped that agreement could be reached on most things fairly quickly and if there were surviving things they could perhaps be referred as part of a special case.

HER HONOUR:   As I understand it, Mr Molomby, the submissions filed on the defendants’ behalf on 5 December were after the defendants had been furnished with these documents, the proposed further amended application and the draft of the proposed special case and it seems ‑ ‑ ‑

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

HER HONOUR:   It seems clear you are still far apart.  What do you propose, Mr Molomby? 

MR MOLOMBY:   Your Honour, we had sought the following orders:  that the matter proceed by way of a special case under rule 27.08.

HER HONOUR:   Mr Molomby, I understand that but all I have before me is the pleading filed on 15 November 2016 and the lively criticisms that are made of that document.  I understand that the plaintiff wishes the matter to be the subject of a special case.  I reiterate that it seems to me – and has from the outset seemed to me – that there is an issue of law which everyone accepts might be suitable for that disposition. 

The difficulty is the proceeding has been complicated by a form of application that has attached to it numerous particulars the function of which is entirely unclear and which are contrary to the rules in any event.  To merely say to me that the plaintiff proposes proceeding by way of special case against a background where the matter simply has not been usefully progressed between the last directions hearing and now does not seem to me to resolve matters.

MR MOLOMBY:   If it please your Honour, I had perhaps paused too long after I said that about the special case.  We were seeking also on the basis of that an order that within two weeks the parties are to file an agreed special case or, if agreement is unable to be reached, file respective draft special cases and that in that event, the parties failing to agree to some extent, a Justice should state a case for consideration by the Full Court.

HER HONOUR:   I suppose a difficulty I have in dealing with that is the only pleading that I have is the 16 November form of application to which the defendants are united in asserting is unsatisfactory by reference to the particulars from paragraph 14 on.  Mr Molomby, I will hear from Mr Kennett and Mr Lloyd, but perhaps just shortly. 

Mr Kennett, I understand from Mr Molomby that some document, including a draft of an amended application has been provided to the parties.  What do you say to the proposition that Mr Molomby moots that the matter is stood over for a period to enable further discussions to take place with a view to settling on a special case?

MR KENNETT:   Well, your Honour, we remain of the view that there is an issue or set of issues of law raised by paragraph 13, leaving aside subparagraph h) which is complicated, which on the face of it would be capable of being referred by way of a special case.  It seems to us at first blush at least that that might be able to proceed on a fairly limited set of facts and those facts would largely be easy to agree.  Once we worked out what the relevant factual points were there would be probably no controversy about the facts. 

There is a problem in, I suppose, understanding what the factual substratum is because of the form of particulars with which we have been presented.  Could I also say that how one proceeded from the answers to the questions we envisaged to the issue of the availability of habeas seems to us a very complicated question and one which may well involve some factual controversy.

Now, that has been our understanding of the case for a while.  We are, however, constrained, I think, by the notion that a special case is necessarily a consensual exercise.  If we did not have agreement on what

the relevant facts were – on what was relevant and what the facts were, then we would not be able to have a special case and for your Honour to state a case you would need a factual substratum ‑ ‑ ‑

HER HONOUR:   The same issue arises.

MR KENNETT:    ‑ ‑ ‑ which would have to be agreed or found on evidence, which does not seem very appealing.  So, with our friends from Broadspectrum having indicated what we understand to be a fairly firm view that they need pleadings in order to understand the issues properly ‑ ‑ ‑

HER HONOUR:   But I think Broadspectrum is at one with the Commonwealth defendants in acknowledging that there is in paragraph 13 a legal issue respecting the power of the Commonwealth to enter into the arrangements in light of the Namah decision.  I will take the matter up with Mr Lloyd, but on the face of it one would think that there would not be a lot of difficulty in agreeing facts respecting the arrangements that existed – that have existed up until the delivery of that decision, one might think it would be possible to agree on the present arrangements, whatever they may be, and all of that might be within short compass.

