Plaintiff M168/2010 By His Litigation Guardian Sister Brigid (Marie) Arthur & Ors v Commonwealth of Australia & Anor [2011] HCATrans 4 (24 January 2011)

Last Updated: 24 February 2011

[2011] HCATrans 004

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M168 of 2010

B e t w e e n -

PLAINTIFF M168/10, A MINOR, BY HIS LITIGATION GUARDIAN SISTER BRIGID (MARIE) ARTHUR

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

First Defendant

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
Melbourne No M169 of 2010

B e t w e e n -

PLAINTIFF M169/10 BY HIS LITIGATION GUARDIAN SISTER BRIGID (MARIE) ARTHUR

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Melbourne No M170 of 2010

B e t w e e n -

PLAINTIFF M170/10, A MINOR, BY HIS LITIGATION GUARDIAN SISTER BRIGID (MARIE) ARTHUR

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

First Defendant

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
Melbourne No M171 of 2010

B e t w e e n -

PLAINTIFF M171/10 BY HIS LITIGATION GUARDIAN SISTER BRIGID (MARIE) ARTHUR

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Melbourne No M172 of 2010

B e t w e e n -

PLAINTIFF M172/10 BY HIS LITIGATION GUARDIAN SISTER BRIGID (MARIE) ARTHUR

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

First Defendant

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
Melbourne No M173 of 2010

B e t w e e n -

PLAINTIFF M173/10 BY HIS LITIGATION GUARDIAN SISTER BRIGID (MARIE) ARTHUR

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Melbourne No M174 of 2010

B e t w e e n -

PLAINTIFF M174/10, A MINOR, BY HIS LITIGATION GUARDIAN SISTER BRIGID (MARIE) ARTHUR

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

First Defendant

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
Melbourne No M175 of 2010

B e t w e e n -

PLAINTIFF M175/10 BY HIS LITIGATION GUARDIAN SISTER BRIGID (MARIE) ARTHUR

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Directions Hearing

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 24 JANUARY 2011, AT 9.30 AM

Copyright in the High Court of Australia

MR C.J. HORAN: May it please the Court, I appear with MS K.E. FOLEY for the plaintiff in each matter. (instructed by Victoria Legal Aid (Civil Law Section))

MR S.P. DONAGHUE: May it please the Court, I appear with MS R.J. SHARP for the defendants in each matter. (instructed by Australian Government Solicitor)

HER HONOUR: Did you have any success?

MR HORAN: I think the short answer is no, your Honour, but we have discussed proposed orders and if I could hand up the plaintiffs’ proposal. The main area of difference is simply timetable.

HER HONOUR: Very well. Just give me a moment. I will just take a moment to read them, if I may. Now you needed an order – just to deal with what is perhaps non-contentious first of all. It was proposed, was it not, that there be an order in relation to M168, M170, M172 and M174 that those matters should be stood out of the list to await the hearing of determination of, I will just say, related proceedings? That should cover it, should it not?

MR HORAN: Yes, your Honour.

HER HONOUR: So I will make those orders in relation to those four matters.

MR HORAN: Does your Honour have the form of order for those matters? There should be a second page.

HER HONOUR: Yes, I see. Sorry, it got tangled up.

MR HORAN: If the order that your Honour has just mentioned could replace order 2, which is a less direct way of saying the same thing.

HER HONOUR: Yes, could be. Yes, indeed. I will make orders in accordance with those directions which will include the amendment to direction 2 which is referred to on the transcript.

MR HORAN: In relation to the other matters, I think the first two orders, subject to – or the first three orders – are agreed, that is the extension of time orders and the dismissal of the application for interlocutory relief. The main point of difference relates to the time to be set in orders 4, 5 and 6. The plaintiffs have - - -

HER HONOUR: These are the plaintiffs’ suggestions?

MR HORAN: Yes.

HER HONOUR: Yes, and what are the contrary suggestions in relation to paragraph 4 now?

MR HORAN: It would be 18 February and the next date, I think, was 4 March. Then we did not have an indication of availability for directions after that, but it would be the next available date following – which, given that I think that marks the commencement of the sittings in Canberra, might mean that the next date would be several weeks following.

HER HONOUR: Unless, of course, the directions hearing was a true directions hearing without prolonged debate, in which circumstances I imagine if it is sufficiently urgent we could do it by video. I would be in Canberra and you would be here. That is another possibility.

MR HORAN: Yes, your Honour. The plaintiffs’ timetable was derived from the indication that your Honour would be able to hear a directions hearing on 23 February and then had worked backwards from there to ensure that at least by that date the evidence was in, but I think that the defendants have difficulties, which my learned friend can explain, in meeting the deadline of 4 February. So that other than that, it should be possible for your Honour simply to determine what the appropriate dates in those orders and then we will proceed from there. I should say also that the 23rd, as I indicated at the end of the hearing last Wednesday, the matter still has some urgency because the plaintiffs do remain in detention and - - -

HER HONOUR: And you have to make a selection so all four are proceeding, is that right?

