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High Court of Australia Transcripts |
Last Updated: 16 August 2011
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M70 of 2011
B e t w e e n -
SAYED-NAVAB SHAH
Plaintiffs
and
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Melbourne No M72 of 2011 to
No M105 of
2011
B e t w e e n -
PLAINTIFF M72 OF 2011 TO PLAINTIFF M105 OF 2011
Plaintiffs
and
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Melbourne No M106 of 2011
B e t w e e n -
PLAINTIFF M106 OF 2011 BY HIS LITIGATION GUARDIAN, PLAINTIFF M70/2011
Plaintiff
and
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Directions hearing
HAYNE J
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON MONDAY, 15 AUGUST 2011, AT 9.30 AM
Copyright in the High Court of Australia
MS D.S. MORTIMER, SC: If the Court pleases, in all matters I appear with my learned friends, MR R.M. NIALL, SC, MS K.L. WALKER, MS E.A. BENNETT and MR M.L.L. ALBERT. (instructed by Allens Arthur Robinson Lawyers)
MR S.J. GAGELER, SC, Solicitor-General of the Commonwealth of Australia: If the Court pleases, in each matter I appear with MR S.P. DONAGHUE and MR N.M. WOOD. (instructed by Australian Government Solicitor)
MR C.J. HORAN: May it please the Court, I appear for the Australian Human Rights Commission seeking leave to intervene in matter M106 of 2011 only. (instructed by Australian Human Rights Commission)
HIS HONOUR: Yes, Ms Mortimer.
MS MORTIMER: If your Honour pleases. Your Honour, may I start with the question of the applications. There are now applications in respect of all plaintiffs which have been filed and by agreement with the defendants the two which we would submit should go forward are Mr Shah’s, which is M70, and in relation to the minor it is M106 of 2011. So those are the two upon which we seek that your Honour make orders today in terms of referral in. Now, in relation to those orders, your Honour, we have a proposed minute of order, if I might hand that up?
HIS HONOUR: Thank you. Is this your side’s minute or is it an agreed minute or what is the status of this?
MR GAGELER: Your Honour, it is substantially agreed subject to a number of qualifications; I can state what they are. Paragraphs 1 and 2 are agreed on the basis that the plaintiffs abandon paragraphs 42 and 44.1 of their respective applications. Paragraph 6 is agreed with the addition of the words in the second line, after the words “the application”, “the affidavit of Christopher Bowen sworn 14 August 2011”.
HIS HONOUR: Sworn, sorry, what date, Mr Solicitor?
MR GAGELER: 14 August 2011.
HIS HONOUR: Yes, thank you.
MR GAGELER: We would suggest, and we do not put this as a matter of disagreement, that the 40 pages referred to in paragraphs 4 and 5 could be somewhat shorter; we would say 25.
HIS HONOUR: Yes. Could I ask both sides, and you first, Ms Mortimer, there is reference to an agreed statement of facts. What state are we at with that?
MS MORTIMER: Your Honour, we are substantially progressed and I would anticipate that we will have agreement by the end of today and that should put us in a position to file tomorrow. The only outstanding issue which we will not be able to resolve is the position we were notified of yesterday by the defendants that they propose to rely on an affidavit from Mr Bowen.
HIS HONOUR: Have you seen that affidavit, the one that has been filed?
MS MORTIMER: Yes, your Honour, we have.
HIS HONOUR: Yes, what are the points of disagreement?
MS MORTIMER: Your Honour, these. Firstly, that this is a matter which is to go forward on agreed facts and what is contained in that affidavit in relation to the Minister deposing to considering matters that are not recorded in the briefing note, which is the subject of the Commonwealth’s first affidavit. Secondly, that the content of this affidavit really purports to give reasons after litigation has commenced and addresses those grounds of the litigation and essentially says, well, I did not do that, and on both those matters it then becomes, in our submission, a contentious piece of evidence that ordinarily would result in the capacity for the other party to test it, and the Commonwealth seeks to put it forward and have the Court accept it on its face and, in our submission, that should not occur.
