Plaintiff S61/2016 v Minister for Immigration and Border Protection

[2016] HCATrans 151

[2016] HCATrans 151

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S61 of 2016

B e t w e e n -

PLAINTIFF S61/2016

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Defendant

Application for order to show cause

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 6 JULY 2016, AT 9.29 AM

Copyright in the High Court of Australia

MR S.B. LLOYD, SC:   If it please the Court, I appear with MR B. MOSTAFA for the plaintiff.  (instructed by Fragomen)

MR P.D. HERZFELD:   I appear for the defendant.  (instructed by Australian Government Solicitor)

MR LLOYD:   Your Honour, thank you for your Honour’s draft orders.  Can I hand up the orders that the parties have discussed to see if your Honour is inclined to those?

HIS HONOUR:   You could see I was idle this morning.

MR LLOYD:   We have a clean version, I think, in Court today of the special case which could be filed now without the underlined words which are now agreed between the parties as to the questions.

HIS HONOUR:   Yes.

MR LLOYD:   We think we could file and serve a special case book faster than the Court had otherwise suggested and I think my friend for the Minister would like it sooner rather than later to work with and the like.  In relation to the other matters I think our paragraph 3 is substantially the same as your Honour’s except having regard to availability of counsel at different points in time there would be discussions whereby we would do our submissions much faster than would ordinarily be the case.

HIS HONOUR:   Yes.

MR LLOYD:   The Minister would have slightly longer than would ordinarily be the case and paragraph (d) – we are not seeking any additional length of the submissions but just some flexibility as between what goes in‑chief and what goes in reply because we think until we see what the Minister does that it might be that the reply might need to be a bit longer than five pages and we could perhaps be a bit briefer in‑chief.

HIS HONOUR:   That would be good, yes.  That is fine.  I think the only difference – and it is not really a difference in substance – is I suggested not filing annotated submissions.  I suppose that is implicit in your orders anyway.  I do not think I need to tweak the document to make that clear, but that is the understanding behind these orders as I understand them, one set of submissions not two.

MR LLOYD:   Yes.

HIS HONOUR:   That is fine.  I am very pleased with what the parties have proposed.  I will give you leave to file in Court the final version of the special case, if you have it.

MR LLOYD:   Your Honour, I see it is not actually bound in any way, so perhaps we should ‑ ‑ ‑

HIS HONOUR:   I think we will cope with that.  Thank you.  I am now signing the orders as proposed by the parties and they are the orders that I make by consent.

MR LLOYD:   Thank you, your Honour.

HIS HONOUR:   Is there anything else?

MR LLOYD:   Is the Court in any position to give an indication as to what period it is likely to be heard?

HIS HONOUR:   No.  You could make some inquiries at the Registry.  Is it suggested that the matter is one of particular urgency?

MR LLOYD:   Well, no one is in detention.  My client would say he wants to be with his ‑ ‑ ‑

HIS HONOUR:   Most, but not all, plaintiffs would want their cases on quickly.  I cannot give you an indication now.

MR LLOYD:   Certainly, your Honour.

HIS HONOUR:   All right, thanks very much.

MR LLOYD:   I should also say, your Honour – I think your Honour would have picked this up – we only thought it would be a one‑day matter.

HIS HONOUR:   Yes, I thought that would be the case.  The Court will now adjourn.

AT 9.34 AM THE MATTER WAS ADJOURNED