Se, Ex parte- Re Minister for Immigration & Multicultural Affairs

[1998] HCATrans 386

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne   No M99 of 1998

In the matter of -

An application for a Writ of Prohibition against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

BRENDAN KISSANE, in his capacity as a member of THE REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte -

“SE”

Prosecutor/Applicant

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 4 NOVEMBER 1998, AT 9.30 AM

(Continued from 30/10/98 before Kirby J)

Copyright in the High Court of Australia

MS D.S. MORTIMER:   If your Honour pleases, I appear on behalf of the prosecutor in this matter.  (instructed by Refugee and Immigration Legal Centre)

MR C. GUNST, QC:   If your Honour pleases, I appear on behalf of the respondent.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Counsel should know that I have looked at a draft of the transcript of proceedings before Justice Kirby last Friday.  I have looked at the affidavit material that has been filed.  I have looked at the decision of the Full Court of the Federal Court in Abdalla and the judgment of the House of Lords in Adan.  Yes, Ms Mortimer.

MS MORTIMER:   Your Honour, as a preliminary matter I would like to know whether the applicant is present and available or whether he is still at the detention centre.  We have asked yesterday for the applicant to be present in Court.

HIS HONOUR:   Mr Gunst.

MR GUNST:   He is not here, as I am instructed, your Honour.  Mr Reid, the manager is here.  He only heard of the request this morning.  It is perfectly possible to have the prosecutor here.  It would take about an hour.  So we are in your Honour’s hands.

HIS HONOUR:   Ms Mortimer.

MS MORTIMER:   Your Honour, my instructions are that there was a request faxed through by my instructor about 12 o’clock yesterday.

HIS HONOUR:   Given that there is a public holiday yesterday, I doubt it is going to be productive for us to debate the hows and whys.  Really, the immediate question is where do we go from here.  Do you want him here before you proceed further or what is the position?

MS MORTIMER:   My concern is, your Honour, that he be available for me to get instructions from him if I need to.  I prefer to do that in person but given the exigencies if he is available by telephone and I need to, for today’s hearing I am content with that, your Honour.

HIS HONOUR:   If the position changes, Ms Mortimer, no doubt you will tell me.

MS MORTIMER:   I will, your Honour.

HIS HONOUR:   If you are content to proceed, let us go ahead.

MS MORTIMER:   If your Honour pleases.  Your Honour, this is an application for prerogative relief by the prosecutor and my understanding is that this is the return of both an application for an injunction to be continued, the one that his Honour Justice Kirby granted, and for the grant of an order nisi.  I have some submissions in support of our application.  I hand a copy up to your Honour.

HIS HONOUR:   Yes, thank you.  You have a copy of these, do you, Mr Gunst?

MR GUNST:   I do now, your Honour.

HIS HONOUR:   Thank you.  We will read them together, will we not?  Yes, Ms Mortimer.

MS MORTIMER:   Would your Honour care to take a moment to read them.

HIS HONOUR:   It is up to you.

MS MORTIMER:   I will take your Honour through them. There are, as a preliminary matter, your Honour, two amendments which I would wish to make to the draft order nisi, aside from whatever typographical errors may be present, and I apologise globally, if that is the case, your Honour. The first one – these are matters of substance – is the wording of the order nisi in paragraph 1 is really expressed too broadly and your Honour will see in the draft it finishes with the words “Migration Act 1958”. We would seek an amendment, your Honour, in the terms of the words in my outline in paragraph 3, that is to add after those words “in a manner which involves delivery of him into the custody of P & I Associates International Pty (“P & I”) or any other private contractor”.

HIS HONOUR:   Yes.

MS MORTIMER:   The second amendment, your Honour, is one that relates to the errors of law alleged against the second respondent and I ought to make a further application there.  I understand, your Honour, that the proceeding currently has as its two respondents the Minister as the first respondent and the Tribunal as the second.  Now, your Honour, my understanding is that should properly be the individual member identified in person, seeing it is a ‑ ‑ ‑

HIS HONOUR:   The draft order nisi I have names the ‑ ‑ ‑

MS MORTIMER:   The draft names him, your Honour; the proceeding as it was before his Honour Justice Kirby does not.

HIS HONOUR:   Yes, I see.  So the leave you seek is to amend the title of the proceeding by substituting for the named second respondent the name “Brendan Kissane, in his capacity as a member of the Refugee Review Tribunal”.  Is that the application you make?

MS MORTIMER:   Yes, your Honour, that is my application.

HIS HONOUR:   Is that opposed?

MR GUNST:   No, your Honour.

HIS HONOUR:   Then you may have that leave and the title will be amended accordingly.

MS MORTIMER:   If your Honour pleases.  In relation to the other amendment to the order nisi I seek to make, it is to paragraph 6 of the order nisi and in relation to that, your Honour, we seek an amendment that is in these terms:  that the decision of the second respondent that the experiences of the applicant and his family were not capable of constituting persecution for reasons of the applicant’s membership of the Shikal clan was unreasonable, and the rest of paragraph  6, including the whole of (b), your Honour, ought to be deleted.

HIS HONOUR:   So the whole of paragraph 6 in the form that you seek to have it is, “That the decision of the second respondent that the experiences of the applicant and his family were not capable of constituting persecution for reasons of the applicant’s membership of the Shikal clan was unreasonable”, and that would substitute for the rest of paragraph 6.

MS MORTIMER:   Yes, your Honour, that is so.

HIS HONOUR:   I understand that.

MS MORTIMER:   Now, on that basis, your Honour, if I can take your Honour to the submissions that we make.  We identify, your Honour, in essence three serious questions to be tried.  The first two relate to issues surrounding the proposed removal of the prosecutor from Australia.  The third serious question to be tried relates to errors of law which we allege in the decision of the second respondent.

Now, as to the questions about the removal we make, first, as a general submission, we repeat the submission that was made to your Honour in the case of Farah, that is that the power to remove a non‑citizen from Australia under the Migration Act should be – and this is paragraph 4 of my submissions, your Honour – should be construed in accordance with the authorities of this and other courts on the nature and extent of the powers of a sovereign nation to deport people.  Your Honour, my researches have not disclosed any cases that relate to removal which is conferred as a separate power under the Migration Act.  But our submission in general is that in construing the nature and extent of that power, one ought to be guided by the authorities on deportation.

HIS HONOUR:   Just to step back one step, the power of removal is the power, indeed the obligation, under 198(6).

MS MORTIMER:   That is so, your Honour.

HIS HONOUR:   And you say that the exercise of that power or performance of that obligation is to be understood as hedged about in the same way as powers of deportation?  Is that the submission or is it somewhat different?

MS MORTIMER:   Your Honour, the principles about the extent and the confinement of the power to deport are, we say, applicable to the power to remove.