HIS HONOUR: What do you say I should do? The Commonwealth seeks to rely on it, what do you say I should do?
MS MORTIMER: Well, on that there would need to be a trial, your Honour. Now, that would disrupt - - -
HIS HONOUR: Of what issue?
MS MORTIMER: Of whether the matters that the Minister deposes to having taken into account were indeed, on the day that he made that decision, taken into account and whether the inconsistencies which may, in our submission, appear between what was in the briefing note and what the Minister now says he did are to be resolved.
HIS HONOUR: How would determination of those issues, if they be issues, affect the determination of the issues which are fit for determination by a Full Court?
MS MORTIMER: Well, for example, your Honour, it is one of the grounds in our application that the Minister asked himself the wrong question – it is in paragraph 39 – because we say that he based his satisfaction on what would happen to this group of people rather than what was the situation for all asylum seekers. That is a clear and important aspect of our application, your Honour, and what we get yesterday, a week after the application was filed, is the decision-maker saying in paragraph 12:
I understood that I needed to consider whether Malaysia met the criteria . . . generally, and not only whether the particular persons transferred under the agreement would receive treatment in accordance with those criteria.
That is an ex post facto attempt, once litigation has been commenced and the Minister has seen the grounds, to patch up the documents.
HIS HONOUR: All the evidence that is filed by way of affidavit in any proceeding is prepared at a time after the proceeding has been commenced. In that sense all evidence is ex post facto. Cut to the chase. What is the point that is the sticking point?
MS MORTIMER: Your Honour, well, I have advanced that one and, in our submission, that enables the Commonwealth to say to the Court, without having this evidence tested, well, you should not look at the contemporaneous documents, you should not restrict yourself to drawing inferences from the contemporaneous documents, you should now look at what the Minister said on oath after the litigation.
HIS HONOUR: This then points to the need to see where the parties are at with their agreed facts. When will the agreed facts be available, Ms Mortimer?
MS MORTIMER: In the morning, your Honour. There has been, your Honour, no shortage of effort on both sides.
HIS HONOUR: I am not intent on sitting here criticising the efforts that the parties have put in, but I am concerned that if this matter is to go to a Full Court, it goes to a Full Court on a proper basis. It is not likely that questions of disputed fact can satisfactorily be resolved in the course of a hearing by the Full Court. It is not impossible, I suppose, but experience dictates that that is not ordinarily a satisfactory method of proceeding.
MS MORTIMER: Your Honour, we are in full agreement with that and that is why we were surprised to receive this affidavit yesterday.
HIS HONOUR: Well, leave aside the surprise, leave aside the timing, this is what the Minister says he has done. That is the position we are dealing with. What are we going to do about the agreed facts and when can we get to a final version of them? Can we get to them by later today?
MS MORTIMER: Your Honour, there remain two options and the first is the one that my learned friend, the Solicitor-General, has proposed which is that this affidavit goes forward as it is without being agreed. That would enable us not to test it. We would have no opportunity to test it or explore the documents that might sit behind the evidence of the Minister, but we could, taking into account those disadvantages, make submissions as to the weight the Court could give it; that is one option. It is not a matter at the moment that we anticipate being able to agree as a fact, your Honour.
HIS HONOUR: Well, the further choice that is open is to simply stand this matter over until 2.15 this afternoon or to 4.15 this afternoon and see where you are at, but it seems to me that there is a difficulty in putting the matter into a Full Court where one side is going to say, well, look, there is this evidence which is before you but really you should not act on it. Now, if that is the position the plaintiffs are in, well, that presents a serious difficulty.
MS MORTIMER: Your Honour, the rest of the - - -
HIS HONOUR: If we cut out the “this was served on us yesterday, we were not expecting it, this is”, as you would have it, “ex post facto”, criticism, I suspect, can be made of every affidavit that has been filed in every proceeding of every kind that has ever been issued. To what issue of determinative significance in this litigation does this go? Counsel know much more about the case than I do. You may have your own views about its significance and those are views to which I should defer, but why should I not simply put this over until 2.15 pm and see where you are up to?
