Applicants M6/2002, Ex parte - Re MIMA & Ors M6/2002 [2002] HCATrans 359 (1 August 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M6 of 2002

In the matter of -

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

First Respondent

MR JOHN VRACHNAS SITTING AS THE REFUGEE REVIEW TRIBUNAL

Second Respondent

DR PETER NYGH IN HIS CAPACITY AS PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Ex parte -

APPLICANTS M6/2002

Applicants/Prosecutors

Office of the Registry

Melbourne No M21 of 2002

In the matter of -

An application for Writs of Certiorari, Prohibition and Mandamus and for a Declaration and an Injunction against THE HONOURABLE PHILIP RUDDOCK, AN OFFICER OF THE COMMONWEALTH, IN HIS CAPACITY AS MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

First Respondent

MR GRAEME BREWER, AN OFFICER OF THE COMMONWEALTH, IN HIS CAPACITY AS MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Second Respondent

DR PETER NYGH, AN OFFICER OF THE COMMONWEALTH, IN HIS CAPACITY AS PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Ex parte -

APPLICANT M21/2002

Applicant/Prosecutor

Office of the Registry

Melbourne No M37 of 2002

In the matter of -

An application for a Writ of Certiorari, Prohibition and Mandamus and for a Declaration and an Injunction against THE HONOURABLE PHILIP RUDDOCK, AN OFFICER OF THE COMMONWEALTH, IN HIS CAPACITY AS MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

First Respondent

MR JOHN VRACHNAS, AN OFFICER OF THE COMMONWEALTH, IN HIS CAPACITY AS MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Second Respondent

DR PETER NYGH, AN OFFICER OF THE COMMONWEALTH, IN HIS CAPACITY AS PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Ex parte -

APPLICANT M37/2002

Applicant/Prosecutor

Office of the Registry

Melbourne No M38 of 2002

In the matter of -

An application for Writs of Prohibition, Certiorari and Mandamus against THE REFUGEE REVIEW TRIBUNAL

First Respondent

THE HONORABLE PHILIP RUDDOCK, MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Second Respondent

Ex parte -

APPLICANT M38/2002

Applicant/Prosecutor

Office of the Registry

Melbourne No M50 of 2002

In the matter of -

An application for a Writ of Certiorari, Prohibition and Mandamus and for a Declaration and an Injunction against THE HONOURABLE PHILIP RUDDOCK, AN OFFICER OF THE COMMONWEALTH, IN HIS CAPACITY AS MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

First Respondent

MS REGINA PERTON, AN OFFICER OF THE COMMONWEALTH, IN HER CAPACITY AS MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Second Respondent

DR PETER NYGH, AN OFFICER OF THE COMMONWEALTH, IN HIS CAPACITY AS PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Third Respondent

Ex parte -

APPLICANTS M50/2002

Applicants/Prosecutors

Office of the Registry

Melbourne No M80 of 2002

In the matter of -

An application for Writs of Prohibition and Certiorari against THE HONOURABLE PHILIP RUDDOCK, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

First Respondent

MS JULIE GOULD, SITTING AS THE REFUGEE REVIEW TRIBUNAL AND MR STEVE KARAS IN HIS CAPACITY AS SENIOR MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Second Respondents

Ex parte -

APPLICANTS M80/2002

Applicants/Prosecutors

Office of the Registry

Melbourne No M93 of 2002

In the matter of -

An application for a Writ of Certiorari, Prohibition and Mandamus and for a Declaration and an Injunction against THE HONOURABLE PHILIP RUDDOCK, AN OFFICER OF THE COMMONWEALTH, IN HIS CAPACITY AS MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

First Respondent

MS KIM BOYD, AN OFFICER OF THE COMMONWEALTH, IN HER CAPACITY AS MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Second Respondent

MR STEVE KARAS, AN OFFICER OF THE COMMONWEALTH, IN HIS CAPACITY AS PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Third Respondent

Ex parte -

APPLICANTS M93/2002

Applicants/Prosecutors

Office of the Registry

Melbourne No M99 of 2002

In the matter of -

An application for a Writ of Certiorari, Prohibition and Mandamus and for a Declaration and an Injunction against THE HONOURABLE PHILIP RUDDOCK, AN OFFICER OF THE COMMONWEALTH, IN HIS CAPACITY AS MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

First Respondent

MS REGINA PERTON, AN OFFICER OF THE COMMONWEALTH, IN HER CAPACITY AS MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Second Respondent

MR STEVE KARAS, AN OFFICER OF THE COMMONWEALTH, IN HIS CAPACITY AS PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Third Respondent

Ex parte -

APPLICANTS M99/2002

Applicants/Prosecutors

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 1 AUGUST 2002, AT 9.33 AM

Copyright in the High Court of Australia

______________________

HIS HONOUR: Before the matters are called, can I indicate to parties the order in which I propose to deal with these matters and how I propose to deal with them. Subject to anything that counsel may say, the course I propose is as follows. I will deal first with matters M80 and M99 in which it seems to me that the first question is why they should not stand out of the list pending the hearing and determination of the challenge to the validity of the 2001 Judicial Review legislation that is to be heard by the Court at the start of the September sittings in matters S134 and S157.

