The Maritime Union of Australia & Anor v Assistant Minister for Immigration and Border Protection

[2015] HCATrans 201

[2015] HCATrans 201

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S136 of 2015

B e t w e e n -

THE MARITIME UNION OF AUSTRALIA

First Plaintiff

AUSTRALIAN MARITIME OFFICERS’ UNION

Second Plaintiff

and

ASSISTANT MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 19 AUGUST 2015, AT 9.57 AM

Copyright in the High Court of Australia

MR N.J. WILLIAMS, SC:   May it please the Court, I appear with MR B.K. LIM for the plaintiffs.  (instructed by Slater and Gordon Lawyers)

MR S.P. DONAGHUE, QC:   May it please the Court, I appear with MS A.M. MITCHELMORE for both defendants.  (instructed by Australian Government Solicitor)

HER HONOUR:   Yes.

MR WILLIAMS:   Your Honour may have noted that there is a very substantial measure of agreement between the parties as to the course that the matter needs to take.  Now, I think that the only potential area of difficulty is that in the terms of the subpoena, which we seek leave to issue, we can resolve that forthwith by indicating that we press only for paragraphs 1 and 2 in light of the indications in the submissions.

HER HONOUR:   Yes, thank you for that, Mr Williams.  I have read your submissions and those on behalf of the Minister.  In light of the importance of the matter and the difficulties that would attend any remitter to the Federal Court, I consider that the appropriate course is not to remit the proceedings and I understand there is no contest between the parties in that respect.  Really, it comes down to this, does it not?  In light of that measure of agreement between the two of you that it would be appropriate for me to make the orders that you seek, subject to varying the terms of the subpoena, that would take us to a date, I think, of 30 September for the filing.  Are we agreed upon the filing of a special case as distinct from a draft special case?

MR WILLIAMS:   We would indicate a draft simply because our understanding had always been that it is not a special case until a Justice of the Court states it as such.  We do not wish to detain the Court too much over a word.

HER HONOUR:   Yes.  Dr Donaghue, that is probably right, is it not?

MR DONAGHUE:   Well, your Honour, I had, I suppose, ringing in my ears as we wrote that, that your former colleague, Justice Hayne, always used to say it is the parties’ special case.  He took possession of the stated cases but special cases he said are the parties’ responsibility and so I had it in my mind that if we agreed we would file – but I also do not want to detain your Honour over the word.  Certainly your Honour would have to be content with the document so as to refer questions under ‑ ‑ ‑

HER HONOUR:   Indeed, and for that reason I think we might leave “draft” in the form of order.  Thank you.  So that would be then on or before 30 September in your proposed order 3.  Now, there would have to be a variation to order 5.  The Court will be sitting in Canberra on 7 October which is one week after the filing of the draft agreed special case.  That hearing could be via video link from Canberra.  Does that cause any difficulty?

MR WILLIAMS:   Video link would cause us no difficulties if it is available.

HER HONOUR:   Dr Donaghue, do those dates suit you?

MR DONAGHUE:   Probably, your Honour.  There is a floating question as to when the M68 proceeding, which is the Manus Island proceeding, is going to be listed if it is to make it to the October sittings.  If it is, then both Ms Mitchelmore and I are in that matter, but if – we will be in Canberra in any event, as long as your Honour is intending to list the matter early enough so as to ‑ ‑ ‑

HER HONOUR:   Yes, indeed, perhaps a 9.00 am listing.

MR DONAGHUE:   Yes, that would be convenient, your Honour.  Thank you.

HER HONOUR:   Very well.  I make the following orders:

1.Pursuant to section 486A(2) of the Migration Act 1958 (Cth), to the extent required, the time for commencing the application for an order to show cause be extended to the date on which the application was filed.

2.Pursuant to rule 24.02 of the High Court Rules 2004 , a note be given upon which may be issued a subpoena to the first defendant in the form marked “A” and annexed to the summons for direction, subject to the deletion of paragraph (3) of the schedule thereto.

3.On or before 30 September 2015, being six weeks from the date of the hearing of the summons for directions, the plaintiffs file a draft of any agreed special case, or in the absence of agreement, a draft case stated.

4.Liberty to apply on three days’ notice.

5.The proceedings be listed for further directions in Canberra by video link to Sydney at 9.00 am on Wednesday, 7 October 2015, being one week from the date referred to in order 3.

6.The costs of today be costs in the proceeding.

Thank you, gentlemen.

AT 10.03 AM THE MATTER WAS ADJOURNED