Plaintiffs S99-2014 v Minister for Immigration and Border Protection (Cth) & Ors

[2016] HCATrans 125

[2016] HCATrans 125

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S99 of 2014

B e t w e e n -

PLAINTIFFS S99/2014 (ACCORDING TO THE SCHEDULE OF THE GROUP OF 354 DETAINEES)

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION (CTH)

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

MINISTER FOR IMMIGRATION AND FOREIGN AFFAIRS (PNG)

Third Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Defendant

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 31 MAY 2016, AT 9.30 AM

Copyright in the High Court of Australia

____________________

MR S.E.J. PRINCE:   If the Court pleases, your Honour, I appear with my learned friends, MR J. WILLIAMS and MR S.G. LAWRENCE, for the plaintiffs.  (instructed by Russell Byrnes 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)

HER HONOUR:   Yes, Mr Prince.

MR PRINCE:   Thank you, your Honour.  There have been a few developments.  I have come into the matter fairly recently and it occurs to me that both the writ of summons and the proposed amended writ of summons are a little long and complicated and probably can be simplified.  To that end – and we also received some more evidence from the Commonwealth on Friday afternoon, an affidavit with some of the agreements in relation to Manus Island and some evidence about the arrangements at that place.

HER HONOUR:   Was that the affidavit of Mr Jonathon Charles Hutton?

MR PRINCE:   Cheryl Moy, your Honour.

HER HONOUR:   Cheryl Moy, yes.

MR PRINCE:   Yes.  So we have prepared and sent to the Commonwealth yesterday afternoon a proposed draft special case and questions which try to simplify things, and also some proposed orders.  Can I hand those up to your Honour and just take your Honour through the questions?

HER HONOUR:   Yes, indeed, thank you.

MR PRINCE:   This might be a way forward ‑ although I should say, the Commonwealth have indicated that they would not consent to the proposed orders.

HER HONOUR:   I see.

MR PRINCE:   The questions, your Honour, are set out on page 11 of the draft special case and questions reserved.  We have endeavoured to take as many of the proposed facts in the proposed special case from the respondents’ evidence and to reference it but I will pass over that for the moment.  The questions start on page 11.

Before I start going through them specifically, can I say to your Honour, they really do turn mostly on this one point, which is the decision of the Supreme Court of Papua New Guinea found that Papua New Guinea did not have the constitutional authority to enter into the arrangements and that the arrangements were unlawful according to Papua New Guinea law.  Your Honour might recall that during the course of the recent Nauru case, the Parliament passed legislation in the form of 198AHA to retrospectively validate the arrangements.

HER HONOUR:   Yes.

MR PRINCE:   That legislation, or that section, was made retrospective to a point in time prior to the declaration of Papua New Guinea as a regional processing country.  This gives rise to an interesting time and space dimension issue because the declaration was made under 190AD.  At the time that it was made 198AHA did not exist, but because 198AHA is retrospective it has got to be retrospective for all purposes.

HER HONOUR:   Indeed.

MR PRINCE:   That may have an impact on the declaration under 198AD because 198AHA has in subsection (1), as a basis of its application, the requirement for there to be an agreement, and the essence of our point is that because PNG did not have the constitutional capacity or lawful capacity to enter into any arrangement, there is no arrangement.

HER HONOUR:   I understand.

MR PRINCE:   So although there are 12 questions, the essence of the argument is quite simple and it will pretty much ‑ ‑ ‑

HER HONOUR:   Given that last submission, without having had an opportunity to read the 12 questions, can I ask why there are 12?

MR PRINCE:   Because it breaks down – the questions, I suppose, try to give some specificity to the steps, the logical steps, in reaching the conclusion.  For example, your Honour would see question 1 is:

Has the Independent State of Papua New Guinea (PNG) validly and lawfully implemented any law or policy or taken any action in connection with its role as a regional processing country within the meaning of section 198AHA of the Migration Act 1958 (Cth)?

So that is one integer of the equation.

HER HONOUR:   All right.