I will deal next with matters M6, M37, M38 and M93 and at least initially deal with them together. I will be assisted in those matters by argument, first, on whether those matters or any parts of those matters should be remitted to the Federal Court of Australia and, in that regard, it will be of assistance if counsel have access to the decisions of Justice Sackville in the matter of BC v The Minister [2001] FCA 1669 reported at (2001) 67 ALD 60 and as well also to the decision of Justice Merkel in Somanader v The Minister [2000] FCA 1192; (2000) 178 ALR 677.

I will deal then with matter M21 of 2002 where I will be assisted by argument, first, on whether, assuming all of the several matters asserted by the Minister were to be resolved in the applicant's favour and against the contentions of the Minister, any arguable ground for relief is demonstrated. There remains then the matter M50 in which the Registrar has been informed that it is intended that the matter should be discontinued, but I think we are still waiting on the requisite piece of paper. Assuming the requisite piece of paper, which I suspect is about to be handed to the Registrar, arrives in time, then we need not trouble ourselves with that. If it does not, then we will have to cope with that with such fortitude as we can muster, will we not, and in such ways as seems appropriate?

Now, subject to that, and subject, as I say, to what counsel may say, let us begin. Call therefore first matters M80 and M99.

MR R.G.A. DECKKER: If your Honour pleases, I appear in M80 (instructed by Wimal & Associates)

MR C.J. HORAN: If it please the Court, I appear for the respondent in each of those matters. (instructed by Australian Government Solicitor)

MR A.F.L. KROHN: May it please the Court, I appear in the matter M99 for the prosecutor. (instructed by K.P. Aravindan)

HIS HONOUR: Yes.

MR KROHN: Perhaps I can indicate, your Honour, that in relation to M99, in my respectful submission, there is no reason why that should not stand out of the list pending the challenge your Honour has adverted to.

HIS HONOUR: Yes, thank you, Mr Krohn. Just before we come to those matters, I hold certificates from the Deputy Registrar in each of those matters that she has been informed by the Australian Government Solicitor, the solicitor for, in M80, the second respondents, and in M99, for the second and third respondents, that those respondents abide the jurisdiction of the Court save as to costs.

Now, Mr Krohn, you tell me in M99 that you have nothing to say against the matter standing out of the list. Mr Deckker, in M80, do you have anything to say against - - -

MR DECKKER: No. I would say the same as well, your Honour.

HIS HONOUR: Yes. Now, Mr Horan, why should we not we stand them out of the list pending the hearing and determination of the challenge?

MR HORAN: Well, the Minister consents to the course proposed by your Honour, that is standing the matters down pending that other proceeding.

HIS HONOUR: Yes. Then if I order in each of those matters that the matter is stood out of the list; that either party to it may apply on written notice to the opposite parties of, shall we say, two days; reserve the costs and certify for the attendance of counsel, is any other order required?

MR HORAN: No, may it please the Court.

MR DECKKER: No.

HIS HONOUR: Orders will be made in those terms. Would that all matters with which we had to deal could be disposed of quite so promptly. Let us then go to matters M6, M37, M38 and M93.

MR A.F.L. KROHN: May it please the Court, I appear in relation to matters M6, M37 and M93. (instructed by K.P. Aravindan)

As a preliminary matter, your Honour - - -

HIS HONOUR: Just before we get to that, can we take the other appearances.

MR KROHN: Well, it does affect the appearance, your Honour.

HIS HONOUR: Yes.

MR KROHN: I have to inform the Court that the second prosecutor, that is the wife and mother in M6, I was informed last night has died. The application, I understand, is continuing but at least the Court needs to be aware of that - - -

HIS HONOUR: Yes, thank you. The other appearances in the matter.

MR C.W. DOWLING: May it please the Court, I appear in matter M38 of 2002 on behalf of the applicant/prosecutor. (instructed by Maurice Blackburn Cashman)

MR J.A. GIBSON: May it please the Court, I appear on behalf of the respondent Minister in matters M6 and M37. (instructed by Blake Dawson Waldron)

MR C.J. HORAN: May it please the Court, I appear on behalf of the Minister in matters M38 and M93 of 2002. (instructed by Australian Government Solicitor)

HIS HONOUR: Now, do counsel have anything to say about me dealing with these matters together to the extent that they seem to raise this question, at least in my mind, if not in the minds of the parties, about whether they should be remitted to the Federal Court? Is there any opposition to my adopting that course?

MR KROHN: No, your Honour.

HIS HONOUR: Then can I say to counsel before they begin what it is that seems to me to raise the question of remitter and why that is a live question in my mind. As I understand the papers - and I will be grateful if in due course, particularly counsel for the Minister correct me if I am in error - it seems to me that in each of these matters the Minister contends, first, the decision which the applicant seeks to impugn in this Court is not a decision affected by the amendments made by the Migration Legislation Amendment (Judicial Review) Act 2001 . So step one is the Minister says the 2001 Judicial Review Act does not apply.