MS MORTIMER: Your Honour, because it is a discrete issue and our time would be better used, in our submission, on resolving the rest of the agreed facts and my learned friend and I can certainly then at least reach agreement on all the other facts and be in a position then to say to your Honour that we have done that and it will leave this affidavit as a discrete issue. In my submission, your Honour, given we are all under enormous time constraints, that would be a better use of our time and we will endeavour to come back to the Court with a position about what should happen with this affidavit. We do not, in my submission, your Honour, need to trouble your Honour by way of appearance again about that.
HIS HONOUR: I have to be content that this is a matter suitable for reference to a Full Court.
MS MORTIMER: I accept that, your Honour.
HIS HONOUR: It will be unproductive if it gets into a Full Court and it emerges that it is not in a position where it is suitable for determination by a Full Court. That would be not a useful position to arrive at for any of the parties in this litigation.
MS MORTIMER: I accept that, your Honour. We will endeavour to make use of the time that we have today to get the matter into a state where it is. Again, your Honour, we come here and the Commonwealth says, well, we want it in, and we have had the document for not much more than 12 hours and none of us have had a proper opportunity fully to look at how it affects our case. I have told your Honour what my first impressions of it are, but we need a proper opportunity to look at it, your Honour. It is obviously critical to the Commonwealth if they have sworn the Minister up to something.
HIS HONOUR: Yes.
MS MORTIMER: We have heard what your Honour said about the need for the whole matter to be factually in a form that is suitable, and we will take that on board, but I cannot give your Honour any more definitive answers about what, in my client’s best interests, we might be able to do right now because we simply have not had a proper opportunity to consider it.
Now, your Honour, the other matters that my learned friend referred to in terms of qualifications are on agreement to the proposed orders. Your Honour, the 40 pages is in there out of an abundance of caution. There are two proceedings. There are discrete issues which arise in relation to the unaccompanied minor, but we can tell your Honour that insofar as there are common issues, the submissions for the unaccompanied minor will adopt the submissions for the adult, so there will be no overlap in that sense. Your Honour, if we can come in under that, we will, but we are still within the rules limit.
HIS HONOUR: Again, refinement of the argument is in the interests of the parties and of the Court.
MS MORTIMER: I accept that, your Honour, and in working within the time constraints we have, that is exactly what we propose to try and achieve. I do not believe my learned friend referred to anything else that was not agreed.
HIS HONOUR: There was the question of abandonment of claims made in paragraphs 42 and 44.1, I think were the two paragraphs identified.
MS MORTIMER: I can confirm that, your Honour.
HIS HONOUR: Those are abandoned?
MS MORTIMER: They are abandoned and they are abandoned in relation to M106 as well.
HIS HONOUR: Yes. That would mean, would it, that at the termination of the Full Court proceedings there would remain undetermined, but depending on the outcome of the Full Court proceedings, unresolved issues in paragraphs 18 to 20 and 51 to 52 of the applications, is that right?
MS MORTIMER: Yes, your Honour.
HIS HONOUR: Yes. Now, have the parties given any thought to what would go into the application book? Simply the application and, subject to this question of the Minister’s affidavit, the agreed statement of facts? Is that all that would go into the application books?
MS MORTIMER: Yes, your Honour, there are a considerable number of attachments to the agreed statement of facts, but we would not anticipate anything else going in, your Honour.
HIS HONOUR: The respondents would have the carriage of that?
MS MORTIMER: Yes, your Honour.
MR GAGELER: Yes, your Honour.
HIS HONOUR: Could I say to both sides, can they agree upon which Registry is to be the point for filing? I want a single Registry to be the point for filing so that there can be a single point of distribution amongst members of the Court rather than - - -
MS MORTIMER: Does your Honour have a Registry in mind that is most convenient to the Court?
