Thomas v Mowbray & Ors

[2006] HCATrans 592

[2006] HCATrans 592

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M119 of 2006

B e t w e e n -

JOSEPH TERRENCE THOMAS

Plaintiff

and

GRAHAM MOWBRAY (FEDERAL MAGISTRATE)

First Defendant

MANAGER, COUNTER‑TERRORISM - DOMESTIC, AUSTRALIAN FEDERAL POLICE

Second Defendant

THE COMMONWEALTH OF AUSTRALIA

Third Defendant

Summons

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 31 OCTOBER 2006, AT 9.35 AM

(Continued from 19/10/06)

Copyright in the High Court of Australia

__________________

MR R. MERKEL, QC:   If your Honour pleases, I appear with my learned friend, MS K.L. WALKER, on behalf of the plaintiff.  (instructed by Robert Stary and Associates)

MR S.P. DONAGHUE:   If it please the Court, I appear for the second and third defendants.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, what is the position?

MR MERKEL:   Your Honour, we can hand up a copy of the special case which has been agreed between the parties subject to one minor drafting matter which is awaiting instructions in Canberra which I do not anticipate any difficulty with.

HIS HONOUR:   Why has it taken so long?  What has the timetable not been kept?  What is going on with this case?

MR MERKEL:   Your Honour, the difficulty primarily has been the requirement that we agree to attribution of a lot of documents and a lot of statements in documents and there have been drafting difficulties because ‑ ‑ ‑

HIS HONOUR:   These are ultimate constitutional facts, are they?

MR MERKEL:   Well, your Honour, each side has sought to have certain facts in the document without ‑ ‑ ‑

HIS HONOUR:   Ultimate constitutional facts.

MR MERKEL:   Yes, constitutional facts without either side agreeing that all of the facts in the document are necessarily relevant.  So that in putting forward the document we have allowed the Commonwealth to put forward whatever it wishes to

put forward as a constitutional fact.  We do not necessarily, in agreeing to the fact, agree that it is necessarily relevant.  That will be a matter for the Court.  We did not see it as our role, in effect, to preclude the Commonwealth from putting what it wished to put forward, but there was a difficulty about whether the documents which stated facts were to be admitted into evidence as proof of the statement that the facts were made by a particular source such as ASIO or a Commonwealth department or whether they were to put in as proof of the facts themselves.

What we have agreed, your Honour, is that the documents and statements that are referred to in the special case go in as proof of the statement having been made or the document having been issued as attributed but not as to the truth of the matter stated.  What consequence will follow from that, of course, will be a matter entirely for the Court, but neither party has sought to limit the special case by reason of their view of relevance and as a result of that the special case has included a number of documents which particularly the Commonwealth wish to rely upon which are voluminous and which we have had to consider. 

We have agreed on the form of special case subject to one very minor matter which I do not anticipate is the source of any difficulty, but that has not been able to be resolved at the moment but we are expecting it will be resolved in the course of the morning.  It is a minor matter, your Honour, and it is a drafting matter.  I can hand up to your Honour the special case in its present form and explain the only matter that is outstanding between us.

HIS HONOUR:   Yes.

MR MERKEL:   Your Honour, the matter outstanding arises again from changes in the drafting, but in paragraph 2(a) your Honour will see that there is a reference to statements stated to have been made in the special case, and the same appears in paragraph (b).  What was intended is that the agreement as to the statement having been made or the attribution of the document was intended to apply only to the documents actually referred to and annexed to the special case but was not intended to refer to statements which happen to have been made or documents that happen to have been referred to in the annexures.  For example, there is a security white paper which is a voluminous document. 

The interpretation is not intended to extend to that and we understand that is common ground between the parties and that would just be a drafting matter.  It comes about because paragraph 3 says such documents form part of the special case and therefore we did not want any interpretation problem.  But other than that, your Honour, the parties are agreed on all other matters.  The only other matter I should point out to your Honour, that there is one transcript of a video upon which the Commonwealth wishes to rely which has not yet been transcribed, but the transcript will go in when the Commonwealth have it. 

