F v Minister for Immigration and Multicultural Affairs S63/1997 [1997] HCATrans 259 (19 August 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S63 of 1997

B e t w e e n -

F

Plaintiff

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Defendant

Application for interlocutory orders

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 19 AUGUST 1997, AT 9.32 AM

(Continued from 29/7/97)

Copyright in the High Court of Australia

MR N. PERRAM: May it please the Court, I appear with my learned friend, MR A. SWANWICK, for the plaintiff. (instructed by H.S. Wise Gershov & Co)

MR A.L. CAVANOUGH, QC: If your Honour pleases, I appear on behalf of the Minister, the first defendant. (instructed by the Australian Government Solicitor)

MS KAVALLARIS: I appear for the second respondent. (instructed by the Australian Government Solicitor)

HIS HONOUR: You have been excused, have you not? Your client is no longer a member of the Tribunal.

MS KAVALLARIS: Yes, your Honour, that is true. It is just in regard to any issue that arises as to costs.

HIS HONOUR: I understand why you are here, Ms Kavallaris. Is there any point, Mr Perram, in retaining the second defendant as a party to this action?

MR PERRAM: I would have thought not at this point.

HIS HONOUR: Do you agree with that, Mr Cavanough?

MR CAVANOUGH: It seems sensible to clear up the record to that extent.

HIS HONOUR: Yes. Then the proceedings in so far as they are brought against the second defendant should be dismissed and the second defendant should be removed as a party, leaving the Minister as the sole defendant.

MS KAVALLARIS: If the Court pleases. May I be excused?

HIS HONOUR: Now when this matter was last before me on 29 July I indicated some orders I was then proposing to make for remission of the matter to the Federal Court but I stood the matter over pending some receipt of instructions by Mr Cavanough as to the attitude of his client to the remitter. What is the outcome of that?

MR CAVANOUGH: My client is content with the orders that your Honour proposed to make.

HIS HONOUR: Thank you, Mr Cavanough. Yes, Mr Perram.

MR PERRAM: Since that time, as I apprehend what happened on that occasion, the position of my client has changed slightly. Your Honour will have received some brief written submissions - - -

HIS HONOUR: Your client's position is not fluid. Your client comes here to take a position.

MR PERRAM: The position he takes today is that he opposes the remitter.

HIS HONOUR: Why do you seek to reverse the submissions made last time?

MR PERRAM: At the time that those submissions were made on the last occasion, those who appeared were unaware of the Full Court's decision in Eshetu which appears to suggest that the matters raised in paragraph 9(c) of the amended statement of claim cannot be determined in his favour in the Federal Court. Were it but for that factor, there would be no reason not to remit it.

HIS HONOUR: There had been reference made to Eshetu on the last occasion, surely?

MR PERRAM: I was not here, but I do not understand that there was.

HIS HONOUR: I know you were not, but I was.

MR PERRAM: Whether for right or for wrong, the full significance of Eshetu did not sink in to the minds of those who appeared is perhaps the best way of putting it.

HIS HONOUR: That may be a more accurate statement. Now, on the last occasion orders were made striking out Parts II, III and IV. Are you aware of that, Mr Perram?

MR PERRAM: Yes, I am, your Honour.

HIS HONOUR: So all that is left is Part I - - -

MR PERRAM: And a thorny question as to standing. one would have thought.

HIS HONOUR: All that is left is Part I.

MR PERRAM: If your Honour goes to paragraph 9 - - -

HIS HONOUR: Just a minute, just listen to me. All that is left is Part I and what is claimed there is a series of declarations of invalidity, is that not right?

MR PERRAM: Yes.

HIS HONOUR: What does Eshetu have to say about that?

MR PERRAM: On the question of a declaration as to validity, nothing whatsoever. They passed like ships in the night.

HIS HONOUR: Right

MR PERRAM: But the declaration as to invalidity turns upon acceptance of the proposition that the Federal Court has no power to review on, if I could loosely call it this way, the common law bases.

HIS HONOUR: First it turns upon questions of construction.

MR PERRAM: That is so. At the heart of the plaintiff's argument is the proposition that, on its proper construction, the provisions of Part 8 of the Migration Act do not work in the way in which the Full Court has now held that they do and that is apparent from paragraph 9(c) of the amended statement of claim. Now, that may or may not be right, but in any event no Federal Court judge, indeed the Full Court itself - - -

HIS HONOUR: This question of invalidity will be entirely in the hands of the Federal Court. Any questions that arise can be referred into a Full Court.

MR PERRAM: It is not the question of validity which is the difficulty. Before the question of validity arises, the construction - - -

HIS HONOUR: You are not listening to me, Mr Perram. Any question of invalidity can be referred into the Full Court. The course antecedent to questions of validity, questions of construction, one construes the Act before one determines it is invalid. That can be referred into a Full Court if a single judge finds any embarrassment.

MR PERRAM: That is the submission. It is a short submission.

HIS HONOUR: That is the answer to it, is it not?

MR PERRAM: Except that the Full Court would probably be bound to follow Eshetu.

HIS HONOUR: It is not bound to follow Eshetu.

MR PERRAM: It is likely to follow Eshetu.

HIS HONOUR: Were these questions really necessary for the decision in Eshetu? Mr Justice Whitlam did not seem to think so.