MR PRINCE:   That picks up the language of 198AHA.  There is a second aspect of the language of 198AHA, which is:

Has there been any valid or lawful arrangement between the Commonwealth of Australia and PNG in relation to the regional processing functions of PNG within the meaning of –

the Act?  Then it moves from the general to the particular, so question 3 is about the particular arrangements which have purportedly been made and lists them.

HER HONOUR:   Yes.

MR PRINCE:   Curiously, your Honour will see that C is a document which was signed by the Commonwealth on 23 April 2012 prior to the existence of 198AHA, even on a retrospective basis, but signed by PNG after the enacting of 198AHA, and so that is why we have included that.  But we have not included any of the agreements which predate the retrospective action of 198AHA because, obviously, they cannot be relevant to the section.  And then question 4 is really a question of the – it is a similar question to one which was asked and answered in the Nauru case.

HER HONOUR:   Yes.

MR PRINCE: Five goes to the question of a designation and the interaction between the designation and the operation and requirements of section 198AHA, and 6 is really a subsidiary question of that. Seven and 8 deal with the direction and the actual taking because they are two different steps but in the same process. Nine is about whether the plaintiff has been unlawfully deprived of his liberty by the defendants so it is more of a conclusionary question. 10, 11 and 12 are remedy questions.

HER HONOUR:   Yes.  Now, am I right in apprehending that it is proposed to reconstitute the proceedings in the way you foreshadow, Mr Prince, and it is not intended to seek to serve the third and fourth defendants?

MR PRINCE:   Yes.  There are obvious problems with proceeding against them ‑ ‑ ‑

HER HONOUR:   There are.

MR PRINCE:   ‑ ‑ ‑ and they are problems which do not need to be faced because the questions, as your Honour will have seen them set out, are really a matter between the plaintiffs and the Commonwealth, ultimately.

HER HONOUR:   Yes.

MR PRINCE:   And the simpler the better.  On the plaintiffs’ side of the ledger, there was some concern expressed by the defendants in their written submissions about whether we have retainer.  There is no actual challenge to our retainer, as I understand it, in the traditional sense.

HER HONOUR:   Well, now, that might – I am not sure, I will hear from the Commonwealth on this, but there seems to be some difference in the situation of those persons named in Schedule A and those persons named in Schedule B.  The proceedings when they were commenced in 2014 identified a number of people in Schedule A.  As I understood it, it was proposed at a point to seek leave to amend and to add a further number of plaintiffs identified in Schedule B.  Now, do I take it the Schedule B persons are no longer being proposed as plaintiffs to this proceeding?

MR PRINCE:   Well, can I answer that in two ways?  First of all, if we are successful in putting forward a draft stated case – a stated case ‑ your Honour will have seen from the proposed orders that a stated case can go forward with one plaintiff only, there is no need to bring all the other plaintiffs into the stated case.  Behind that in the Registry we still have instructions from those people who are in Schedule B to commence proceedings on their behalf because they are aggrieved by the same set of circumstances.  The issue of consolidation and so on probably does not need to be dealt with because ‑ ‑ ‑

HER HONOUR:   It is really unclear what is meant by that.

MR PRINCE:   No.  Really you end up having a situation where you have 800 summonses being filed and that is not in anybody’s interests, I would have thought.  But all of those people who are there will ‑ ‑ ‑

HER HONOUR:   Mr Prince, there are some issues that are agitated in the Commonwealth party’s submissions that draw attention to matters such as some of the persons named in Schedules A or B, it is said, are no longer in PNG.  Now, issues of that character do raise a question about the appropriateness of this sort of global approach.

MR PRINCE:   Your Honour, a lot of this global approach is really a product of the global way in which they have been dealt with, and there may be people who are no longer in PNG but who nonetheless have been unlawfully detained for a period of time and would be entitled to have that matter adjudicated, whether they are in PNG or not.  Obviously, if they are no longer in PNG, then there would not be any agitation in respect of them for a writ of habeas corpus, but that does not mean that there is no basis for them coming before the Court and seeking some other relief ‑ ‑ ‑

HER HONOUR:   Well, at the moment those in Schedule A are coming before the Court and seeking relief on the pleading filed in 2014, which I think you would accept, Mr Prince, has significant difficulties without addressing them further.

