Abebe v The Commonwealth of Australia S53/1998 [1998] HCATrans 305 (24 August 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S53 of 1998

B e t w e e n -

SENIET ABEBE

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Office of the Registry

Sydney No S139 of 1997

In the matter of -

An application for Writs of Prohibition, Certiorari, Mandamus and Habeas Corpus and Injunctions against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

First Respondent

LUKE HARDY constituting THE REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte -

SENIET ABEBE

Prosecutrix

Office of the Registry

Sydney No S104 of 1998

In the matter of -

An application for Writs of Prohibition, Certiorari and Mandamus and an Injunction against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

First Respondent

ROSLYN SMIDT, sitting as THE REFUGEE REVIEW TRIBUNAL

Second Respondent

PETER NYGH in his capacity as acting principal member of THE REFUGEE REVIEW TRIBUNAL

Third Respondent

Ex parte -

MOGES ESHETU

Prosecutor

Office of the Registry

Sydney No S26 of 1998

B e t w e e n -

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Appellant

and

MOGES ESHETU

Respondent

For directions

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 24 AUGUST 1998, AT 9.30 AM

Copyright in the High Court of Australia

_______________________________

HIS HONOUR: Yes, call the first matter.

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friends, MR N. PERRAM and MR J.M. GERSTEN, for the plaintiff. (instructed by Alex Lee)

MR D.M.J. BENNETT, QC, Solicitor-General for the Commonwealth: If the Court pleases, I appear with my learned friend, MR G.A. MOWBRAY, for the respondent. (instructed by the Australian Government Solicitor)

HIS HONOUR: Now, call matter No 2.

MR D.F. JACKSON, QC: If the Court pleases, I appear similarly for the prosecutor. (instructed by Alex Lee)

MR G.T. JOHNSON: May it please, your Honour, I appear for the first respondent. (instructed by the Australian Government Solicitor)

HIS HONOUR: And call matter No 3.

MR T.A. GAME: If your Honour pleases, I appear for the prosecutor in that matter. (instructed by Kessels & Associates)

MR J. BASTEN, QC: I appear with MR R.T. BEECH-JONES for the respondent, your Honour. (instructed by the Australian Government Solicitor)

HIS HONOUR: Gentlemen, let me ask, Mr Jackson: where should we begin?

MR JACKSON: Your Honour, so far as the action is concerned, the first matter called, the position that as been arrived at is that we and the Commonwealth have reached agreement upon the possible terms of a case stated, and I wondered if, perhaps, I could hand to your Honour a copy of that.

HIS HONOUR: Yes, thank you. I will just read it through to myself, Mr Jackson. Mr Jackson, with reference to paragraphs 16 and 17 of the draft, what is the state of preparation of that matter, do you know?

MR JACKSON: Your Honour, the order that was made was, of course, the proceedings proceed by way of motion before the Full Court.

HIS HONOUR: Yes, that is right.

MR JACKSON: Your Honour, so far as the state of preparation is concerned, I do not know the matter has actually proceeded beyond that. The affidavits have been filed, I am sorry, and there is no more evidence to go on, as we would understand. So, it would be an appropriate case in which, if the Court were minded to do so, there could be an order for written submissions.

Your Honour, a question that does perhaps arise would be whether it be necessary for the Court to go into that case at all in the end if it be that our case were to succeed on this aspect of the matter because it may be that the parties would - there may be some different resolution of the matter. But, your Honour, the matter is ready to go ahead from a practical point of view.

HIS HONOUR: Yes. What I had in mind, gentlemen, and I have spoken to the Chief Justice about it, is that these two matters and probably the Eshetu matters as well should all be listed in the November sittings, that is to say, the sitting starting Tuesday, 10 November, sometime in that period, and then, as you say, the Wednesbury unreasonableness questions - it may be the Court would deal first with the construction questions and validity questions that arise. Then similar questions arise, in a way, in the Eshetu special leave grant matter, do they not, I think? That is right, is it not?

MR BASTEN: In a sense, your Honour. There is no constitutional issue raised in that matter.

HIS HONOUR: No, that is right, it is construction.

MR BASTEN: Yes, which is a defensive position if the respondent on the appeal is unsuccessful.

HIS HONOUR: Yes. You see, what I have in mind is to list the matters together and invite counsel to work out between themselves some order of handling of submissions in relation to the matters. The case stated is in a suitable form, is it, Mr Solicitor?

MR BENNETT: Yes, your Honour. The only issue that concerns us, your Honour - and it is really a question of logistics and the choice between fragmentation and proceeding - is that the issues which arise in the other two matters would be very different depending on the result in the first matter.