HIS HONOUR:   And relevantly, what is the confinement or limitation that you take from deportation to removal?

MS MORTIMER:   They are several, your Honour.  The first is the proposition that removal from Australia necessarily includes the notion of delivery to a place and that that is the way – that is the nature of the power and we say the authorities on deportation are clear on that.  The second is that any exercise of extraterritorial constraint by the Commonwealth over a non‑citizen must be limited to what is necessary to give proper effect to the power to remove and it must be limited to what is absolutely necessary.  I will take your Honour to some authorities about that.  So in that way, your Honour, we say that the power to remove is not at large; that the courts of this and of other jurisdictions have said power to deport is not at large and we say neither is the power to remove.  That is the general proposition.

From that, your Honour, we derive, in relation to the removal, two basic propositions.  They are set out in paragraphs 5 and 6 of my submissions.  The first is that neither the Migration Act nor any other law of the Commonwealth authorises the detention in custody of a non‑citizen by private contractors for the purpose of effecting the non‑citizen’s removal from Australia and delivery to his or her country of nationality.

HIS HONOUR:   And is that proposition a proposition about detention in custody in Australia or a proposition that is wider than detention in custody within Australia?

MS MORTIMER:   The proposition goes to both, your Honour, and it depends on precisely where the custody of the non‑citizen is transferred from an officer of the first respondent to a private contractor.

HIS HONOUR:   So do I understand the proposition properly to be “authorises the detention in custody, whether within or outside, Australia”?

MS MORTIMER:   Yes, your Honour, that is so.

HIS HONOUR:   Yes.

MS MORTIMER:   The related submission to that is that because what is at stake is a person’s liberty, express statutory authorisation is required if a private contractor, that is someone other than an officer for the purposes of the Migration Act, is to have custody of a non‑citizen for the purpose of effecting removal.

HIS HONOUR:   I know I am interrupting the flow, but is it not inevitable in any removal that there will be some element of custody by a private person unless the defence forces are used to effect the removal, that is inevitably by putting a person to be removed on an aircraft of one of the ordinary international carriers, that person is inevitably going to be detained, if you like, by a private contractor?

MS MORTIMER:   Your Honour, my answer to that is twofold.  Firstly, it depends entirely on what one means by custody and, in this sense, our submission is based on custody in the traditional sense of an authorisation to detain which can be enforced by the use of restraint or force and which purports to be pursuant to some lawful authority, not physical confinement as a practical matter because a person is on an aircraft.  So we use custody in that sense, your Honour, firstly. 

Secondly, your Honour, we say it is not inevitable that the custody be enforced by a private contractor.  It is more appropriate, in our submission, and more likely, although we do not concede this, to be lawful if an officer, as that phrase is defined in the Migration Act, is the person who accompanies a non‑citizen out of Australia and in whom there is reposed a power to use whatever force is necessary to ensure that that person is removed from Australia.  We say that that is more likely to be lawful than the use of a private contractor.  The reason we say that, your Honour, is because there are provisions in the Migration Act that deal with the use of reasonable force in terms of detention in custody ‑ ‑ ‑

HIS HONOUR:   And the officers concerned are amenable to Australian judicial control.

MS MORTIMER:   And direct supervision by their employer, being the first respondent or his department, or the Commonwealth.

HIS HONOUR:   They may well be officers of the Commonwealth too.

MS MORTIMER:   Yes, your Honour.  So we say that that kind of nexus makes custody by an officer much more likely to be lawful.  That is our first point.

HIS HONOUR:   Again, before you move to the second point, what is the factual basis, though, in this case for the contention that contractors are to be employed?

MS MORTIMER:   The factual basis, your Honour, is contained in the affidavits of Caroline Graydon.  I take your Honour first to the affidavit sworn 30 October.  Now, in that Ms Graydon sets out the history of the matter and in paragraph – she does not depose, your Honour, specifically to the involvement of P & I Associates in that affidavit ‑ ‑ ‑

HIS HONOUR:   Or, I think, to any other involvement of contractors, does she?

MS MORTIMER:   She does, your Honour.  If your Honour goes to exhibit – perhaps I should take your Honour to the other affidavit because it is clearer in that.  If your Honour goes to the affidavit sworn 3 November and to the exhibit which is CJ12 to that affidavit.  That is a facsimile from P & I Associates International to the Department of Immigration relating to travel arrangements for this applicant.

HIS HONOUR:   Yes, I had read that.  Is there anything else in this – in the material that would take us beyond an inquiry having been made by Immigration of P & I about the possibility of use?

MS MORTIMER:   Oh yes, your Honour.  Your Honour can look at exhibit CJG8 which is the statement of the applicant made to my instructor.  That is exhibited to Ms Graydon’s first affidavit.

HIS HONOUR:   Yes, I have 8.  Where in 8?

MS MORTIMER:   The paragraph 6 where the applicant says, relating the events he says:

6.  Yesterday I was taken to the airport.  I co-operated when leaving the detention centre.  On the way to the airport I asked Joanne Nougher who was escorting me with 2 guards from the detention centre, how long I would be in Johannesburg.  She told me three days.  I asked her if I would be held at a prison or a police station.  She told me I would be held in transit at the airport. …..

7.  When we arrived at the airport, I was escorted by the guards, Ms Nougher and another man who was coming with me to Johannesburg, to the stairs of the plane.

HIS HONOUR:   All I would say to you, I think, Ms Mortimer, is that the impression I presently have of the material is that it is at best exiguous about any involvement of contractors, private agents or the like in the removal of this applicant.  I see the inquiry of P & I.  I rather doubt that I am entitled to draw any conclusion from anything that I might have once known in the other case.  I say “once known” because I regret to tell you most of that has now faded with other intervening matters.  I think I should say to you that my present impression of the material is that at best it is exiguous.

MS MORTIMER:   Oh yes, I understand that, your Honour.

HIS HONOUR:   And there may be, therefore, something to which you want to give attention.  Perhaps you can or cannot, but ‑ ‑ ‑

MS MORTIMER:   That is the response I was going to make to your Honour.  It is very difficult for us, in the short time that we have, to adduce incontrovertible evidence to your Honour of a contractual ‑ ‑ ‑

HIS HONOUR:   I know that.

MS MORTIMER:   And I would submit, your Honour, that it is appropriate for your Honour to ask my learned friend whether it is in dispute that P & I Associates were contracted to remove this applicant from Australia.

HIS HONOUR:   I do not propose to ask him that question, at least immediately.  It may be that that question will be appropriate to ask.  I am just not yet sure enough of my ground to think that I should interrogate him in that fashion now.

MS MORTIMER:   All right.  If it is necessary, your Honour, then we will seek leave to have the matter adjourned so we can issue a subpoena to one of the officers of compliance and I can ask those questions of that officer.

