Ruhani v Director of Police

[2005] HCATrans 3

[2005] HCATrans 003

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Canberra  No C8 of 2004

B e t w e e n -

MOHAMMAD ARIF RUHANI

Appellant

and

DIRECTOR OF POLICE (THROUGH THE SECRETARY OF JUSTICE AS DIRECTOR OF PUBLIC PROSECUTOR)

Respondent

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 25 JANUARY 2005, AT 9.35 AM

Copyright in the High Court of Australia

MR G. GRIFFITH, QC:   Your Honour, I appear with MR S.D. HAY on the merits and MR D.B. CLOUGH on the motion.  (instructed by Vadarlis & Associates)

MR P.J. HANKS, QC:   I appear for the respondent to the appeal, your Honour, which I believe is what we are dealing with today.  (instructed by Clayton Utz Lawyers)

MR A.L. CAVANOUGH, QC:   I appear for the Commonwealth as one of the respondents to the motion.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Dr Griffith, is the motion before me or is it a motion seeking to engage the attention of the Full Court? 

MR GRIFFITH:   The latter, your Honour.

HIS HONOUR:   Yes.

MR GRIFFITH:   Your Honour, we thought there might be an issue of a subpoena or further information, but that has been resolved, so all we require is an indication that our motion may be returned at some date to the Full Court.  I would expect it would take no more than a quarter of an hour or so, your Honour.

HIS HONOUR:   It will be a matter entirely for the Full Court, Dr Griffith.

MR GRIFFITH:   Yes, your Honour.

HIS HONOUR:   You may or may not choose to sate my idle curiosity when I ask what is left in it, given the course of correspondence that has passed, but if you choose not to ‑ ‑ ‑

MR GRIFFITH:   I am happy to answer, your Honour.

HIS HONOUR:   It is a matter entirely for you whether you answer it, Dr Griffith.

MR GRIFFITH:   Your Honour, there will be nothing left if the Commonwealth offers to pay indemnity costs, if so ordered by the Court.

HIS HONOUR:   So is the only question one of, if you like, the scale or manner of taxation of costs?

MR GRIFFITH:   No, your Honour.  It is one of form, your Honour.  We say that our position is the Court should have been informed of this arrangement and of the support the Commonwealth had, through acting through the Executive, to attack the validity of an extant law pursuant to an extant treaty enacted by the Parliament and that if the Court had been so informed, your Honour, we would have first had a basis to argue that there was an abuse of process in the point of competency being taken and supported by the Commonwealth to impugn the law of the Parliament and, secondly, we would have argued as a threshold issue that the matter should only proceed with a similar sort of undertaking that, for example, the revenue take in appealing to this Court, your Honour, a basis of offering to pay actual costs in any event.

Now, the issue in any event is now resolved, your Honour, because we know the answer on the merit, but we say the non‑disclosure of these matters, matters which can be demonstrated as being something that in the circumstances was inappropriate – we are entitled to obtain orders to maintain the position in form which should have been the issue before the Court.  Secondly, your Honour, we say ‑ ‑ ‑

HIS HONOUR:   Just before you leave that – again, we should perhaps not embark on the debate – I had thought – I may be wrong and, again, this may not be the time to debate it – that the arrangement was one recorded in the memorandum of understanding which appeared in the application book.  Perhaps it was not?

MR GRIFFITH:   Your Honour, our position, as we were unaware of it being a fact that the Commonwealth maintained the position that it would pay Nauru’s costs, and also we were completely unaware, although the respondents had been informed on 16 October that the Commonwealth was not intervening ‑ ‑ ‑

HIS HONOUR:   What, if anything, do you say I should do today about the motion?  It seems to me it is not before me.

MR GRIFFITH:   Your Honour, the issue we thought we would have to raise is to ask your Honour to give appropriate consent to a subpoena.  That is not now necessary.

HIS HONOUR:   Yes.

MR GRIFFITH:   So the answer is, your Honour, we need no order other than to flag – we would suggest it is appropriate our motion be returned before the Full Court at a time convenient.  We would have thought, as we indicate, your Honour, it would only be a 15 to 20 minute matter at most.

HIS HONOUR:   Is it a matter in which there should be any oral argument at all or should the matter proceed simply on written submissions?

MR GRIFFITH:   Your Honour, we say it is appropriate that there should be argument because it may well be that the Court would have questions of inquiry to make, both of counsel for the respondents and also of the Commonwealth.