HIS HONOUR: Either Canberra or Melbourne, but it has to be one Registry, but I leave that to the parties. I do not care which it is, but end up with a single Registry as the point for filing so that we can keep track on what papers are going where. It is as mechanical as that, I am sorry.
MS MORTIMER: Your Honour, it may have to be Melbourne in the sense that my instructors have no office in Canberra.
HIS HONOUR: Yes, well, as I say, I do not care where the parties get to, so long as it is one.
MS MORTIMER: To be clear, your Honour, that is for orders 3 to 6?
HIS HONOUR: That is for all subsequent filings in these matters so that we can keep track of it and get them distributed amongst chambers as needs be.
MS MORTIMER: I understand, if your Honour pleases. Now, your Honour, I think those are the only matters that I needed to raise with your Honour.
HIS HONOUR: Yes. Mr Solicitor, what do you say I should do in the face of this emerging difficulty?
MR GAGELER: Your Honour should relist the matter for 2.15 pm today.
HIS HONOUR: Yes, or 4.15 pm, which would be the more productive?
MR GAGELER: Yes, it probably would be more productive, your Honour.
HIS HONOUR: 4.15 pm would be likely more, I suspect?
MR GAGELER: Yes, your Honour.
HIS HONOUR: Yes.
MR GAGELER: Your Honour, can I indicate, apart from the Minister’s affidavit, what is happening with the agreed statement of facts and where the areas of disagreement or non-agreement currently exist? There is a disagreement about the relevance of some facts. We think that that can be dealt with simply with the usual disclaimer at the beginning.
HIS HONOUR: Facts are agreed, but not agreed, that all facts agreed are relevant?
MR GAGELER: Exactly, we think that can be dealt with that way. There are some areas of potential disagreement arising from some lately produced statutory declarations from the plaintiffs which will need to be considered. There are claims made in those statutory declarations not previously considered on our side. It seems to us on the whole the plaintiff’s case can proceed on the basis that they are claims without necessarily there being an acceptance of the veracity of those claims. That is an area where we are in discussions.
HIS HONOUR: That it would be enough that that is the claim made without passing on the accuracy of the - - -
MR GAGELER: Correct.
HIS HONOUR: Yes.
MR GAGELER: Thirdly, there is a continuing question of the content of Malaysian law. Your Honour saw the Hock affidavit and we gave very close attention to the content of Malaysian law as set out in that affidavit and, in broad terms, had no particular difficulty with it. What has emerged in the last few days is a desire on the part of the plaintiffs to move into other areas of Malaysian law. We can accommodate that, but we want to do it in a very precise way by stating positively what is the content of Malaysian law on various topics. That we hope can occur during the course of the day. I think now the subject areas are pretty much fixed and it is a matter of just determining the precise content of Malaysian law. Whether we can do that by 4.15 pm really depends on the availability of the Malaysian lawyers to give us the answers in that time.
HIS HONOUR: Yes.
MR GAGELER: Your Honour, so far as the affidavit of the Minister is concerned, it is important that there be no doubt at all as to the basis upon which the Minister proceeded in making his decision to make a declaration under section 198A(3). The minute to the Minister is at least arguably capable of competing inferences and one of those inferences forms the basis of one of the grounds of challenge that your Honour has been taken to. If that ground of challenge is to be pursued, it would be unfortunate if the true facts were not before the Court.
The way to do that is either by agreement or by evidence and we did not think it appropriate to ask our learned friends to agree until they saw what the Minister is prepared to say by way of evidence. Now, if there is some real dispute about that, if there is some real desire to test in some way what the Minister has said, then we are prepared to accommodate that and to accommodate that this week in advance of the hearing next week if that is truly the position that the plaintiffs take, but they should be able to make a decision on that during the course of the day. If your Honour pleases.
HIS HONOUR: Ms Mortimer, is there anything you want to say in answer to that, in particular, the proposal that I should stand the matter over till 4.15 pm?
MS MORTIMER: We accept if your Honour thinks that is appropriate, it is appropriate.