MR PRINCE:   Yes.

HER HONOUR:   There does need to be some consideration of the form of the case that is before the Court.  I appreciate that it is proposed, if agreement can be reached with the Commonwealth, to proceed by way of special case and that might be done in the name of one plaintiff, but at some point – I am not sure that it is entirely satisfactory to say, well, in the Registry we can just have 800 plaintiffs in relation to the proceeding that was started in 2014 and that seems to embrace a wide variety of causes of action with a certain lack of clarity.

MR PRINCE:   Yes.  Well, your Honour will have seen from our proposed orders that ‑ ‑ ‑

HER HONOUR:   Mr Prince, I have had the chance to read those.

MR PRINCE:   I am sorry, I know I have caught your Honour on the run.

HER HONOUR:   It would have been of some assistance, Mr Prince, to have had this document forwarded, if only this morning but, in any event, I will read it now.

MR PRINCE:   Can I just address that point, your Honour?

HER HONOUR:   Yes, do.

MR PRINCE:   We sent the material to the Commonwealth last night.  I did not want to send it to your Honour in an ex parte way without having spoken to the Commonwealth and time just got away from us, so that is why it has not been forwarded earlier.

HER HONOUR:   I am certainly not suggesting you would have had an ex parte communication, but – look, in any event, Mr Prince, let me just read these orders.

MR PRINCE:   I am sorry, your Honour.  Yes, your Honour.

HER HONOUR:   Yes, all right.

MR PRINCE:   Your Honour, it is anticipated that the amended writ of summons would then harmonise the proceedings with the stated case.

HER HONOUR:   Well, when you say an amended writ of summons, the Commonwealth has drawn attention for some time now to the irregularity of proceedings seeking habeas corpus, mandamus and prohibition commenced by writ of summons and statement of claim and the Commonwealth proposes that to ventilate the issue that seems to be at the heart of this matter you ought proceed in accordance with the rules with an application for an order to show cause.

MR PRINCE:   Yes, your Honour.

HER HONOUR:   Now, is that your intention?

MR PRINCE:   Well, your Honour, the difficulty with an application to show cause is that whilst habeas corpus is one aspect of the relief which is sought, it is not the entirety of it, and it is not ‑ ‑ ‑

HER HONOUR:   Well, the entirety seems to embrace some claims which ‑ claims for damages, for example, for personal injury ‑ ‑ ‑

MR PRINCE:   Declarations.

HER HONOUR:   ‑ ‑ ‑ and the like.

MR PRINCE:   Yes.  So we would seek dispensation from that rule.  In my submission, it would still be most efficient if the matter proceeded by way of a writ of summons and a statement of claim supporting the special case.  The defendants’ submissions on the order to show cause ‑ which I might say that these proceedings have been on foot since 2014 and to my knowledge there has not been any insistence on a show cause hearing by the defendants since then, so there is no urgency to have a show cause hearing.  In my submission, the most efficient way to proceed would be to have a proper stated case with proper questions go to a Full Court and the imposition of a show cause hearing in these circumstances would not really be an efficient way to proceed.  There is a substantive matter to go to the Full Court and, in my submission, it is capable of being negotiated between the parties or being stated by a justice.

HER HONOUR:   I had rather understood from some submissions you made at the very outset that perhaps you were not proposing to move on Mr Byrnes’ affidavit, affirmed on 18 May 2016, for leave to file and serve the amended writ of summons that is annexed to his affidavit.  Is that so?

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

HER HONOUR:   Now, just in terms of the history of the matter, after consent orders were made in 2014, effectively standing the matter over with liberty to apply, no step was taken by the plaintiff until the matter was revived in May with a proposal for an amended pleading in the form of ‑ the pleading that was annexed I think to an affidavit of 4 May.

MR PRINCE:   Yes, your Honour.