MR PERRAM: No. There is some force in the dissenting judgment, that has to be said, but I suppose our submission is simply that we should not have to run the gauntlet of relitigating those issues when it is clear enough - if that construction of the Migration Act stands, it is obviously going to find its way here one day. We are here already. There is a very high likelihood that another Full Court would at least give the first Full Court's decision significant weight.

HIS HONOUR: This Court may refuse special leave in Eshetu.

MR PERRAM: It may. That is the short submission.

HIS HONOUR: Yes, very well.

MR PERRAM: There is a related issue which I would not seek to address on, but Mr Swanwick would address on, if it is permitted as to the confidentiality orders, but - - -

HIS HONOUR: I have read the submissions on that. What I propose to do about that would be to continue the orders until further order of the Federal Court but, in doing so, note that the further continuations of the confidentiality orders should receive the first attention in the Federal Court.

MR PERRAM: That is satisfactory, if the Court pleases.

HIS HONOUR: Is that satisfactory?

MR CAVANOUGH: Yes, indeed.

HIS HONOUR: In other words, that is the very first matter that should really be attended to at the first directions hearing.

MR CAVANOUGH: It is additionally sensibly because circumstances may change in the Federal Court. It is not an order that ought to be made on a once and forever basis here now.

HIS HONOUR: Yes, that is right. There are decisions in the Federal Court that counsel has referred to in the past, one of Justice Sackville in The Minister v A 54 FCR 333. One of Justice Lindgren in A v The Minister [1994] FCA 1532; 54 FCR 327.

MR CAVANOUGH: There are some other cases, too, and of course there is Justice Sundberg's decision in this very matter.

HIS HONOUR: That is right.

MR CAVANOUGH: If your Honour pleases.

HIS HONOUR: Mr Registrar, do I have to certify for counsel? I should, should I not?

THE REGISTRAR: Yes, your Honour should.

HIS HONOUR: Yes. I indicated on the last occasion that the jurisdiction of the Federal Court would be founded on section 39B(1A)(b) and that would attract section 44(1) of the Judiciary Act and for the reasons that have been indicated in the course of discussion with counsel on 29 July and today's date it appears to me to be an appropriate case for the Court to make an order of remitter. I note that while the remitter is now opposed by the plaintiff, it is now not opposed by the defendant, formerly the first defendant.

The orders I make are:

1. There be struck out for failure to comply with Order 55 of the High Court Rules Parts II, III and IV of the further amended statement of claim filed 28 July 1997.

2. Remit to the Federal Court of Australia -

Now there was some argument as to which is the appropriate destination, Sydney or Melbourne Registry. I think you wanted Sydney, Mr Perram.

MR PERRAM: I think my client wants it in Sydney. I may want it in Melbourne, but I think Sydney is our position.

HIS HONOUR: Yes.

MR CAVANOUGH: It is inconvenient for me personally, if I am to remain in it, to come up from Melbourne, but - - -

HIS HONOUR: Your instructing solicitors, are they in Sydney?

MR CAVANOUGH: The AGS in both Sydney and Melbourne have had conduct of the file. The matter has bounced around in both parts but, your Honour, we are really in the Court's hands. If the plaintiff is living in Sydney I suppose we have to - - -

MR PERRAM: He does live here, for the moment, anyway.

HIS HONOUR: Is it more convenient for you if it is in Melbourne, Mr Perram?

MR PERRAM: No.

HIS HONOUR: Anyhow, your instructions are for Sydney, are they?

MR PERRAM: My instructions are for Sydney.

HIS HONOUR: I think I should make it the Federal Court of Australia, New South Wales District Registry.

2. Remit to the Federal Court of Australia, New South Wales District Registry, the balance of the further amended statement of claim, including the summons filed 22 July 1997.

Now, that summons was your strike-out application.

MR CAVANOUGH: That is carried across, as I understand it, your Honour.

HIS HONOUR: That is carried across, yes.

3. Certify for counsel in this Court on 16 June, 29 July and today.

4. Costs of the proceedings in this Court be costs in the Federal Court of Australia, the costs not to include the ex parte application made 29 July and withdrawn in the course of the hearing on that morning.

5. Continue until further order of the Federal Court of Australia order 4 appearing on page 21 of the transcript of 16 June 1997 to the intent that the further continuation of that order receive early attention in the Federal Court of Australia.

It will really be up for you, I think, Mr Cavanough, to make sure that happens with a directions hearing.

Is there anything else?

MR PERRAM: That is all, your Honour.

HIS HONOUR: Just check.

MR CAVANOUGH: There seems to be nothing else, your Honour. I have been asked to mention the question of costs of the member, that is the party that has been struck out, and as to what provision might be made for the recovery of that member's costs in the event presumably, ultimately, that the proceeding is dismissed or otherwise.

HIS HONOUR: Yes, I should have said, order 4, which was "Costs of the proceedings in this Court be costs in the Federal Court of Australia", I should have added to that, "and costs of the former second defendant be the costs of the Minister."

MR CAVANOUGH: If the Court pleases.

MR PERRAM: May the please the Court.

HIS HONOUR: We will now adjourn.

AT 9.46 AM THE MATTER WAS CONCLUDED