HIS HONOUR: Yes. Mr Horan, as I understand it, the Human Rights Commission wishes to intervene in one of the matters but not the other, is that right?
MR HORAN: That is correct, your Honour, in matter number M106 of 2011, which is the proceeding involving the child plaintiff.
HIS HONOUR: In whose interests?
MR HORAN: In support of the plaintiff, broadly speaking, but in order to make submissions on the relationship between the Minister’s statutory obligations as the legal guardian of the plaintiff and the exercise of powers under sections 198 and 198A of the Migration Act.
HIS HONOUR: The fate of the application to intervene, of course, will be a matter for the Full Court, but it would mean that the Commission’s submissions would need to be prepared and served at the same time as those on behalf of the plaintiff.
MR HORAN: Yes, I understand that, and I think the Registry had communicated that to my instructors over the weekend and we are prepared to meet whatever timetable is set for the parties and that a direction should be made to include the Commission’s submissions either in general terms or a specific direction to file at the same time as the plaintiff’s submissions.
HIS HONOUR: It would be better if there were specific directions to file at the same time as.
MR HORAN: Yes. I could indicate, in the application to the Full Court, David Jackson, QC will appear with me for the Commission to make that application. As your Honour probably has a copy of the summons, an affidavit that was filed this morning in the Registry, it only remains to file submissions, or proposed submissions, that the Commission would make if granted leave to intervene.
HIS HONOUR: Yes, thank you.
MR HORAN: If the Court pleases.
HIS HONOUR: Well, I will stand the matter down until 4.15 this afternoon. If, contrary to expectation, the parties thought it valuable to sit earlier, then I would. Simply ring the Registry and say that the parties are ready to go and I will sit at some appropriate time, but otherwise 4.15 pm.
AT 9.55 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME
DAY
UPON RESUMING AT 4.14 PM:
HIS HONOUR: Ms Mortimer.
MS MORTIMER: If your Honour pleases. Your Honour, we have made some substantial progress on agreeing the facts today and we have made some substantial progress on the manner in which the evidence which the defendants seek to adduce on behalf of the Minister will come before the Court. There are still some final decisions to be made about that, but we do not anticipate that that will prove an obstacle, as your Honour might have apprehended this morning.
HIS HONOUR: Yes.
MS MORTIMER: What that leaves outstanding by way of substantive matters that the parties have yet to agree is really the propositions of Malaysian law which will go into the agreed statement of facts, but again we have been working diligently through the day on that with respective experts based in Malaysia. Those experts are still attempting to talk directly to each other so that agreed propositions might be reached, but we anticipate that that process will take place this afternoon and that we should be in a position to comply with the order which we have submitted the Court should make in paragraph 3.
HIS HONOUR: Those orders had slipped the program by a day, why? The parties were told that if we were to get this thing ready by 2.15 pm on Monday, a timetable was proposed. The parties now say that they wish to slip a day, is that the position?
MS MORTIMER: It is, your Honour.
HIS HONOUR: Well, why should the hearing not slip? This is, I may say, not something that the Court wishes to do. The Court was willing and remains willing to begin the hearing of this matter at 2.15 pm on Monday, but if, but only if, the matter is properly prepared in time.
MS MORTIMER: That is our point, your Honour, and that is the reason that we proposed a modified timetable, because on our side of the Bar table we are not confident that we could have prepared an agreed statement of facts – that has been borne out – in time to be able to annotate the submissions and provide the Court with a standard of submission that would enable this matter to be disposed of in the manner it should be, and that is why we have asked for another half a day.
HIS HONOUR: What do you say I should do about the hearing time?
MS MORTIMER: Your Honour, we accept that is a matter for the Court in terms - - -
HIS HONOUR: No, it is not, it is a matter for the parties. The parties were warned on Friday, and they were warned I think last Monday, to order their affairs on the assumption that the Court would be in a position to hold a special sitting commencing at 2.15 pm on Monday.