HIS HONOUR: That is right. I have to leave it all open. The Court conceivably might come to a view on the spot on some aspect which might determine the aspects, or it may not.

MR BENNETT: Yes, that is certainly so. That was the only matter that concerned me, your Honour.

HIS HONOUR: It is also conceivable that while one or other of the matters might require five or seven Justices, one of the others might only require three. That would all have to be handled as things turned out, I imagine.

MR BENNETT: Yes, your Honour.

MR BASTEN: Your Honour, if that were the case in relation to the Eshetu matter, then there is a question about what should go into the appeal books. I suppose one approach is simply to put it all in and then see what the Court wishes to do with the writ when it gets to that stage.

HIS HONOUR: Yes. Well, I will come to that.

In matter No 1, I state the case pursuant to section 18 of the Judiciary Act in the form submitted by counsel, which I have initialled, dated and placed with the papers. I indicate that will be set down before the Full Court in the sittings commencing on 10 November.

Now, matter No 2, what has to be done there?

MR JOHNSON: In that particular matter the application book has, in fact, been certified. I am not quite sure if it has been filed yet but it has been prepared.

HIS HONOUR: No, that is what I was wondering.

MR JOHNSON: And certified, as I understand it.

MR JACKSON: Well, perhaps if your Honour was simply to intimate as before that the matter is to be set down for that sittings and at a time to be nominated by the Court.

HIS HONOUR: Yes. It was an application for an order in the first instance, I think, that I referred into the Full Court.

MR JACKSON: Yes, your Honour did.

HIS HONOUR: I direct that the application be set down for the sittings to commence 10 November 1998. Then, matter No 3: Mr Game?

MR GAME: Your Honour, we would ask that that draft writ be referred to the Full Court.

HIS HONOUR: Why do you want mandamus, prohibition, certiorari and then an injunction other than over comfort?

MR GAME: Your Honour, we do not want the injunction but we do want mandamus and prohibition. If your Honour is minded to do so, we would ask that what be referred to the Full Court is an application for orders absolute rather than orders nisi.

HIS HONOUR: Yes.

MR GAME: But our position, essentially, is Mr Basten has set his defence in the event that the two questions of law are resolved unfavourably to us. We would wish to argue the question of unreasonableness.

HIS HONOUR: Yes, that is right. Do you have anything to say about the form of this application at the moment?

MR BASTEN: No, your Honour.

HIS HONOUR: If it were revised so as to include mandamus and prohibition, is it not?

MR GAME: Yes, your Honour.

HIS HONOUR: That would seem to be all right.

MR BASTEN: Yes. Yes, that would be quite proper, your Honour. It is really a question of what would happen in the November sittings because if, in fact, it is, as my friend says, purely defensive, then would the Court wish to hear it until it had formed a view about the appeals?

HIS HONOUR: I think we would all have to turn up on the first day and we will be given some traffic directions.

MR BASTEN: Yes, and the second question would be whether the Court would consider remitting if the Commonwealth were unsuccessful in resisting the constitutional argument in the Abebe matter, but we are happy if your Honour gives orders to - - -

HIS HONOUR: Yes, if you all turn up on the first day and some of you may be given leave to go away and come back at some suitable time.

MR BASTEN: Yes.

HIS HONOUR: Now, what is to happen with affidavits in matter No 3?

MR GAME: Your Honour, the material that we would rely upon is all of the material that was before Justice Hill and that material is contained in the appeal book which is the first annexure to the affidavit of Mr Kessels. So, that material comprises the whole of the material that was before the tribunal. That is the material that we would be relying upon.

HIS HONOUR: All right, thank you.

So, in matter No 3: order, first, pursuant to Order 55 rule 2, that after amendment so as to seek an order absolute in the first instance for prohibition and mandamus, the application be made to the Full Court at the sittings to commence on 10 November 1998 and, secondly, the parties have leave to refer to the material in appeal book filed in matter No S26 of 1998 as if filed herein.

Now, although it is not in the list, I should also order that matter No S26, that is the Eshetu matter, of 1998, be set down for hearing at the sittings to commence 10 November 1998.

Could anything usefully to be done at this stage, gentlemen, to have any procedure for written submissions and interrelate them?

MR JACKSON: Your Honour, we are happy enough with the usual rule which effectively means that the Registrar provides a date.

HIS HONOUR: Yes, I was thinking about a timetable for submissions. I see, for example, the Eshetu appeal book is not ready yet.

MR JACKSON: I am sorry?