Second, the Minister contends, as I would understand it, that it follows that the time limit prescribed by section 486A of the Migration Act as it now stands after that 2001 amendment does not apply, but that the time limits prescribed by the Rules of this Court, Order 55 rule 17 and 30, do apply and should not be extended. That is step two. The time limit is in the Rules and the Minister wishes to say those times should not be extended.

Step three in each of these matters seems to be that the Minister contends that there having been determined - whether by consent or after trial he says does not matter - an earlier application to the Federal Court under the then provisions of Part 8 for review of the impugned decision, the applicant is now precluded, so the Minister submits, from raising any of the arguments which it is now sought to raise in this Court. The preclusion is put in various ways. It is said that there is res judicata. It is said that there is an issue estoppel. It is said that the principles in Anshun apply. For the moment I do not stay to examine the basis of the preclusion. What is significant for present purposes is that there is an argument about preclusion.

Step four seems to be that if I were to remit this matter, or any part of it, to the Federal Court, that court could exercise only what I might call Part 8 jurisdiction, and the Minister says in that event the estoppel against the applicant raising what might be called Part 8 matters would be evident. If it goes back to the Federal Court, the Federal Court has only Part 8 jurisdiction. The Federal Court has already had that jurisdiction invoked once. You cannot do it a second time. Therefore, preclusion is the way the argument seems to be foreshadowed.

The fifth element of the Minister's argument seems to me to be, in each of the matters, in any event the application is without merit. The Minister seems to say that it can be demonstrated that the application must fail in any event.

Now, it seems to me to leave this Court in this position. We begin from some premises that have been stated often enough that seem not to be at the forefront of consideration, namely, that this Court, given its constitutional and ultimate appellate jurisdiction, does not ordinarily have time to engage in at least any prolonged trial of issues of fact or, perhaps, the trial of issues calling for the exercise of judicial discretion having regard to the understanding of a large and diverse body of facts and that the whole purpose for the establishment of the Federal Court was that such matters might usefully be tried in that court, not in this, when we have enough to do with the constitutional work and the ultimate appellate work of the Court.

Now, the arguments for the Minister made reference to the decision of Justice Merkel in Somanader [2000] FCA 1192; 178 ALR 677 and his Honour discussion of the application of principles of preclusion in cases of this kind. To that, it seemed to me, needed to be added reference to the decision of Justice Sackville in BC to which I have already referred. What alarms me and invites attention to whether there should be remitter is the discussion by Justice Sackville at some extended detail of the circumstances said to bear upon whether principles of Anshun preclusion should operate against the applicant in that case.

The consequence seemed to me to be that if there were to be any substantial dispute between the parties in these four matters about whether principles of preclusion were engaged or could be engaged, if there were any substantial dispute between the parties in these matters about the facts which were said to bear upon the application of any relevant principle of preclusion, if the parties were to contend that application of relevant principles of preclusion required examination of the whole of the circumstances attending each applicant's resort to the courts of this country in relation to the impugned decision to refuse protection visas, then those are inquiries of a kind that are better conducted in the Federal Court than here. We just do not have the time. There are seven members of this Court whose work is fully occupied with the constitutional and ultimate appellate work of this country.

Now, that is what has provoked my difficulties. I have engaged in far too long a description of it. I can now follow one of two courses: either I can hear counsel out on those issues now or, if counsel - and it occurs to me that particularly counsel for the Minister may be in this position - feel that they need to consider the matters I have raised, even obtain instructions about them, then I would be glad if I were told that so that we can decide what we do. Now, let me hear first from those on the applicants' end of the process. Mr Krohn, what do you say I should do immediately? Should I hear you out? Do you have a view you wish to put? Where do we go from here?

MR KROHN: Having heard what your Honour has said and the cases to which your Honour has referred, the issue of remitter was one which the applicants had given some consideration to in each of the three that your Honour is now dealing with, but it would be of assistance to the applicants and, I believe, to the Court if it were possible in the three in which I appear to have even a short additional time to consider some aspects of the issues that your Honour raises.

HIS HONOUR: Yes. Look, I understand that.

MR KROHN: It may shorten things in the long run, your Honour. However, if your Honour is - - -

HIS HONOUR: For the first time in the history of the law that giving counsel time to consider what they do has shortened things, Mr Krohn, but that is a nasty cynical approach to life, is it not, which I should not display?

MR KROHN: It is, your Honour. No, not at all, your Honour.

HIS HONOUR: No. Yes, of course.

MR KROHN: That is my initial reaction, your Honour. If your Honour desires to deal with those issues today, then I shall do that, but it - - -

HIS HONOUR: Yes. Look, I do not want to have to come back again and deal with these. I really do want to have the most economical use of our time that we can.

MR KROHN: Yes, your Honour.

HIS HONOUR: Yes, of course, the parties have to have time enough to think about these things and they have to have a fair opportunity to do so, but, please, if we can, can we dispose of these issues today? If we cannot, we cannot, but at the moment I am desperately in search of the 36-hour day and the 12-day week and, try as I may, I cannot yet discover it.