MR KENNETT:   Your Honour, we think that could be explored and we cannot give a guarantee that it would succeed and I should leave it to Mr Lloyd to tell your Honour his client’s position.  Where we are currently, as we understand it, is that one of the parties at the table feels the need for pleadings and, in those circumstances, we do not see that negotiations are likely to lead very far.  That is the gist of it, your Honour.

HER HONOUR:   I understand.  I will hear from Mr Lloyd.

MR LLOYD:   Thank you, your Honour.  We do not dispute, as your Honour has understood from our submissions, that there are some matters upon which we would expect facts could be agreed.  Whether or not they are matters that would go as far as getting to the habeas corpus and the mandatory injunction, I am not sure about that.  But the reason why we thought pleadings might be more efficient is because I think we, and I do not speak for them but perhaps the Commonwealth have some issues with the way aspects of the current particulars of the application are drafted, I had in mind that if they put with whatever changes they are instructed to take in a statement of claim and both the Commonwealth and the third defendants pleaded as fully as they can what they are prepared to admit, that would then provide a written basis of the facts that maybe could be taken either into a special case or could be a – or upon which a plaintiff’s demurrer could be done. 

HER HONOUR:   Yes, I understand that.  It just seemed to me that, since one apprehends there is a clear legal question that is at the heart of this, it might be that we could get to it by agreement without a direction that the matter proceed by way of pleadings, which will necessarily blow out the timetable.  The question really is:  is it productive to stand this matter over for two weeks to give the parties a further opportunity with, on the plaintiff’s part, an amended application to be filed, limited to the relief claimed in grounds up to paragraph 13.  Then hopefully the parties might settle on what one would think would be some uncontroversial facts relating to the arrangements that existed up to the time of the decision in Namah and the present arrangements?  But, really, what I am seeking to get, Mr Lloyd, is how realistic that is, otherwise it simply blows the timetable out further.

MR LLOYD:   The difficulty we have – and I would not want, on behalf of my client, to stand in the way if, for example, the Commonwealth undertook to prepare what it thought might be a draft special case as to the facts because we do not know all of the matters.  So for some things we would need to see what they were going to say and we would probably fall in line, I would expect, with what they are prepared to admit.

So if we saw what they were proposing to say, I could see how in relation to the plaintiff’s claim to the extent that it relates to the validity of certain so‑called decisions or arrangements or agreements, it could be packaged as a special case.

HER HONOUR:   Yes.

MR LLOYD:   Beyond that, if the applicants say they want to go further than that kind of declaratory relief or certiorari in relation to those matters and they want injunctive relief or habeas corpus, I suspect at that point that the facts required are much more complicated ‑ ‑ ‑

HER HONOUR:   Yes.

MR LLOYD:    ‑ ‑ ‑ and at that point it may be that my client has differences with the Commonwealth – I do not know; they may or may not – until they are fully done.  So I would think there would be some scope to do a special case that addresses some of the relief that the plaintiffs want.  My concern is if they are going to find that inadequate and not want to proceed unless they have orders which get their client into Australia then I am not sure how well that would go.  That is my area of concern.

So I thought one possible way of proceeding, if we did go for pleadings, if the Commonwealth pleads as fulsome defence as it can plead on the matters raised, if the plaintiffs put what they characterise as particulars into a statement of claim, then the Commonwealth and

Broadspectrum would then put in defences and if their defences are as complete as possible, then the plaintiffs could, if they thought that what was admitted was enough to get them the relief they were after, they could just demur to the defence or defences.  That might be a way to proceed if they want to go along to get all of their relief.  I am not sure how fulsome the Commonwealth’s defences will be, but it would be a way to go.

If the plaintiffs are prepared to say they cannot press for the habeas corpus but just for the declaratory relief as to the validity of the various steps along the way, I acknowledge that one would hope that the facts on that are shorter and less controversial and maybe could be done and in that respect we would work to whatever timetable the Court wanted and follow after the Commonwealth has prepared a draft as to matters that are within my client’s knowledge.