MR HORAN: Yes, at this stage, without foreclosing the possibility of making that selection.

HER HONOUR: Yes, without foreclosing. No, I do understand. Yes, thank you, Mr Horan.

MR HORAN: If your Honour pleases.

HER HONOUR: Well, I suppose my question has to be, can you do better, Dr Donaghue?

MR DONAGHUE: We think not, your Honour, and if I can explain why. Essentially, your Honour, we submit that we should not be ordered to file evidence by the 4th for two reasons. First, that it will be difficult if not

impossible to properly prepare all of the necessary evidence by that date and, second, that in light of the indication to my instructors and, I think, my friend’s instructors from Registry that the matter would be likely to be referred to a Full Court in May, that we are confident that the timetable for the preparation of the matters could be made for me to make here in allowing us an extra two weeks to put on the evidence. Indeed, experience might suggest that it would be better to get that right at the outset rather than to have complaints about the evidence or a need for supplementary steps to supplement the evidence which might in fact slow things down.

HER HONOUR: One possibility – and perhaps I should check how this strikes both of you – one possibility would be to give you until 18 February in relation to paragraph 4, being, as I understand it, that is the alternative date?

MR DONAGHUE: That is right.

HER HONOUR: Yes. Then, Mr Horan, if you could do it, make the time on the fifth paragraph 25 February, if that can be managed. Then I fly to Canberra on 28 February, but that would not preclude a short directions hearing at 9.30, but I would have to indicate now it would not really be possible to encompass a lengthy directions hearing. I am just doing my best there to meet everybody’s imperatives. Perhaps I should ask Mr Horan whether that might be possible.

MR HORAN: It depends, to some extent, on what evidence the.....

HER HONOUR: I realise that, of course. Perhaps what ought to be done – I know liberty to apply is always implied, but perhaps I should specifically direct – if I make a timetable like that which is short probably for everybody in some respects. Perhaps I should reserve liberty for the parties to apply on two days notice to the opposite parties so that if anybody is in strife as to time, they are at liberty to apply and, as I say, even if I am in Canberra, we will do our best to organise something. Perhaps that is a constructive way forward.

MR HORAN: Yes. I think, as things stand, the plaintiffs have already put on evidence and, subject to any further areas of fact being opened up by the defendants’ evidence, it should be possible to meet that deadline. But it may be, I do not know, that the evidence put on by the defendants raises new issues that need to be responded to and - - -

HER HONOUR: I do appreciate that and that is why I thought perhaps if I put liberty to apply there, there is the flexibility if you get to Wednesday and you clearly cannot meet the timetable - - -

MR HORAN: We can address it on - - -

HER HONOUR: - - - for the Court and Dr Donaghue to know and we could address it, yes.

MR HORAN: If your Honour pleases, I think that would - - -

HER HONOUR: Then I will make the directions in terms of the minutes, subject to the fact that the date in paragraph 4 will be altered to 18 February. The date in paragraph 5 will be altered to 25 February. There will be a new paragraph 6, reserve liberty for the parties to apply on two days written notice to opposite parties. Paragraph 6 will be renumbered 7 and the date there will be 28 February, and costs reserved. Anything further?

MR HORAN: Thank you, your Honour, nothing.

MR DONAGHUE: Your Honour, there is just one matter I think I should raise with you now so that it does not come as a surprise if I need to raise it with you later.

HER HONOUR: Actually I was going to ask you – it just did slip my mind – whether or not you had in mind something like what was done in M61, which is to not only file affidavits, but to also file a further statement identifying whatever legal issues might need to be identified.

MR DONAGHUE: I have not given that any thought, your Honour. It might be that that is something that could be productively discussed with my friend.

HER HONOUR: Yes. It may emerge at the close of affidavits.

MR DONAGHUE: It may. It may be that the issues in this case are a little easier to identify just from the application to show cause than they were in that matter.

HER HONOUR: Maybe, yes.

MR DONAGHUE: Certainly there are some categories that jump out.....legal issues from the application to show cause.

HER HONOUR: I will leave it to the two of you in the sense that you are both conscious of the fact that to be referred to a Full Court we need to have the proceedings in a particular state, so far as facts are concerned.

MR DONAGHUE: Indeed. That is really the matter that I want to raise with your Honour now. Does your Honour have the application to show cause on the bench with you?

HER HONOUR: Yes.