HIS HONOUR:   Yes, I understand.  No doubt Mr Gunst will bear that in mind in deciding what course he should take, too.

MS MORTIMER:   No doubt, your Honour.  There is another document which does bear on this.  I do not know that it takes the matter any further in that this is another document which we obtained under the Freedom of Information Act which is a letter from the Department of Immigration to British Airways, being the carrier with the liability, which says that the Department is aware of a firm who has successfully secured documents for African nationals – in fact, your Honour, no, I will not tender that.  It does not really take the matter any further.  I have outlined the course I propose to your Honour.

HIS HONOUR:   Assume you get over what I might call the factual hurdle and assume for present purposes that there is a sufficient factual substratum there for the point, the point you seek to make, as I understand it, is that it is sufficiently arguable that arrangements of this kind are not permitted by the Act.  Is that it reduced to its essence?

MS MORTIMER:   Yes, your Honour, that is reduced to its essence.

HIS HONOUR:   Could you then, in effect, give me the best authorities you would have in support of the confinement or limitation on power or obligation that underlies this?

MS MORTIMER:   All right, your Honour.  There are a number of sequential propositions and I do not know in what detail your Honour wants me to take them to each.

HIS HONOUR:   Why not start at the rather more detailed end and then we will see whether it is too detailed.

MS MORTIMER:   The first is, your Honour, really outlined in paragraph 8 of our submissions, that is as to the definition of “remove”.  We say it is necessary for that to be construed in order to understand what is the power that is being exercised.  We say in that that “remove” means remove from the territory of the Commonwealth of Australia, including the coastal sea.  So that a person is not removed from Australia until they leave the coastal sea of the Commonwealth of Australia. 

That being so, it is established by the authorities in relation to deportation that the exercise of the right of a sovereign nation – this is paragraph 9, your Honour – in removing must include everything without which its exercise would become nugatory and which is necessary to give effect to the deportation. 

What is necessary may include the extraterritorial constraint of the non‑citizen.  So that we do not contend, your Honour, that extraterritorial constraint is never lawful.  But what we do say - your Honour, I have copies of these cases for your Honour.  I will perhaps hand up copies of Robtelmes v Brenan, Znaty and Ferrando, which are the three leading authorities.

HIS HONOUR:   Yes, thank you.

MS MORTIMER:   Now, if I take your Honour to perhaps Robtelmes first, (1906) 4 CLR 395. The relevant passage is at 405, the decision of the Chief Justice, the top of page 405 where his Honour extracts a quote from a Privy Council case of Attorney‑General v Cain in which it is said that:

every State has the right to make laws for the exclusion or expulsion of aliens, and to enforce those laws, it necessarily follows that the State has the power to do those things which must be done in the very act of expulsion, if the right to expel is to be exercised effectively at all, notwithstanding the fact that constraint upon the person of the alien outside the boundaries of the State or the commission of a trespass…..of its neighbour…..should thereby result.

So that is the basic proposition, your Honour.  That was endorsed by the High Court in Znaty (1972) 126 CLR 1 at page 12. In that case, your Honour, in the judgment of his Honour Justice Walsh at page 12 his Honour extracts a passage from another High Court decision of Ferrando which may suggest – there are passages in Ferrando which seem to suggest that the power to deport or expel or remove, whatever verb is used, is exhausted once the territorial limits are reached.  What the High Court says towards the bottom of page 12, your Honour, is if what was said by Justice Barton in Ferrando –

meant that it is a necessary characteristic of every statutory power to deport that it is exhausted as soon as the deportee is placed outside the territorial limits, it would not be consistent with –

other authorities.  We do not cavil with that, your Honour.  So we say that that is an accurate statement, that there may be circumstances in which extraterritorial constraint is necessary.

What we do highlight, your Honour, though, is the way that this was expressed by the High Court in Robtelmes.  If your Honour turns to page 411 of that decision, about halfway down the page where his Honour Justice Barton says, in effect, that is the phrase that I have used in the submissions, the right to legislate for deportation “confers everything, without which, its exercise would become nugatory”, but the last part of that sentence, your Honour, is the part that we emphasise:

the degree of restraint absolutely necessary for the purpose of making the deportation of effect –

and we emphasise those words “absolutely necessary”.  The reason that we say that that is so important is because what we are talking about is the liberty of an individual. 

I want to take your Honour to a passage in a decision of the High Court, a passage of his Honour Justice Deane. This decision, your Honour, appears to be unreported and it is actually absent from my submissions because I left a gap and then never put it in. It ought to appear in paragraph 12(b) of my submissions where the proposition is put: Against this must be balanced the fundamental proposition that a person, whether non‑citizen or citizen, cannot be deprived of his or her liberty except by the exercise of clear statutory authority. The case, your Honour, is Commander Christopher Bolton, Captain HMAS “Penguin”, the Honourable Kim Beazley, the Minister of State for Defence; Ex parte Douglas Beane.  It is a decision in 1987 of the High Court.  It does not appear to be reported, your Honour, but that may be my inability to find it rather than anything else.

HAYNE J:   I had in mind Bolton v Beane was somewhere but perhaps nothing turns on that for the moment.

MS MORTIMER:   Your Honour, the passage I want to take your Honour to is on page 8 of the Internet, to the start of his Honour Justice Deane.  Is your Honour familiar with this case?

HIS HONOUR:   Yes.

MS MORTIMER:   I will not read it, your Honour.  That entire first paragraph of his Honour, “The common law of Australia knows no lettre de cachet” down to “They provide the general context of the present case.”  We rely on that, your Honour.

HIS HONOUR:   I am sure it is reported, Ms Mortimer, and I do not know under what name, that is the difficulty.  It would come under another name, I suspect, but ‑ ‑ ‑

MS MORTIMER:   The key part, your Honour, is this.  Any officer of the Commonwealth executive who, without judicial warrant, purports to authorise or enforce detention and custody of another person is acting lawfully only to the extent that his conduct is justified by clear statutory mandate.  His Honour goes on to say why that is so important. 

The way that we put it, your Honour, is that there must be that kind of clear statutory mandate.  The analogy we draw is with the development of the private prisons in Victoria.  Your Honour, in the Corrections Act Victoria 1986, there are now explicit provisions which authorise the Minister of Corrections in the State of Victoria to conclude agreements for the provision of correctional services by private contractors.  What that entails is essentially the statutory authority in private contractors to detain people in custody.  That is the proper way, we submit, for it to be done.  If it is to be done, it is to be done expressly; in the applicant’s case, by law of the Commonwealth Parliament and not otherwise.