HIS HONOUR:   Is it a matter in which it would be appropriate to give directions that the parties to the motion file a written outline of argument not exceeding – what would we say, three pages, Dr Griffith, according to a timetable and then leave the matter in the hands of the Full Court about whether oral argument would be of benefit or not?

MR GRIFFITH:   Your Honour, it may be appropriate, but three pages might not be enough to set out the reasons why the High Court ‑ ‑ ‑

HIS HONOUR:   It is auction season, Dr Griffith.  Tease me with a bid.

MR GRIFFITH:   Your Honour, we have already put in anticipatory submissions.  If we could just augment them, I think three pages would be enough if they stand.

HIS HONOUR:   Yes.

MR GRIFFITH:   Your Honour, shall I indicate that we say it is appropriate that this issue of costs in these unusual circumstances should become part of the reasons of the Court in the entire matter, the reasons not having been delivered.

HIS HONOUR:   In that event it would be desirable that any written submissions on this issue would be filed in very short order.  You might, while I call on Mr Hanks, give some thought to a timetable that might be appropriate.  What I have in mind is very short times, very short submissions, and let us have it in before the Court and see where we go from there.  You might give some thought to that.

MR GRIFFITH:   Your Honour, we agree to the shortness of times your Honours may order.

HIS HONOUR:   Yes.  Now, Mr Hanks, you are a party to the proceeding at the moment.  What do you say I should do about giving any directions in connection with this motion concerning costs?

MR HANKS:   Your Honour should direct that the parties do exchange written submissions.  We note that the appellant has filed submissions of eight pages up to this point and is seeking a further three.  In advance of your Honour’s suggestion, we would think that the respondent ought to

have liberty to respond at similar length, but a timetable should be fixed for the exchange of written submissions and then it should be a matter for the Full Court as to whether it requires any oral argument, your Honour.

HIS HONOUR:   Yes.

MR HANKS:   That is what we would say.

HIS HONOUR:   Yes.  Now, Mr Cavanough, if you have any standing before me – it may be a debatable point ‑ ‑ ‑

MR CAVANOUGH:   Well, I am standing.

HIS HONOUR:   You are here.  What, if anything, would you want to say if you had standing?

MR CAVANOUGH:   Your Honour, if I had standing, I would agree with the suggestion that at most, if the matter is not to be simply dismissed for being a waste of everyone’s time, that the course that your Honour outlined and that my learned friend, Mr Hanks, has agreed to seems to be the most appropriate course, that is to say, timetable and written submissions.  For all we know, your Honour, the ultimate matter may not be heard by the same Bench, that is to say, a Bench of seven, as heard the objection to competency, so it seems ‑ ‑ ‑

HIS HONOUR:   I understand the position of the appellant as respondent to the notice of objection is that it should be dealt with as part of disposing of the notice of objection.

MR CAVANOUGH:   Yes, if your Honour pleases.

HIS HONOUR:   Yes.  Well, is there anything you want to say in answer, Dr Griffith?

MR GRIFFITH:   Your Honour, we would support the view that my learned friend, appearing on behalf of the Commonwealth, certainly appears for a client that has standing.

HIS HONOUR:   Yes.  Dr Griffith, though I would propose to give a direction permitting written submission in reply, it would be passing strange if, in a matter of this kind, submissions in reply proved truly to be necessary.  I will give directions.

MR GRIFFITH:   If your Honour pleases.

HIS HONOUR:   In this connection, subject to anything that counsel may say about the form of directions which I propose, I propose to direct as follows:

1.        On or before 4.00 pm, 1 February 2005, the appellant file and serve his submissions in writing, such submissions not to exceed five pages in length, in support of his motion of which notice was dated 7 December 2004;

2.        On or before 4.00 pm, 7 February 2005, the respondents to the motion file and serve their submissions in writing in answer to that motion, such submissions not to exceed, in the case of either respondent, five pages in length;

3.        On or before 4.00 pm, 9 February 2005, the appellant is to file and serve any submission in reply, that submission to be in writing and not to exceed three pages in length.

Though this does not form part of the directions, it should go without saying that the future course which the matter is to take will be, in this respect, a matter for the Full Court.  Do counsel wish to be heard about the form of those orders, Mr Cavanough?

MR CAVANOUGH:   Just one inquiry, if I may, just as to what material has found its way to the Court by way of affidavits.  We have just this morning ‑ ‑ ‑

HIS HONOUR:   Your solicitors may search the file, Mr Cavanough. 