The last matter, your Honour, that is outstanding is that the Commonwealth wishes to rely on an arrangement between it and the Premiers in correspondence and we have agreed that the summary of extracts in an agreed form of that correspondence can be put in, all the correspondence itself can be put it, so that there is no requisite agreement of the parties.  So that the special case, apart from that drafting matter, is now final and we would expect it, your Honour, to be able to be filed by 4.00 pm on Friday with all the annexures.  I am sorry, we would seek an order by consent of the parties that it be filed by 4.00 pm on Friday.

HIS HONOUR:   The special case procedure is under what particular rule?

MR MERKEL:   I think it is order 27, your Honour.

HIS HONOUR:   Rule 27.08.

MR MERKEL:   Rule 27.08, thank you. 

HIS HONOUR:   Do the parties agree in the questions of law that arise in the proceeding?

MR MERKEL:   Yes, your Honour, that is in the last paragraph of the special case. 

HIS HONOUR:   Does this case or the proposed case state facts?

MR MERKEL:   Yes, your Honour.

HIS HONOUR:   And identify documents necessary to enable the Court to decide the questions when it is said that – or the document contains this overall rubric in paragraph 2?

MR MERKEL:   Yes, your Honour, because the Commonwealth wish to rely upon the fact of certain statements being made and the fact of certain conclusions having been formed from the Commonwealth.  Plus, I should say there are facts agreed to in the special case about acts of terrorism.  So it is not just a question of facts as to statements made and views formed and material relied upon in forming the views of the Commonwealth, but there are also statements about the actual acts of terrorism that have occurred.  I think it is common ground between the parties that the special case confines itself to facts, the relevance of which will be a matter ultimately for the Court, and that there are no further facts which the parties would wish to put

before the Court other than matters of which the Court may take judicial notice, which is always the prerogative of the Court.

HIS HONOUR:   Yes.  What time can the special case be filed today?

MR MERKEL:   The provision we have made by agreement, your Honour, is on or before 4.00 pm of Friday the 3rd.

HIS HONOUR:   I thought we had earlier indicated that that case stated book was to be made available by that date; is that right?  What has happened to the timetable is the question.  Before you answer that, because these are answers that you are going to be bound to once and for all, before you answer it, let me just ask Dr Donaghue some questions about this because I must say to all counsel that the progress of this matter is less than satisfactory.  It is less than satisfactory because it is not apparent that those facts which are ultimate constitutional facts upon which the parties will rely for their argument are identified with great clarity in this document.  Be that as it may. 

Dr Donaghue, Mr Merkel suggests that there are statements included in here which are included at the request of the Commonwealth.  I do not expect you to answer and I do not ask you to answer by identifying which are those statements.  That is matter that can remain between the parties.  But if or when this case gets to a Full Court, what is the exact application that is to be given to this paragraph 2?  What are the statements?  What are the documents that are encompassed by this paragraph 2?

MR DONAGHUE:   Yes.  Well, they fall into a few categories, your Honour.  The first category are a series of statements made by persons associated with terrorist organisations in which specific threats are made against Australia and in relation to those we say that the fact that the statement has been made is itself a fact that is relevant to the heads of power that are put in issue because the Commonwealth is entitled to respond to the fact that it is being threatened, particularly when that threat is made by an organisation or by the leaders of organisations who have carried out other terrorist acts which are agreed in this document to have occurred. 

So the statements need to be put together with other facts in order to engage the provisions of Part 5.3 of the Code, but when you do put together those statements with things that are agreed objectively as facts we submit that the Court has the material before it that is necessary to allow it to make judgments about the statutorily defined concept such as terrorist acts, in particular, which is the concept that much of the division hangs off.
So those statements are one category.

