Vadarlis v MIMA and Ors M93/2001

[2001] HCATrans 563

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M93 of 2001

B e t w e e n -

ERIC VADARLIS

Applicant

and

THE HONOURABLE PHILIP RUDDOCK MP, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

THE COMMONWEALTH OF AUSTRALIA

Second Respondent

WILLIAM JOHN FARMER

Third Respondent

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

Fourth Respondent

AMNESTY INTERNATIONAL LTD

Fifth Respondent

Respondent

Application for expedition

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 29 OCTOBER 2001, AT 9.35 AM

Copyright in the High Court of Australia

__________________

MR G. GRIFFITH, QC:   If your Honour pleases, I appear with my learned friends, MR J.I. FAJGENBAUM, QC, MS D.S. MORTIMER, and MR C.J. HORAN, for the applicant.  (instructed by Riordan & Partners)

MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth:   If your Honour pleases, I appear with my learned friends, MR D.I. STAR and MR G.A. HILL, for the Commonwealth, Mr Ruddock and Mr Farmer, the first three respondents.  (instructed by the Australian Government Solicitor)

HAYNE J:   Yes, thank you, Mr Solicitor.  I have been informed by the Registrar that she has had correspondence, first from Human Rights and Equal Opportunity Commission advising that that respondent consents to the application for expedition but does not intend to appear at the hearing of the application, and correspondence from the solicitors for Amnesty International Ltd that it has not filed a notice of appearance and does not propose to attend the Court today or play any part in the proceedings in this Court.  Yes, Dr Griffith.

MR GRIFFITH:   Your Honour, this is an application for an expedited hearing ‑ ‑ ‑

HIS HONOUR:   I have read the papers, Dr Griffith.

MR GRIFFITH:   Your Honour, we propose to stand on our papers and say, in effect, that it is a very mild application for expedition, namely, we are not asking for abridgment of any time, but merely that we be put in the next convenient list of the

Court.  We understand that the lists have not been settled, at least for the December 14 hearings in Melbourne.

HIS HONOUR:   There are motion days on the 14th here and in Sydney and if there were to be any order for expedition it may well be that it would be the Sydney rather than the Melbourne list in which the matter would be taken

MR GRIFFITH:   Your Honour, we would accept whatever is orderly, but have financial constraints.

HIS HONOUR:   It seems to me that there are several considerations.  If this application is expedited the consequence appears to be that another application is not heard.  Why should that be done?

MR GRIFFITH:   Your Honour, we say that there is a matter of public interest in this matter.  We say that there is obvious aspects which should be resolved at the earliest possible opportunity.

HIS HONOUR:   What is it that you say is the relief that this Court would order if you were to have leave and the appeal were to be allowed, in the events that have happened?  Whereas, I understand it, it is common ground between the parties that the persons concerned are no longer on board either the Tampa or HMAS Manoora.

MR GRIFFITH:   Your Honour, the order we are seeking is the reinstatement to the order of Justice North, and we would contend that it is within the capacity of the respondents to comply with that order.

HIS HONOUR:   How can that be judged without the adducing of further evidence?

MR GRIFFITH:   Your Honour, the Court could remit the matter to Justice North.

HIS HONOUR:   How can that be done on an appeal where what is challenged is the rightness of the orders of the Full Court made in circumstances which, at least as I understand it, it is common ground that those circumstances no longer obtain.

MR GRIFFITH:   Your Honour, firstly there was a stand-still agreement with respect to the issues so far as relief between the parties was concerned.

HIS HONOUR:   That appears to be a matter of controversy between the parties, does it not?

MR GRIFFITH:   That is an issue.  That is matter of controversy, your Honour.

HIS HONOUR:   The term of that agreement to which you refer in your outline of argument as being chiefly concerned is, I think, clause 4.3, is it not?

MR GRIFFITH:   Yes, your Honour.