HIS HONOUR: The Eshetu appeal book, which is not your matter. That is not ready yet, is it?

MR GAME: No, your Honour. I think what was to go into the appeal book might have depended a little bit on what happened today. We would anticipate that what would go into the appeal book would be the material that was in the appeal book to the Full Court because that has the - - -

HIS HONOUR: How voluminous is that?

MR GAME: It is 365 pages long.

HIS HONOUR: All right. Now, are there any issues of construction of validity that are common to the Eshetu and the Abebe matters? That is one thing to try and get at.

MR JACKSON: Your Honour, the short answer is I do not know. Can I just say we will be attacking fundamentally the two provisions that take away the jurisdiction purposes earlier to be conferred on a number of bases but including the inability to confer a judicial power which does not allow matters precedent to the existence of the decision to be examined.

HIS HONOUR: I think it might be useful when the appeal books are filed and the documents are in if I list it again.

MR JACKSON: Your Honour, if I can say one thing: in terms of providing our submissions, we would be happy enough to do so, for example, by the end of September and that would allow the respondent's submissions in our case, or defendant's submissions to be in by, say, the end of October and any reply to be, say, the conclusion of the week before the commencement of the sittings in November.

HIS HONOUR: Yes.

MR JACKSON: We could circulate our submissions to the other parties involved.

HIS HONOUR: Is that acceptable, Mr Solicitor?

MR BENNETT: Yes, your Honour.

HIS HONOUR: Can you meet that sort of timetable?

MR GAME: I cannot, your Honour. I have some commitments that really make it very difficult to do so. I have some trial commitments that are going to take me well into October. So - - -

HIS HONOUR: Yes, but I mean - - -

MR GAME: I will just have to - - -

HIS HONOUR: You will be busy, but is there any other - - -

MR GAME: Well, I shall have to - - -

HIS HONOUR: You come here and you are seeking relief.

MR GAME: Well, I will do so, your Honour. In a sense, your Honour, my submissions will be responsive to those put by Mr Basten. So, there are two - there is the question about what is an error of law in the context of section 476 of the Migration Act and, secondly, what are procedures under the Act, and those are the two principal questions that my friend wishes to ventilate, and that is very much tied up with the exclusion of unreasonableness and natural justice in section 476. So, really, the submissions in a substantial way are affected by what is put against us by my friend's submissions. So, I am sorry, if I appear to be diffident about putting in written submissions.

HIS HONOUR: Yes, all right. What was the timetable you were suggesting, Mr Jackson?

MR JACKSON: The end of September, which probably means the last Friday in September, for our submissions.

HIS HONOUR: In both matters?

MR JACKSON: Both matters, your Honour, yes. The last working day in October, perhaps, for the respondent's and defendant's submission and reply being, I think, the 6th, perhaps, of November or, at any event, the Friday before the sittings commences.

HIS HONOUR: I should have asked you, Mr Johnson, too, because you are appearing in No 2.

MR JOHNSON: That is right. We have no difficulty with that timetable, your Honour.

HIS HONOUR: In matter Nos 1 and 2, I direct that the plaintiff's and the prosecutor's submissions be filed and served on or before 25 September; the respondents' submissions be filed and served on or before 23 October; and the plaintiff's and the prosecutor's submissions in reply on or before 2 November 1998.

Now, is there any reason, Mr Basten, why I should not do the same in matters 3 and 4?

MR BASTEN: Well, it depends, really, on the order in which the submissions are made on the writ and I am not sure - if what Mr Game is saying is that the arguments raised by Mr Jackson are going to be relevant in some way to our case, then we would like a week after his before we put ours in on the appeal and we would also like more than a week to reply to Mr Game's submissions which are going to be in reply to us on the appeal but will be substantive on the writ.

HIS HONOUR: Yes. All right, what do you suggest?

MR BASTEN: I was going to suggest the end of the first week of October for the appellant's submissions on the appeal and the end of the third week of October for the respondent's submission - - -

HIS HONOUR: Just a moment. The appellant's submissions on appeal by, what date?

MR BASTEN: I think that is - - -

HIS HONOUR: The end of the first week of October?

MR BASTEN: Yes.

HIS HONOUR: That would be 9 October. Yes.

MR BASTEN: And the respondent's submissions on the appeal, if they are to be at the same time as the prosecutor's submissions on the writ, well, I suppose 23 October will have to be the date. They will need two weeks to reply to us.

HIS HONOUR: What about the order of submissions on the writ matter?

MR BASTEN: I am in my friend's hands about that. We would like to have them in sufficient time to consider them before 2 November.