HIS HONOUR:   Again, this is something that may require consideration of the factual base of this case.  Can I see if I understand the way the argument is developing and see if I can state what I understand to be the area for debate.  The statutory power or obligation – and for the moment I do not distinguish – is the power or obligation to remove.  Step one in your argument, as I understand it, is remove equals more than simply taking to a point beyond the territory of Australia, which is relevantly the territorial sea limit.  Removal involves removal to somewhere.

MS MORTIMER:   Yes, your Honour.

HIS HONOUR:   If it involves removal to somewhere then by what right, you ask, is detention of the applicant by someone other than an officer of the Commonwealth permitted?

MS MORTIMER:   Yes.

HIS HONOUR:   If, by contrast, however, removal equals only removal beyond the territorial sea, and since aircraft do not ordinarily land at the 3‑mile limit, whatever is necessarily involved in the first port of call beyond, then, again, what warrant in the statute is there, what authority in the statute is there for detention beyond the point of first landing.

MS MORTIMER:   Yes, your Honour, or even, we say, detention in the air.  Now, there may be a right - - -

HIS HONOUR:   In a sense, that is a very practical question.  I mean, he can go and use the door with the big handle if he likes but he is not going to get out of the aircraft while it is in the air, is he?

MS MORTIMER:   The real question, your Honour, is, is the private contractor who is accompanying him entitled to handcuff him in the plane?

HIS HONOUR:   But then you come down to the power of the captain of the aircraft to restrain the passenger who is - - -

MS MORTIMER:   The power of the captain is another matter, your Honour.

HIS HONOUR:   I understand that but, in a sense, that is much less significant.

MS MORTIMER:   Put the power of a South African guard sitting next to him is, we say, still an issue but it is not, your Honour, as much of an issue when the person is physically in the air.  We agree with that.

HIS HONOUR:   And thus the Hobson’s choice that may confront your client ultimately would be that if the power is power to remove, if you like, to the edge of the territorial sea but till the next port of call, then he is simply given his papers and he is left to do whatever he can at the point of first landing which will be confined in the transit area or in immigration detention, but the port of first landing, subject to whatever arrangements then are made for his onward transit, in this case, to Somalia, but no intervening detention by contractors.

If, however, you are right in your contention that removal means removal beyond territorial sea and, in this case, must relevantly mean removal to Somalia, but without intervening private detention, it is the same result, is it not?  He is given papers to Somalia, put on an aircraft which will take him en route to Somalia – relevantly Johannesburg, I assume, or somewhere in South Africa – and he is left to sweat in the transit lounge for however many hours/days it takes until the connecting flight to get on to go to Mogadishu or wherever.

MS MORTIMER:   Yes, your Honour, he is at liberty then.

HIS HONOUR:   No, he is not.  He is in transit.

MS MORTIMER:   Yes, but he personally is as much at liberty as any other person in transit.

HIS HONOUR:   Subject to whatever rules the South Africans may make on his arrival.

MS MORTIMER:   Of course, your Honour, yes, but there is no additional restraint on his liberty when he is compared with any other passenger in transit in South Africa.

HIS HONOUR:   Now, am I right in understanding that the argument is one which says either removal equals removal to the territorial sea or what is practically the same, namely, first port of call but, therefore, no restraint beyond or if it means removal to somewhere - and that is your preferred position, it means removal to somewhere - it means removal to somewhere without intervening physical restraint by someone other than Migration officers as defined in the Act.

MS MORTIMER:   Yes, your Honour, subject to this qualification, and that is that the manner of restraint, even by an officer of the Commonwealth, needs to be appropriate and adapted, necessary all those things.

HIS HONOUR:   I understand that there are then limitations - - -

MS MORTIMER:   On even what an officer of the Commonwealth may do.

HIS HONOUR:   I understand that and those are limitations which ultimately would be enforced in the courts of Australia.

MS MORTIMER:   Yes, your Honour, that is so.

HIS HONOUR:   That is the nub of the point.

MS MORTIMER:   Yes, it is.

HIS HONOUR:   But there is a bit of factual substratum there.

MS MORTIMER:   Undoubtedly, your Honour.  We say, at this state we need only persuade your Honour that it is a serious question.  Because of its nature, the factual substratum is one that will be available to us only upon a process of discovery.

HIS HONOUR:   Or on process of a subpoena or in the course of these processes.

MS MORTIMER:   Or subpoenas or whatever investigations we need to extract facts that are not within our knowledge. 

HIS HONOUR:   Is this a point, if there is a point here, which has to stay in this Court?

MS MORTIMER:   It is, your Honour, and we make that submission for two reasons.  The first is that it is a question of general principle and what my instructor’s second affidavit deposes to is some evidence, albeit probably hearsay, that this is a frequent practice.

HIS HONOUR:   All the more reason why this Court should have the benefit of the views of a judge at first instance and an intermediate Court of Appeal perhaps.

MS MORTIMER:   I understand that, yes.  If it is possible, your Honour, we would not oppose remitter but the second part of our case, that is the attack on the decision of the second respondent, and that is the Refugee Review Tribunal, is not capable of being remitted.

HIS HONOUR:   And that depends on Abebe, does it not?

MS MORTIMER:   It does, your Honour.

HIS HONOUR:   And Abebe is first in the list for November.

MS MORTIMER:   Yes, it does depend on that.  Yes, it does, your Honour.

HIS HONOUR:   As to the errors of law that you assert on the third aspect, it may perhaps be more convenient if I hear Mr Gunst first on those rather than you, Ms Mortimer, unless there are things that you think I should have ringing in my ears.

MS MORTIMER:   I will try to confine what your Honour ought to keep ringing to one or two sentences and that is - - -

HIS HONOUR:   On the basis my powers of recall are very limited, yes.

MS MORTIMER:   On the basis that I do not want to occupy too much time, your Honour.  That is that there is a House of Lords decision of Adan.

HIS HONOUR:   I have read that.

MS MORTIMER:   That is, possibly, we say, in our submissions, authority for the proposition that what might otherwise be persecution during a civil war or turmoil cannot be for a Convention reason.  That is one construction of it.  We say it is not the only one.  It appears to be the one that the RRT has taken and run with, so to speak.

HIS HONOUR:   Well, is it?  Can you point me to the purple passage in the RRT decision that you say is your best peg on which to hang this aspect of the argument?

MS MORTIMER:   Yes.  If your Honour goes to exhibit CJG2 and to page 6 of the decision.  At the top of the page, your Honour:

Fleeing the consequences of war or civil disturbance does not bring the Applicant within the Refugees Convention.

And that is repeated below the quotations.

HIS HONOUR:   But the Tribunal then goes on to say:  “(1) not target of harassment in past;  (2) no country information; (3) seems to be just consequences of general breakdown of law and order, therefore” – now, am I misreading the effect of the Tribunal’s decision, do you say?

