Gjeka v The Hon Senator Evans, Minister for Immigration & Citizenship & Anor [2009] HCATrans 58 (25 March 2009)

Last Updated: 30 March 2009

[2009] HCATrans 058

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A29 of 2008

B e t w e e n -

LEONARD GJEKA

Plaintiff

and

THE HONOURABLE SENATOR CHRIS EVANS, MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SEAN LEYDEN

Second Defendant

Summons for directions

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON WEDNESDAY, 25 MARCH 2009, AT 9.30 AM

Copyright in the High Court of Australia

MR W.J.N. WELLS, QC: May it please the Court, I appear with my learned friend, MR S.D. OWER, for the plaintiff. (instructed by Patsouris & Associates)

MR S.P. DONAGHUE: May it please the Court, I appear for the defendants. (instructed by Australian Government Solicitor)

HIS HONOUR: Yes, Mr Wells. I have looked at the papers and have some general familiarity with it. Can I just begin, I understand you want to amend your pleading, is that right?

MR WELLS: That is right, your Honour.

HIS HONOUR: Are you able to indicate generally what the nature of the proposed amendments is, or would you prefer to wait until it is formulated and served?

MR WELLS: Your Honour, what I can say is this, that we do not expect the proposed amended statement of claim would involve any allegations of additional facts. It is more a matter of satisfying ourselves that we have fully expressed the issue that arises out of those facts by reference to section 417 and, of course, subsection (7) of that section. So what we were seeking from your Honour is perhaps some time. We had suggested in our submissions seven days. We were wondering if your Honour would consider 14 days so that we can address properly – and in the light of what has been put already by Dr Donaghue in his outline, so we can address clearly what it is that we are asserting in the statement of claim which, in our submission, will not only attract a jurisdiction but, as we will contend, ultimately may well require the consideration of the Full Court.

HIS HONOUR: That would suggest, if we were to follow that path, Mr Wells, your amended statement of claim by 8 April. That would, I think, given the intervention of Easter, suggest that a defence might be proposed for, say, 24 April or 27 April. We will come back to what date should be fixed for that. There is then a question of access to documents and I want to take that up with Dr Donaghue presently because it is not instantly apparent to me why there could not be given to your side relatively quickly a list of all of the documents that are likely to be relevant. Then would come the question of what further steps are to be taken.

It is said against you, Mr Wells, that some, I read the submissions as suggesting that all of the issues which you would seek to raise have been considered relatively recently in Raikua & Ors v Minister for Immigration and Multicultural and Indigenous Affairs & Ors [2007] FCA 370; (2007) 158 FCR 510, a decision of Justice Lindgren. If that were so, although it is suggested that ultimately we should be working towards trial of issues by a single Justice, I

wonder whether it may not in the long run be the better course to work towards, if it is possible, agreed facts and questions stated for a Full Court.

Now, whether that matter is returned before a Full Court constituted by three, five or seven would, of course, be a matter for this Court to decide, but I wonder whether in the long run it may be better to work towards an agreed factual base, an isolation of questions and reference of a stated case that would lead to determination finally by a Full Court of the issues that you seek to agitate?

MR WELLS: Your Honour, that is exactly what we would propose and we would respectfully adopt that suggestion.

HIS HONOUR: But that would suggest that the directions to be given at the moment would be directions about pleadings, directions about documents.

MR WELLS: Correct.

HIS HONOUR: Then it would be for the parties within a fixed time to see whether they could agree upon facts necessary and a proposed stated case posing questions for a Full Court.

MR WELLS: Indeed, your Honour.

HIS HONOUR: Would you wish to be heard against following that general sort of path?

MR WELLS: Not at all.

HIS HONOUR: Yes. Dr Donaghue, there are three immediate questions. One, time for defence. If the plaintiff has until 8 April, given that Easter intervenes, what date would you propose, 24 or 27?

MR DONAGHUE: The 24th is fine, your Honour.

HIS HONOUR: Yes. If we said 24 April, documents, Dr Donaghue, do you anticipate any difficulty about formulating a list and, in effect, providing copies of relevant documents?

MR DONAGHUE: I do not anticipate any difficulty at all. We were quite happy with the order that they have sought. There will be some extra documents, as we indicated, but it will be a straightforward matter for us to assemble the relevant documents and to provide them.

HIS HONOUR: What sort of direction should I give then to achieve a result where the other side gets both a list and access to documents? Probably at or soon after, I think, 24 April.

MR DONAGHUE: Your Honour, we are content to do that without a direction and to provide the documents as part of the negotiation process in relation to the special case that your Honour is referring to, if that is the path we go down.

HIS HONOUR: Could that be done in good time and no later than 24 April, do you anticipate, Dr Donaghue?

MR DONAGHUE: I am looking for some physical reaction from my instructor in Adelaide. I would think so. Yes.

HIS HONOUR: It is a bit hard to lean across the Bar table.

MR DONAGHUE: A little.

