Plaintiff S157 of 2002 v The Commonwealth of Australia S157/2002 [2002] HCATrans 351 (19 July 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S157 of 2002

B e t w e e n -

PLAINTIFF S157 OF 2002

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Summons

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 JULY 2002, AT 9.30 AM

Copyright in the High Court of Australia

MR D.J. COLQUHOUN-KERR: If it please your Honour, with MR G.J. WILLIAMS, I appear for the plaintiff. (instructed by Parish Patience Immigration, Lawyers)

MR S.B. LLOYD: I appear for the defendant. (instructed by the Australian Government Solicitor)

HIS HONOUR: Mr Lloyd, you are on a daily familiarity with this statute. What is the section which deals with the identification of plaintiffs?

MR LLOYD: With the identification of plaintiffs - I think it is - - -

HIS HONOUR: Yes. Why has it a number, not a human identity?

MR LLOYD: Section 91X.

HIS HONOUR: Section 91X. Now, does this apply whether or not the individual wishes to be identified, or does not wish to be identified?

MR LLOYD: My understanding is it is intended to be an obligation imposed on the Court, the intention being that an applicant should not be able to put themself into a position whereby they might be at risk through the publication of their name. So I think the intention is that they are not able to waive the point.

HIS HONOUR: Yes. Is that your understanding, Mr Kerr, of this?

MR COLQUHOUN-KERR: Well, it was not, but it occurred, your Honour. I took it that it was an appropriate course in this instance. I originally filed the proceedings under the name of the plaintiff, but the Court on its own motion took that course, and I have no objection to it.

HIS HONOUR: Yes, very well. Now, there is a statement of claim, a defence and a draft stated case which is annexed to the summons.

MR COLQUHOUN-KERR: Yes, your Honour. Perhaps it would assist if I just took your Honour through these things very briefly.

HIS HONOUR: I have read the file.

MR COLQUHOUN-KERR: I do have an outline of submissions which, if it would assist, I would hand up.

HIS HONOUR: I want to ask Mr Lloyd some questions first.

MR COLQUHOUN-KERR: Of course.

HIS HONOUR: What is your client's attitude to the case stated procedure - not to the detail at the moment, but just as to that procedure?

MR LLOYD: My client is content with the procedure.

HIS HONOUR: Yes. Could you just look at the draft for a minute.

MR LLOYD: Yes, your Honour.

HIS HONOUR: I am just trying to find out first if there is any factual dispute. Paragraph 1 there would be none, 2 - - -

MR LLOYD: Nothing in 1 to 8, your Honour.

HIS HONOUR: Nothing in 1 to 8, yes. Now, it does seem to me that it would be appropriate to attach the decision of the RRT that is identified in 4, the Federal Court decision that is referred to in 6 and the second decision of the RRT referred to in 7, and the 35-day period is from notification date, is it not?

MR LLOYD: That is so, your Honour, actual notification.

HIS HONOUR: Yes. Is there an agreed fact about that? I cannot quite follow the difference between 7 and 8 at the moment. Paragraph 7 says they made a decision and then 8 says they handed it down on the later date.

MR LLOYD: There is a handing-down procedure in the Act which is separate to a decision-making procedure. So the handing-down procedure is the procedure whereby the notification takes place. As your Honour indicates, it perhaps would be appropriate to have an agreed fact as to when the applicant received - - -

HIS HONOUR: I think so, because that is the crucial commencement point of the 35 - - -

MR LLOYD: For 486A, that is so, your Honour.

HIS HONOUR: Yes. What is your understanding of what the date is of the notification?

MR LLOYD: My understanding of the date, off the cuff, I cannot recall, but I do recall that the application was lodged actually in this Court within 35 days but they are now outside of 35 days. We were initially concerned by that, but we are now content that section 486A would now prevent them, even if, when this application was lodged, it would not have prevented them - - -

HIS HONOUR: But it was lodged on 24 April.

MR LLOYD: That is so. So they would have been notified some time after 28 March and so it would have been within 35 days when this application was lodged, but they are now outside of 35 days so - - -

HIS HONOUR: Well, that is irrelevant, is it not?

MR LLOYD: Well, it is relevant in the sense that 486 would now prevent them from lodging an order nisi.

HIS HONOUR: But they commenced by writ of summons, did they not?

MR LLOYD: They did. They commenced with a writ of summons for the declaration, but they still have not commenced proceedings challenging the decision.

HIS HONOUR: Yes.

MR LLOYD: I think 5 April 2002 is where Mr Kerr is indicating is the date upon which the letter was received. We would be content to include a paragraph to that effect.

HIS HONOUR: I suppose I should ask Mr Kerr this: a question raising the validity of 486A is prospective in a sense in a way, is it not?