MR KROHN: Perhaps I may indicate that in one of the matters, your Honour, that is in M37, that is the matter where - that is sought to be raised is an issue of illogicality and in the light of the special leave given in the matter of Gamaethige. The prosecutor would submit that that is an argument which could not have been put below, but perhaps it would be beneficial to consider that further with the other three. If your Honour pleases.

HIS HONOUR: Yes. Now, Mr Dowling, what do you have to say for your side? Do you want more time to consider where you are going?

MR DOWLING: Well, your Honour, in matter M38, this is a matter in which the applicant says that remittal is an appropriate course.

HIS HONOUR: Is appropriate?

MR DOWLING: Is appropriate.

HIS HONOUR: Yes.

MR DOWLING: So perhaps I am in my friend's hands.

HIS HONOUR: Now, the thing that you then need to grapple with is remitter of the whole, remitter of part. What is it that is remitted? Now, there there are some quite difficult questions because, at least if the Minister's submissions are right, if there is a remitter, the only jurisdiction that the Federal Court has is a Part 8 jurisdiction. Now, that leads to the conundrum perhaps of how it was that the issues raised in BC fell for determination. But it does seem to me that - so far as I am aware neither BC nor the other case have gone on appeal - - -

MR GIBSON: They have, your Honour.

HIS HONOUR: They have?

MR GIBSON: BC has - yes, it is in.....of the Minister's contention and - - -

HIS HONOUR: It is going on?

MR GIBSON: It was heard by the Full Court and a judgment has been handed down. We have a sheet of authorities, your Honour, and it is referred to in the outline of submissions in M6 and - - -

HIS HONOUR: Which had a certain deceptive similarity about them, Mr Gibson.

MR GIBSON: I am sorry, they were - - -

HIS HONOUR: "Deceptive" is quite the wrong word. They deceived me, but there we are. Was Justice Sackville's decision upheld or not?

MR GIBSON: It was, but an issue of the reasonableness and the discretion - - -

HIS HONOUR: Yes.

MR GIBSON: - - - and obiter by the Full Court but discussion about the course that they would have adopted which was different to the course in light of the circumstances of Gamaethige.

HIS HONOUR: Yes. Now, is leave being sought in that, in BC? Are we going to see it?

MR GIBSON: I do not have instructions.

HIS HONOUR: Has time gone?

MR GIBSON: It might be a matter of - - -

HIS HONOUR: Has time for an application for leave gone?

MR GIBSON: Your Honour, if I can tell you - I am sorry, the judgment was 23 July. The Full Court comprises Justices Carr, Tamberlin and Conti. So time is still - - -

HIS HONOUR: Time is still running, so we do not know whether we are going to see it in the leave vehicle. Yes. Well, Mr Gibson, what do you say I should now do about it?

MR GIBSON: Well, the first thing is we would obviously like a short time.

HIS HONOUR: Yes.

MR GIBSON: The second is the issue.....before your Honour sought to mention it was this issue of the bifurcated jurisdiction and the question of whether, even if it were to be remitted, issues of Wednesbury unreasonableness would remain outside the Part 8 jurisdiction and issues of time saving overall would not necessarily be achieved, but they are - - -

HIS HONOUR: I understand the need to have these things dealt with once and once for all, but I tell you now this Court cannot do it. We just do not have enough hours in the day and days in the week.

MR GIBSON: Your Honour, every point that your Honour made we were ticking as you were going through and we would certainly agree wholeheartedly with the notion that the Federal Court is the court that should deal with it. If all I could say at this point is that we could seek instructions.

HIS HONOUR: Yes. What do you say, Mr Horan? Are you in the same boat?

MR HORAN: Largely, your Honour. The question might be that in - I appreciate what your Honour says as to the difficulties that this Court is placed in when it is faced with applications like this but that although in every case it may not be convenient to hear the application fully, it at least falls to the Court to determine whether not an arguable case for relief arises and one issue that might arise in connection with that may be a res judicata issue estoppel.

HIS HONOUR: Well, why should we not have that question with its associated Anshun questions and its associated questions of exercise of discretion in the light of the whole of the facts looked at first by a trial judge in the intermediate appellate court before we grapple with it? Why should we not have it filtered, as every other problem is?

MR HORAN: In many cases that may be the appropriate course, but I suppose all I am submitting is that in a clear case where - I do not think any of the cases here fall into this category, but a case where the grounds were identical, identical grounds and identical particular, to grounds which had been dismissed in an earlier proceeding and no material put forward by an applicant to show why they should be relitigated, then there is no reason in that scenario, at that extreme, to take it any further than - - -

HIS HONOUR: Could I indicate what my concern about that is, because I understand the force of what you say. You say, as I understand it, "Look at the grounds here now. They are identical with the grounds that were agitated in a Part 8 application before, ergo preclusion." That is the essence of your argument, is it not?

MR HORAN: Yes, your Honour.