The other major category are documents that have been formally prepared by the Commonwealth Government in which it indicates the nature of the threat that it considers is posed to the Commonwealth by terrorism and states the steps that it has determined that it is necessary to take in order to respond to that threat.  Now, my friends agree, I think, that the documents can be used and, indeed, this appears, I think, expressly – I am referring here, your Honour, particularly to paragraph 39 of the draft where your Honour will see that there is a list of documents, the National Counter‑Terrorism Policy, a DFAT white paper, a COAG terrorism plan. 

These are documents that show the way that Australian governments generally and the Commonwealth Government in particular has assessed the threat that is posed and decided to respond to it.  We submit that that fact is itself a fact that is relevant to the scope of, in particular, the defence power and perhaps also the implied nationhood power, and that the Court would be entitled, absent some reason not to, to accept on its face – and your Honour will see that the parties have agreed that no issue is taken in relation to the bona fides of the views or conclusions in those documents.  So the Court will be able to accept that the Commonwealth Government genuinely does believe that the defence of the Commonwealth requires or, rather, that the terrorist threat requires certain steps to be taken.  So that is the nexus that is intended to be drawn by reference to those documents.

HIS HONOUR:   Paragraph 39 says “notwithstanding paragraph (b)”; of what?

MR DONAGHUE:   It is supposed to be 2(b).  That is a typographical error. 

HIS HONOUR:   Why am I still reading documents with typos in it, Dr Donaghue?  How much time has been expended on doing these documents?  It is unsatisfactory.

MR DONAGHUE:   Your Honour, a great deal of time has been spent on ‑ ‑ ‑

HIS HONOUR:   Well, it is a shame it has not been proofread.

MR DONAGHUE:   Your Honour, one of the functions of the negotiations has been that this document has had tracked changes throughout it throughout the periods of negotiations and it was only this morning that those changes were removed with a view to putting together a finalised document.  I can assure your Honour that before the document is actually signed on Friday the ‑ ‑ ‑

HIS HONOUR:   It is going to happen before Friday I think.  If this case is not going to go off into the Federal Court for trial of issue, the parties are going to have to get on with it and sign it.  Why do we have to wait until Friday?  Because every time I have set a time that time has been not met.

MR DONAGHUE:   Your Honour, we were proposing to hand up orders where virtually all of the dates that were discussed on the last occasion are exactly the same as had been agreed previously.

HIS HONOUR:   It is the “virtually” that is the vice, Dr Donaghue.  It is unsatisfactory.  The dates will remain unless I am persuaded otherwise.  Why should this document not be filed today?

MR DONAGHUE:   The document itself, your Honour, I do not believe that there will be any difficulty.  If all of the annexures have to be assembled and attached to the document before it can be signed, that constitutes a practical difficulty and that was why we had sought a few more days, but there is no suggestion, certainly from our side of the Bar table, subject to the one matter Mr Merkel raised, that the text of this document would vary at any time between today and Friday.  It is just the practical task of assembling the annexures.  I think your Honour indicated that the special case book was to be filed on Friday.  We had proposed that the special case book, which would essentially be this document plus all of the annexures, would be filed on Friday. 

Both parties would have access to it to use in the context of preparing their submissions and the only slippage would be that in order to prepare enough copies of this to serve on the interveners and to serve the multiple versions, we be given a few days into next week.  But in terms of the preparation of the matter and compliance with your Honour’s orders for submissions from the plaintiff on the 10th, from the Commonwealth on the 17th and from the plaintiff in reply on the 24th, all of those dates, from our point of view, remain.  They will be met.

HIS HONOUR:   And the interveners?  There are apparently now to be interventions.

MR DONAGHUE:   I am aware of two, your Honour, so far.

HIS HONOUR:   Yes.

MR DONAGHUE:   Can I hand up the orders that are proposed?

HIS HONOUR:   Yes.

MR DONAGHUE:   So, your Honour, the orders distinguish between the special case and its annexures and the special case book essentially because of the logistical copying and service task in all of the different jurisdictions.  So the special case itself and annexures would be filed with the Court on Friday and the copies would be made and the book would be served on everybody by next Wednesday is what we had proposed just in order to get these documents to all of the jurisdictions where they need to be served.