HIS HONOUR: Yes, that is right. What about your submissions on the writ matter, Mr Game?

MR GAME: Your Honour, we are happy to put on our written submissions on the writ matter at the same time as we respond to the appellant's submissions on the appeal.

HIS HONOUR: Yes. That would be 23 October?

MR GAME: Yes, your Honour.

HIS HONOUR: And the respondent's submissions in the writ matter on 2 November, the same time as the reply on the appeal.

MR BASTEN: I was hoping for a little longer but - are the matters actually going to be in the second week of the sittings?

HIS HONOUR: I do not know.

MR BASTEN: Yes. I am in the Court's hands.

HIS HONOUR: And then how soon can the appeal papers be got ready in the Eshetu appeal?

MR BASTEN: Your Honour, we filed an index. I think on the basis that it is being put that the matter in the appeal papers can be used in the writ, we can simply prepare - - -

HIS HONOUR: Yes, you are the appellant, of course. I should have asked - - -

MR BASTEN: We are the appellant, yes, so we can have our book ready for the appeal as soon as it is convenient to the Registrar to settle the index and then the additional documentation can be dealt with by way of a supplementary book which will be a book in the writ.

HIS HONOUR: Yes. Well, I will leave that to Ms Kavallaris to sort out with the Registrar and the solicitor for the other side.

MR BASTEN: Yes, there is no problem.

MR BENNETT: Your Honour, there is one matter which arises out of what my learned friend just said. Would your Honour be prepared, instead of saying the November sittings, to say the November or December sittings so as to give flexibility to the Registrar because my friend suggested the first week may not be available in November. The second week in November in only a week off the December sittings and it just gives flexibility if there are problems with finding dates. I know I have some trouble in the second week in November because I have to be in the Hague for a treaty negotiation.

HIS HONOUR: Yes, well that may be so. The Court is insistent that these matters be got on and disposed of as soon as possible, not only for the position of these parties but for the position of the Federal Court which is continually bombarded with these applications and cannot really chart its course until it knows the ultimate resolution here.

MR BENNETT: Yes. Is your Honour prepared to direct, if possible the first week of November?

HIS HONOUR: No.

MR BENNETT: If your Honour pleases.

HIS HONOUR: But I will note - would the first week of November be preferable to everybody?

MR GAME: No, your Honour. I have already other commitments but if it has to be - - -

HIS HONOUR: Well, you come here; you come here.

MR GAME: Quite, your Honour, but your Honour has asked and if it has to be the first week then so be it but our preference was for the second week and that is what we indicated to the Registry.

HIS HONOUR: In the Eshetu appeal matter which, as I said, is No S26 of 1998, I direct that the appellant's submissions be filed and served on or before 9 October; the respondent's on or before 23 October and any reply by the appellant on or before 2 November. In matter No 3, which is the writ application, I direct that the applicants' submissions be filed and served on or before 23 October and the respondent's submissions be filed and served on or before 2 November.

In dealing with matters Nos 1 and 2, I referred to the prosecutor but I think they are only applicants at the moment.

MR JACKSON: Yes, your Honour, yes. In matter No 2, applicant, and matter No 1, plaintiff or applicant/plaintiff.

HIS HONOUR: Yes. So, when I said plaintiff and prosecutor, I should have said plaintiff and applicant.

In each matter I will certify for counsel. Costs of today will be costs in the respective causes. I will grant liberty to apply on three days notice.

Now, let me just come back to this question of dates. Is the whole of the first week bad for you, Mr Game?

MR GAME: Yes, your Honour. I will probably have to arrange for -somebody else will probably have to appear if it is to be in the first week.

HIS HONOUR: All right. I will not make any directions about it. The Registrar will deal with the parties in the Eshetu appeal matter for the preparation of the appeal book and to try and find, in the usual way, dates in the November sittings which are least inconvenient for the least number of persons involved.

I had better read these directions again. In matters No 1 and 2, the plaintiff's and the applicant's submissions filed and served on or before 25 September; respondent's on or before 23 October, and the plaintiff's and the applicant's in reply on or before 2 November. In the Eshetu appeal, No S26 of 1998, appellant's on or before 9 October; respondent's on or before 23 October, and the reply, if any, on or before 2 November.

In matter No 3, the applicants for prerogative relief, file and serve on 23 October and the respondents on or before 2 November. As I indicated, I certify for counsel and costs of today are costs in the respective causes. Is there anything else?

I will now adjourn.

AT 10.04 AM THE MATTER WAS CONCLUDED