MR CAVANOUGH:   If the Court pleases.

HIS HONOUR:   Is there some dispute about admissibility of evidence or the like that needs to be resolved?

MR CAVANOUGH:   No, it is just I am not clear as to whether this affidavit we have just been given this morning is part of what is before your Honour or not.

HIS HONOUR:   Well, nothing is before me save a question of directions at the moment.

MR GRIFFITH:   Your Honour, I do not think it is necessary.  The affidavits, your Honour, which are to be filed and one that seems not to have been filed although it should have been, merely exhibits the correspondence such as – the one that has not been filed exhibited the other part, your Honour, but there is no issue.  That is just the correspondence, particularly between the Commonwealth and those instructing ‑ ‑ ‑

HIS HONOUR:   Well, is it plain that the material before the Court in considering this motion includes the affidavit of Mr Vadarlis, which is described as an affidavit of service sworn 17 January 2005, to which is exhibited, amongst other things, the letter from Australian Government Solicitor of 7 December 2004 to Mr Vadarlis in which AGS says, amongst other things, that under the memorandum of understanding the Commonwealth will meet any costs orders that the respondent is ordered to pay in respect of the High Court proceedings.  Is that before the Court?

MR GRIFFITH:   Yes, your Honour, but there is another letter from the Commonwealth that seems to be before the Court, your Honour, and also an exhibit which has not been filed, but should have, being our letter to the Commonwealth.

HIS HONOUR:   Yes.

MR GRIFFITH:   That is just a matter of completion of the correspondence.  There should be no difficulties about that.

HIS HONOUR:   But what is before the Court includes the fact that the memorandum of understanding which is in the application book where we can find it records the obligation of the Commonwealth to indemnify Nauru as to its costs.  Is that so?

MR GRIFFITH:   Yes…..issue as to whether that can be read as including a competency issue, your Honour.

HIS HONOUR:   Yes.  Perhaps we might turn to the other aspect of the matter, Dr Griffith.

MR GRIFFITH:   I think we should, your Honour.  Your Honour, the issue of whether for the filing of submissions it probably can be sort of worked back from a possible hearing date.

HIS HONOUR:   Can I go to a logically prior question.  Do we need to do anything further about books?  That is, can the matter proceed to hearing of appeal on the basis of the application book as presently filed, which would have, I think, to be supplemented by the order disposing of the objection to competency, but is there any other consideration that needs to be given to the appeal book?  That is, can the application book stand as the appeal book, if supplemented by the order disposing of objection? 

MR GRIFFITH:   Yes. 

HIS HONOUR:   Yes.  It then becomes, does it, a question of simply timetable for submissions? 

MR GRIFFITH:   Yes. 

HIS HONOUR:   Why should the ordinary timetable not run according to the time that is proposed for hearing?  The proposal has not yet issued, I believe, giving this a hearing date. 

MR GRIFFITH:   Your Honour, I am not sure whether the new rules would apply on their face to an appeal from Nauru, when your Honour says the usual timing. 

HIS HONOUR:   Yes, they do.  At least, I believe they do. 

MR GRIFFITH:   Yes.  Well, your Honour, we would say yes, again, to that. 

HIS HONOUR:   Well, then, so long as – at least from your side, and I will hear from Mr Hanks in a moment – there is nothing we need to do about appeal books, it is only a question of submissions, do I need to do anything other than simply indicate to the Chief Justice that the matter is ready for hearing? 

MR GRIFFITH:   You do not have to, your Honour, no, but an alternative ‑ ‑ ‑

HIS HONOUR:   What of advantage could I do otherwise? 

MR GRIFFITH:   Well, your Honour, one can either work forward from now applying the rules, or work backwards from a hearing date and make specific dates now. 

HIS HONOUR:   Yes, but I have not got a hearing date from which to work. 

MR GRIFFITH:   No.  Well, in that case, we have no choice, your Honour, so the answer to your Honour’s question is yes. 

HIS HONOUR:   Yes, thank you.  Now, Mr Hanks, are you agreed that the matter can proceed on the application book supplemented by the order disposing of objection to competency? 

MR HANKS:   Yes, everything that would be found in the appeal book is in the application book.  It has a few extra documents, your Honour, but we can ignore them. 