HIS HONOUR: What is worrying me is something that emerges out of Abebe. As you know, the Court divided in Abebe and the view which I favoured did not command the majority of the Court, but what, if anything, does Abebe tell us about application of principles of preclusion?

MR HORAN: Well, one thing that it would mean is that grounds which at the very least were not available in the Federal Court could not be precluded in this Court by an adverse determination of the Federal Court because under the majority view in Abebe the matter which is decided by the Federal Court is whether or not any of the grounds considered by the Federal Court are made out in relation to the decision.

Now, I would submit there is nothing in Abebe which prevents Anshun being applied to extend an estoppel to grounds which should reasonably have been raised and fell within Part 8, but it is at least clear from Abebe that to the extent that an applicant relies on a ground which was not available under Part 8, then the applicant cannot be precluded from at least raising that ground in this Court.

HIS HONOUR: You see it is the validity of the premise from which your argument proceeds that principles of preclusion are engaged, if there is an identity of issue in 75(v) proceedings with those in Part 8 proceedings, which I would be unwilling to endorse without full argument.

MR HORAN: Yes.

HIS HONOUR: If we are going to get into that territory, that either is reference into a Full Court, and at least my impression of these matters is that none of them is a suitable vehicle to refer into a Full Court, nor is any a suitable vehicle to state a case for the opinion of a Full Court, because so much turns, if you are into areas of preclusion, on what is the relevant principle and is there any backdoor in that principle, is there any discretion, and if there is a discretion, what factors engage that discretion.

Now, those are issues which seemed to me on looking at the papers not to be apt or aptly raised by the reference in or stated case, but better fought out at trial - - -

MR HORAN: As it was in BC and - - -

HIS HONOUR: Just so. Now, do not misunderstand me. I understand the force of the argument advanced on your side of record, "Look, for goodness sake, decide this once and for all."

MR HORAN: Yes, but, I mean, in one sense in answering your Honour's question the Federal Court is just as well placed to apply the principles of res judicata and issue estoppel as this Court is and to make - - -

HIS HONOUR: Just so, and to winnow the issues of fact in a way that the question of principle is then presented in this Court in a way that is suitable.

MR HORAN: It may be that all I am saying is that in my hypothetical clear case it should be open to this Court to deal with it at the threshold level of whether there is any arguable - it rises above the level of an arguable case so that there is something which merits remittal for the consideration of the Federal Court. Perhaps none of these cases fall into that category to the extent that they do raise questions of fact and examining the grounds relied on on each occasion, but the corollary - - -

HIS HONOUR: And which you have to understand the whole of the curial course that the applicants have adopted in their attempts to obtain protection visas.

MR HORAN: Yes. I mean, the corollary of a view that almost leads to the automatic remittal of applications for orders nisi to this Court in circumstances like this is that it will provide maybe a short-lived but at least a backdoor route around the strict time limit in the Federal Court.

HIS HONOUR: I understand that and if that is a consequence of the legislation, so be it.

MR HORAN: Yes, but, again, all I am saying is in a clear case it need not go back to the Federal Court, but that if there is any - - -

HIS HONOUR: Look, I am not shutting you out from any contention that these cases are so clear that I should dismiss them out of hand. You should approach that, however, understanding that the premise for an argument of preclusion is a premise which I would regard as contestable and a premise which, at least as at present advised, I would hesitate to decide in the course of deciding that the point is unarguable. It seems to me that that premise about applications of principles of preclusion is one of no little difficulty, but there we are. Your job is to persuade, mine is to listen, and all I have done this morning is talk.

MR HORAN: I mean, if that basic premise is up for grabs, then I do have an uphill battle and ultimately I probably cannot succeed in persuading your Honour not to remit the matters, but perhaps for consideration of that point by a trial judge and eventually an appeal court in the Federal Court.

HIS HONOUR: Yes.

MR HORAN: But the circumstances of each of the matters in which I appear, in one case, the M38 case, the grounds relied upon are relevant considerations and no evidence grounds, which were both available before the Federal Court, and the circumstance that is relied upon is primarily the discovery of new material. Now, it may be that that case does raise what your Honour described as the need to go into the entire factual matrix to work out whether or not that raises special circumstances.

HIS HONOUR: And there would be no question in those cases, would there, that you have mentioned of remitter of part? It would be remitter of the whole, would it not, if they raise only Part 8 grounds?

MR HORAN: Yes, your Honour, in that proceeding. At present there does not appear to be any ground that would not fall within the Federal Court's jurisdiction.

HIS HONOUR: Yes.

MR HORAN: In the other matter, M93, there is an unreasonableness ground raised.

HIS HONOUR: And what is the unreasonableness said to be constituted by?

MR HORAN: Essentially there - I mean, my learned friend can correct if I misstate his grounds, but it is - - -

HIS HONOUR: It is always much more fun asking the other side what the other side's grounds are, yes.

MR HORAN: On my understanding, it is in relation to the assessment by the Tribunal of three aspects of the claims raised by the applicant before the Tribunal. One was there were two applicants before the Tribunal, a husband and wife, and it is said that the Tribunal did not assess the credit of the wife in assessing the claims, and then the remaining two grounds relate to whether or not the Tribunal properly assessed claims of abduction and killing of a son and daughter respectively.