HIS HONOUR:   Am I wrong to understand that provision as being a provision which, if it applies, following a grant of leave and a successful appeal in this Court, is a term which would have the effect of saying the Commonwealth respondents should obey an order of the Court.

MR GRIFFITH:   Yes, your Honour.  There seems to be a difference as to what the term “in these proceedings” means.

HIS HONOUR:   I understand that.  Let is be assumed for the purpose of debate that you are right in the contentions that you make about what “these proceedings” are.  That may be a matter of not only controversy but doubt, but assume it in your favour.  Is not the effect of the agreement that the Commonwealth will obey the orders made by the Court.

MR GRIFFITH:   We would say that, your Honour, yes.

HIS HONOUR:   And no more than that, so that the agreement depends upon either this Court or a court - let us leave aside that question of construction for the moment - making an order that the persons concerned be returned, or be brought, to Australia.

MR GRIFFITH:   Your Honour, there are other issues apart from the issue of return to Australia.  There is the issue of standing in the matters of substance arising under the application of section 189 of the Migration Act.

HIS HONOUR:   Yes.  For the moment, Dr Griffith, I am not asking you about that, I am asking you about the effect of clause 4.3 upon which your outline of argument places some weight.

MR GRIFFITH:   Your Honour, it is dependent on that aspect, on the Court making an order.  What we seek is a reinstatement of Justice North’s order so that there would then be that content to it.

HIS HONOUR:   You say in your outline of argument that if orders for expedition are not made, it is - the expression eludes me, but the burden of it is that things may get worse.

MR GRIFFITH:   Your Honour, it is put against us as an aspect already that matters are rendered moot and our position would be, your Honour, with the effluxion of time that argument would tend to be supported rather than negated.

HIS HONOUR:   I do not understand how that would be.  Either things have happened that will present a difficulty to you or they do not present a difficulty to you.  What is it that may happen in the future that would present a further difficulty.

MR GRIFFITH:   Your Honour, some of these people - we do not include the New Zealand ones, your Honour, but some of those on Nauru might be dispersed and put beyond the control of the Australian government.

HIS HONOUR:   Yes.

MR GRIFFITH:   Your Honour, the essence of this case is to, we say, establish the rights of these people so far as the application of the laws of Australia are ‑ ‑ ‑

HIS HONOUR:   Sorry, I did not hear you, Dr Griffith.

MR GRIFFITH:   Your Honour, the essence of the case so far as these people are concerned, is to establish that they have certain rights under the laws of Australia.  If that is not established within a reasonable time frame, it becomes more likely that the vindication of those rights will become incapable of effective relief for them.  Those matters are outside our control.  Your Honour, we do say that there are important matters here as to the application of the laws of Australia to these people as to the issues of, whether or not, your Honour, there is apparently retrospective law, has the effect of removing even the possibility of appeal which is put against us in the contentions filed by my learned friend.  We submit these are matters which are appropriate to b e disposed of with reasonable dispatch.

Your Honour, we are not seeking even an abridgment of time for the application of the rules for submissions in reply, merely, that subject to the convenience of the Court, we would be put on on the next appropriate available list.  In as much as the list has not been fixed, we are not displacing other persons.  We say, your Honour, that this is not the occasion to test whether or not we have an arguable case, be we say, self-evidently, there are important matters as to the existence of the prerogative power, the issues of standing, and the application of this extraordinary legislation that purports both to render, in a loose way, valid, unspecified things.  Also, on its face, to remove the capacity to continue proceedings by application to this Court.  We say they are matters for consideration on the application of special leave, but it is appropriate that that should be visited by this Court at the first reasonable opportunity having regard to the exigencies of the Court’s list.

HIS HONOUR:   You said that the orders that would be sought would be restoration of the orders of Justice North.  Those were orders, as I read his Honour’s reasons, founded upon the proposition that your client was entitled to relief which his Honour concluded was in the nature of habeas.

MR GRIFFITH:   Yes, your Honour.