MR COLQUHOUN-KERR: Prospective, indeed.

HIS HONOUR: You want to know whether you now could seek an order nisi, et cetera?

MR COLQUHOUN-KERR: Precisely.

HIS HONOUR: The action instituted being the constitutional action, as it were.

MR COLQUHOUN-KERR: Yes, an action in the - - -

HIS HONOUR: Seeking declarations.

MR COLQUHOUN-KERR: Yes, in the traditional means of establishing the invalidity of a statute impugned.

HIS HONOUR: Yes. So far as 474 was concerned, on its face would that bar your writ of summons action - - -

MR COLQUHOUN-KERR: Yes.

HIS HONOUR: - - - your 76(i) action as it is?

MR COLQUHOUN-KERR: Well, plausibly so, but the action is brought within the time and so that is not at issue. I mean, on its face, yes, but we have neither pleaded that nor thought it relevant to address it as a matter of submission.

HIS HONOUR: Well, I think to present the issue to the Full Court you would really need also to attach to this a draft order nisi and the grounds you would be urging and there would have to be a statement that, were it not for the bars apparently presented by 474 and 486A, you would wish to institute that action.

MR COLQUHOUN-KERR: Indeed.

HIS HONOUR: Well, that should be in the stated case, that is all I am saying.

MR COLQUHOUN-KERR: One of the things that Mr Lloyd raised with me earlier as to whether or not there should be a point or an addendum to point 9 in the draft stated case in the statement of agreed facts, he has raised whether or not we ought to extend that paragraph to include words to this effect: the plaintiff asserts that he would take these actions on the grounds the decision-maker breached the rules of natural justice - - -

HIS HONOUR: Well, it is best just to attach your draft order nisi - - -

MR COLQUHOUN-KERR: If your Honour is content with that, that would be - - -

HIS HONOUR: - - - to paragraph 9 and then you have also to consider, I think, if this action under 75(v) were to proceed, would it be one that would be within what is left by Hickman. As it were, would you have grounds which, if made out, would be saved by Hickman. I am not asking you that now but you have to direct your mind to that.

MR COLQUHOUN-KERR: No, I think it is important to address it now. This was the subject of some discussion between us and certainly the Commonwealth's view is that the grounds of natural justice that we seek to raise - and that is a Miah-type point - would not be amenable under even the most extensive view that Hickman has thus far - - -

HIS HONOUR: Well, that is a question.

MR COLQUHOUN-KERR: Yes.

HIS HONOUR: I am just trying to get it before the Full Court, that is all.

MR COLQUHOUN-KERR: I understand that point, your Honour, but I suppose from the plaintiff's point of view what we assert is that we are entitled by way of a clear decision in relation to the invalidity of a statute which we go directly to rather than by an argument which says that it might be possible by way of some collateral extension of other grounds.

HIS HONOUR: Well, you are not entitled to a clear declaration of invalidity if there is some other escape hatch of which you can avail yourself, because you enter into the advisory opinion realm then.

MR COLQUHOUN-KERR: I take the point. I take the point, your Honour, that - - -

HIS HONOUR: I am not going to state a case unless I am sure about this.

MR COLQUHOUN-KERR: Yes. Well, we simply assert - - -

HIS HONOUR: I am just asking you to consider it, that is all. I am going to relist this matter early again next week.

MR COLQUHOUN-KERR: Yes.

HIS HONOUR: Now, the questions - I think logically 2 comes before 1, I suspect, because if 486A is valid, that will be the end of you on your order nisi application, would it not?

MR COLQUHOUN-KERR: Yes, of course.

HIS HONOUR: Yes.

MR COLQUHOUN-KERR: I mean, if it is valid and reads as the language of the statute appears to read, yes.

HIS HONOUR: Yes. Now, 2 I think has to be 1 and 1 has to be 2. There is always a problem in these cases whether you make 2 in its text dependent upon 1. I think probably not. But I think 2 should be 1 and 1 should be 2 and the question - views differ about this, but I do not think the question should set an exam paper. I think the form of the question should be what is suggested by the course followed in Lim 176 CLR 1 at 4. That sets out the questions there and the questions - I will just read what was said:

Are -

particular sections -

of the Migration Act 1958 (Cth) invalid in respect of the applications for release from custody made by the plaintiffs -

et cetera, et cetera. You would have to say are they valid in relation to your proposed application that is attached to paragraph 9, if you see what I mean. It has to be focused on a particular proceeding with a particular person.

MR COLQUHOUN-KERR: Well, your Honour, might I - - -

HIS HONOUR: We do not make declarations at large.

MR COLQUHOUN-KERR: Your Honour, it has been - - -

HIS HONOUR: I know that.