HER HONOUR:   The Registry was then advised that there was no intention to move on that relief and that rather it would be sought to move on the proposed amended writ of summons annexed to the affidavit of Mr Byrnes, sworn on 18 May.

MR PRINCE:   Yes, your Honour.

HER HONOUR:   Now it is proposed not to move on that, but do your orders deal with a draft amended summons?

MR PRINCE:   They deal with an amended – yes, they do, your Honour.

HER HONOUR:   Where have I got that?

MR PRINCE:   I think they are after – it is proposed order 5.

HER HONOUR:   I see.  And that has not been prepared?

MR PRINCE:   No ‑ that is because it is thought that it might be best to finalise a negotiated stated case and then to amend the summons in light of that.

HER HONOUR:   And work out what your pleading is?

MR PRINCE:   Yes, in light of that.  And that hopefully will simplify the pleading substantially.

HER HONOUR:   Yes, all right.  Yes, I might perhaps hear from Mr Kennett.

MR PRINCE:   Thank you, your Honour.

HER HONOUR:   Yes, Mr Kennett.

MR KENNETT:   Your Honour, the case that the plaintiffs seek to put seems to be coming into some kind of – into a form that we can perhaps deal with.

HER HONOUR:   It does.

MR KENNETT:   However, our friend’s proposal seems to us to be the wrong way around.  It is difficult, at least for us, to deal with a proposed special case without some clarity and some stability about the relief that is being sought and the basis upon which it is sought.

HER HONOUR:   I see the force of that, Mr Kennett.

MR KENNETT:   Yes.  So we would suggest that the foundational documents, if I can put it that way, be put into a better form.

HER HONOUR:   Yes.

MR KENNETT:   That ought be done – it is not clear to me at the moment whether the claim for damages is pressed.

HER HONOUR:   I rather understood it was not, having regard to the proposed amended pleading of 18 May, but ‑ ‑ ‑

MR KENNETT:   Quite so, yes, and if it is not then it does not seem necessary for the 800‑odd plaintiffs to have either their own proceedings or be in this proceeding because, as often happens and as you would have seen in M68, once one person’s case is disposed of everybody else in similar circumstances knows what their position is and the matters can be dealt with that way.

But, at any rate, it would seem to us to be highly desirable to have questions like “Who was the plaintiff?”, “Who were the defendants?”, “What is the relief that is sought?” – to have all of that clear and then start on a special case.  We would still ‑ ‑ ‑

HER HONOUR:   Is there some prospect now ‑ in light of the refinement that is in the proposed special case, is there some prospect that one might be agreed?

MR KENNETT:   Well, yes, having heard my learned friend explain how the argument seeks to go, however – and as your Honour has noted, my clients have been pressing for this matter to be conducted on the basis of an application to show cause, at least to begin with.

HER HONOUR:   Yes.

MR KENNETT:   It may be that – and we would continue to press that for the reason that when one looks at, for example, question 5 in the proposed special case, it may be that the case would be answered by a short statutory construction argument which could be had on a show cause hearing.  We would not want to rule out that possibility in advance.  So our suggestion would be that the plaintiffs file an application to show cause and support it with a statement of claim if they wish to, but give us the shorter and simpler document that my friend foreshadowed and then we can see what the issues are and work from there.

HER HONOUR:   Thank you, Mr Kennett.  Mr Prince.

MR PRINCE:   Yes, your Honour.

HER HONOUR:   Just on that question of the claims for damages, it did rather seem that it was not proposed to rely on those claims in these proceedings and whether or not there might be some thought to seeking to be joined to some proceedings on foot in the Victorian Supreme Court seemed to be a live question.

MR PRINCE:   Yes.

HER HONOUR:   Now, what is the position there?

MR PRINCE:   I think it is not our position that we would ask this Court to determine damages.  That is an appropriate matter for remitter always; it is a purely factual question and it requires evidence to be determined.

HER HONOUR:   Yes, indeed.  Evidentiary issues on the face of it raised by what one might glean from the pleading would be extensive.

