Vakhabov v Commonwealth of Australia

[2020] HCATrans 150

[2020] HCATrans 150

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S133 of 2020

B e t w e e n -

STANISLAV VAKHABOV

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE AND BY VIDEO CONNECTION

ON FRIDAY, 25 SEPTEMBER 2020, AT 9.48 AM

Copyright in the High Court of Australia

MR D.A. HUGHES:   Your Honour, I appear with MR T. LIU for the plaintiff.  (instructed by Legal Aid NSW)

MS A.M. MITCHELMORE, SC:   If the Court pleases, I appear with my learned friend, MR C.J. TRAN, for the defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Mr Hughes, I see that it is the common intent of the parties that this matter proceed by way of a stated case but I glean at least of the distinct possibility that there are going to be matters of fact upon which you will not be able to agree, particularly questions of intent and reasons behind decisions and such like.

MR HUGHES:   Your Honour, as we understand it, it seems to be common ground that the issue of liability may be capable of determination by a special case.  The question of purpose constitutionally is an objective issue on the authorities which would mean that that intention could be gleaned from the documentation.  As we apprehend the case, we do not see that as likely to be in issue but our position is that those issues will be more crystallised if we have a defence from the Commonwealth.

HIS HONOUR:   Yes, I think so.  I must say, let us be frank about it, my initial inclination was that this is a matter that should go to the Federal Circuit Court for the findings of fact and then go to the Full Court once there are facts upon which to go.  If you think that by the Commonwealth filing a defence it will be apparent that there are not issues that need to be tried, I suppose it is a worthwhile exercise, although I doubt it is likely.  Perhaps I might ask Ms Mitchelmore.  Ms Mitchelmore, in your estimation, how likely is it that you will be able to agree all the facts necessary, including the objective interpretation of documents in relation to purpose for the purposes of the stated case.

MS MITCHELMORE:   Yes.  Your Honour, we are still obtaining documentary material in relation to it so I cannot say with any certainty as to the scope of agreement or disagreement.  There may well be limited factual issues in relation to liability.  One of the matters that was exercising the minds of those who instruct me was the issue as to liability and damages in this case.  The question of damages could also be a matter in respect of which there could be appellate interest in circumstances where, if the plaintiff proves that he was falsely imprisoned, the question of damages would be one that perhaps is also of interest in terms of the overlay between immigration and criminal detention.  It was for that reason in our written submissions that we submitted that this may be a matter that is appropriate to be managed in a lower court with all findings of fact made relevant to liability and damages and then work its way through the appellate process in the usual way.  So that was the ‑ ‑ ‑

HIS HONOUR:   That was my inclination.  Thank you.

MS MITCHELMORE:   Yes.

HIS HONOUR:   Mr Hughes, given that there has to be a defence and given that it is odds on that there are going to be some disputed questions of fact, not least of damages but more basic facts, I am strongly inclined to remit this.

MR HUGHES:   Your Honour, if that is the case it is not our…..to strain for a special case.  Our thinking was that a defence would be the next step in the court below in any event.  A defence would allow the issues to crystallise so that the parties in the court could form a view as to the likelihood and utility of a special case and then either remit or state it.  But we do not take that stance with any great force.

HIS HONOUR:   Thank you very much.  I think in that event I shall make an order that the matter be remitted to the Federal Circuit Court and that the steps taken in the proceeding thus far be steps taken in the Federal Circuit Court proceeding.  Otherwise, the order will be made in the usual terms.

MR HUGHES:   May it please the Court.

MS MITCHELMORE:   If the Court pleases.

HIS HONOUR:   I will adjourn now.

AT 9.52 AM THE MATTER WAS ADJOURNED