Thomas v Mowbray & Ors

[2006] HCATrans 542

[2006] HCATrans 542

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

RAMZI JABBOUR (MEMBER OF THE AUSTRALIAN FEDERAL POLICE)

Second Defendant

THE COMMONWEALTH OF AUSTRALIA

Third Defendant

Summons

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 2 OCTOBER 2006, AT 2.18 PM

Copyright in the High Court of Australia

__________________

MR R. MERKEL, QC:   If your Honour pleases, I appear with my learned friends, MR S.G.E. McLEISH and MS K.L. WALKER, for the plaintiff.  (instructed by Robert Stary and Associates)

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

HIS HONOUR:   There is a submitting appearance for the first defendant, is there not?  Yes, Mr Merkel.

MR MERKEL:   Your Honour, the applicant is making an application under Part 25 of an order to show cause, although the second and third defendants asked that the matter be referred rather than have an order to show cause, and we do not have any opposition to the course preferred by those defendants.

HIS HONOUR:   Well, that would be a special case and that would depend upon the parties agreeing on the facts.

MR MERKEL:   Yes, your Honour.

HIS HONOUR:   When can that be done?

MR MERKEL:   Your Honour, the ‑ ‑ ‑

HIS HONOUR:   Can I interrupt you and work backwards.  What I want to be in a position to do, if it is possible, is to propose to the Chief Justice that it go in in the December sittings.  Now, I do not say that that is when it would be heard.  That will depend upon what other demands there are on the Court time.  But what I want to be in a position to do is to propose that it be fixed for two days in December.  Now, if that is to be done, and if you are to go by way of special case, it seems to me you have to have everything ready to roll by about Wednesday, 18 October.

MR MERKEL:   Your Honour, what we were hoping would be possible is that the second and third defendants would provide us with the details of their proposed special case by 16 October and that the special case be filed by 31 October and then submissions be prepared on the basis of a December hearing.  The main difficulty we have with bringing time into too short a period is we expect that because the issues raise the question of treaties under the external affairs power, and there may be other matters that the Commonwealth will rely upon and also they may seek to adduce certain evidence that would be relevant to whether the defence power is attracted, we would need some short time to consider any response.

I think the situation that our client is in, your Honour, is that a December hearing is one that we would accommodate whatever the necessary timetable requirements were that were needed to allow that to happen, but our preferred position would be 16 October, which is the time proposed by the second and third defendants, the details of the facts they seek to have included in a special case, and then a requirement that the special case be filed by 31 October with details of submissions and so forth to fall into the usual practice note requirements.  But we are in your Honour’s hands as to whether that would be an acceptable timetable.

HIS HONOUR:   What I have in mind is that, unless I am persuaded otherwise, the matter should come back before the Perth sittings.  The Perth sittings are to commence in the week of 23 October.  What I would want to be able to do is to bring it back beforehand because, again, anticipating if the December sittings looks as though it is not going to be possible, we have to give some other case or cases time to get ready to come on in December.  That is why the need to bring it back into October, to give us the failsafe that if this case for some reason could not be ready somebody else can have time enough to get ready.

MR MERKEL:   Yes.

HIS HONOUR:   Now, could I ask you whether there is any fact that you would wish included in the special case other than whatever facts are deposed to in the affidavit in support?

MR MERKEL:   No, we do not have any further facts that we would wish to have included.  The only ones I could anticipate – and that is with some difficulty – is what we may wish to put by way of response, but I say “difficulty” only because it is not easy for us to contemplate ‑ ‑ ‑

HIS HONOUR:   Well, Mr Merkel, the question is much simpler than that.  Do you want anything more than is in the special case to mount the challenge which your side wishes to mount?

MR MERKEL:   No, your Honour, we do not.

HIS HONOUR:   Yes.  Well, Dr Donaghue, you have heard what I have said.  When can the Commonwealth be in a position to proffer either a final form of special case in a form which it would be content with or at least its final set of proposals for what it says should go into a special case?

MR DONAGHUE:   Your Honour, we had proposed that we would know what facts we sought to have included by 16 October and we would be very happy to come back before the Court late that week, if that was convenient to the Court, with a finalised draft.  I should say we do not anticipate seeking to include controversial facts and we do not have a difficulty with the plaintiff ‑ ‑ ‑

HIS HONOUR:   No, both sides will tell me that nothing they want in is controversial.  I know that, but when can you get to the point where you know what you want in?  Can you do it by Friday, 13 October?

MR DONAGHUE:   Friday 13?

HIS HONOUR:   Yes, rather than Monday, 16 October?

MR DONAGHUE:   I anticipate that losing the weekend probably is not a fatal problem for us, your Honour, so yes.

HIS HONOUR:   If that were so, could you deliver it to the other side by noon on Friday, 13 October?

MR DONAGHUE:   Yes, your Honour.

HIS HONOUR:   That would at least give them the benefit of the weekend.  What I would then expect – perhaps anticipate – is that the parties might actually discover the telephone or the fax and talk about it and might actually be able to settle upon something in the early days of the week following.

MR DONAGHUE:   That may well be so, your Honour.  We had already had some very general discussions and at the moment we seem to be broadly – now, obviously the devil is always in the detail, but at the moment there does not seem to be any substantial distance between the parties.