MS MORTIMER: We stand ready to commence at 2.15pm on Monday, your Honour.
HIS HONOUR: And to abide the timetable that was proposed that would provide for your side to put on a reply? The timetable you now propose does not provide for your side I think to put on a reply, does it?
MS MORTIMER: It does not, your Honour.
HIS HONOUR: Well, that seems to me not to be satisfactory.
MS MORTIMER: All I can say to your Honour is that if we are directed to comply with that timetable, I do not anticipate the submissions would be of the quality that they otherwise would be, but we will do our best, your Honour.
HIS HONOUR: We have to decide the case and we have to have argument that will help us to decide the case. At the end of it we have to be able to write a judgment.
MS MORTIMER: Your Honour, that is all I can say. It is a matter for your Honour and the Court’s timetable.
HIS HONOUR: You say the Court’s timetable, Ms Mortimer. Yes, Mr Solicitor, what do you say I should do?
MR GAGELER: Your Honour should maintain the hearing date of 2.15 pm next Monday. The parties are confident that the cases will be able to be presented competently and comprehensively by that time. There is a difficulty about our learned friend’s reply. If we were to receive the reply on the morning of the hearing, we can accommodate that.
HIS HONOUR: No, that is unsatisfactory for the Court. The Court has to be able to digest these things before we hit the hearing room.
MR GAGELER: Well, your Honour, if it is a matter of bringing forward the defendants’ submissions by half a day and having the defendants’ submissions at 4.00 pm on the 18th so as to allow the reply on the Friday, we will accommodate that.
HIS HONOUR: Can I run through the timetable with you, the frame of directions that might be suitable. First, it would seem to me to be desirable to give leave to the plaintiffs in each matter to amend the further amended application for an order to show cause by deleting the paragraphs that are to be taken as abandoned, namely, paragraphs 42 and 44.1. Second, it would be necessary to refer for further hearing by a Full Court the application in matter M70 with the exception of the matters raised by paragraphs 18 to 20, and 51 and 52. It would be necessary to refer for further hearing by a Full Court the application in matter number M106 with the exception of the matters raised in paragraphs 18 to 20, and 50 and 51, I believe. Now, when would you say, Mr Solicitor, that the parties would be in a position to file and serve an agreed statement of facts?
MR GAGELER: I would say 10.00 am tomorrow, your Honour.
HIS HONOUR: At 10.00 am.
MR GAGELER: I am allowing for a time difference with Malaysia when I say that, your Honour.
HIS HONOUR: Yes. So is the time working to your advantage or against you with the time difference?
MS MORTIMER: They are two hours behind, your Honour.
HIS HONOUR: Behind. So it is giving you two hours extra?
MR GAGELER: Yes.
HIS HONOUR: Yes. So 10.00 am, you say, 16 August?
MR GAGELER: We will accommodate your Honour, 10.00 am tomorrow, 16 August, yes.
HIS HONOUR: Then I will hear Ms Mortimer about when the plaintiffs and any person seeking leave to intervene in either proceeding in support of the plaintiff would file and serve their submissions. There would be a single set of submissions. I am minded to fix a limit of 30 pages for the single set of submissions. Mr Solicitor, when do you propose the Commonwealth parties could be in a position to put on their submissions in answer?
MR GAGELER: At 4.00 pm on 18 August, your Honour.
HIS HONOUR: Which would seem likely to make it 2.15 or 3.00 pm, I would have thought, on 19 August for reply so that we can have time to distribute it. Application books; can we get the application books done and done properly by 18? Shipping them around the country is going to be more difficult, it will not be just an electronic dispatch. Is that practically possible or not?
MR GAGELER: I am told, yes.
HIS HONOUR: Bearing in mind the need of couriers, it can be no later than 3.00 pm. I would prefer to fix 12 noon, but if we are to catch the couriers, they have to be in the Registry no later than 3.00 pm ready to roll. So is that achievable, Mr Solicitor, from your end, do you think?
