Wu Yu Fang and Ors v Min for Immig and Ethnic Affairs and Anor

[1996] HCATrans 99

TRANSCRIPT
OF PROCEEDINGS

AUSCRIPT

Western AustraliaLevel 216 St Georges TcePerth WA 6000Phone [phone]Fax [phone] 

HIGH COURT OF AUSTRALIA

TOOHEY J

No P 11 of 1995

WU YU FANG and 117 OTHERS

and

THE MINISTER FOR IMMIGRATION
AND ETHNIC AFFAIRS and ANOTHER

FROM BRISBANE BY VIDEO LINK TO PERTH

10.02 AM, THURSDAY, 4 APRIL 1996

MR R.E. LINDSAY:   I appear with my learned friend MS MOSS for the applicants.

HIS HONOUR:   Yes, thank you.  Mr Tracey?

MR TRACEY:   If the Court pleases I appear for the first and second respondents to the appeal the applicant that is on the summons that is before you today.

HIS HONOUR:   Mr Tracey, you are not particularly visible at the moment.  We will have to get you on the big screen. 

MR TRACEY:   Is that better, sir.  I can see myself ‑ ‑ ‑ 

HIS HONOUR:   Well, you are more fortunate than I am.  I can only see Mr Lindsay, plus a minuscule picture of you - yes, that is better.

MR TRACEY:   Your Honour, this application relates to the hearing of an application for special leave to appeal which is pending in the Court and the application is that an order be made expediting the hearing of the special leave application.  Your Honour will have seen an affidavit in support sworn by Dennis James Richardson on 29 March 1996 and that affidavit sets forth the reasons for the application.  In short, they are that the people who are the applicants in this matter, some 118 people, have been in detention at the Port Hedland Detention Centre for about a year and a half that there are arrangements that have been put in place between the Australian and Chinese governments with a view to their repatriation in the event that it is found that they are not refugees and that they have no claim on Australia as a safe country for refugee purposes.

HIS HONOUR:   Mr Tracey, I have read the affidavit.  Could I just interrupt you to ask the affidavit suggests that there is no objection on the part of the applicants for special leave.  Need I ask Mr Lindsay for confirmation of that?  Well, I will ask him in any event.

MR LINDSAY:   Yes, your Honour, that is correct.  In principle there is no objection to expedition of the matter.  The only qualification is your Honour, there are about 100 pages, of course, of judgment and I would, of course, wish the Court the opportunity to digest that information, but certainly there is ‑ ‑ ‑ 

HIS HONOUR:   By "the Court" you mean the Court hearing the application for special leave.

MR LINDSAY:   By "the Court", yes.

HIS HONOUR:   Mr Tracey, in the light of what you have said and in the light of what Mr Lindsay has said, I am satisfied that is appropriate to make an order expediting the hearing of the application for special leave.  I understand from the Court's point of view it is practicable to add this matter to the special leave list for Melbourne on 16 April.  I am not sure whether the parties were aware of this or not.

MR TRACEY:   Your Honour, we have had an informal indication from the registry that that may be possible and we are certainly able to be ready for that hearing on that day.

HIS HONOUR:   Yes, it is not so much your problem as Mr Lindsay's problem, is it not?

MR TRACEY:   Indeed.

HIS HONOUR:   Perhaps I could just go over to Mr Lindsay, Mr Tracey, and see what sort of timetable he suggests might be appropriate in the circumstances.  Mr Lindsay, if I were to add the matter to the special leave list for Melbourne on 16 April, it seems to me looking at the papers that order 69A, rules 3, 4 and 5 have been met and rule 6 has been met in part insofar as - again, as I understand it, the index to the application book has been settled.

MR LINDSAY:   That is correct.

HIS HONOUR:   Now, the application book itself remains to be prepared I imagine and there is a question of the applicants' summary of argument and the respondents' summary of argument.  Are those the only matters now outstanding.

MR LINDSAY:   Those are the only matters now outstanding, your Honour.

HIS HONOUR:   I appreciate Easter creates something of a problem in terms of the preparation of material but the material itself is all presently available.

MR LINDSAY:   Certainly, and this matter is of paramount importance - obviously I have been working on the submissions to date.  Might I suggest that there could perhaps be a contraction of the normal time required.

HIS HONOUR:   Well, there will have to be if the matter is to come on on the 15 April.

MR LINDSAY:   Your Honour, I propose then taking the 16 April as the date, would it be convenient if the summary of argument was to be with the Registrar by the end of Wednesday 10 April and on the basis that perhaps my friends could give their response by the end of Friday 12 April.
HIS HONOUR:   Well, those were the two dates I had in mind, although I was going to suggest noon on both those days if that is not too much of a difficulty.  I was also going to suggest that it might be helpful for the material to be filed in the Sydney registry rather than the Melbourne registry for reasons of timing and availability of material.  Does that present any sort of a problem?

MR LINDSAY:   No, your Honour, no problem.

HIS HONOUR:   It would not present a difficulty as far as the summaries are concerned, what about the application book itself?  When do you suggest that a time be fixed for the availability of that document?

MR LINDSAY:   As your Honour is aware we are subject to the respondents' agreement.  We have really settled upon its contents.  Could that be simultaneously, that is Wednesday of next week, your Honour, that would be lodged.

HIS HONOUR:   Can you make it by Wednesday of next week, remembering that Monday is a holiday, is it not?