HIS HONOUR: Let me go away from the particular facts of the case we are now discussing and let me take the debate about Wednesbury unreasonableness at a rather higher level of abstraction. So do not let it be understood that I am talking about the particular case. I am not. It seems to me that cases of the kind you describe, when you boil them down, do not engage any principle of reasonableness at all. Either a point has been considered or it has not. If it has not, then you are off in relevant considerations territory, perhaps. If it has been considered, is reasonableness deployed simply as code for saying, "The result is not one that they should have arrived at." That is, is it no more than an appeal on the facts?

Remitter of such matters to the Federal Court, in at least some cases, may invite the attention of the applicant to the reformulation of their principal complaint in a way which more readily accords with more well-established grounds for judicial review than Wednesbury unreasonableness - it may not - and that in itself may serve some purpose, because if there is a real complaint there, if there is a real complaint other than the result is not the one I say they should have arrived at, that complaint is ordinarily capable of being stated in a way that falls quite readily within what I have described as the more commonly employed and better established grounds for judicial review than Wednesbury unreasonableness. So remitter of such matters sometimes has the benefit of focusing the attention of the applicants on the way in which their real complaint is to be identified.

MR HORAN: Yes, and at present those particulars are relied on as particulars also of other grounds, irrelevant considerations and error of law, which would be capable of remittal, at least after the decision in Yusuf, which would leave the same complaint but raising a different ground in this Court, but presumably would just await the resolution of the Federal Court consideration.

HIS HONOUR: Yes. Now, how are we going to deal with this?

MR GIBSON: Would your Honour hear me very shortly on one point?

HIS HONOUR: Yes.

MR GIBSON: I am sorry. Your Honour, we would put it as high in relation to M6 and M37 that it is so clear and given that the prosecutor must seek an enlargement of time and, therefore, establish his prospects of success - - -

HIS HONOUR: I understand that.

MR GIBSON: - - - we would put it as that and obviously subject to whatever instructions I get and hearing your Honour's - it could be disposed, in our submission, on the issue and that is why - I do not know if your Honour has seen the submissions, but they set out the reasoning and if your Honour accepts that, then it would be an end to the matter.

HIS HONOUR: Yes. Now, how are we going to deal with this matter? How do counsel say we should? Should I stand it down? For how long? How long do you need?

MR HORAN: I would think probably only 15 or 20 minutes.

HIS HONOUR: Yes, and that in counsel speak equals 11 o'clock I think, Mr Horan. Yes.

MR HORAN: I am in your hands, your Honour. I would be happy with half past 10.

HIS HONOUR: Eleven o'clock shall we say for that?

MR HORAN: Yes, your Honour, if the Court please.

HIS HONOUR: Now, does that leave me able to deal with the remaining matter in the list or is everybody engaged in the matters off burrowing around getting instructions? That is, can I get on and do some work?

MR KROHN: Your Honour, I note that your Honour did put the remaining one in a category by itself.

HIS HONOUR: Yes.

MR KROHN: But considering that just over the last few minutes as well, in light of what your Honour has been saying, it would appear to me that it also may fall into the category that your Honour has been dealing with and so to that extent, I would propose, your Honour, that it also be stood down until 11.

HIS HONOUR: All right. It is quarter past 10. I will come back on the Bench at 11. I would expect then that counsel by then would be able to tell me what course they propose. If counsel form the view that orders for remitter are at least possible matters for consideration, I will be much assisted by counsel having formed a definite view on whether remitter of the

whole or remitter of some and what part is appropriate. If counsel are going to say remit only part, my next question will be, "You tell me how to describe the part I am remitting?" So, 11 o'clock.

AT 10.15 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.03 AM:

HIS HONOUR: Mr Krohn.

MR KROHN: Your Honour, in relation to matters M6, M37, M93 and also M21, that was the one which your Honour had in a separate bracket, I would respectfully submit that an appropriate course would be this, that your Honour enlarge time to the extent necessary, grant the order nisi in relation to grounds 2, 3 and 4 of each draft order nisi and remit that part of the matter to the Federal Court. That would leave on foot - - -

HIS HONOUR: And that would preclude the Minister from arguing some of the grounds you wished to raise are untenable. Why should I not simply remit so much of the matter as is referred to in grounds 2, 3 and 4 of the application to the Federal Court, leaving the Federal Court complete carriage of the matter, without a grant of order nisi, simply leaving the parties to fight it out?

MR KROHN: I have no objection to that course, your Honour, provided that the thing which I would urge strongly upon your Honour is that what should remain is that in relation to ground 1 of the draft order nisi.

HIS HONOUR: Yes. Questions of extension of time would go down to the Federal Court?

MR KROHN: I would have no objection to that course, your Honour.

HIS HONOUR: Yes. So that is in matters, you say, M6, M37 - - -

MR KROHN: M93 and also M21.

HIS HONOUR: M21, yes.