HIS HONOUR:   That is to say, is it the position that the relief you seek if leave were granted and an appeal were to succeed, would be relief which you would contend was in the nature of habeas?

MR GRIFFITH:   On that aspect, yes, your Honour.

HIS HONOUR:   You seek to go further?

MR GRIFFITH:   Your Honour, there were other claims, but his Honour held that we had no standing to pursue claims ‑ ‑ ‑

HIS HONOUR:   That is why, Dr Griffith, I asked you at the outset what were the orders you would seek if leave were granted and an appeal succeeded.  What is the answer?

MR GRIFFITH:   I am sorry, your Honour.  We have a draft notice of appeal which indicates we seek leave with respect to the habeas issue, relief with respect to standing on the section 189 issue ‑ ‑ ‑

HIS HONOUR:   Dr Griffith, I am not asking you what you seek leave about, I am asking what relief you would say you are entitled to if leave were granted and if an appeal succeeded?  Do I make myself clear?

MR GRIFFITH:   Your Honour, we set it out in paragraph 3 of our draft notice of appeal.  Does your Honour have that document?

HIS HONOUR:   Yes.

MR GRIFFITH:   On page 3.  Does your Honour desire me to read that?  Paragraph 3 at the bottom of page 3, your Honour.  We seek an order:

(a)  The appeal be allowed, ‑

(b)  The orders of the Full Court be set aside and, in lieu thereof, the appeal of the first to third respondent from the judgment of North J be dismissed with costs.

(c)  Further or alternatively, the applicant’s cross‑appeal from the judgment of North J be allowed with costs, and the following orders be made:

(i)  declare that the applicant has standing to seek the relief by way of injunction, declaration and mandamus sought in his Second Amended Application filed 4 September 2001;

(ii)  remit to North J for determination –

these issues.

HIS HONOUR:   Are those to be determined on the facts as they were agreed at the time of trial?

MR GRIFFITH:   They could be determined by Justice North, yes, your Honour.  There would be no requirement for a further trial.  It would just be a matter or argument.  Justice North, your Honour ‑ ‑ ‑

HIS HONOUR:   Dr Griffith, they no doubt could be.  I am asking you - and I want there to be no misunderstanding about it, I am asking you what is the relief you would seek if the leave application were granted and if the appeal succeeded?  You have taken me to the draft notice of appeal for which I thank you.  What I next ask you is upon what facts would the order, which it is said is sought in paragraph (c)(ii), be determined?

MR GRIFFITH:   By the Full Court of the High Court, your Honour?  The answer is the matters which are in the existing appeal books 1 and 2 which are before the Full Court, no additional information.

HIS HONOUR:   Yes.  Is there anything further you want to put, Dr Griffith?

MR GRIFFITH:   No, your Honour.

HIS HONOUR:   Yes, Mr Solicitor.

MR BENNETT:   If the Court pleases.  Your Honour, we also rely on our submissions.

HIS HONOUR:   Yes.

MR BENNETT:   Of course, it is always desirable that litigation of any kind be determined as quickly as possible.  The issue here is whether the applicants have made a case that justifies the putting aside of other litigants interests ‑ ‑ ‑

HIS HONOUR:   Why do they not do so once they point to the fact that some, perhaps all, of the allegations they make, are founded upon an allegation of illegal detention by the Commonwealth or its officers?

MR BENNETT:   For a number of reasons, your Honour.  The primary reason is that the trial itself was decided by agreement on a feigned issue, in effect, that being that the trial was determined on the basis of the original alleged detention on the Tampa.  Although, at the time of the trial, or at the time of his Honour’s judgment certainly, they had been transferred to the Manoora.  That was an agreement made for humanitarian reasons and to allow the matter to proceed, and to prevent the need for undertakings as to damages, and to prevent human suffering, and one can understand the reasons for it.  That having been done and now there being a third situation, that they are not even on the Manoora - some are in New Zealand and some are in Nauru - one now has a situation where the Court is being asked to determine habeas corpus on a basis which has ceased to exist a long time ago.