MR LINDSAY:   Yes.  I am assuming perhaps concurrence, as I understand, is probably likely with the other side as to its contents.

HIS HONOUR:   Well, the index has been settled, has it not?

MR LINDSAY:   Yes.

HIS HONOUR:   So, that is really now a fait accompli.  Well, from the parties points of view it is probably - the matter is not so critical in the sense that Mr Tracey has the material in any event that is going to be the subject of the application book.  It is really a matter of the availability of the material to the Court.  Well, you might be putting yourself under undue pressure by Wednesday.  I do not know whether those constituting the Bench would thank me, but if I made it, say, Thursday for the filing of the application book rather than Wednesday.

MR LINDSAY:   Yes, close of business Thursday, your Honour?

HIS HONOUR:   Yes.

MR LINDSAY:   Yes, and we will certainly try and see if we can manage by Wednesday.

HIS HONOUR:   Well, then from your point of view and I will hear from Mr Tracey in a moment, if I were to make an order adding this application for special leave to appeal to the list for Melbourne on 16 April direct that the application book be filed by the close of business on Thursday 13[sic] April and that the summaries on the applicants' part be filed by Wednesday 10 April, or by noon on Wednesday 10 April and the respondents' summary by noon on Friday 12 April and that in each case the document be filed in the Sydney registry of the Court.  Is there anything that you would seek further by way of directions, Mr Lindsay?

MR LINDSAY:   No, thank you, your Honour.

HIS HONOUR:   Mr Tracey, is there anything that you would seek by additional variation to what I have canvassed with Mr Lindsay?

MR TRACEY:   No, thank you, your Honour.  Very well, there will be an order in the following terms. 

(1) That the application for special leave to appeal be added to the special leave list for Melbourne on 16 April 1966.

(2) That the applicants file the application book by the close of business on Thursday 13[sic] April 1996.

3) That the applicants file and serve their summary of argument by noon on Wednesday 10 April 1996.

(4) That the respondents file and serve their summary of argument by noon on Friday 12 April 1996.

(5) That all documents be filed in the Sydney registry, that is all documents the subject of the order be filed in the Sydney registry of the Court.

MR LINDSAY:   I omitted one matter which perhaps I should raise and that is the question whether or not it is appropriate to be Melbourne for the purposes of the application or whether there would be a video link available for that purpose, but perhaps it should be raised now.

HIS HONOUR:   I must say I assumed that it would be necessary and when I asked you whether there were any other matters that might need to be dealt with it did occur to me there might be a question of the costs in counsel attending in Melbourne which the respondents may or may not be prepared to meet in any event.  Is that what you had in mind.

MR LINDSAY:   Well, certainly, in the first instance, how far it was appropriate to have a video link.  There is, as your Honour indicates, a cost factor involved.

HIS HONOUR:   Yes.

MR LINDSAY:   Being a legal aid matter, of course, and the applicants circumstances.
HIS HONOUR:   If the Commonwealth - excuse me.  Sorry, I am corrected in regard to order (2).  I think I said the 13th it is the 11th.  Well, if the Commonwealth respondents were prepared to meet the costs incurred by reason of the matter being heard in Melbourne, that is not necessarily the costs of the application itself, but those additional costs, would you still wish to canvas the question of the video link.

MR LINDSAY:   The preference would be to be there in person.

HIS HONOUR:   Mr Tracey, are you in a position to respond to the question of costs incurred by reason of the matter being heard in Melbourne.

MR TRACEY:   Your Honour, we have made inquiries and were led to believe that there would be no difficulty in establishing a video link for the purpose and as a result I do not have instructions at the moment as to whether the Commonwealth would be prepared to bear the cost of bringing counsel from Perth.  Certainly, if your Honour was to indicate that the Court would prefer personal attendance by counsel I would apprehend that I could get those instructions, but I do not have them at the moment.

HIS HONOUR:   Yes.  Well, I do not think it is really for me to express a preference, but I must say had the matter of costs been canvassed at the beginning I might well have made it a condition of expediting the hearing of the application at the suit of the respondents that additional costs incurred by the attendance of counsel in Melbourne be met by the respondents in any event.  So, that is a pretty clear indication of my own thoughts on the matter.

MR TRACEY:  ...(indistinct)... your Honour, but I will get those  instructions.

HIS HONOUR:   Now, I think the basis on which we should leave it.  I will ask my associate - well, perhaps it is really not a matter for me at this stage, it is really a matter for you Mr Lindsay, I think, to raise with the Registrar in Canberra how the matter is to be dealt with, by video or by appearance of counsel.

MR LINDSAY:   Certainly.  Insofar as my preferences of significance I would obviously prefer to be there, but if the cost is not forthcoming from the Commonwealth then I would be requesting the Registrar for a video link.
HIS HONOUR:   All right.  Well, I think it is better that I leave that to you and Mr Tracey to sort out, but in case any problem does arise of that nature I will add an additional order giving the parties liberty to apply on 12 hours notice.  Although I express it in a general way, the only matter that I have in mind that would need to bring the application back would be some question of the logistics of the question of costs or logistics of the video link.

MR LINDSAY:   Yes.

HIS HONOUR:   If that matter is resolve between the parties then there is no need to return to the court.  Very well, in that case, thank you, the Court will now adjourn.

AT 10.18 AM, THE MATTER WAS ADJOURNED
UNTIL TUESDAY, 16 APRIL 1996