HIS HONOUR:   Why should paragraph 3 slip to the 10th?  Why should paragraph 2 slip to Wednesday?  Why should paragraph 3 slip to Friday?  Is it beyond the Commonwealth of Australia to obtain copies of documents over the weekend, Dr Donaghue?  Is it beyond the Commonwealth of Australia to arrange for service of documents by Monday 4.00 pm?

MR DONAGHUE:   Well, I am instructed that logistically that I can only relay, your Honour, that those who are responsible for this task have said that it would be extremely difficult to do it in that timetable.

HIS HONOUR:   So it is possible to copy enough to give the defendants the requisite copies by Wednesday, but not to give the interveners requisite copies until Friday?

MR DONAGHUE:   I think the difficulty, your Honour, is having the documents delivered and served in Perth and Adelaide and Brisbane in that interval because the case book itself cannot be prepared until the documents have been signed on Friday.  Those are my instructions, your Honour.  If my friends are prepared to sign the document earlier, then it may well be that it is possible to achieve this copying task and logistical service task quicker.

HIS HONOUR:   I had thought I at least tried to make it perfectly plain to the parties on the two earlier occasions that we have met that if we are going to get this case on on the appointed day it has to be front‑end loaded.

MR DONAGHUE:   Yes.

HIS HONOUR:   There seems to be not much attention paid to it.

MR DONAGHUE:   Your Honour will note that the special case in its current form has changed very substantially from the previous draft.

HIS HONOUR:   Yes, exactly so, exactly so.

MR DONAGHUE:   In an attempt to respond to the concerns that your Honour ‑ ‑ ‑

HIS HONOUR:   In an attempt to look at the document, yes.

MR DONAGHUE:   Well, your Honour, obviously we are in your Honour’s hands as to the orders that are made, but we submit that the timetable that is advanced would enable your Honour’s schedule for the submissions to be met and for the matter to be put before the Court on an adequate foundation.

HIS HONOUR:   In whose interests are the interveners intervening?  Is that yet known?

MR DONAGHUE:   Western Australia in the interests of the Commonwealth; South Australia we do not know.  We know they are intervening but not in whose interests.

HIS HONOUR:   If the interveners come in with the Commonwealth submissions under paragraph 6, is there going to be needless duplication?

MR DONAGHUE:   Your Honour has it in mind that it would be better for the Commonwealth submissions to be filed first?

HIS HONOUR:   I am not going to alter the timetable, but what we do not want is needless duplication.

MR DONAGHUE:   Yes, I think, your Honour, at present we do not know how much of the case is intended to be subject to the interventions from the States.  It may be that their interest is restricted to some subset of the points that arise more generally.

HIS HONOUR:   Yes.

MR DONAGHUE:   There is one other possible difficulty with these orders that I should alert your Honour to, which is order 9 currently contemplates the referral of the special case in.  Obviously we do not have a signed special case before the Court and, again, we are in your Honour’s hands as to whether that order should be deferred until the document has been formally signed.

HIS HONOUR:   What is this one matter that is still open to debate between the parties?  Is that a matter about which I should know or not?

MR DONAGHUE:   I do not think that that matter is, your Honour, but there is one matter I do want to make sure that your Honour has expressly turned your mind to and it is found in paragraph 46 of the special case.  Mr Merkel did mention this in passing, but it is a matter of some significance to the Commonwealth and it is one of the matters that has caused some delay in the finalisation of the special case. 

In short compass, the issue is that this is correspondence between the various State Premiers and Chief Ministers and the Prime Minister.  It is not a matter that is entirely within the hands of the Commonwealth as to the manner in which that correspondence is used and disclosed.  So there have been extensive discussions with the governments of the States and Territories about the handling of this correspondence. 