MS MORTIMER:   Your Honour, the Tribunal has ceased its inquiry at too high a level of generality, that is, if it has accepted the proposition that fleeing the consequences of civil war or disturbance cannot constitute persecution for a Convention reason.  Now, what we say Abdalla - that is the decision of the Full Federal Court – requires and what, indeed, we say, if one reads carefully Adan is also capable of requiring, is a further level of inquiry, that is, within the context of a civil war why are people being harmed?  Are they being targeted because they are members of a clan?  If that is so, then notwithstanding that that is occurring during civil war, it is capable of constituting persecution for a Convention reason, that is, a member of a social group.

HIS HONOUR:   Accept that that is so for the purposes of debate, what am I to make of the sentence at about the middle of that page:

The Tribunal is also satisfied that neither the Applicant nor his family were the specific targets of any instances of harassment serious enough to amount to persecution on account of the Applicant’s membership ‑ ‑ ‑

MS MORTIMER:   Yes.  Well, your Honour, that is the passage that we attack as unreasonable in the extreme and my submission to your Honour is one cannot, when one looks at the evidence, think of a more unreasonable statement.  This applicant’s father and brother were killed by members of Haiwye militia on the basis, the applicant asserts, that they were Shikal.  His sister was raped three times by Haiwye on the basis that she was Shikal.  Now, if that is not sufficient to constitute being a specific target of harassment serious enough to constitute persecution, your Honour, in my submission, I do not know what is.  So that we say that on the evidence – and that is a matter that we need, for instance, to obtain the transcript of the applicant’s evidence before the RRT – no reasonable decision-maker could have made that statement.

HIS HONOUR:   The present inclination of my mind, Ms Mortimer, is that this third ground that you raise is one which may be better understood and better evaluated after Abebe and after the related or partly-related case of Eshutu, at least, had been argued.  I do not know whether it even would be necessary to await judgment, it may be, but the present inclination I have is that we may be better focusing on the first two grounds.  If they warrant a grant of injunction, then standing over this third ground in some form or other is not going to raise a particular problem, at least immediately.

MS MORTIMER:   No, your Honour, they are discrete and capable of separation, yes, your Honour.

HIS HONOUR:   Yes.  It may be that we have to come back and debate them further but I must say I am a little troubled at the moment about this third ground.  As you say, we would need to look very carefully at what was before the Tribunal to decide reasonable or unreasonable, and we do not yet have – I am not saying this critically; do not take it critically – any note or transcript of what occurred before the Tribunal.

MS MORTIMER:   No.

HIS HONOUR:   We have some extracts of - - -

MS MORTIMER:   We have extracts from my instructors listening and that is the extent of it.  Yes, your Honour.  If the Court pleases.

HIS HONOUR:   Thank you, Ms Mortimer.  Mr Gunst, you have heard the debate that has transpired and I wonder whether it may not be productive to focus more on the first two grounds unless you say otherwise.

MR GUNST:   No, I am perfectly content to do that.  Thank you for the opportunity, your Honour.  Can I take your Honour to several of the definitions in the Act and then a couple of the authorities that my learned friend has raised.  The removal, of course, as your Honour has seen, takes place under section 198.  It is “Removal from Australia”.  Rather, it is “removal” under section 198.  One then needs to look at section 5.  I think I heard your Honour say once, “If in doubt, look at the definition section.”

HIS HONOUR:   And:

“remove” means remove from Australia –

and, if we get at it, through the Acts Interpretation Act or somewhere, we find that “Australia” includes territorial sea, do we not?

MR GUNST:   Yes.  There is a nice point that I will not trouble your Honour with about the custody – it is the point your Honour raised in argument a moment ago about the authority of an airline captain.  Once the aircraft is sealed and has taken off, although it is physically still in Australian airspace, the power of the captain, as your Honour knows, to subdue passengers who are making trouble and so on is, at least effectively untrammelled and possibly, in law, untrammelled. 

It would be, perhaps, a lengthy period of time if the removal – in this case, let us say, from Melbourne or Sydney going to Johannesburg because there would be a period of quite some hours whilst the plane was in Australian airspace.  In fact, this removal was - - -

HIS HONOUR:   Tell me about it, Mr Gunst.

MR GUNST:   Very pretty, the Nullarbor Plain, your Honour, especially from 30,000 feet.  In fact, the removal here, what was proposed, was an internal flight from here to Perth and then an international flight only from Perth.  So, in fact, the distinction is a very small one because, as your Honour understands, from Perth to the outer boundary of Australia’s territorial waters is a very short step, indeed.  But we do not need to debate the point because it is not, in the end, significant, in my submission.

The obligation of the Minister is “to remove”, and that means remove from Australia.  That is the extent of the Minister’s duty and, indeed, of the Minister’s power.  Subject to the authorities that my learned friend has correctly taken your Honour to, I would refer your Honour to two of the passages in Robtelmes in the passage at page 411 in the judgment of Mr Justice Barton that my learned friend took your Honour to.  We accept and adopt that there is necessarily some residual power to extraterritorial restraint being a degree of restraint necessary for the purpose of making the deportation effective.

It would be permissible, for example, if the man – to use your Honour’s example – was to attempt to use the big door with the big handle on it while the aircraft was at 30,000 feet just after having passed outside Australian territorial waters, if only because, as a matter of common sense and practicality, these removals are effected on ordinary commercial airlines.

HIS HONOUR:   But turn it into a ship-bound removal from Australia.  It may be effective at the edge of the territorial sea but you cannot simply let the person overboard as you pass the 3-mile limit.

MR GUNST:   No, certainly not.  The second case we were going to take your Honour to was Znaty at page 12.

HIS HONOUR:   But is it then your contention or your primary position that removal equals removal from the territorial boundaries of Australia?

MR GUNST:   Yes.

HIS HONOUR:   But that has the practical consequence that it has to be to a port somewhere, but the removal is removal from Australia in that sense.

MR GUNST:   Yes.  That is what the Act says, your Honour, and that is what the authorities say as well.  As Mr Justice Barton said in Fernando v Pierce – and the passage is quoted in Znaty’s Case at page 12 – it is that large chunk of text on the left-hand page.  In the middle of that chunk of text his Honour Mr Justice Barton says:

It is not for the alien to choose his ship, and there is no authority other than the Minister or some power above him to make the choice.  The choice is reposed in the Minister until –

I am paraphrasing:

There is nothing to prevent him from choosing a ship bound for China, so far as the execution of his power of deportation is concerned.  If he chooses a ship bound for Italy –

there is, in no sense, any illegality.  Now, the Minister would be entitled, on the authority of this Court, to put this man on an aircraft for China.  Now, as a matter of practical reality and common sense, the Minister takes his obligations very seriously, and that, of course, is not done and is not proposed to be done in this case.  What is proposed to be done is to fly this man to the nearest international port, that being Johannesburg, and a booking is made for a connecting flight to Nairobi, and then from Nairobi to Somalia but – and this is important, your Honour - on the evidence, he will be unescorted at all times from arrival in Johannesburg.  That is in the first affidavit of Ms Graydon, paragraph 15.