HIS HONOUR:   Because if you are going by special case, that is the parties, it is not the Court, and the parties have to agree on the special case.

MR DONAGHUE:   Would your Honour anticipate that we also agree on the questions to be put before the Full Court?

HIS HONOUR:   Yes.  Now, you heard what I say about timetable.  What I would presently wish to be in a position to propose to the Chief Justice is that we fix the matter for the commencement of the December sittings, put it in to commence on Tuesday, 5 December, but, as I say, whether that can be done will depend very much on what other demands the Court has upon it and its lists at that time.  But if we are to get ready by 5 December, it means bringing the process back up to this front end.  We have to front‑end load it because otherwise it just will not happen.

MR DONAGHUE:   We are content with that, your Honour.  I should perhaps foreshadow that the two day estimate that we have given is conditioned on the possibility that we may make, probably when the matter is next before your Honour, an application for some extension of the page limits.  There are three significant constitutional issues in this case and the heads of power issue involves perhaps four or five possible different heads of power, so there are a number of matters to be covered and we would seek to be able to cover some of them in perhaps more detail in writing than the 20‑page limit would permit in order to condense the hearing time.

HIS HONOUR:   Yes, that will be considered at the time, but brevity is not necessarily antagonistic to accuracy, is it?

MR DONAGHUE:   No, your Honour, but just given the number of issues, it may be that – we will make that make that application but, as your Honour says, we are content to leave that for a subsequent time.

HIS HONOUR:   Now, there is then this question of naming of parties.

MR DONAGHUE:   Yes.

HIS HONOUR:   What do you say the proper title of the action should be?

MR DONAGHUE:   We say that the second defendant should be named as the Manager, Counter‑Terrorism – Domestic, Australian Federal Police.

HIS HONOUR:   And why should that be?

MR DONAGHUE: Because, your Honour, an application for prohibition is sought against the second defendant of rule 25.02 of the High Court Rules 2004.

HIS HONOUR:   Prohibition to the?

MR DONAGHUE:   To the second defendant.  That is one of the remedies sought.

HIS HONOUR:   Rather than an injunction to the police officer?  Prohibition I can understand going to the Court.

MR DONAGHUE: Certiorari goes to the Court, order 2, and order 3 seeks prohibition against the second defendant and order 4 seeks an injunction against the third defendant. So because prohibition has been sought against the second defendant, we say rule 25.02.2 says that the title should be by the office rather than the name of the individual.

HIS HONOUR:   And what should happen with the first respondent?  I know the first respondent is a submitting party but ‑ ‑ ‑

MR DONAGHUE:   The same position does not follow, your Honour, because only certiorari is sought against the first defendant.

HIS HONOUR:   Yes.

MR DONAGHUE:   Your Honour, I can hand up a draft minute of the orders which, with one accommodation of the date, may well accommodate the discussion that has just ‑ ‑ ‑

HIS HONOUR:   Have you shown that to Mr Merkel?

MR DONAGHUE:   I have, yes.

HIS HONOUR:   Yes.  I am not being captious, Dr Donaghue, but the only difficulty about saying that you provide details of the facts is that it puts off the time of drafting.  Is there any reason not to direct you to serve – not file, but to serve on the opposite party or parties a draft of the proposed special case by 12 noon, 13 October?  It just focuses the mind that further step which ‑ ‑ ‑

MR DONAGHUE:   Your Honour, I do not have a difficulty with that.  The reason we drafted the order in ‑ ‑ ‑

HIS HONOUR:   And you are going to be drawing it, are you not?

MR DONAGHUE:   Well, we only drafted the order in that way because rule 27.08.06 says that the special case has to be prepared by the plaintiffs, so that is the explanation, but as a matter of substance, if your Honour seeks to have us provide the facts that we seek to have included in the form of a draft of the special case, then that does not pose any problem for us.

HIS HONOUR:   What I am minded to do, Dr Donaghue – and I will then hear Mr Merkel – is to (1) make an order amending the title in the manner proposed; (2) to direct that on or before 12 noon, 13 October the second and third defendants serve upon the plaintiff a draft special case and then to adjourn the matter, just to give you that extra day, to Thursday, 19 October at 9.30 in Melbourne or such other time, and then reserve the costs.  Do you want to be heard against those directions?

MR DONAGHUE:   No, I do not, your Honour.

HIS HONOUR:   Yes.  Mr Merkel?

MR MERKEL:   No, we do not wish to be heard on those, your Honour.  We are content with them.

HIS HONOUR:   The orders will be:

1Amend the title of the proceeding so that the second‑named defendant is named as Manager, Counter‑Terrorism – Domestic, Australian Federal Police;

2Direct that on or before 12 noon, 13 October 2006 the second and third defendants serve upon the plaintiff a draft special case for the opinion of the Full Court;

3Adjourn the matter to Thursday, 19 October 2006 at 9.30 in Melbourne or such other time as the parties may be notified; and

4Reserve the costs.

Do counsel seek me to do anything else in the matter?

MR MERKEL:   No, your Honour.

MR DONAGHUE:   No, your Honour.

HIS HONOUR:   Very well, there will be orders in those terms.  Adjourn the Court.

AT 2.35 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 19 OCTOBER 2006