HIS HONOUR:   Yes.  “Extra” simply excites my attention, Mr Hanks.  I am sorry, but what is it that we are ignoring?  I do not want this thing to pitch into a Full Court and then to have a side wind blowing about “Oh, the Court can look at this, or not look at that”.  Is there anything that we are going to encounter of that kind? 

MR HANKS:   The surplusage in the book of summaries and the application book that I have includes a copy of supplementary submissions filed in the Supreme Court by my client.  It is not common to include submissions in an appeal book, but they are there.  But it is of no great moment, your Honour.  There is nothing in there that is going to derail the proceedings ‑ ‑ ‑

HIS HONOUR:   There is nothing that you are going to be heard to say on the hearing of the appeal, “No, the Court may not look at that”? 

MR HANKS:   It depends which parts of the affidavits my friend would want to read to the Court, your Honour.  Your Honour may recall that ‑ ‑ ‑

HIS HONOUR:   It is exactly this sort of thing that I want to have ‑ ‑ ‑

MR HANKS:   Yes.  Well, we do have some concern ‑ ‑ ‑

HIS HONOUR:    ‑ ‑ ‑ concluded before I say that the matter is going in for hearing. 

MR HANKS:   We would have thought, your Honour, that the appeal book of this matter should include all the material that was before the Supreme Court of Nauru and the judgment and orders of that court, and then should include the notice of appeal, the notice of contention, essentially.  That is what should be included. 

HIS HONOUR:   And does the current application book not include that? 

MR HANKS:   The current application book includes all of that material.  It includes other material which we would have thought was unnecessary and irrelevant to the disposition of the appeal.  The appeal turns, of course, we think, looking at the grounds of appeal, on the construction and application of two pieces of legislation of Nauru, the Immigration Act and the Immigration Regulations.  Possibly, also, it will turn on the application of the common law of England as it stood in January 1968, because that has been adopted as part of the law of Nauru.  So the common law relating to

habeas corpus will also be relevant, at least as it stood as at that date, your Honour.  Apart from that, the grounds of appeal appear to raise no issues and much of the affidavit material therefore, we would think, has no bearing on the disposition of the appeal. 

I might put it, perhaps more briefly, your Honour, that the application book could usefully be edited to produce a more compact appeal book that concentrated on documents or was confined to documents that were relevant to the appeal. 

HIS HONOUR:   I was hoping to get to a position where the application books could stand as the appeal book. 

MR HANKS:   Well, your Honour, we may be able to work to that if my friend and I can agree that there is material in the application book which can be agreed between the parties should be, as it were, struck through, and then it would not be necessary, as I understand it, to go to the trouble and expense of printing an additional book. 

HIS HONOUR:   How long will this process of agreement take? 

MR HANKS:   I will ask my friend about that, but I would have thought it would be pretty efficient ‑ ‑ ‑

MR GRIFFITH:   Your Honour, this application book was settled by the Registrar. 

HIS HONOUR:   Yes. 

MR GRIFFITH:   This point was made by my learned friend, I am told by my junior, for the Registrar, and the Registrar has settled the book in the ordinary way.  We say, your Honour, that it should just be ‑ ‑ ‑

HIS HONOUR:   Yes, but it was settled for an objection to competency.  Now, have we got to go through the process of settling an appeal book and contents ‑ ‑ ‑

MR GRIFFITH:   Your Honour, I am sure my friend and I can sort it out.  There might be the odd document like the actual visa that was issued.  It is part of the appeal book to the exhibit of Mr Vadarlis after 2 July 2004.  I am sure my learned friend and I can agree on that and not bother your Honour. 

HIS HONOUR:   Well, how long is the process likely to take, Dr Griffith?  Is it something we can effectively settle a contents list today? 

MR GRIFFITH:   Yes, your Honour. 

HIS HONOUR:   If we can do that, I am happy to stand this over until a time later in the day that would be convenient to counsel. 

MR GRIFFITH:   I am sure we can, your Honour. 

HIS HONOUR:   If we said what, after lunch or before lunch? 

MR GRIFFITH:   Would your Honour say 12 and then we will do it? 

HIS HONOUR:   I am happy to fit in with what counsel thinks achievable. 

MR GRIFFITH:   Your Honour, we say no more than an hour. 

HIS HONOUR:   Now, on the basis of applying a factor of two, if I come back at midday, Dr Griffith? 

MR GRIFFITH:   We will be here, your Honour.  

HIS HONOUR:   All I want to do is get this thing ready so that we can get it on. 

MR GRIFFITH:   Your Honour, I spent 30 hours flying back from…..so I could be here to assist. 