HIS HONOUR:   Where do I find this?

MR GUNST:   It is the first affidavit of Ms Graydon, sworn 30 October, paragraph 15:

The applicant has been given notice that it is proposed to remove him….The applicant has informed me he has been advised –

by an officer –

he will be escorted…..during his journey to Johannesburg.  From Johannesburg, it is proposed that he will be unescorted to Nairobi and then unescorted by charter flight to Mogadishu in Somalia.

HIS HONOUR:   You say that is the evidence that is before me and that is undoubtedly true.

MR GUNST:   The second piece of evidence that bears on this, your Honour, is in the second affidavit and it is the document from P & I Associates, exhibit CJG12 to the second affidavit of Ms Graydon.  It is the fax between this firm, P & I Associates, and the Department of 12 August, “Thank you for your inquiry regarding our services”, and then it sets out what the services are. 

We are in a position to obtain Emergency Travel documents for Somali citizens.

I am including a Somalia questionnaire –

and then some concerns about the actual mechanical issuing of the documents.  Now, I do not want to be coy about it, your Honour, and I have not sought specific instructions on the matter your Honour raised in argument, but on the evidence before the Court at the moment, that is the extent of the involvement of this particular firm.

HIS HONOUR:   But the contention, as I understand it, that the applicant would make is that, properly understood, the evidence raises a case for inquiry about the role of P & I Associates.   It would be unfortunate, I think, if this case were to go off on a basis that ultimately proved not borne out by events as they occurred.  That would be, perhaps, even worse than unfortunate.

MR GUNST:   I understand the concern that your Honour expresses, and can I say this:  the involvement from Johannesburg northwards to Somalia – it is apparent on the material this man, being unescorted – that is just a role in the nature of travel agency and booking office, as it were.

HIS HONOUR:   Again, Mr Gunst, I do not want us to end up in difficulty about this.  My understanding is the applicant contends that P & I will be involved in a way that may involve or will involve the physical restraint of this man at some point in his journey.  I will not be more specific than that at the moment.  That is their contention.  You are right to point me to the evidence and, in the end, I have to decide this case on evidence, but let me put a purely hypothetical case to you, and it is to be understood as purely hypothetical:  were it later to emerge that had a subpoena issued, the subpoena would have revealed the making of arrangements for restraint of this man Johannesburg northward, I would regard that as, at the least, highly unfortunate that the Crown should have permitted the case to proceed on the basis on which it did.  These are hypothetical cases and it may be that it would be better if I simply left the Bench for a time and allowed the parties to have an opportunity to discuss where each of them thinks this case is now standing.  These cases are sensitive inevitably.  I do not want it going off the rails.

MR GUNST:   Yes, and my client agrees with that, your Honour.

HIS HONOUR:   Would it be convenient if I gave you 10 minutes or - - -?

MR GUNST:   Perhaps there are just two more things that would be convenient to say now, and then that would be a most satisfactory course, your Honour.

HIS HONOUR:   Yes.

MR GUNST:   The first point to make, of course, about all this is to remind your Honour of the history, and perhaps I should have started this at the outset.  This man came here quite some time ago.  He applied for refugee status; was refused by a departmental officer.  He had his full right of review to the independent tribunal, the Refugee Review Tribunal.  The Tribunal found – and I will need to take your Honour to some of the reasons in a moment because it goes to the second point – as I say, correctly on the evidence, that this man was not a refugee.

He was represented by competent practitioners at the time, although not actually represented before the Tribunal - - -

HIS HONOUR:   Not at the Tribunal.

MR GUNST:   - - - but the practitioners had prepared material for him to put to the Tribunal, and that seems to have been a conscious act of volition, either of the prosecutor or of the lawyers not to attend the Tribunal, but whatever the reason, your Honour, the evidence is that material was prepared on his behalf and presented to the Tribunal.

HIS HONOUR:   And the application is made at the last minute.  Yes, all of these things should perhaps inflame my passions one way or another but I hate to tell you they do not much, Mr Gunst.

MR GUNST:   Yes.  Your Honour used to say in the commercial list; your Honour would look at the side of the courtroom, look for the light, and say, “There’s no jury here, Mr Gunst”, and I acknowledge the fact - - -

HIS HONOUR:   I have been…..to say that even here, Mr Gunst.

MR GUNST:   There is still no jury here.

HIS HONOUR:   No.

MR GUNST:   Yes.  The only other point I wanted to make was that your Honour has the evidence that in fact his lawyers looked at the RRT decision and advised him that there was no competent right of appeal at that stage.  I then need to address Abdalla’s Case which comes after that point.

HIS HONOUR:   Look, in the end either this man has an arguable case or he has not.  If he has an arguable case, then, subject to what you may tell me about balance of convenience, it would seem to me likely that injunction should go.  If he does not have an arguable case, the question comes to an end.

MR GUNST:   There are two broad ways in which it is put, your Honour.  First of all, because of the involvement of the firm from South Africa that has had the role in the arrangements, that there is something wrong or inappropriate about that.  I need to address your Honour about that but a short adjournment might be helpful to ascertain – and it may very well be I will be in a position to give some undertakings to your Honour in respect of the involvement or lack of it, which may well satisfy your Honour.

HIS HONOUR:   Perhaps if we review the position - it is about 10.35.  Would 10.45 suffice?

MR GUNST:   It would be fine, your Honour, thank you.

HIS HONOUR:   Yes.  I will resume sitting at 10.45.

AT 10.34 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.45 AM

HIS HONOUR:   Old habits die hard.

MR GUNST:   Yes.

HIS HONOUR:   Commercial list habits of 10.45 meaning 10.45.

MR GUNST:   Your Honour has done that to me once before, as I recall, at 2.15.  I do apologise.

HIS HONOUR:   Once bitten, twice shy, Mr Gunst.

MR GUNST:   Well, once bitten, I am very shy, your Honour, and I apologise.  We were in fact in the middle of having a discussion, your Honour. 

HIS HONOUR:   Now, where are you up to?  Do you need some more time to sort things out?  I would rather you took the time to get to a position where both of you feel comfortable with the other party?

MR GUNST:   I am in fact now in a position to tell your Honour what I told my learned friend.  I have sought specific instructions from Mr Reid who is the responsible officer here, and the other departmental officers who are here, and I can say this, that it is not proposed –and, if necessary, I can undertake on behalf of the Minister to your Honour to this effect – that the prosecutor in this matter be detained and/or escorted – I will use the compendious term – several terms to make it clear – from the time he is put on the international plane and that the plane is sealed.  From then on – I will go back a step.  British Airways have the obligation to remove this man.  It was British Airways who brought him here.