There are a large number of cases which say that habeas corpus is given only if there is detention at the time of the trial, and presumably the orders.  Can I just hand to your Honour an extract from Clark and McCoy on “Habeas Corpus”.  Your Honour sees at the bottom of page 65, the second last line:

The requirement is that applicants must be in custody at the time of the hearing because ‑

and there is a line of cases –

because, if they have been released before the hearing, habeas does not lie.

And further cases.              Your Honour, the situation here is, my friend does not seek to prove, and indeed could not seek to prove, that they are presently in our custody.  Habeas was granted by the trial judge on the basis by agreement ‑ ‑ ‑

HIS HONOUR:   Habeas was not granted by the trial judge.  The judge made an order which was not a habeas order.

MR BENNETT:   Yes, I apologise, your Honour.

HIS HONOUR:   It was an order, at best, in the nature of habeas.

MR BENNETT:   Yes, I apologise, your Honour.  That is the correct way of characterising it.  Your Honour, we submit that for that reason there is just no way that this Court can effectively make any useful order.

HIS HONOUR:   Let that be assumed for the purpose of debate.  Assume that you have reason enough to say either that the case is moot or that the relief sought should not go.  Why should not an application founded upon what is alleged to be, or was alleged to be, if that is the proper characterisation, an illegal detention not be brought on promptly?

MR BENNETT:   Your Honour, because the importance of determining whether or not there was an illegal detention is not of a high order.  The importance of determining what should happen, if people are still in custody, of the respondents, is, of course, in a different category, but that is not this case.  This is, we would submit, an argument over a point of law which is no longer of significance.  Or a couple of points of law. 

HAYNE J:   Do you say there is a point of law that is alive?  Is there a matter? 

MR BENNETT:   Well, your Honour, ultimately, it may well be that there is not.  I say this with some diffidence, because the parties agreed to a particular course at the trial and I do not want to be suggested as going back on or in any way undermining an agreement to which we were a party.  Of course, the effects of that agreement may well have been that there were difficulties in relation to the existence of a matter.  It was done for the reasons I have given and it was done by all parties in good faith, and it was acted on, very properly, by the trial judge.  But there may well be an issue about Re Judiciary and Navigation Act in relation to it.  There certainly is such an issue by the time the matter comes to this Court, and there has been a further change of the type I have described. 

At the end of the day, we submit that it is an application that cannot succeed.  It is a matter for the Court what is done in relation to this matter  in those circumstances.  If the Court pleases. 

HAYNE J:   Yes, Dr Griffith. 

MR GRIFFITH:   Your Honour, we say my learned friend identifies no prejudice to the respondents, were this order to be granted.  We say, there is a matter, namely, the issue of whether or not the matters dealt with in the Full Court are correctly disposed according to law.  There is a further matter as to whether or not this Court has jurisdiction and what is the effect of the subsequent Commonwealth Act with respect to those issues. 

Those matters will remain live matters, your Honour, whether or not it is possible, efficaciously, to make orders in the precise terms of Justice North which would be effective.  There is also the issue of whether or not there was standing, which was not decided by the Full Court, because it regarded it as a matter requiring the attention of this Court to determine standing issues ‑ and the issues that arise from that issue which was not considered by Justice North, because he held there was no standing.  If your Honour please. 

HIS HONOUR:   The applicant seeks an order for the expedited hearing of his application for special leave to appeal to this Court against orders of the Full Court of the Federal Court of Australia made on 17 September 2001.  In effect, the applicant seeks an order that his application be heard in one of the lists of motions to be heard in Melbourne and Sydney on 14 December 2001.  In the ordinary course, if the application is not heard on that day, the next available motions day after 14 December 2001 will be 15 February 2002.