HIS HONOUR: What do you say then about whether, having regard to the decision of Justice Lindgren which you say, be it right or be it wrong, that is a recent and considered discussion of these matters, that it may be better to get the issue finally determined in a Full Court?

MR DONAGHUE: Your Honour, I am not opposed to that. Our proposal to proceed before a single Judge was really a question of how the Court wants to deal with this category of cases that cannot be remitted. The Raikua decision is a recent and considered consideration of the points but certainly not the only one and, going back to the Full Federal Court in the Ozmanian Case in, I think, 1998, which was a case that on a slightly earlier statutory regime – it is discussed in Raikua – looked at the same questions and came to the same answer and special leave was refused in that case. So we took the view that the Court might not want to devote a Full Court to these issues, but if that is the most efficient way for the Court to deal with it to finality, we are happy with that.

HIS HONOUR: What occurs to me is that if one side or the other side is going to be suggesting that decisions of the Full Court of the Federal Court are wrong or, in some relevant sense, incomplete considerations of the issues, those are matters, I suspect, that are most efficiently dealt with in a Full Court.

MR DONAGHUE: Yes. If that is what is to be put, your Honour, we accept that. As we see the case at the moment, the plaintiff cannot win unless this Court does not follow the existing Federal Court authority, your Honour.

HIS HONOUR: Yes. Those are issues that I think are better considered by the Full Court in the first instance.

MR DONAGHUE: Yes.

HIS HONOUR: Of course, it is not possible to make any final prediction now, but as at present advised, do you anticipate any difficulty about formulating a stated case?

MR DONAGHUE: I do not, your Honour. I think that the facts are clear. We will need to exhibit some documents for your Honour, the relevant guidelines, ministerial series instructions and correspondence of various kinds, but for my part I would think that we should be able to achieve that.

HIS HONOUR: If all that were to be done with a defence filed by, say, 24 April, is it worthwhile looking towards relisting the matter for directions some time during the first two weeks of May, that is, the week of the 4th or the 11th? I would not propose to fix a date now, but just so that the parties may know the timetable to which they are working, would it be sensible to look towards listing the matter some time in the week of 11 May for further directions I mean?

MR DONAGHUE: That is a listing, your Honour, to consider the draft stated case?

HIS HONOUR: In the hope that the parties by then would have settled upon the facts, settled upon questions, or at least got to the point where there are identified points of disagreement between them that could usefully be considered on a directions hearing.

MR DONAGHUE: Your Honour, for my part I cannot see any difficulty with us being in that position by the week of the 11th.

HIS HONOUR: Mr Wells, you have heard, of course, what I have been saying with Dr Donaghue. Do you anticipate any difficulties, one, in my not making a direction about documents, but we have heard what Dr Donaghue has said and I assume that those documents will be made available to you with an accompanying list and that will occur promptly. Can we aim towards that week of 11 May to come back together either with an agreed stated case or at least a refined and defined idea of what it is that is separating the parties?

MR WELLS: Your Honour, yes, with this qualification. We, for our part, would be assisted by an early perusal of the documents. Your Honour will understand that, as things presently stand, the case has gone forward

without our access to the full array of documents and, indeed, we would be assisted in the preparation of the amended statement of claim by seeing those documents. If we were able to see the documents early, then your Honour’s contemplated timetable would be quite achievable. If, however, the documents arrive towards the end of April, then it might be a bit tight, your Honour, to be coming back before your Honour on the 11th.

HIS HONOUR: I understand that. Mr Wells, I am reluctant to get down to the point of issuing directions to the Department to make these documents available by a specified date, but I think it is quite plain that, one, the documents should be made available. They should be made available as soon as reasonably convenient.

MR WELLS: Thank you, your Honour.

HIS HONOUR: I understand that it will be important that the Department take care to ensure that all of the relevant documents are made available, but that should not impede the provision of documents early, even if it is then subject to the caveat, “Look, here is what we have presently found. We are just checking to make sure that this is all there is, but here you have what we now have available to us”, and I assume the Department will go down that path.

MR WELLS: We would be grateful for that approach, your Honour.

HIS HONOUR: Yes. So if I at the moment were to make directions that:

1. The plaintiff have leave to file and serve an amended statement of claim on or before 8 April 2009.
   
2. The defendants file and serve their defence to the amended statement of claim on or before 24 April 2009.
   
3. Adjourn the summons for directions to a date to be fixed.
   
4. Make the costs of today costs in the cause.
   

would that be appropriate, Mr Wells?

MR WELLS: Thank you, your Honour.

HIS HONOUR: Dr Donaghue, would you wish to be heard against my making those orders?

MR DONAGHUE: No, your Honour.

HIS HONOUR: As I say, I anticipate that we will fix a date during the week commencing 11 May, but the parties will be notified by the Registry and the particular date will, so far as it is possible, accommodate the convenience of counsel, but it will also accommodate the convenience of the Court. There will be orders in the terms I have indicated. Is there anything else counsel desire to raise? No. Very well. Adjourn the Court.

AT 9.45 AM THE MATTER WAS ADJOURNED