MR KROHN: On that basis, your Honour, it may never be necessary for this Court to hear argument and it would appear to be an appropriate and expeditious course. May it please the Court.

HIS HONOUR: Yes. Now, what about M38, Mr Dowling? What do you say I should do in that? Do you say I should follow that course or a different course?

MR DOWLING: Your Honour, perhaps my friend can say what his position is but, as I understand it, my friend consents to the granting or the issuing of the order nisi and for the matter to be remitted to the Federal Court, but I am in your Honour's hands as to whether you would prefer to remit the application for the order nisi.

HIS HONOUR: At the moment I am minded to remit the application. I am not minded to grant any order nisi. If that involves consideration of the grant of an extension of time, that seems to me to be something I should not do without embarking on consideration of the whole of the matter and if the Minister were to accept that that is a proper matter for extension and for grant, so be it, I will do it, but there we are. Yes.

MR DOWLING: Thank you.

HIS HONOUR: Now, what is said on the other side of the ledger?

MR GIBSON: Your Honour, you have taken the wind out of my sails.

HIS HONOUR: That is the objective of most judges most of the time, Mr Gibson.

MR GIBSON: I know, your Honour, and I was trying to - - -

HIS HONOUR: They regard themselves as sailing the ships entirely and counsel is a needless accretion to the crew.

MR GIBSON: I appreciate all those principles, your Honour. My difficulty, of course, is I was trying - - -

HIS HONOUR: I have probably insulted every judicial officer in the Commonwealth as a result of that statement, but there we are. Sorry.

MR GIBSON: I was basically - prior to what your Honour's last words, my instructions were twofold, which were effectively to seek that your Honour does hear an application for enlargement and deal with the issue of prospect of success.

HIS HONOUR: Yes.

MR GIBSON: If your Honour was not minded to adopt that course, the Minister in M6 and M37 was prepared to consent to a grant of the order nisi on the grounds that my learned friend referred to, 2, 3 and 4, and that be the basis of the remittal and that - - -

HIS HONOUR: That therefore closes you out against extension of time and for debate that it is an unarguable.

MR GIBSON: Well, it does.

HIS HONOUR: If that is your position, so be it.

MR GIBSON: Well, that is what our instructions were.

HIS HONOUR: Very well.

MR GIBSON: But that the grant be confined to the grounds as currently pleaded.

HIS HONOUR: That is 2, 3, 4. Where does that leave the application for the Wednesbury ground?

MR GIBSON: Well, it leaves it unfortunately - - -

HIS HONOUR: In limbo.

MR GIBSON: - - - and, of course, we come back to the exchange that we had earlier, your Honour, and the great difficulty about the bifurcated jurisdiction of in limbo and with the prospect of a further - - -

HIS HONOUR: Yes, I understand that. Well, that is the legislation. That is the consequence that is forced on everybody.

MR GIBSON: Yes. Well, we cannot make bricks with straw, or whatever. But, your Honour, that is the Minister's position. We obviously would, as I indicated previously, in these two matters it is obviously our strong contention that they really are simply merits applications, do not disclose any grounds in the papers and it may well be a saving of time ultimately if your Honour was minded to look at that. That is all I can say.

HIS HONOUR: Yes, thank you, Mr Gibson. Mr Horan, what is your position?

MR HORAN: If I could deal with M38 first. As my learned friend indicated, the Minister consents to the remittal of the proceeding and in light of the points raised by your Honour it is preferable if the application for the order nisi is remitted.

HIS HONOUR: Yes, without grant?

MR HORAN: Without grant, so that the enlargement of time and arguable case points can then be dealt with at a threshold level. In relation to the remaining matter, M93, like my learned friend, Mr Gibson, I was proposing to submit that this Court should itself address the questions of enlargement of time and the threshold question of arguable case before dealing with any remittal.

HIS HONOUR: Can I just explore that with you just a moment, because there are some unexpressed premises in my approach that I should perhaps tease out so that the parties can see why I am minded to take the particular course. It seems to me if I am to look at questions of extension, I have to understand all of the events that have happened in the intervening period. I have to understand whether the case which it is sought to mount really does have any prospects. There is no point granting an extension if it is a hopeless case. That at once is pitchforking me into a full review of the whole of the case.

MR HORAN: Well, not quite into a full review, but into at least a sufficient - - -

HIS HONOUR: Seeing whether the case is partly pregnant.

MR HORAN: That is right, your Honour, and if, as I would submit, in M93 it is clear that there are no adequate reasons for the delay in bringing the application, nor are there any prospects of success on the grounds which have been raised - and that is apparent on the face of the material - then that is something which could be dealt with quite expeditiously here.

HIS HONOUR: If I were to remit the applications, have you any indication of how long a period would elapse before you would then come on before a single judge in the Federal Court? Are we talking days, weeks, months, years? Do we have any sense?

MR HORAN: I would think it would be months, your Honour.

HIS HONOUR: Yes.

MR HORAN: It may be if your Honour does not accept that it is convenient or appropriate to deal with those threshold issues here, then the alternative is, of course, to remit the application to the Federal Court and we can raise those arguments there.