The proceedings brought by the applicant in the Federal Court were heard and determined together with proceedings instituted by the Victorian Council of Civil Liberties Inc.  The first and second respondents to the present application were respondents in both proceedings in the Federal Court; the third respondent was a party to only the proceeding brought by the applicant.  It is convenient to refer to the first to third respondents in this Court as the “Commonwealth respondents”.  The fourth and fifth respondents in this Court were interveners in both proceedings.  Only the fourth respondent, Human Rights and Equal Opportunity Commission, has filed an appearance in the application for special leave.  The fifth respondent, Amnesty International Ltd, has indicated that it proposes to take no part in the proceedings.

By his proceedings in the Federal Court, the applicant sought various forms of relief in connection with what was alleged to be the illegal detention by the Commonwealth, or by officers of the Commonwealth, of 433 persons who, on 26 August 2001, had been taken from a vessel sinking in international waters in the Indian Ocean aboard a large Norwegian container vessel – the MV Tampa.

In the course of the proceedings at first instance, the parties to the proceedings made an agreement in the following terms:

1.        The interlocutory injunction is to be discharged.

2.No application is to be made for an undertaking as to damages in relation to the undertakings and other terms of this agreement.

3.The rescuees presently on board the MV Tampa will be transferred to the HMAS Manoora.

4.The Respondents undertake that:

4.1None of the rescuees will be required to leave HMAS Manoora or removed from it until the determination of the proceedings before North J and any appeal by the Respondents to the Full Federal Court.

4.1AClause 4.1 shall not prevent any of the rescuees who it is intended to charge with an offence being arrested and brought to any part of Australia or Christmas Island.

4.2Notwithstanding 4.1 the Respondents or any of them may, if any of the rescuees so request, remove any such rescuee or permit him or her to leave for the purpose of transportation to any country requested by such rescuee and agreed to by the Respondents or any of them.

4.3If the Respondents are unsuccessful in these proceedings and if the Court makes an order for the return of any or all of the rescuees to Australia (other than rescuees referred to in paragraph 4.2), the Respondents will comply with any such order.

4.4In the event that the Respondents are unsuccessful in any appeal to the Full Court of the Federal Court and seek leave to appeal to the High Court of Australia, they are at liberty to apply for a stay of the order on such terms as may be agreed or determined by the court to which the application is made.

5.The Third Respondent agrees that the general effect of this Agreement will be made known to the rescuees.

6.The parties agree that this litigation, and any appeal flowing from it, will be conducted, on the basis of the evidence given at the trial including the agreed facts and that no party will seek relief or assert rights or legal consequences on the basis that the status of any alleged detention of the rescuees on HMAS Manoora is different to the status of any alleged detention on the MV Tampa.

7.The terms of this agreement are accepted by HREOC.

8.All parties will oppose intervention by any party not willing to be bound by the persons of this agreement (or in case of HREOC, any party not willing to be bound by the terms of clause 6 of this agreement).

It is important to notice several features of that agreement.  First, it provided that the persons who had been taken on board the MV Tampa would be transferred to a vessel of the Royal Australian Navy – HMAS Manoora.  Secondly, subject to some exceptions that are not now relevant, it stipulated that those persons would not be required to leave HMAS Manoora until the determination of the proceedings by the primary judge and any appeal by the respondents in the Federal Court proceedings to the Full Court of the Federal Court.  Thirdly, it made further provision (cl 4.3) for what was to happen if the respondents were unsuccessful in what was described as “these proceedings” and still further provision (cl 4.4) for what was permitted to the respondents if those parties “are unsuccessful in any appeal to the Full Court of the Federal Court and seek leave to the High Court of Australia”.

In that context, the reference in cl 4.3 to “these proceedings”, as distinct from the reference in the next paragraph of the agreement to appeals to the Full Court of the Federal Court and to this Court, suggests strongly that the expression “these proceedings” was intended to encompass no more than proceedings in the Federal Court, if not just the proceedings in that Court at trial.  So much would be consistent with the then stated position of the applicant that he would not be an applicant in the High Court.  No less importantly, so much would be entirely consistent with the provisions made by the parties preventing removal of the persons on board HMAS Manoora without their consent and the asserted equation of the position of those persons on board HMAS Manoora with their position on board MV Tampa.  That equation was provided by cl 6 of the agreement which said that no party “will seek relief or assert rights or legal consequences on the basis that the status of any alleged detention of the rescuees on HMAS Manoora is different to the status of any alleged detention on the MV Tampa”.  That clause made no provision, or at least no explicit provision, dealing with what was to be the position once the persons concerned were no longer on either vessel.