MR PRINCE:   Yes, quite right.  And as I understand it, there are proceedings in the Victorian Supreme Court dealing with those sorts of matters.

HER HONOUR:   Yes.

MR PRINCE:   Inevitably, the draft stated case will – sorry, what is proposed to be dealt with in the stated case will have an impact on any damages case anywhere else because it goes to the lawfulness of the detention, and once this Court determines that matter, that is that.  So, in my submission, to the extent that there is a claim for damages in a proceedings in this Court, those would be appropriate for remitter and certainly would not be appropriate to be dealt with in the draft stated case.

HER HONOUR:   Mr Prince, at some point someone is going to need to fasten their attention on the form of the pleading.

MR PRINCE:   Yes.  I see the force in what ‑ ‑ ‑

HER HONOUR:   The Court is not about to remit a matter in the ‑ ‑ ‑

MR PRINCE:   In the form it is in.

HER HONOUR:   Indeed.

MR PRINCE:   No.

HER HONOUR:   So some decisions have to be made, Mr Prince.

MR PRINCE:   Yes.

HER HONOUR:   For the present, I have to say I have considerable sympathy with the Commonwealth’s position.  It is entitled to know who the plaintiff is and what relief is claimed in the principal proceedings before we come to the question of the matter proceeding on a special case.

MR PRINCE:   I understand, your Honour.  I see the force in what my learned friend said about that being clarified, at least in the first instance before a stated case.  If that needs to be then fine‑tuned after the stated case is settled to make sure that it is consistent with the stated case, then so be it.

HER HONOUR:   Yes.

MR PRINCE:   I am content to take that approach.  It may be that if the plaintiff that we propose to put forward as the sole plaintiff in the stated case simply files a fresh writ of summons in the simplified form that I have foreshadowed, then that would mean that all the procedural difficulties that exist every time an amendment is made to a proceeding which has a very large class of people can be put to one side and then the Court when it has the stated case will simply be dealing with a straightforward simple ‑ one application, which will obviously have consequences for whatever proceedings might be sitting somewhere else.

HER HONOUR:   Indeed.

MR PRINCE:   Yes.  I am content to proceed in that way, your Honour.  I should just say in relation – there is one thing my friend said which I need to answer.  He says there might be some statutory answer to question 5 that would be suitable for a show cause hearing.  In my submission, if he has got some knockout point which answers question 5, then that would just be relevant to deal with when the Court is considering whether to state a case or not.  If he comes along and convinces a Justice of the Court that it is not appropriate to refer that question because there is an obvious and easy answer – I mean, that has the same effect, there is no need to go through the process of a show cause hearing.  Obviously, questions which are obvious on their face and do not require the attention of the Full Court will not get stated to a Full Court.

In terms of the proposed short minutes, or the proposed orders that I have – proposed consent orders document which I handed up to your Honour, perhaps Mr Kennett’s position could be accommodated if order 5 is made order 2 and then the dates are switched around.  If it is an amended statement of claim – sorry, writ of summons and statement of claim that needs to be done, we might need a little more time than to 7 June because it is a bigger job and ‑ ‑ ‑

HER HONOUR:   Indeed.  Mr Prince, given the recognition that claims for damages are not going to be heard in this Court and given the acceptance, I think, of the difficulties with the form of the pleading as it stands, in reality what you are seeking to agitate before this Court is a narrower case with narrower claims for relief ‑ ‑ ‑

MR PRINCE:   Yes.

HER HONOUR:   ‑ ‑ ‑ which, as you submit, might have some wider implications, depending upon how the matter falls out.  But that being the case, it remains a little unclear to me why you are committed to seeking to proceed by way of a statement of claim.  The relief that you anticipate seeking on behalf of however many plaintiffs remain in the matter is what?

MR PRINCE:   Well, the claim in this Court – there is a claim in this Court for damages, although it would be remitted, so there needs to be something ‑ ‑ ‑

HER HONOUR:   Well, Mr Prince, if that is to be the case, then you are going to need, I would think, rather well beyond 7 June to pull the pleading into a form in which the claims for damages are in ‑ ‑ ‑

MR PRINCE:   A fit state to be remitted.

