Dang, Ex parte - Re MIMA M118/2001 [2002] HCATrans 149 (4 April 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M118 of 2001

In the matter of -

An application for Declarations, Certiorari, a Writ of Prohibition and Injunction against THE HONOURABLE PHILIP RUDDOCK, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Ex parte -

DUNG CHI DANG

Applicant/Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 4 APRIL 2002, AT 9.31 AM

(Continued from 21/3/02)

Copyright in the High Court of Australia

MR P.G. NASH, QC: If your Honour pleases, I appear with my learned friend, MR A.F.L. KROHN, for the applicant. (instructed by Access Law)

MR P.R.D. GRAY: May it please your Honour, I appear on behalf of the respondent. (instructed by the Australian Government Solicitor)

HIS HONOUR: Yes. Now, Mr Nash, I have received the draft document and have read it a couple of times. There are, I think, some matters to which we need to give, perhaps, some further attention. First, I think that section 18 under which the reference would be made may require, and I would have thought ordinarily would be expected to be read as requiring, that there be a matter commenced in the Court.

Given that we now have application for order nisi but no order nisi granted - there is, I think, only an application to commence a proceeding - and it occurred to me that a way of dealing with the fact that your side wishes to promote more grounds than the ground concerning validity, would be to consider granting an order nisi presently limited to the one ground, namely the ground of validity; see the outcome of that in the sense of await the answer to the question that is reserved. That answer being given, the matter would come back to me or to a single Justice and at that point it would seem to me that it may be that a course that would be open would be for your side at that stage to seek leave to amend the order nisi to add to it grounds, being the grounds that have been foreshadowed now but which would not be the subject of the present grant.

In those circumstances, it may be - no doubt I will have to hear Mr Gray on this, but it may be that the respondents would be in a position where they would be hard-pressed to say that they were taken by surprise by these grounds being agitated after a journey to the Full Court and that it may be - again subject to what Mr Gray has to say - that the application for amendment would not occupy a great deal of time at that stage.

MR NASH: With respect, your Honour, the question of whether there was a proceeding before the Court did agitate our side somewhat but the respondent seemed to prefer and it does seem preferable, if possible, to proceed under section 18.

HIS HONOUR: But it may be that section 18 itself presupposes that there is a proceeding.

MR NASH: We accept that, your Honour.

HIS HONOUR: Yes. Now, let me, in effect, go through the shopping list with you before I hear Mr Gray on any of the items on the list. If we were to adopt a course of the kind generally described, it would seem to me that the ground proposed in the amended draft order nisi as ground 3 would be the ground on which order nisi would go for the moment.

Turning our attention then to the draft case stated. First, I see that it takes the form of what is little more than a chronology and for my own part I doubt that that is sufficient or satisfactory. For example, to prepare a case stated book in the matter we would expect, I think, ordinarily, to find in it the order nisi, the case stated and, in a case of this kind, I would have thought that there would be advantage, would there not, in having at least the document said to embody the Minister's decision as a document annexed to and referred in the case stated?

MR NASH: It was attempted, your Honour, if one looks at paragraph 3:

following agreed facts and on the affidavit of Dung Chi Dang affirmed 4 December 2001 and on its exhibits - - -

HIS HONOUR: You see, that is what troubled me, that you then have the qualifier: save that where there is inconsistency the case is stated on the agreed facts. It would not be convenient to leave questions of inconsistency to be determined by a Full Court. It is likely that that would occupy an undue amount of time in the Court. Of course there would be but one answer given by all seven Justices who considered it but it may lead to an undue occupation of time. The case stated, if it is to go forward at all, must be freestanding. If the parties are wary of there being inconsistencies, they have to address them now and deal with them. I will not let it go forward on any other basis.

MR NASH: The problem, really, your Honour, is the time scale.

HIS HONOUR: I understand that. I understand, and it may be that this whole process will fall over because of the urgency with which it is to be done. You see, if it is to be done, it really has to be tied up in pink tape and in bed no later than close of business tomorrow night. The sittings commence next Tuesday. It just will not happen unless we have tied this off by close of business tomorrow night. Now, I am sorry that that should be so but we must address the reality now.

MR NASH: Yes. Perhaps, your Honour, if I could address another reality, which is related.

HIS HONOUR: Yes.

MR NASH: And that is that in discussions with senior counsel in Te's Case, it appears that the outline of submissions in Te, which was due today, is not ready and will not be ready before the beginning of next week. I have been asked, your Honour - and I ask your Honour not to slaughter the messenger - to - - -

HIS HONOUR: Why should I change the habits of a lifetime, Mr Nash?