Whatever may be the true construction of the parties’ agreement there may be more fundamental questions about the capacity of the parties to require this Court (or indeed any federal court) to decide what is said to be a controversy enlivened only by reference to hypothetical facts.  See Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 357 [49]. It is, however, not necessary to explore this aspect of the issue further.

It is enough to say that, for the reasons I have given, there may be doubt whether the agreement bears the construction which the applicant now asserts, namely, that cl 4.3 applies if the applicant obtains special leave and succeeds in his appeal, and that by operation of that clause the Commonwealth would be obliged to return some or all of the persons concerned to Australia.

In the end, however, even if cl 4.3 of the agreement does have the reach asserted by the applicant, and does impose some obligation on the Commonwealth in the event of a successful appeal to this Court, it is to be noted that the clause is engaged only upon there being an order for return of persons to Australia.  On analysis then, it emerges that the obligation which is undertaken is no more than an obligation that the Commonwealth and officers of the Commonwealth will comply with what the agreement describes as “any such order”, that is to say, an order for the return of any or all of the persons concerned to Australia.  On no view does cl 4.3 impose any obligation to bring people to Australia unless some order to that effect is made.

It is common ground that the persons originally taken aboard MV Tampa have all now been taken ashore from HMAS Manoora.  A significant number of them have since travelled to New Zealand; the rest are now said to be in Nauru.  Those in New Zealand, all of whom have made claims to refugee status, will, so it is said on behalf of the Commonwealth respondents, have those claims assessed by New Zealand authorities.  New Zealand authorities are said to have offered permanent residence in that country to those who are found to be in need of protection.  Those in Nauru who claim refugee status will, so it is said, have their claims assessed by the United Nations High Commissioner for Refugees.  Those found to be in need of protection will, again, so it is said, be resettled in third countries .  It is said that the processes in Nauru will take “some months” to complete but there is no more precise evidence of how long that will be.  What is of importance for present purposes may be that if, as the applicant alleged, the persons taken on board MV Tampa and, later, on board HMAS Manoora were illegally detained, it is common ground that any detention aboard those vessels is now at an end.

The applicant’s application for special leave was filed on 20 September 2001 (two days after the Full Court of the Federal Court published its reasons for making the orders it had made on 17 September 2001).  The application for expedition was not filed until 18 October 2001 when it was filed together with the applicant’s summary of argument and his draft notice of appeal.  No application was made to the Full Court of the Federal Court of Australia, or to this Court, for any interlocutory order seeking to preserve the status quo that obtained when the Full Court made its orders.  Those circumstances have changed in the ways I have described.

The applicant submitted that he should have an order for expedition “in order to ensure the efficacy of any relief that may be granted on the appeal (in the event that special leave is granted).”  The applicant further submitted that “[t]he longer it takes to obtain a determination of the special leave application, the greater the chance that the first to third respondents … might not be in a position to honour their obligation to return the rescuees to Australia if the appeal is ultimately successful.”

The reference to the Commonwealth honouring an obligation to return the persons concerned to Australia may be thought to require or depend upon the construction of the agreement that was made between the parties during the proceedings at first instance in the Federal Court  As is apparent from what I have said, there may be some question about the meaning which should to be given to some aspects of the agreement but, in the end, as I have pointed out, it is important to notice that what the applicant submits is the relevant provision is one which says no more than that the Commonwealth and its officers who are sued in the proceeding will comply with an order of a court (or the Court) which requires that the persons concerned are brought to Australia.