MR DONAGHUE: If you turn to the second page of that document you will see that paragraph 7 under the heading Relief Claimed is a declaration that the first defendant is in breach of his duties as the guardian of the plaintiffs under section 6 of the Immigration (Guardianship of Children) Act. The corresponding pleading, if you like, is at the end on page 10 in paragraph 37 which alleges breach of the section 6 duty and picks up all of the preceding allegations from paragraph 14 onwards.

We are concerned about whether, ultimately, that part of this case will be an appropriate matter to be referred to the Full Court and the reason that we are concerned about that is that, as at present advised, it seems to us that in order to meet an allegation of breach of the duty, as opposed to an allegation of failure to consider guardianship matters, which are raised in other parts of the pleading and raise different issues - - -

HER HONOUR: I think I can see where you are going.

MR DONAGHUE: Yes. Well, there does appear to be serious potential for a conflict on the evidence going to that question and we believe that in order to meet the allegation, we will need to arrange for our own psychiatric examination of each of the four plaintiffs in this matter to obtain evidence going to the question of whether there has been a breach. Now, that, of course, would raise issues both as to the point in time at which the mental health of the four plaintiffs is said to have started to deteriorate and the reasons for that deterioration.

Those are matters that, as we see it, are squarely an issue in the other set of proceedings, the breach of duty, breach of guardianship duty and false imprisonment proceedings. But we apprehend that, first, I am told by those who have had experience of seeking expert evidence from psychiatrists that four weeks is a very short period in order to hope to obtain that evidence. So part of the reason I am raising the matter now is that while we believe that we should be in a position to file evidence relating to all the other issues by the 18th, and we certainly seek to be in a position to do that from the psychiatric experts, that might, to some extent, be out of our control. But second, even if we do obtain that evidence, the position is likely then to be that there is going to be a conflict of evidence before the Court and it is going - - -

HER HONOUR: Which would preclude removal to the Full Court.

MR DONAGHUE: It would seem likely to do that. Now, ultimately it is a question to my friend, I suppose, as to whether they seek to go forward on that part of the case, but we submit that given that there are alternative proceedings raising, as we see it, the same issues, it would be preferable for those issues to be pursued in that proceeding rather than in this proceeding because the actual breach of guardianship duties appears not to be an integral element of any of the relief sought, other than their declaration that there was a breach of duty. It is not really tied up with the 75(v) relief that is otherwise sought.

HER HONOUR: No. It is sort of tied up with the statement of claim.

MR DONAGHUE: Yes, it is.

HER HONOUR: Mr Horan, I wonder if in relation to that this might be the solution, just for the moment, because it has just been highlighted, I think. Looking at paragraph 5 of your minute where it is now provided “on or before 25 February 2011 the plaintiffs file and serve”, it would be possible to insert an (a) after serve “any further evidence on which he proposes to rely” and (b) “any proposed amendment to the application for relief”. It just gives a degree of flexibility between now and the next set of directions for that matter to be given some consideration. Does that strike you as an appropriate approach?

MR HORAN: Yes, it does.

HER HONOUR: I know you do not have instructions at the moment.

MR HORAN: No, but it may be that issues such as that might not, depending on the evidence, be referred to the Full Court, but may, nevertheless, still be part of the application. I mean, again it is difficult to say without seeing what evidence the defendants call. In some respects it is telling that they are not in a position to say what the psychological state of the plaintiffs has been or is and have to engage in outside experts, presumably for the first time, to assess the plaintiffs’ psychological health and it may be that their expert agrees with our evidence, so there may not be any conflict at the end of the day in - - -

HER HONOUR: But at present.....for you to be - - -

MR HORAN: Yes. It is true that - - -

HER HONOUR: I think Dr Donaghue was raising it, really as a possibility.

MR HORAN: Yes. It is an issue that can be addressed in light of the evidence, but I agree that if there is a significant conflict, it would be difficult to have that matter proceed to the Full Court, but that does not necessarily mean - - -

HER HONOUR: Yes, I think that is right, but it is too early to know.

MR HORAN: Yes. But it does not necessarily mean that it needs to be removed from those applications, although that may be a possibility we can consider given that the matters are raised in the other proceedings.

HER HONOUR: Statement of claim, yes. That may be a solution just because there is no foreclosure of the issue by pursuing it in the related proceeding.

MR HORAN: In any event, I think the order your Honour has proposed will enable us to give some attention to that. If there is any need to amend the applications in light of the evidence that has been filed, then that caters for that possibility.

HER HONOUR: Yes thank you, Mr Horan. I will make those orders in the terms discussed in matters No M169, M171, M173 and M175 all of 2010 and adjourn all of those matters until 9.30 am on Monday, 28 February 2011.

AT 9.50 AM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 28 FEBRUARY 2011