MR NASH: Your Honour, it is one thing to deal with counsel who is counsel in the matter and who has to suffer for the sins of his solicitor, client or whoever else, but as between counsel with - it is our submission, your Honour, that the axe should not fall at all, of course, your Honour, because - - -

HIS HONOUR: Well, it will be for that counsel to make his peace with the Full Court or her peace with the Full Court, Mr Nash. But the submissions are due - they are due.

MR NASH: And what I have been asked to request the Court is for an extension of time.

HIS HONOUR: I will make no order of that kind. If extension is sought, the matter should be taken up with the Senior Registrar in Canberra. For my own part, I will make no such order. In saying that, I am not to be taken as expressing a view one way or the other.

MR NASH: I accept that, your Honour, but it may pose a problem, not only in relation to this case but also in relation to Te's Case. I mentioned this to my - - -

HIS HONOUR: It will not. I think you should convey to those instructing you and those engaged in Te's Case, it will not. Te's Case is fixed. Te's Case will proceed and it is for the parties to get their house in order and if that requires a deal of urgent work, so be it. There is to be no misunderstanding about this. This case is not to be delayed on account of a failure on the part of the applicant to have its house in order by the required time. Do I make myself quite plain?

MR NASH: Very much so, your Honour.

HIS HONOUR: I would be grateful if you would convey the message in as clear terms - - -

MR NASH: I will endeavour to emulate your Honour's tone of voice as well.

HIS HONOUR: Now, what are we to do about the case stated? There is a third issue which I would raise, so there are the issues of, one, my present view is that we would need an order nisi. The solution to the apparent procedural conundrum that that presents seems to me to be to grant an order nisi limited to the one ground, acknowledging the fact that on disposition of the case stated there would then be an application to amend to expand the grounds in the way presently foreshadowed. The second difficulty is the form of the case stated and the need to make it freestanding and to avoid the reservation of the kind that appears in the rubric in paragraph 3. The third issue is this: the question reserved, part (b) is one which struck me as entirely novel. It was not a question which seemed to me to have been raised earlier in the proceedings, but am I mistaken? It seemed further to me to be a ground that went well beyond issues of a kind that would be agitated in Te.

MR NASH: I must say there was some debate between the parties in relation to (b) and it was accepted that it would require a further amendment to the draft order nisi, even in the present format, and for our part, your Honour, we would not see any necessity to maintain (b).

HIS HONOUR: Could I approach the problem in this way? If question (a) were phrased along the lines of, "Did section 501(2) of the Migration Act 1958 validly authorise the respondent to cancel the applicant's visa on 27 June 2000?", if you were to obtain a negative answer to a question framed in that way, "Did 501(2) validly authorise the respondent to cancel the applicant's visa on 27 June?---No", what further issue would arise about the operation of 189 or 198?

MR NASH: They would disappear, your Honour.

HIS HONOUR: If, conversely then, you were not to succeed in obtaining a negative answer, so that, "Did 501(2) validly authorise cancellation?---Yes.", what separate issue would be raised about 189 and 198?

MR NASH: Nil.

HIS HONOUR: That being so, my first impression is that there is no advantage and, indeed, positive disadvantage in adding the second question (b) but, again, I will need to hear Mr Gray on that. Now, you will note that I rephrased question (a) a little. It may be that whatever formula is adopted, some will find difficulty in it, but it did seem to me that the simpler question, "Did 501(2) validly authorise the respondent to cancel applicant's visa on" date, may be simple and yet raise the question sufficiently.

MR NASH: Your Honour has simplified it and, from our point, your Honour, we accept that as appropriate. The drafting of these questions has become simpler and simpler. Your Honour has the most simplified version - or prior to this morning, the most simplified version in front of you.

HIS HONOUR: Yes.

MR NASH: From our point of view, the only problem may lie in that inconsistency question.

HIS HONOUR: Yes.

MR NASH: Now, I was not party to the discussions between Mr Krohn and Mr Gray in which that reference to inconsistency came into being. I am not quite sure of the ambit of the concerns of the respondent, because I think it is the respondent that is concerned about inconsistency.

HIS HONOUR: Where I am up to at the moment, Mr Nash, is that I would say to the parties that if they wish to prosecute the idea further, while I will have to hear Mr Gray on this question of granting an order nisi, the case stated would, I am afraid, require further and quite substantial redrafting. It is not, I think, satisfactory to do it in the form of a chronology. It should be in separate paragraphs. The paragraphs should be, I think, as statements of fact. Although the first example is trivial, it is an example of a problem that may emerge later as a more deep-seated problem. To say that:

From 1975 Fall of Saigon and South Vietnam, Applicant's father

sent to "re-education camp".

