Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs

[2025] HCATrans 12

[2025] HCATrans 012

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S22 of 2025

B e t w e e n -

PLAINTIFF S22/2025

Plaintiff

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Defendant

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE BY VIDEO CONNECTION

ON TUESDAY, 25 FEBRUARY 2025, AT 12.01 PM

Copyright in the High Court of Australia

HIS HONOUR:   In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MR T.M. WOOD appears for the plaintiff.  (instructed by Human Rights Law Centre)

MR P.M. KNOWLES, SC appears with MR M.P.A. MAYNARD for the defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Wood.

MR WOOD:   Thank you, your Honour.

HIS HONOUR:   Mr Wood, I have the proposed consent minute from the parties.  I think the real question for me is what is the most efficient way to deal with the proceeding?  I understand the plaintiff is currently in immigration detention.  Is that right?

MR WOOD:   That is correct.  Yes, your Honour.

HIS HONOUR:   And how many others are in the same position in relation to removals to Nauru.

MR WOOD:   There are three plaintiffs or applicants, one in this Court and two in the Federal Court, who have each received notices under 76AAA of the Migration Act; all of whom are in detention and all of whom, as I understand it, were due to be removed yesterday.  Because of an undertaking given in this proceeding, that did not occur, and because of interim injunctions granted by the Federal Court on Sunday morning, the other two persons were also not removed.  So, there are presently three people, as I understand it, in immigration detention in equivalent positions regarding removal to Nauru.

HIS HONOUR:   And none of the courts below have jurisdiction in relation to any of the issues that are raised in this Court.

MR WOOD:   That is the agreed position between the parties.  Yes, your Honour.

HIS HONOUR:   In relation to the other two persons in the Federal Court, are any of their issues relevant to the present plaintiff?

MR WOOD:   I think the agreed position, again, is no.  I represent one of those applicants in the Federal Court but not the other.  In the proceeding which I am acting, that proceeding does not overlap with this proceeding.  Having sat in the Federal Court on Sunday morning, I can say the same about the other matter.  At least as of Sunday, there was no overlapping issues between any of the three proceedings.

HIS HONOUR:   All right.  That is very helpful, thank you.  The other issue is, I understand there is a proposal in the minute that the plaintiff file and serve any amended application.  What is the nature of the proposed amendments?

MR WOOD:   That was really a safeguard, your Honour, in the sense that the application that is currently before the Court was prepared somewhat hastily.  We flagged in the opening of that application that we may seek to amend, and we were just giving ourselves a very brief period of time to confirm whether there were any amendments that we wished to make, but we do not anticipate that would take longer than by the end of tomorrow to confirm the position one way or the other.

HIS HONOUR:   All right.  Thank you very much.  Is there anything further, Mr Wood, that you need to add?

MR WOOD:   No, I think only that in relation to the other matter that was raised with the parties about whether it was appropriate for referral to the Full Court, your Honour may have seen the plaintiff’s position in regard to that.  We would not resist that course, and we do not see any obstacle to it occurring if the Court thought that was the most efficient and appropriate way to deal with it.

HIS HONOUR:   There are two options, really.  Neither of which, I think, can be decided right now because it might depend upon what matters are raised in the pleadings and whether there is any disputed issues of fact, but one of them is that the matter be heard by a single judge and the other one is that the matter be heard by a Full Court, and if the matter is heard by a Full Court then it may be that it is appropriate that it be heard in the same way as this Court dealt with a number of matters that arose from Nauru in a previous jurisdiction, which was to hear, in original jurisdiction, matters from Nauru by three judges.

At the moment, it does not seem to me, certainly, that any of the three legal issues that are raised would require seven members of the court to sit, but whether or not it is a matter for three judges or five judges in the Full Court is another question.  The other point would be, if it were to be heard by three or five judges in the Full Court, the best way in which that would be managed, and it would seem that the most appropriate way for that to occur would be by a special case, but again that may depend on what occurs as a result of the pleading.

MR WOOD:   Yes, your Honour, I do not disagree with any of that.  I do not think I could make any basis to say that any of these issues require seven judges.  Three or five may be a different issue.  We have flagged that we are aware of at least four proceedings in which ground 1 has been raised.  We speculate, perhaps, that given the form the reasoning in which it appears that there is a reasonable chance there are other decisions out there infected by similar reasoning, I would not say that 4 is likely to constitute the universe of cases that are affected by this error.