HIS HONOUR:   I take it they had the obligation because they brought him?

MR GUNST:   Yes, British Airways brought him here. 

MS MORTIMER:   That is disputed, your Honour.

MR GUNST:   My learned friend has a point to make about that and I will just adumbrate that, your Honour.  The liability is under section 217.  It is a liability in respect of the removal.  Whether it is the cost or the physical removal, the fact is, as a matter of practical reality, what happens is the airline in each instance makes a seat available and that is what is done here.  British Airways has accepted that it has the obligation and that is what it proposes to do.

From the moment that the aircraft is sealed and taxis out and takes off across the Indian Ocean, he is in the control of British Airways and the captain has whatever powers - whether the captain of the British Airways flight determines that this prosecutor is a perfectly placid gentleman who requires no supervision or whether, having regard to what happened on the last occasion, British Airways determine that it might be prudent for the protection of its other passengers to have some people there to supervise him and to make sure that he does not act up as he did on the last occasion, that is a matter for British Airways.  I emphasise that the Minister’s duty ceases when the man is removed from Australia.  But what is proposed is – and I can undertake this if need be – that he will not detained or escorted from the moment he is put on the plane and the plane is sealed, preparatory to taking off.  The international plane, I mean, in Perth.

HIS HONOUR:   Yes, I understand that.

MR GUNST:   I would need to address the other matter on Abdalla Case as well, your Honour, because on that basis I also say that there is, in fact, no arguable case here.

HIS HONOUR:   As to that, how can I determine arguable case or no without there being the transcript or record of what occurred below?  Given the pace at which this has come on, why should I not simply stand it over for a day or two to enable the material to be put on so that I can then make an informed judgment about whether it is arguable that no reasonable tribunal could have so concluded?

MR GUNST:   Your Honour, there cannot be a sensible argument against that proposition.  Clearly, any judgment is better if it is better rather than less well informed.

HIS HONOUR:   Thinking about it during the break, it seemed to me, Mr Gunst, that if attention had to be focused on this third ground, it may be better that there be a short opportunity for the applicant to get the house in order a little better than they have now had – again, I am not to be taken as offering criticism for the way in which it has come forward – and then decide whether this point has any legs or no legs.

MR GUNST:   Yes.  If that was to be done – and I might say I could here and now identify the reasons why Abdalla Case is of no assistance to this prosecutor.  There are a number of factual distinctions and findings of fact made in the one case and not made in this case that take it well outside it.

HIS HONOUR:   Yes.  I think, again, those debates might be better conducted, may they not, with us knowing exactly what – not so much with us knowing but me knowing as well, exactly what was before the RRT.

MR GUNST:   Yes.  Your Honour, I do not disagree with that.

HIS HONOUR:   Now, if that were to happen though, that would mean that we would need to hold removal for the period pending - - -

MR GUNST:   Yes, the stay is until 4 or 4.30.

HIS HONOUR:   Four today.

MR GUNST:   Necessarily, your Honour would extend the order, one would think.

HIS HONOUR:   Now, can I further complicate things by saying that the November sittings commence on Tuesday.  I will be going to Canberra on Tuesday morning but I would have available Monday.  We are now at Wednesday.  If we do not pick it up on Monday next, it would have to be Monday fortnight.  It is either Monday week or Monday fortnight in Melbourne.  Unless the parties particularly pressed me to do, I would not propose to have it taken up to Canberra.  That is really inflicting expense and time and trouble on everybody which ought not to be there.  So, those are the available choices.  It may be governed in part by how Ms Mortimer’s instructors are placed in getting the material together and on to the file in time for all of us to read it and digest it.

MR GUNST:   I would suggest either Friday or Monday, your Honour.  If the material could be got by some time tomorrow and put in affidavit form, that would be possible, or otherwise Monday. 

HIS HONOUR:   How long do these hearings last, Mr Gunst, the RRT hearings?  I mean, how much of a transcript are we talking of?

MR GUNST:   It depends, your Honour, but sometimes it can be 10 pages; sometimes it might be 80 or 100, in the ones that I have seen.

HIS HONOUR:   Well, much may turn on how long this one was and how much time is needed, physically, to prepare it, and those are things, I think, Ms Mortimer may perhaps be better able to help me with.

MR GUNST:   Yes.  I have not seen it myself, your Honour, so I cannot say.  All right, I will save my analysis for the next occasion, your Honour, I would say, because there are a number of significant reasons why Abdalla’s Case is not determinative or even really helpful in this matter.  I might say an adjournment would enable the Minister to put some material before your Honour concerning the actual proposed arrangements, the matter that concerned your Honour before the adjournment, to allay any lingering fear or doubt your Honour might have about the arrangements.

HIS HONOUR:   Yes.  Also, I think, it may be important that if – and I have yet to hear what Ms Mortimer has to say to all of this – this point is to take on either no importance or diminished importance in the further

conduct of the matter, it will be important that the applicant himself has a firm and sure basis for knowing what is to happen to him in this regard.  At the end of all this there is an applicant, a real live human being sitting out there who has to know what is going to happen to him.

MR GUNST:   Yes.  The Minister is acutely conscious of that, your Honour.

HIS HONOUR:   Yes, I understand that.  Do not take what I say as being criticism.  It is not intended as such and, I hope, will not be taken as such.  Thank you, Mr Gunst.  Now, Ms Mortimer, the first two points, in light of what now is said, do you press them?

MS MORTIMER:   Yes, your Honour.  We press them on – it is very difficult for me to put the basis on which we press them because, in my submission, the nature of the undertaking tells, perhaps, only half the story.  What it tells to your Honour is that the Minister does not propose to detain or escort the applicant by his agents or otherwise.  It does not tell your Honour whether anyone else proposes to detain or escort the applicant.

HIS HONOUR:   Let it be assumed that somebody else did, how, in these proceedings, could that arise?

MS MORTIMER:   Because that is a matter occurring within the jurisdiction of Australia.

HIS HONOUR:   But with these parties, is my point.  Your present suit is against the Minister and if somebody else proposes to do something, then you may or may not have action against that other person but not against the Minister.  The point is not a captious one.

MS MORTIMER:   No, no.  I understand the point, your Honour, but, in my submission, it turns on what directions the Minister has given, for instance, to British Airways:  whether those directions are in accordance with what is permitted under the Migration Act.  It changes the nature of the questions, your Honour, and that is why, in my submission, it is absolutely imperative that we understand precisely what the facts are.

