Truong, Ex parte - Re MIMA & Anor M120/2001 [2002] HCATrans 63 (26 February 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M120 of 2001

In the matter of -

An application for Writs of Habeas Corpus and Prohibition directed to THE HONOURABLE PHILIP RUDDOCK, in his capacity as MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

First Respondent

GILLIAN CAMPBELL-CANT in her capacity as the Manager of the Immigration Detention Centre at Maribyronong

Second Respondent

Ex parte -

LUY VAN TRUONG

Applicant/Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 26 FEBRUARY 2002, AT 3.12 PM

Copyright in the High Court of Australia

MR P.G. NASH, QC: If your Honour please, I appear with my learned friend, MR A.F.L. KROHN, for the applicant. (instructed by Terence T. O'Brien)

MR A.L. CAVANOUGH, QC: If your Honour pleases, I appear with my learned friend, MR C.J. HORAN, on behalf of the Minister. (instructed by the Australian Government Solicitor)

MR M.B. SERONG: I appear for Gillian Campbell-Cant in this matter. (instructed by Anderson Legal)

HIS HONOUR: Yes, Mr Serong. Mr Serong, do you seek to make any submissions.

MR SERONG: No, I will not be seeking to make any submissions at all, your Honour. My client will abide by the decision of the Court, save as to costs, your Honour.

HIS HONOUR: Yes, then unless either of the other parties can think of some reason why you should remain, Mr Serong, thank you for your attendance and you are excused further attendance.

MR SERONG: Thank you, your Honour.

HIS HONOUR: Thank you. Now, Mr Nash.

MR NASH: If your Honour pleases, except that the original order nisi sought habeas corpus but save for the fact that habeas corpus is still tacked on the end, this is, in fact, almost on all fours - the factual basis is slightly different. It is the Dang situation over again.

HIS HONOUR: Yes. Do you say, given what I have decided in Dang, that this too should stand over?

MR NASH: Yes, your Honour, because the question of the aliens power is raised in exactly the same way.

HIS HONOUR: Yes. Yes, thank you, Mr Nash. Mr Cavanough, what do you say I should do in this matter?

MR CAVANOUGH: Your Honour, in all the circumstances, I think it is inevitable that a similar outcome is called for, save that the Minister would seek that your Honour make an order that the costs of today of the Minister be paid by the applicant given the lateness of the amendments.

HIS HONOUR: Yes, all right. Normally these matters proceed ex parte, do they not, Mr Cavanough, and it would seem unusual, would it not, that where somebody has done you the courtesy of giving you notice of an ex parte application they should pay for the privilege of your attendance in any event?

MR CAVANOUGH: They have done us the courtesy of one set of indications and then another set.

HIS HONOUR: Then you are doubly blessed, Mr Cavanough.

MR CAVANOUGH: Doubly blessed and doubly burdened, your Honour.

HIS HONOUR: The life of the counsel for the Commonwealth is full of burdens, Mr Cavanough. Any other reason why they should pay your costs, Mr Cavanough?

MR CAVANOUGH: Yes. Well, as my learned junior reminds me, in the last matter in which this applicant was involved as a moving party on 22 March of last year, your Honour said in relation to the application for costs made by Mr McLeish on behalf of the Minister that although the matter was strictly ex parte costs would be payable.

HIS HONOUR: Yes.

MR CAVANOUGH: And did, in fact, order the applicant to pay the respondent's costs.

HIS HONOUR: There had then been a full argument of the matter, had there not, Mr Cavanough?

MR CAVANOUGH: There had, yes.

HIS HONOUR: Yes.

MR CAVANOUGH: But, nonetheless, the fact is that it was reasonable for the Commonwealth to attend, in my respectful submission, but not reasonable for the Commonwealth to be put to the burden of having to attend on a later occasion in the circumstances.

HIS HONOUR: Yes. In this matter, Mr Cavanough, if we strip out the absorption question, the Patterson point, what is left? Is there a 447 point left?

MR CAVANOUGH: Section 474?

HIS HONOUR: Section 474 point.

MR CAVANOUGH: Yes. The Minister would say, if necessary, that 474 would be a further answer to any argument that got beyond arguable.

HIS HONOUR: And are there other grounds which appear, or which you would acknowledge, are contestable grounds?

MR CAVANOUGH: No. On my instructions there are none. We are somewhat disadvantaged by being served very late.

HIS HONOUR: I understand that, but what I had in mind is that if it were clear that there were grounds other than the Patterson point that were contestable grounds, we should at least give overt consideration to whether the 474 point should be shelled out and identified but that would not be a convenient course if the, as it were, judicial review grounds were, to take the extreme case, plainly unarguable.

MR CAVANOUGH: Yes, your Honour.

HIS HONOUR: So long as they were arguable grounds then it would be necessary to consider whether the privative clause provision point should be dealt with separately.

MR CAVANOUGH: Yes. My understanding at the moment is that there is unlikely to be a point that would be a suitable vehicle for the 474 argument because, for the very reasons Mr Gray has already outlined in relation to the self-same points, there is a complete answer to each of the non-constitutional points and the privative clause is not an answer to any constitutional point in any event.

HIS HONOUR: Yes. Well, thank you, Mr Cavanough.

This matter, too, will be adjourned to a date to be fixed, liberty to apply to either party on not less than three days notice in writing to the opposite party. Despite what has been urged by counsel on behalf of the Minister the costs will be reserved. I will certify for the attendance of counsel.

MR CAVANOUGH: If your Honour please.

HIS HONOUR: I will adjourn.

AT 3.19 PM THE MATTER WAS ADJOURNED