So, that may be a matter that points towards 5, rather than 3, but I agree with your Honour that it may be that we will have a clearer picture following the filing, on our proposed timetable, of our reply on 19 March, and the matter could perhaps be brought back before your Honour or another judge to take the next steps.

HIS HONOUR:   Yes.  Thank you, Mr Wood, that is very helpful.  Mr Knowles, is there anything further that you wish to add?  The main question that I really have for the Minister is whether there is likely to be any factual issues in dispute.  It seems to me, at least from reading the application for a constitutional writ – in its unamended form – that there are three fairly short questions of law that are involved.  Are there any matters of factual dispute that are likely to arise?

MR KNOWLES:   Your Honour, in relation to the substantive grounds, I think your Honour is correct.  It is unlikely that there will be factual disputes.  There are some factual matters raised by the third ground, relating to legal professional privilege, but my own assessment is they are unlikely to give rise to contested issues of fact.

HIS HONOUR:   Yes.

MR KNOWLES:   Where I am less sure, and I need to give further consideration to this issue, is whether there are contested issues of fact relating to the extension of time implication.  Particularly, the explanation proffered by the applicant for requesting the extension at the delay.

HIS HONOUR:   It is an 85‑day delay, is it not?

MR KNOWLES:   Yes, it is about that; two to three months.

HIS HONOUR:   Yes, and the explanation is given by the plaintiff but also in an affidavit from a solicitor.  I mean, that is one issue, and then the second point is that any question of an extension of time is not entirely independent of the merits when one is dealing with a delay of around 85 days, or thereabouts.

MR KNOWLES:   I accept that, your Honour, and it may be that the scope of factual issues diminishes to nothing.  Can I ‑ ‑ ‑

HIS HONOUR:   Yes, certainly, go ahead.

MR KNOWLES:   ‑ ‑ ‑ raise two other matters.  One is, as to whether the matter should be heard by a Full Court or a single judge, we have set out our position in the correspondence to the Court.  For the Minister’s part, the issues that arise are not ones that would ordinarily warrant consideration by the Full Court, but we accept that there are other difficulties that may arise from a single judge hearing of the matter, including, if an extension of time is granted, that would leave an appeal – as of right, as I understand it – to the Full Court.

In terms of whether or not the matter could proceed by way of special case, I agree, with respect, that that question is properly best determined after the materials contemplated by the timetable are filed.  If I might just make one inquiry out of clarification.  Your Honour referred to the pleadings being filed, I take that to be a reference to the application, or any amended application, for a constitutional writ, the response and the reply, rather than any technical ‑ ‑ ‑

HIS HONOUR:   Yes, that is correct.

MR KNOWLES:   I am sorry, your Honour, I was not trying to be ‑ ‑ ‑

HIS HONOUR:   No, you are quite right.  The orders that I propose to make, then, are orders 1 to 5 as the parties propose, which is that:

1.Rule 25.07.01 of the High Court Rules2004 (Cth) be dispensed with.

2.By 26 February 2025, the plaintiff file and serve any amended application for a constitutional or other writ.

3.        By 12 March 2025, the defendant is to file:

3.1.    a response; and

3.2.    any affidavit evidence.

4.        By 19 March 2025, the plaintiff is to file:

4.1.    any reply; and

4.2.    any affidavit evidence in reply.

5.The application be listed for directions at 2.00 pm Brisbane time on 21 March 2025.

That will be, obviously, very shortly after the filing of a reply, and what I hope to deal with on 21 March is the timetabling of any submissions, any special case or any issues that arise from what I have called the pleadings. 

6.        Costs be costs in the application.

7.        There be liberty to apply.

Are there any issues with any of those directions?

MR WOOD:   Not from my perspective, your Honour.  Thank you.

MR KNOWLES:   No, your Honour.

HIS HONOUR:   I will make those orders and then adjourn the matter to 2.00 pm on 21 March 2025.  Thank you both very much.

AT 12.13 PM THE MATTER WAS ADJOURNED
UNTIL FRIDAY, 21 MARCH 2025