If the removal of the persons concerned from first the MV Tampa and later HMAS Manoora to either Nauru or New Zealand presents some difficulty in the way of the applicant obtaining any of the relief he sought in the Federal Court (assuming, that is, not only that he obtained special leave to appeal but also succeeded in his appeal to his Court), that is a difficulty which cannot now be remedied, no matter when the application for leave is heard.  It may be, as the Commonwealth respondents submitted, that the change in circumstances has rendered the proceedings moot.  It may be that the same conclusion follows, or at least is reinforced, by reference to the provisions of the Border Protection (Validation and Enforcement Powers) Act 2001 (Cth) which provides, in effect, by s 6, that all action taken during the period from 27 August 2001 to 27 September 2001 by the Commonwealth or its officers, including members of the Australian Defence Force, in relation to the MV Tampa, “is taken for all purposes to have been lawful when it occurred”. Whether, as the Commonwealth respondents submitted, s 7 of the Border Protection Act would prevent an appeal being lodged if special leave to appeal is a further question which may arise.  None of these, however, are questions which I consider I should answer in the present application.

As is well known, the number of applications for special leave to appeal to this Court is now very large.  In the year ended June 2000 there were more than 500 such applications filed.  If this application for expedition is granted it may well mean that some other application which was filed before this one and which is ready for hearing will not be heard at the time at which otherwise it may be.  In those circumstances, no order for expedition should be made without reason sufficient to warrant displacing other applications from their place in the list.

The facts that no application for interlocutory relief designed to maintain the then status quo was made when the Full Court made its orders and that no application for expedition was made until one month after the application for special leave was filed invite careful attention to what it is that is said to make the hearing of the application for special leave urgent.  Reduced to its essentials, the reason proffered is said to lie in the possibility of still further changes in the circumstances of the persons concerned, over and above those that took place when they left HMAS Manoora, and set foot on foreign soil approximately two months ago.  That is, it is said that some steps, the nature of which is not specified with particularity, might be taken which would present some further obstacle to the applicant obtaining the relief he seeks from this Court.  The difficulty in that argument may lie in the assumption that future events might have some greater effect on the entitlement to relief than the events that have already taken place immediately after the Full Court’s orders.  Either the events that have already happened have legal significance for the applicant’s claims or they do not.  If they do, and I am not to be taken as deciding whether they do, further steps taken in Nauru or in New Zealand in effectuation of the proposals for dealing with claims for refugee status seem unlikely to make the applicant’s position worse than it now would be on the hypothesis I have identified.  By contrast, if the events that have happened do not have legal significance for his claims in this Court, it seems unlikely that further steps of the kind I have mentioned would produce some different result.

Nonetheless, it is, in my view, of the very first importance to recall that the relief which is sought includes relief founded on what is alleged to be, or to have been, the illegal detention of these people by the Commonwealth or its officers.  Despite the various difficulties to which I have referred in the applicant’s arguments in support of expedition, I am of the view that the application, making the allegations which it does, should be brought on promptly for determination.  The Commonwealth respondents point to no prejudice that would be suffered if such an order were made.  Whether or not it will be possible to bring the application on for hearing on 14 December is a matter that is not yet capable of being decided.  Moreover, if it is to be brought on, on 14 December, I cannot say whether it will be brought on in the Melbourne or the Sydney list of motions for hearing on that day.  Those are matters to which further attention will have to be given. 

All that being said, there will be an order for expedition of the application for special leave.  Costs of the application, subject to anything that counsel may say, will be costs in the application for special leave.

MR FAGJENBAUM:   If your Honour pleases, we seek in the matter of costs that there in fact be no order made as to costs.

HIS HONOUR:   Mr Solicitor, what do you say?

MR BENNETT:   Your Honour, I have no objection to that course.

HIS HONOUR:   So there will be no order for costs, very well.  The only order then will be that there will be an order for expedition.  I will adjourn.

AT 10.20 AM THE MATTER WAS CONCLUDED