HIS HONOUR:   For the moment, Ms Mortimer, I would understand what I have been told to be that the Minister does not propose to make arrangements for the detention or escort of the applicant from a time after his international flight has been sealed ready for take off.  That is my understanding of what I am told.  I understand why and how you may be, or your client, more accurately, may be concerned about some other aspects of the matter but as at present advised my inclination is that you should have a sufficient time, but necessarily short time, to put on whatever you can in further support of proposed ground (3) and if, in the meantime, you seek to make some other or better or different case in relation to the first two grounds, we will cope with that then.  But the immediate problem, in part, may go away simply because I am minded to give you a sufficient but relatively short time to put on material about (3).

MS MORTIMER:   Your Honour, I understand that.  The sequence of events, your Honour, is important in the sense that if, as my learned friend seemed to indicate, there is to be some evidence put on by the Minister in relation to this issue of removal and the involvement or non-involvement of private contractors, my submission is that that needs to be done with enough time for us to be able to look at it and, if need be, amend the application that we make.

HIS HONOUR:   All that is cured, is it not, if I give directions that any further affidavit to be relied on in support of the application be filed and served on or before a date.  I will come back to the precise timetabling in a moment.  That affidavits in opposition to the application be filed and served on or before – again, a date.  I would like also to give directions that each party file and serve an outline or an amended outline of submissions by a date.  I would, presumably, make an order restraining removal.  That order to last until a date or further order, and I would adjourn the application to that date, certifying for counsel and disposing, in some means, of costs, the inclination being at the moment to reserve them for that further hearing.  Now, with a framework of directions of that kind, is that going to enable the parties to come back in a position to debate the matter sufficiently, do you think?

MS MORTIMER:   With one additional direction, your Honour, in my submission, the answer is yes.  That additional direction relates to obtaining the transcript of the RRT hearing.  Your Honour, my instructions are – and I do not imagine this is going to be disputed by the Minister – it costs about $1,000 to get the official transcript of the RRT.  Now, that depends on how long it is.  My instructor having listened to it, as she deposed to, says it lasted for about 75 minutes.  This applicant, like most people in detention, has no money; has legal representatives now acting pro bono.  He is not in a position to find $1,000 to pay for a transcript.  It is an integral and necessary document for your Honour to have and my submission is - - -

HIS HONOUR:   What do you say we should do?

MS MORTIMER:   My submission is there ought to be a direction that the Minister provide it to the Court and to the applicant’s legal representatives.

HIS HONOUR:   Yes.  Subject to that, what timetabling do you propose? 

MS MORTIMER:   Again, your Honour, the timetabling depends on how quickly that transcript can be obtained.

HIS HONOUR:   Yes, I see.  Well, perhaps if we debate the transcript issue first.  Mr Gunst, what do you say about provision of transcript?

MR GUNST:   The order proposed would be a quite unwarranted one, in the circumstances, your Honour.  I understand that a transcript would be helpful but, in the end, this application is doomed to failure.  It is meritless.  I will take your Honour to various reasons why - - -

HIS HONOUR:   You may well be right, I do not know.

MR GUNST:   It is for the prosecutor to come to the Court and to demonstrate that there is some case that is made out.  It is not sufficient to turn up at the Court and say, “Well, we think we’ve got a case and we’d like the Minister to make the following inquiries and outlay a lot of money so that I can then determine all of that, please.”  The tapes are apparently available already.

HIS HONOUR:   I can tell you this, Mr Gunst.  I am going to take a very dusty view if the applicant is left in a position where it subpoenas the tapes, tenders the tapes, and says, “For want of funds, I can’t transcribe them but, you, Judge, are going to have to sit and listen to them.”  Now, if that is the position we come to, that is the position we come to.  I understand why you say I should not make a direction and I would not be minded to make any direction but I do not think it is going to be a terribly productive use of judicial time if I am condemned to sit and listen to the tapes.

Now, it is a matter for the parties how they sort it ought.  Everybody is able to deal with these little contretemps that occur in litigation, and I am going to leave it to the parties to sort it out.

MR GUNST:   It is very helpful, your Honour, thank you.

HIS HONOUR:   I was only doing it to be of assistance, Mr Gunst, you understand.

MR GUNST:   As always, your Honour.

HIS HONOUR:   Now, subject then to my giving no direction about transcript, Ms Mortimer, and leaving the parties to sort out how they deal with these things, what timetabling do you propose?

MS MORTIMER:   Of course, I would be optimistic that we will both be extremely efficient and assiduous in dealing with it.  Your Honour, it seems convenient that it be dealt with on Monday.

HIS HONOUR:   Therefore, if that is so, how do we break the time?  What is the timetable for you to put on more material?

MS MORTIMER:   Affidavits in support by close of business tomorrow, your Honour.

HIS HONOUR:   Yes.

MS MORTIMER:   And affidavits in opposition by close of business on Friday, the 6th.

HIS HONOUR:   That is Friday, yes.  Outlines?

MS MORTIMER:   Outlines by the 6th.

HIS HONOUR:   You are going to be flying in the dark if you do you.  You will be putting an outline in with nothing – I think better if the outlines hit the fax of the Registry by 9 or 9.15 on the Monday morning.  It will give you a chance to spend some time doing them as you would wish.  Say 9 am 9 November.  That would mean no removal until 4 pm 9 November or further order?

MS MORTIMER:   Yes.  Your Honour, perhaps an extension of the order of his Honour Justice Kirby, order 1.

HIS HONOUR:   Yes.

MR GUNST:   Your Honour, I am content with an extension of the order ‑ ‑ ‑

HIS HONOUR:   Adjourn application to 9.30 am 9/11?

MS MORTIMER:   If your Honour pleases, yes.

HIS HONOUR:   Reserve costs; certify.

MS MORTIMER:   If your Honour pleases.

HIS HONOUR:   Then, Mr Gunst, do you wish to be heard in opposition to me making directions of that kind further than you have already said?

MR GUNST:   No, thank you, your Honour.

HIS HONOUR:   Then there will be orders and directions as follows:

1.Extend the time fixed by paragraph 1 of the order of Justice Kirby made 30 October 1998 from 4 pm Wednesday, 4 November 1998 to 4 pm Monday, 9 November 1998 or further order.

2.Direct that any further affidavit to be relied on in support of the application be filed and served on or before 5 pm 5 November 1998.

3.Any affidavit in opposition to the application be filed and served on or before 5 pm 6 November 1998.

4.Each party file and serve an outline or amended outline of its submissions on or before 9 am 9 November 1998.

5.Adjourn the further hearing of the application to 9.30 am 9 November 1998 in Melbourne.

6.Reserve costs.

7.Certify for counsel.

Do counsel wish to be heard about the form of those orders and directions?

MR GUNST:No, your Honour.

MS MORTIMER:  No, your Honour.

HIS HONOUR:  Thank you.  Adjourn.

AT 11.10 AM THE MATTER WAS ADJOURNED

UNTIL MONDAY, 9 NOVEMBER 1998