You have no terminal date. As I say, the example is trivial and for the moment I cannot imagine a problem emerging about that, but we all know with cases stated the facts you have agreed are never the facts you need. The facts you have agreed always seem to be open to 12 interpretations, though they were cast in terms that the parties thought were simple and straightforward. Anything we can do at this stage to resolve that is desirable. Therefore, I would suggest that it would need a wholesale redrafting.

Now, that said, the present thinking would be to stand it over until tomorrow to let the parties have a go at it again, but in the meantime perhaps I need to hear Mr Gray and I also need to ask you whether there is any other aspect of it that you wish to be heard about at this stage.

MR NASH: Not at this stage, your Honour.

HIS HONOUR: Yes, thank you, Mr Nash. Now, Mr Gray, you have heard my shopping list of things.

MR GRAY: Yes, your Honour.

HIS HONOUR: Can I deal with them in turn. This question of order nisi, what do you say about that?

MR GRAY: If your Honour is going to stand the matter over until tomorrow, could I have the opportunity to seek instructions about that?

HIS HONOUR: Yes, of course. As I say, it seems to me that section 18 is predicated upon there being a proceeding in the Court and there is at the moment no proceeding in the Court. There is an application to commence a proceeding. As I say, the procedural conundrum that then is presented seems to me to be capable of resolution by granting an order nisi limited to one ground, it being recognised by the parties that upon the case stated being answered there is a very high probability that the applicant would come back on remitter before me seeking to extend the grounds to encompassed those which have been foreshadowed now but which have not been determined, in the sense of not determined whether they are arguable or not, and the matter would proceed by way of application for amendment in circumstances where the respondent, I think, would be hard-pressed to say, "Oh, we are taken by surprise that you now wish to amplify the field for debate", but preserving to the respondent the capacity to say, "Those grounds which you seek to add should not be added because they are not arguable grounds sufficient to warrant grant of order nisi."

MR GRAY: Yes.

HIS HONOUR: Now, if there are other difficulties, it will be for the parties to identify them.

MR GRAY: And your Honour, of course, speaks of all of the grounds except for ground No 3.

HIS HONOUR: Ground 3 would go forward as a ground of the order nisi, my expectation being that ground 3 would be effectively resolved by the answer to the case stated, because ground 3 I read as being confined to questions of validity and those questions of validity would be resolved, it would seem to me, by the case stated, if the Court sees fit to answer the question.

MR GRAY: And the grounds that may be added by amendment on remitter would be identical to those which exist in the current amended order nisi, or substantially identical.

HIS HONOUR: Well, put it this way: if they went beyond the grounds now proposed, I rather suspect that the look of surprise that would pass counsel's face on your side of the Bar table would beggar belief, but there we are.

MR GRAY: I understand the point, your Honour. I will seek instructions.

HIS HONOUR: Yes.

MR GRAY: If the matter is to be stood over until tomorrow, I will have those instructions by tomorrow morning.

HIS HONOUR: Yes. Now, the second thing is this question of inconsistency. I will not state a case in which there is a reservation of that kind. If the parties cannot reach agreement, so be it. The case will not go forward. If they can reach agreement, then the agreement should be contained wholly within the case stated and any annexed documents. It should be a freestanding document so that the Court has before it the whole of the facts agreed and the text of any document to which reference needs to be made. For the moment, it seems to me, the only document to which reference may have to be made is the decision document, but that itself is quite a lengthy document, is it not, with many annexures? Perhaps I am mistaken.

MR GRAY: Not so many, your Honour, no.

HIS HONOUR: But no matter. It would mean the case stated book is a freestanding book.

MR GRAY: Yes, I understand, your Honour, and, in my submission, there is a fair chance that the parties can reach agreement.

HIS HONOUR: That is for them.

MR GRAY: On the basis of the chronology that is before your Honour, we will transform that into a freestanding statement of agreed facts.

HIS HONOUR: Yes. Now, what about these questions about 189 and 198? Are those questions that you seek to promote?