MR COLQUHOUN-KERR: - - - if I might draw your Honour's attention to various matters where, for example, invalidity has been challenged in relation to section 96 of the Constitution and various other provisions - - -

HIS HONOUR: It can be done as between States and Commonwealth.

MR COLQUHOUN-KERR: As between individuals also.

HIS HONOUR: Well, I do not think that is good practice, that is all I am saying to you, and there is a number of my colleagues who share that view. I do not see how it prejudices you anyway.

MR COLQUHOUN-KERR: Well, perhaps not, but what we would draw your Honour's attention to would be - - -

HIS HONOUR: At the moment you have no standing to complain about invalidity of any of these sections because you have no attempted proceeding on foot. Your claim to a declaration of invalidity is this: you say, "I am out there at the desk. I want to file this application for an order nisi and I am going to be turned away." And you want a declaration that you cannot be turned away because the bars that would turn you away are invalid. That is the crunch point I think.

MR COLQUHOUN-KERR: Yes, that is precisely right and that is the point, for example, that was - - -

HIS HONOUR: That is not what is raised by the questions.

MR COLQUHOUN-KERR: If I might refer your Honour to that decision of his Honour Justice Brennan in Hodges v State of South Australia which is in the authorities that I referred to, that is a very clear proposition that if a plaintiff can show that he is able to proceed on a cause of action if an Act is invalid, but not if it is valid, that is sufficient to establish a cause of action for a declaration by this Court of the invalidity of the Act.

HIS HONOUR: Sure, but it has to be linked to this prospective action you want to take, that is all I am putting to you. That is all I am saying.

MR COLQUHOUN-KERR: Yes, but it is not invalidity with respect specifically to the individual. It is as to the invalidity of the Act.

HIS HONOUR: It is then given precedental force. That is how it all works.

MR COLQUHOUN-KERR: It may be an angel dancing on the head of a pin, your Honour - - -

HIS HONOUR: No, it is not.

MR COLQUHOUN-KERR: - - - but it still is a distinction and - - -

HIS HONOUR: Look, if you want to get to the Full Court and you are told your questions are not in order and you are thrown out, that is on your head. I am just trying to get it to the Full Court on the maximum, strongest situation for you.

MR COLQUHOUN-KERR: Yes.

HIS HONOUR: So just going back, the draft case stated then I think has to be supplemented as indicated, paragraph 4, paragraph 6, paragraph 7, there has to be an additional agreed fact as to the notification date, which seems to be 5 April, then in 9 you should attach your draft order nisi spelling out naturally the grounds, then question 2 has to become 1 and 1 2, and in each case the question should be framed to follow the path of Lim at page 4 of 176 CLR, that is to say to ask simply whether each section is valid really in respect of the proposed application - has a valid operation upon the proposed application that is annexed to paragraph 9. Then I do not think we need a to f.

Now, the various ways it is put in a to f come down to the subjection of all the heads of power in section 51 to Chapter III. I think that is what it all comes down to. It can be put in various ways, but I do not think there is any need to dissect it, as it were, at this stage. That is what the case will be about.

MR COLQUHOUN-KERR: Precisely, and, I mean, it is really, I suppose, a form that I was guided in relation to by the recent way in which that case stated was set down in - it was the case where the judicial superannuation was in issue.

HIS HONOUR: Yes, I know, but that is proved a little invidious, perhaps. I understand what you say.

MR COLQUHOUN-KERR: These are obviously matters which we will address in argument ad seriatim but if it is more convenient to address it in that - - -

HIS HONOUR: Yes, I think so.

MR COLQUHOUN-KERR: I think Mr Lloyd would prefer the words "invalid in whole or in part" to remain.

HIS HONOUR: Yes, I think that is right too. Well, you cannot answer that yes or no. You have to say, and if so, if invalid, as to which part.

MR COLQUHOUN-KERR: Yes.

HIS HONOUR: You have to build in some words of severance into that statement. But if you and Mr Lloyd can put your heads together, assisted perhaps by a transcript of this morning, what would be a suitable day next week for you to come back at 9.30 one morning in the week of the - - -

MR LLOYD: Is Tuesday suitable, your Honour?

HIS HONOUR: Is that too soon?

MR COLQUHOUN-KERR: Not for me.

HIS HONOUR: All right. Well, I will simply stand the matter over to 9.30 on Tuesday the 23rd before me in Sydney. Costs of today will be reserved. Is there anything else? I should certify for counsel too. Very well, I will adjourn to take a video link matter from Adelaide.

AT 9.51 AM THE MATTER WAS ADJOURNED

UNTIL TUESDAY, 23 JULY 2002