HIS HONOUR:   I am indebted. 

MR GRIFFITH:   If your Honour please. 

HIS HONOUR:   Yes, well, I will stand the matter over until noon.  Is there any occasion why Mr Cavanough need remain?  I am not conscious of any. 

MR GRIFFITH:   No, your Honour. 

HIS HONOUR:   Yes.  Thank you for your attendance, Mr Cavanough.  I stand over until 12 noon. 

AT 10.02 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 10.15 AM: 

HIS HONOUR:   Yes, Dr Griffith. 

MR GRIFFITH:   Thank you, your Honour, for your flexibility in a case of divide by four, rather than multiply by two.  My learned friend and I have agreed, your Honour, that basically it is a matter of excisions, and then the addition of the order on competency.  If I could indicate ‑ ‑ ‑

HIS HONOUR:   Yes.  If we could just have recorded what is to be excised. 

MR GRIFFITH:   Yes.  Can I do it by numbers on the index, your Honour? 

HIS HONOUR:   Yes.  This is by reference to the application book index of reference and the items to be excised are, Dr Griffith? 

MR GRIFFITH:   11, 16, 19, 20 and 21. 

HIS HONOUR:   And in the supplementary application book, is anything to be excised from that? 

MR GRIFFITH:   I do not think we need it, your Honour. 

HIS HONOUR:   You do not need it?

MR GRIFFITH:   No, your Honour…..excised. 

HIS HONOUR:   Yes.  Now, although it may seem a considerable burden, I think there may be advantage in preparing fresh ‑ ‑ ‑

MR GRIFFITH:   We offer that, your Honour.  We have agreed to do that. 

HIS HONOUR:   Good.  Fresh appeal books then are prepared, excising the items indicated, and including the order disposing of the objection to competency. 

MR GRIFFITH:   Yes, your Honour. 

HIS HONOUR:   Then I think we need nothing else to ‑ ‑ ‑

MR GRIFFITH:   That can probably be done quickly, too, your Honour. 

HIS HONOUR:   If, then, the parties attend to that, I will indicate to the Chief Justice that the matter can be fixed for hearing.  It will be, of course, a matter for the Chief Justice to determine when is the appropriate time to propose for that.  The appeal would occupy how long? 

MR GRIFFITH:   No more than a day and a half, your Honour. 

HIS HONOUR:   Do you think it may go into a second day, Dr Griffith? 

MR GRIFFITH:   It should not, your Honour. 

HIS HONOUR:   Yes. 

MR GRIFFITH:   Of course, your Honour, it is a matter that can be before as few as two judges. 

HIS HONOUR:   Yes, I understand that.  Mr Hanks, what is your estimate of time? 

MR HANKS:   A day, your Honour.  The issues were agitated at length by proxy before the Supreme Court of Nauru.  There were written submissions filed there.  We would anticipate that the filing of written submissions on the appeal will assist the Court in disposing of the matter within a day. 

HIS HONOUR:   Yes.  Now, I should have asked you, Dr Griffith – I need not – there is no intention to amend or vary the notice of appeal, is there? 

MR GRIFFITH:   No, your Honour. 

HIS HONOUR:   The grounds given are perhaps lengthy, but there we are. 

MR GRIFFITH:   Yes.  I should indicate, your Honour, I am leader by proxy today, so all I can say is they are being maintained, as I am told. 

HIS HONOUR:   Yes.  How soon do you think appeal books can be filed? 

MR GRIFFITH:   I would think that could be done by next Monday, your Honour. 

HIS HONOUR:   Even with tomorrow being a ‑ ‑ ‑

MR GRIFFITH:   Well, your Honour, it is only a matter of excision and the addition of one document. 

HIS HONOUR:   Yes. 

MR GRIFFITH:   I think that the notice of dismissal cannot be a sealed version, but I expect that would be possible even, your Honour. 

HIS HONOUR:   Yes.  I will not direct that that be the time.  I simply notice that that is the current expectation of the parties.  I make the costs of today’s direction costs in the appeal and certify for the attendance of counsel. 

MR HANKS:   Thank you, your Honour. 

MR GRIFFITH:   If your Honour pleases.  Your Honour, desperate apologies of my junior with respect to the contempt in the face of the Court. 

HIS HONOUR:   Yes.  Thank you.  Adjourn the Court. 

AT 10.20 AM THE MATTER WAS CONCLUDED