While those discussions are being prosecuted as quickly as possible, it has to say that it has not moved terribly quickly and we have not got to a stage where the handling of that correspondence can be finally resolved at this point.  So the matter having been delayed, as your Honour said, far more than is desirable already, the proposal is that if the parties are able to get to a point where we can agree that the relevant parts of – because the correspondence contains material that does not go precisely to the questions before the Court, if the parties can agree, then the extracts or agreed extracts from the letters can be put before the Court, but failing that ‑ ‑ ‑

HIS HONOUR:   Failing that?

MR DONAGHUE:   Failing that, the position in the stated case is that the full correspondence can be put in by the second and third defendants if they choose to do so.  Obviously, in the end, if the Commonwealth were to weigh up the issues and not put the material forward, then there would not be material that the Commonwealth has sought to include, but failing that, the draft indicates that the plaintiff accepts that we could put the whole correspondence in.  So, your Honour, the Court would have either an agreed position or the complete documents, or nothing, one or the other, but we do not see that ‑ ‑ ‑

HIS HONOUR:   I would not be prepared to put forward a special case containing paragraph 46 as it stands.  The parties may agree or not as they choose.  If the parties are agreed, it can go into the special case book.  If the parties are not agreed, then, so be it, the case goes for trial.  I will not pass on to the Full Court a special case that says, “We are yet to agree”.  It is a matter for the parties what they wish to do.

MR DONAGHUE:   Even if the parties have agreed that the whole correspondence can be put before the Court?

HIS HONOUR:   If the parties agree, they agree, be it so.  Let them put in what is agreed.  I will not put forward a special case that says, “We may in the future agree”.  If the parties are agreed, so be it.  If they are not, case goes to trial.

MR MERKEL:   Your Honour, what I would propose to resolve this problem is that we have understood the Commonwealth is in a difficult position concerning this correspondence and what I would suggest, your Honour, is that, given what your Honour has indicated, that it be taken out of the special case, but I will indicate, your Honour, that our position is we are prepared to agree to the special case being added to when this problem has been resolved.

HIS HONOUR:   You may be, Mr Merkel.  I am not.  The parties either agree upon the special case or they do not.  I have tried to make this abundantly plain.  This is the parties’ case.  It is either an agreed case or it is not.

MR MERKEL:   I think what I am indicating, your Honour, I may not have put it very well.  I think we are agreed on the whole of the special case, putting aside this one paragraph, but what we are indicating, your Honour, is there is no difference between the parties that if the Commonwealth are able to resolve this position, we would propose to add to the special case by that further paragraph being dealt with because there is no difference between the parties as to the right of the Commonwealth to either have an agreed extract or to tender the correspondence, but they cannot be in any better position concerning this in any other court at any other time.  There is nothing to investigate. 

So that we do not see this paragraph, your Honour, as one that could possibly loom as a problem and that is why I say the special case could go forward without the paragraph, but our position is clear.  We do not have any difficulty with an amended special case by agreement when the Commonwealth has resolved this difficulty.

HIS HONOUR:   If the parties agree to amend the special case, so be it, but it will go forward either as an agreed special case or it will not go forward.  If you agree subsequently to amend it, so be it.

MR MERKEL:   I think we have a position that will allow the special case to go forward without that paragraph, your Honour.

HIS HONOUR:   Very well.

MR DONAGHUE:   Your Honour, just out of abundance of caution to make sure I understood what your Honour said, if the parties do agree, say, in a fortnight to add a paragraph to the special case by agreement, do I take it that the Court will not be refusing us leave to do that?

HIS HONOUR:   I do not speak for the Full Court, Dr Donaghue.

MR DONAGHUE:   Yes.  Well, your Honour, I think in those circumstances I cannot indicate that the Commonwealth will agree to the proposal because I simply do not have instructions to do that.  Your Honour, we anticipate that this is a matter that can be worked out over a matter of weeks, hence the proposal.  Is your Honour prepared to explore the possibility that the hearing of this matter is deferred into February or March next year?

HIS HONOUR:   To unfix this case would be a grave step.