HIS HONOUR: Yes. Now, are you in M21 as well, Mr Horan?

MR HORAN: I am.

HIS HONOUR: What do you say about that? It is said I should simply treat it alike.

MR HORAN: Well, it is like in the sense that for the same reasons there is no reason for enlarging time and there is no prospects of success and so for that reason it can be dealt with on its merits.

HIS HONOUR: And is there an estoppel or preclusion issue running around in M21? I thought perhaps there was not, or have I confused the matters?

MR HORAN: There is - - -

HIS HONOUR: There is a preclusion issue?

MR HORAN: There is a preclusion issue, your Honour, so in that respect it may be that it falls into the same category. At the outset of the hearing your Honour put it into a different box, but it might be that it is more like M93, for example, than it is different from it. One of the differences in that case is that the length of time which has passed is longer because the matter was previously before your Honour and remitted and then back to the Tribunal for a second decision, which it went to the Federal Court and was dismissed, and that from that point on it is similar to the others, but it has a longer prehistory.

HIS HONOUR: I understand.

MR HORAN: I am in a position to deal with the grounds of review which are raised in that application, but it may be that because of all that your Honour has said it is unnecessary to do that today.

HIS HONOUR: Yes. The position to which my mind is tending is that I should remit each of them, in so far as they depend on identified grounds other than pure Wednesbury unreasonableness - there is an oxymoron for you - and leave all of the issues for the Federal Court to determine. Now, given the distinctly unusual procedures that I have followed this morning, I will confess to a sense of unease, that the parties may not have had a sufficient opportunity to put to me what they want to put to me. I think I sense there is not huge opposition coming from the applicants' camps at my following that course but there, after all, two sides in this process. Is there anything further that you would wish to say against me following that course, Mr Horan?

MR HORAN: Well, only what I have already said. In reserving in particular cases - and these may not be those cases - the ability of the Minister to submit and for this Court to hear and determine an application on the basis that it does not have prospects of success and there is no reason to enlarge time and that there may be some clear cases where a remittal is not justified.

HIS HONOUR: Yes. I would not wish it to be understood that I am setting some absolute rule for all future matters. Future matters have to be determined on their own facts and circumstances.

MR HORAN: Yes. I also submit that the two matters other than the M38 are matters which do fall into that category and that are clear, but that I am in your Honour's hands as to whether - in one sense the Minister is no worse off in running these same points before a single judge of the Federal Court other than the fact that it does create - there is probably only two downsides from where I am standing and one is the delay, albeit perhaps slight, in having a further Federal Court hearing scheduled, and the second is the fact that it still leaves, at the end of that process, a part pending application in this Court.

HIS HONOUR: A right left in this Court. Yes, I understand that.

MR HORAN: Which might, by the time, if and when that is returned to, it might be disposed of quite quickly but - - -

HIS HONOUR: Yes. Well, Mr Gibson, is there anything further you wanted to add?

MR GIBSON: Your Honour, I share - I think I have indicated substantially what my learned friends - - -

HIS HONOUR: Yes, thank you. Then the course I will adopt in each of matters M6, M21, M37, M38 and M93 is that I will order remitter of so much of those matters as is raised by specified grounds in the draft order nisi filed in each matter. That order for remitter will be in common form. The grounds that are to be specified will, I think, in each of the cases be all of the grounds save for ground numbered 1, but my intent is that the grounds to be remitted are those other than Wednesbury unreasonableness grounds.

It would be of great assistance if counsel could together formulate minutes of order in each of the matters. If they can agree upon the specifications of the grounds, it would seem to me that that can and ought to be done, and if they would be good enough, if it were possible, by close of business tomorrow - not today, but by close of business tomorrow to file initialled agreed minutes of order to give effect to those orders, that will be done.

Of course the costs will become - will be reserved or costs in the application? I cannot recall which is the standard form in an order for remitter.

MR DOWLING: Your Honour, perhaps if I could say one word with respect to costs?

HIS HONOUR: Yes.

MR DOWLING: In relation to M38, it is in a slightly different position to the others in this category in that this is one in which the applicant actively sought remittal and - - -

HIS HONOUR: I understand that. You would have had to come here anyway.

MR DOWLING: Thank you, your Honour.

HIS HONOUR: Yes. There is always a rather delicious air of unreality about speaking about costs in these applications where commonly, I would have thought, one side of the record is not in a position where one might ordinarily expect that payment of costs would be likely, perhaps even possible. But there we are, one makes these orders.

MR HORAN: Your Honour, I missed what my learned friend said, so he may have covered this, but I am instructed that the or a usual order is to order that costs of this application be costs in the remitted application.

HIS HONOUR: In the application, yes. Yes, I would be minded to make that order and, of course, certify for the attendance of counsel. Now, all that being done, is there any further application that then needs to be made or any difficulty that counsel wishes to raise? No.

MR KROHN: I do not believe so, your Honour.

HIS HONOUR: Very well. There will be orders in those terms. Thank you for your assistance.

AT 11.20 AM THE MATTERS WERE ADJOURNED