MR GRAY: Your Honour, we do not seek to run the applicant's litigation for him. We did raise these matters. The reason we raised them is that it might be thought that on a particular reading of the Patterson Case that these questions are important questions. Having raised them, the respondent does not desire to insist that they be added and - - -

HIS HONOUR: Is there any basis on which you can foreshadow an argument that would arise in relation to 501(2) that would necessarily reflect back into 189, 198? So 501(2) works and the Minister has power to cancel. What is the separate issue about 189, 198 and the converse of that? I do not follow it for the moment.

MR GRAY: Well, I am in a curious position because I do not seek at all to persuade your Honour - - -

HIS HONOUR: No, I understand that.

MR GRAY: - - - that 189 and 198 would be in any doubt at all if the answer to question (a) is "Yes".

HIS HONOUR: Yes.

MR GRAY: But I do not join with my learned friend's submission to your Honour that there is nil chance that (b) would have any utility were the answer to (a) to be "Yes". I do not say that it is impossible that (b) may become in some degree a live issue if the answer to (a) is "Yes". It depends on one's reading of Patterson.

HIS HONOUR: Yes. Then I think sufficient for the moment to have had this exchange. If the parties are to have a further opportunity to consider their position, both parties can do so. As at present advised, the draft order nisi taking the form it does, there would be no sufficient basis to ask the question about 189 and 198.

MR GRAY: I understand, your Honour, and the Minister will not insist.

HIS HONOUR: No, I understand. Now, are we talking real practical politics in trying to get in this bed by tomorrow night? If we are not, there are parties spending money trying to do so and I am not going to have the parties cost money if realistically we are trying to do the impossible. Can it be done?

MR GRAY: Given your Honour's opportunity of a further mention tomorrow morning, I submit there is a real chance that it can be done.

HIS HONOUR: All right. Well, in the end all I am saying is there are some real people out there paying real money for what is happening. I am going to turn the tap off if we are just having a lawyers' picnic.

MR GRAY: I understand.

HIS HONOUR: Simple as that.

MR GRAY: I would not demur at all from what your Honour says.

HIS HONOUR: No.

MR GRAY: One point which has arisen is the timetable. It may be that further facts come to light before the mention tomorrow on that issue.

HIS HONOUR: Now, I would expect tomorrow that the parties would be in a position to tell me that they would be able to file additional submissions, that is submissions additional to those in Te, in very short order next week.

MR GRAY: I am obliged to your Honour.

HIS HONOUR: As I say, the only submissions I would entertain at the moment are those additional to Te. Te I regard as having the principal carriage of this matter, and there we are.

MR GRAY: We have understood that from the beginning to be the case, your Honour.

HIS HONOUR: Yes, and I would be grateful if the parties could come in with an agreed proposal. As the Chief Justice from time to time has been heard to say, if the parties cannot agree, we will engage in alternative dispute resolution.

MR GRAY: If your Honour pleases.

HIS HONOUR: Now, Mr Nash, anything that you would wish to add?

MR NASH: Well, in consultation, your Honour, it seems that it is probable that by tomorrow evening we can have a case stated that - perhaps a skeleton of it for your Honour tomorrow.

HIS HONOUR: A skeleton will not do, Mr Nash. It has to be in bed by close of business.

MR NASH: No, I was talking tomorrow morning, your Honour, so that your Honour can - - -

HIS HONOUR: Yes. Well, it may be that I would stand it over until 2.15 tomorrow, but I will not put forward a case stated to the Full Court until I have seen and approved the final draft. I am sorry, I will not.

MR NASH: With respect to your Honour, 2.15 might be a good idea. In relation to additional submissions, we can certainly have some submissions available by, say, Tuesday. One of the problems lies in the fact that we do not know what the Te submissions are, so that - - -

HIS HONOUR: Well, that simply demonstrates how unsatisfactory is the position in Te, does it not, Mr Nash? No doubt you will convey that as well.

MR NASH: I was not really trying to agitate your Honour into a crusade or a jihad.

HIS HONOUR: You have not at all, Mr Nash. You have not at all. I am simply giving you arrows for you to fire, Mr Nash.

MR NASH: As your Honour pleases. But we will be able to have a supplementary submission, whatever that might be, by Tuesday.

HIS HONOUR: Yes. Then if I stand it over until 2.15 tomorrow, that is the last opportunity the parties will have. If we cannot tie it off then the attempt will fail.

MR NASH: Sad. If your Honour pleases.

HIS HONOUR: There we are. I will stand the matter over until 2.15 tomorrow, 5 April. I will reserve the costs. I will certify for the attendance of counsel. I will adjourn.

AT 10.03 AM THE MATTER WAS ADJOURNED

UNTIL FRIDAY, 5 APRIL 2002