MR DONAGHUE:   Yes.

HIS HONOUR:   If the parties tell me they cannot be ready, I will unfix it today.  I really would suggest strongly that the parties might give some useful attention to where they are up to in this litigation.  I know that there has been a lot of time spent, but either you agree upon a case or you do not.  Now, if you agree upon a case, that goes forward as a special case.  It is the parties’ case.  It is not my stated case.  But if you do not agree upon a case, I will not put it before a Full Court.  We have two days at the moment assigned for this case at the start of December.  We have adjusted the program to slot it in.  It would be a grave step to unfix it. 

What I am minded to do is come back at 2.15 and the parties can tell me where they are up to.  But it would be a grave step to unfix it now.  But it cannot be beyond the wit of the parties to agree upon a special case I would have thought.  Why should I not simply stand it over until 2.15 and you can mention the matter then?

MR DONAGHUE:   I do not oppose that course, your Honour.

HIS HONOUR:   Mr Merkel?

MR MERKEL:   Yes, we would agree that that is appropriate, your Honour.

HIS HONOUR:   As I say, it would be a grave step to unfix it.  2.15.

AT 10.08 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.20 PM:

HIS HONOUR:   Where are we up to?  Yes, Dr Donaghue.

MR DONAGHUE:   Your Honour, the parties have signed an amended version of the special case with the paragraphs that we took your Honour to before lunch omitted from it.

HIS HONOUR:   Yes.

MR DONAGHUE:   I have a revised form of the orders that we can hand up.

HIS HONOUR:   Please. 

MR DONAGHUE:   It has tightened the timetable somewhat, I hope enough to meet with your Honour’s agreement.  The old orders 2 and 3 have been collapsed together.  What we envisage is that signed document – that document that has been signed obviously does not have annexures currently attached to it.

HIS HONOUR:   No.

MR DONAGHUE:   The annexures will be assembled.  The document will be filed, I believe, in the High Court Registry in Canberra on Thursday, if that timetable meets your Honour’s agreement.

HIS HONOUR:   Yes.

MR DONAGHUE:   Then the copies will be made over the weekend and served in the various jurisdictions on Monday, the copies of the bound special case book.  I am told there is a need to have the index settled with the Registry as well, the index of the special case book, so I think ‑ ‑ ‑

HIS HONOUR:   But that is something that can be undertaken now.

MR DONAGHUE:   It will be done very quickly, but that is just a step that ‑ ‑ ‑

HIS HONOUR:   That can be undertaken now I would have thought.

MR DONAGHUE:   Yes, it is being prepared.  I do not envisage it will cause any delay to that.

HIS HONOUR:   No.

MR DONAGHUE:   Then the submission timetable is as your Honour had set out in the other – we envisage that now that the special case has been signed there should not be – well, for our part we do not see a difficulty with order 8 any longer.

HIS HONOUR:   Yes.  Do you have anything to say against me making orders in these terms, Mr Merkel?

MR MERKEL:   No, your Honour.

HIS HONOUR:   There will be orders in terms of the minute provided by counsel which I will initial and will remain on the file. 

Is there any need for me to adjourn the matter?  I think there is not.  If something comes unglued, the parties are at liberty to apply on whatever notice they think is appropriate and we will deal with it as and when.  Yes, thank you.

MR MERKEL:   Would your Honour reserve liberty to apply?  I do not think it is specifically ‑ ‑ ‑

HIS HONOUR:   If it is not reserved, I will.  I will not give a direction about notice.  I will leave that to the parties to deal with.  The Court will be sitting in Canberra next week and the week following, so it is probable that any application that arose then would have to be made in Canberra but, again, these are problems we can deal with as and when they arise, if they do.

MR MERKEL:   Yes, thank you, your Honour.

MR DONAGHUE:   Thank you, your Honour.

HIS HONOUR:   Very well, adjourn the Court.

AT 2.23 PM THE MATTER WAS ADJOURNED