MR GAGELER: Your Honour, I am going to get very specific instructions on this.
HIS HONOUR: I understand these are matters for others to attend to. I hope you are not reduced to working a Xerox, Mr Solicitor.
MR GAGELER: I have been known to use a photocopier, your Honour.
HIS HONOUR: Yes, so have I.
MR GAGELER: I am told, yes, your Honour.
HIS HONOUR: Noon or 3.00 pm?
MR GAGELER: At 3.00 pm, I am told, your Honour.
HIS HONOUR: It is like running an auction. That would leave open the time when the plaintiffs put on their submissions. I should, I think, first hear from Ms Mortimer about that and you in answer if needs be, Mr Solicitor.
MR GAGELER: Yes, your Honour.
HIS HONOUR: Well, Ms Mortimer?
MS MORTIMER: Your Honour, we would ask to be able to file at midday on 17 August.
HIS HONOUR: At 12 noon, 17?
MS MORTIMER: If your Honour pleases, yes.
HIS HONOUR: Mr Solicitor?
MR GAGELER: We will accommodate that, your Honour. That gives us a day and a half.
HIS HONOUR: A day and a bit.
MR GAGELER: Or a day and a bit.
HIS HONOUR: I know the parties are under pressure, I know that these things are being done in great haste, I am not mindless of that fact, but can I say to both sides now, maintenance of this timetable is critical to maintenance of the date. The Court has to be in a position where it has the parties’ submissions, as well as the agreed facts, where it is able to digest those materials before the hearing begins, otherwise the hearing is needlessly prolonged while we are trying to digest material we should have had an earlier opportunity to look at. Mr Solicitor?
MR GAGELER: Your Honour, can I say this in relation to the affidavit. As my learned friend foreshadowed, there will be no problem about the contents of the Minister’s affidavit. It will be dealt with in either of two ways. My learned friend is yet to make up her mind. It will either be reflected in some wording in the agreed statement of facts or it will be read as an affidavit in the proceeding and I will not take any Jones v Dunkel point about it.
HIS HONOUR: I forbear from commenting on the notion of Jones v Dunkel bearing on litigation of this kind. Subject to anything that counsel may say as to the form of orders, I would be minded to make directions in the following terms:
I have 51, something has gone awry. Ms Mortimer, is that right, 50 and 51? Are those the excepted paragraphs in the infant’s case?
MS MORTIMER: Yes, it is.
HIS HONOUR: I am starting at shadows.
Should I add, Mr Solicitor, some, in effect, escape hatch to permit inclusion of the affidavit, if that is the path that the parties agree should occur?
MR GAGELER: Yes, your Honour.
HIS HONOUR: Should I say “and such further document or documents as the parties may agree”?
MR GAGELER: Yes, your Honour.
HIS HONOUR: That will suffice.
MR GAGELER: Yes, your Honour.
HIS HONOUR: Yes.
What if I reserve the costs? Now, do the parties seek to be heard about the form or content of the directions or, critically, the timetable?
MS MORTIMER: No, your Honour.
MR GAGELER: No, your Honour.
MS MORTIMER: Your Honour, there is one matter that I have been asked by the Registry to raise, which is that currently what has been filed in M70 is a document headed “Proposed Amended Application” and we have been asked to seek leave in Court, your Honour, to file this is an application.
HIS HONOUR: I understood that was a consented amendment. You may have that leave in M70.
MS MORTIMER: If your Honour pleases.
HIS HONOUR: May I raise with both sides, but especially you, Mr Solicitor, your side, the affidavit of the Minister is one which I have regarded as not yet being read in Court. Am I correct in that?
MR GAGELER: That is correct.
HIS HONOUR: Yes, very well. Is there any other matter that counsel desire to raise?
MS MORTIMER: No, your Honour.
MR GAGELER: No, your Honour.
HIS HONOUR: There will be directions in the terms I have indicated. Thank you. Adjourn the Court.
AT 4.31 PM THE MATTER WAS ADJOURNED
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