HER HONOUR:   Thank you, Mr Lloyd.

MR LLOYD:   Please the Court.

HER HONOUR:   Mr Molomby, one possible solution is if the plaintiff is content with declaratory relief in relation to the central question raised in paragraph 13, at least at this stage, then there does seem to be the prospect that the matter might proceed by agreement on a special case, but one can see the difficulty if what is sought is the relief in prayers 4 and 5 because that will raise a raft of factual questions as well about which it may be there is more controversy.

MR MOLOMBY:   I do see that, your Honour, although as far as my instructions go, I do not actually know what real controversy there is on that later stage.  No doubt your Honour is referring to the conditions of the plaintiff’s presence there subsequent to the decision in Namah.

HER HONOUR:   Yes.

MR MOLOMBY:   Yes.  I do not know in the end there is going to be any real controversy about the facts.  There might be some scope for argument as to what the facts in law amount to, but that is a quite different thing, of course.  Until this is flushed out, your Honour, by some more productive exchange between the parties as to where they do stand on these factual issues, it is unfortunately frustratingly difficult to say really what the scope of controversy is, although plainly it is quite different in relation to prior to the Namah decision.

HER HONOUR:   Mr Molomby, I appreciate that on the plaintiff’s behalf the desire for this matter to be progressed as expeditiously as possible, on what you have just put to me I am left without a great deal of confidence

that standing the matter over for two weeks in the trust that there will be agreement between the parties is going to be any more productive than the time that has been allowed thus far, so that it may be that the most efficient course is that proposed by the third defendant, namely that I direct the matter to proceed on pleadings and we see where that takes us.

It might be that ultimately the matter could be dealt with by way of demurrer or an agreement on a special case in light of the pleadings.  Is there anything you want to put?

MR MOLOMBY:   Only, your Honour, that if there is a prospect of the Court standing the matter over for two weeks, that is that the Court would be able to do that, I would seek that course and at that time it will be much more obvious, I would have thought, whether there can be agreement between the parties particularly in what could be the more vexed area.  That might then avoid the need to go to pleadings and the complications involved.  If it did not, of course the decision would be made then in two weeks’ time.

HER HONOUR:   Mr Kennett, the matter has had an unhappy history but I am minded to accede to that application and stand the matter over to see if there can be agreement.  Do you wish to be heard on that?

MR KENNETT:   No, your Honour.

HER HONOUR:   Mr Lloyd?

MR LLOYD:   No, your Honour.

HER HONOUR:   Very well.  Two weeks would take us to 20 December.  I will be in Melbourne on that occasion.  I do not know if there is any practical difficulty.  If you would just bear with me for a moment.  Does 9.30 am on Wednesday, 20 December, suit?  I am sorry?

MR KENNETT:   I am sorry, your Honour.

HER HONOUR:   I am being told it is – wait a minute.  I am sorry, gentlemen, I am looking a little ahead.  I was looking at a 2017 calendar – 9.30 am on Wednesday, 21 December.  Does that suit you, Mr Molomby?

MR MOLOMBY:   It does, your Honour.

HER HONOUR:   Mr Kennett?

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

HER HONOUR:   And, Mr Lloyd?

MR LLOYD:   I think Ms Younan will appear that day, your Honour.

HER HONOUR:   I am sorry, Mr Lloyd, I did not actually ‑ ‑ ‑

MR LLOYD:   I am sorry.  I said, I think Ms Younan will be appearing then.

HER HONOUR:   I see.  Yes, very well, thank you.  Very well, I will stand the matter over for directions to 9.30 am on Wednesday, 21 December 2016 by video link to the Court in Melbourne.  The Court will now adjourn.

AT 9.50 AM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 21 DECEMBER 2016