HER HONOUR:   A fit state to be remitted.

MR PRINCE:   Yes.

HER HONOUR:   Now, if that is what you want to do, Mr Prince, by all means, but that is no small job at the moment.

MR PRINCE:   No.  We could certainly – as I said, your Honour, it would be best if we just deal with the one plaintiff and get that writ of summons into shape.

HER HONOUR:   Mr Prince, at the moment we are dealing with proceedings that have been commenced in this Court on a pleading, which it is accepted, is deficient in a variety of respects.  You seek to amend that pleading.  At that point, decisions have to be taken about who is the plaintiff in the amended proceeding that goes forward.

MR PRINCE:   Yes, and as we have said, in the stated case that we would propose to be put before a Full Court there would be one plaintiff and we have identified who that is, it is plaintiff X.

HER HONOUR:   Yes.  But do I understand from your submissions that the proposed amended writ of summons is one that will continue to agitate claims of damages on behalf of those persons named in Schedules A and B?

MR PRINCE:   No, because the – I am sorry, your Honour, I hope I am not at cross‑purposes here – and perhaps this arises out of turning things around and this is why we wanted to deal with the amended summons after settling a stated case.  In terms of the stated case that would go before a Full Court, as we would propose it, the Full Court would not deal with any question of damages.  That is not to say that my client renounces the right to pursue damages but it is an acknowledgement that that would not be an appropriate matter to put before a Full Court on a stated case.

HER HONOUR:   I think we are all agreed on that, Mr Prince.  What remains somewhat unclear, I believe to the Commonwealth parties and certainly at this point to me, is when the proceeding – if leave is sought to amend the proceedings to proceed on an amended writ of summons and, as I understand it, that will include claims for damages, is that so?

MR PRINCE:   Yes, but, your Honour, it follows order 1 which is that plaintiff 110 be the sole plaintiff for the purposes of the special case.  So the only amendment that would occur of the summons would be in respect of plaintiff 110.

HER HONOUR:   So that order 5 is limited to filing and serving an amended writ of summons in relation to ‑ ‑ ‑

MR PRINCE:   Plaintiff 110.

HER HONOUR:   And that leaves just sitting in the Registry a proceeding which, it is accepted, is misconceived in a number of respects ‑ ‑ ‑

MR PRINCE:   Well, your Honour, I do not know that I put it quite that high – a proceeding that needs work, it needs significant work.

HER HONOUR:   Well, I had in mind, for example, prayers to establish a royal commission and the like.

MR PRINCE:   I understand.

HER HONOUR:   I do not think I put it much too high, Mr Prince, when I say that there are misconceived aspects to the form of the pleading that at the moment remains the only pleading in the proceedings.

MR PRINCE:   No, I did not suggest that, your Honour.  My submission is it needs to be amended and it needs – but the taxonomy is not helpful.

HER HONOUR:   But, Mr Prince, I think unless I have misapprehended the Commonwealth party’s position, it is before they agree to a special case they would like to understand the nature of the proceedings that are brought, who the plaintiff or plaintiffs is or are, and the relief that is ultimately claimed.  Now, I thought some time ago you accepted that that was an appropriate way to proceed.

MR PRINCE:   Of course.

HER HONOUR:   That means regularising the proceedings, not merely formulating the proposed special case.

MR PRINCE:   Well, your Honour, the parties agreed, or consented to the matters that the old writ, the 2014 writ, being stood over generally with liberty to apply.

HER HONOUR:   Yes.

MR PRINCE:   That is the status quo.  On this approach, nothing changes about that, but the only thing that does change is that one plaintiff comes forward with an amended summons, amended writ of summons, with a stated case to be dealt with by the Full Court and then the balance of the

proceedings would remain where they were; that is, stood over generally with liberty to apply.

If the Commonwealth insists on an amended summons in relation to 800 people, there is some tension.  Perhaps it is why the parties agreed to stand it over before because it became too hard, but there is some tension with the proposition that there cannot be any representative proceedings in this Court because of the terms of the Migration Act or any consolidation or the like in relation to those 800.  So the cleaner way of dealing with it, in my submission, to deal with the issues which have been identified in the stated case, would be to take one plaintiff out of that pool and to effectively activate that plaintiff’s case on a properly amended statement of claim which, hopefully, one day down the track could then be a template for each of the other 800 once the proceedings are dealt with.  But to amend 800 cases ‑ ‑ ‑

HER HONOUR:   Well, you do not have 800 cases at the moment.  There is a contest about those persons referred to in Schedule B.

MR PRINCE:   We have instructions from those people.

HER HONOUR:   Yes.  All right, well, I will hear further from Mr Kennett.

MR PRINCE:   Thank you, your Honour.

HER HONOUR:   Mr Kennett.

MR KENNETT:   I think what my friend is proposing is really a new proceeding ‑ ‑ ‑

HER HONOUR:   It sounds that way.

MR KENNETT:   ‑ ‑ ‑ brought by a single plaintiff, which would, at least potentially, provide guidance as to the circumstances of all the other plaintiffs.  There seems to us to be grave procedural difficulties with this matter going forward with the present number of plaintiffs, and I am not sure that they are remedied by taking one plaintiff and agitating his case as part of this proceeding in some way without the others coming along as well.

HER HONOUR:   And without knowing what the principal proceeding ‑ if I can put it that way ‑ is in the sense that I think it is accepted that there needs to be considerable surgery on the pleading.

MR KENNETT: Yes, and as we have indicated in the written submissions, there is at least a prima facie obstacle in I think it is section 486B of the Migration Act, and there is a disparity of circumstances among these plaintiffs which makes it difficult at the least to have a representative or some kind of class proceeding on behalf of all of them.  It is a matter for our friends, of course, and for your Honour, but the simple way forward seems to be ‑ the substance of what my friend is proposing seems to be a new proceeding which could be done a great deal more simply.

MR PRINCE:   I think that is right, your Honour.

HER HONOUR:   I think it is, Mr Prince.

MR PRINCE:   And I think I may have laboured too long to save the body and a fresh proceeding would have that effect.  One plaintiff could simply discontinue the present proceedings, then we commence fresh proceedings, and then that case could go forward, and then the status quo, which seems to have worked since 2014 in relation to the body of the proceedings, could stay.  Depending on the outcome of that person’s case, then obviously that would have a flow‑on effect to the balance of the cases.  Maybe I should have said that in the first place.

HER HONOUR:   There seems considerable sense to that as a proposal, I think, Mr Prince.

MR PRINCE:   Yes, your Honour.

HER HONOUR:   Then if the Commonwealth want to do anything about their attitude to proceedings S99 of 2014 sitting in the Registry, well, that is a matter for the Commonwealth ‑ ‑ ‑

MR PRINCE:   Yes.

HER HONOUR:   ‑ ‑ ‑ but that does seem, I think, the effective way forward.  Clearly now, Mr Prince, one can appreciate the point that is sought to be being made, so there has been considerable progress and I am mindful of that.

MR PRINCE:   Thank you, your Honour.  In that case, the only order your Honour would make in these proceedings in this directions hearing today – although it seems a little anticlimactic – would be to stand the proceedings over, and I do not know that we would need leave to withdraw the plaintiff that is going to commence fresh proceedings or whether we could simply file a notice of discontinuance and then commence fresh proceedings.

HER HONOUR:   The latter would seem ‑ ‑ ‑

MR KENNETT:   I would not want to stand on formality in that respect, your Honour.

HER HONOUR:   Indeed.  And, Mr Kennett, no objection to the one order being to simply stand over proceedings S99/2014?

MR KENNETT:   No, your Honour.

HER HONOUR:   Yes, very well, I so order.  The Court will adjourn.

AT 10.13 AM THE MATTER WAS ADJOURNED