Plaintiff S138/2012 v. Australian Security Intelligence Organisation and Ors [2012] HCATrans 301 (19 November 2012)

Last Updated: 21 November 2012

[2012] HCATrans 301

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S138 of 2012

B e t w e e n -

PLAINTIFF S138/2012

Plaintiff

and

AUSTRALIAN SECURITY INTELLIGENCE ORGANISATION

First Defendant

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Defendant

COMMONWEALTH OF AUSTRALIA

Third Defendant

Application for order to show cause

HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO MELBOURNE

ON MONDAY, 19 NOVEMBER 2012, AT 9.29 AM

Copyright in the High Court of Australia

MR J.K. KIRK, SC: May it please the Court, I appear with my learned friend, MS A. MUNRO, for the plaintiff. (instructed by King & Wood Mallesons)

MR S. DONAGHUE, SC: May it please the Court, I appear with my learned friend, MR N. WOOD, on behalf of the defendants. (instructed by Australian Government Solicitor)

HIS HONOUR: Yes, thank you, Mr Donaghue. It is just a question of making directions, which the proffered directions are not identical but very similar. I was mildly attracted to the defendant’s, does that matter, Mr Kirk?

MR KIRK: Not especially, your Honour.

HIS HONOUR: It is just a question of – or at least one question is whether it is whether it is a good idea to move by reference to fixed dates rather than leaving it open-ended. I am presently of the view that there is no real alternative but to have the matter referred to the Full Court and obviously the sooner that can be done the better, subject to the possibility of Mrs Stone’s role resolving the matter.

MR KIRK: Yes. If I could add one thing, your Honour, in relation to proposed order 2 of the defendants. It does set a date and we have no issue with that. I have had discussions with my learned friend, Mr Donaghue, and we are confident that there will be good faith efforts on both sides in order to seek to reach agreement on a special case and at the moment I think it is fair to say we are fairly confident that that can be done.

HIS HONOUR: Very good. Now, I just momentarily have lost - are you in agreement with this conversation, Mr Donaghue?

MR DONAGHUE: Yes, indeed.

MR KIRK: Would your Honour be assisted by my copy of - - -

HIS HONOUR: Yes, thank you.

MR DONAGHUE: We do need, your Honour, to add an order as to costs of the directions hearing, being costs in the cause which we left off our version but which was in Mr Kirk’s version.

HIS HONOUR: I think actually that is not necessary. There is a rule which I believe makes questions of that kind resolved in the end by the ultimate winner, subject to contrary order of the Court at a later stage, so it is not actually necessary.

MR DONAGHUE: Thank you, your Honour.

HIS HONOUR: I will make the orders that are set out just above the names of Mr Donaghue and Mr Wood in the defendant’s submissions, unless there is anything further anyone wants to say.

MR DONAGHUE: Not from us, your Honour.

MR KIRK: The only thing I think is it is necessary to set a date for further directions and, in light of the date in order 2, that might conveniently be sometime in early or mid-February, subject to the Court’s convenience. Perhaps the week of 11 February, your Honour. I think that is a sitting week.

HIS HONOUR: That is a sitting week, although sitting is something I do not do very much of these days.

MR KIRK: Some more than others.

HIS HONOUR: What about, say, Monday the 18th, is that convenient?

MR KIRK: Yes, that is suitable, your Honour, although actually Tuesday the 19th would be more suitable if it suited the Court.

HIS HONOUR: Is Tuesday the 19th satisfactory, Mr Donaghue?

MR DONAGHUE: That is suitable, your Honour, yes.

HIS HONOUR: I will make it for that day then.

MR KIRK: If it please the Court.

HIS HONOUR: In view of what has been said, I make the following directions:

(1) The plaintiff has leave to file an amended application for an order to show cause within 14 days.

(2) The parties are to confer with a view to agreeing a special case and, if agreement is reached, filing an agreed special case by 1 February 2013.

(3) The matter is listed for further directions on Tuesday, 19 February at 9.30 am.

MR KIRK: If it please the Court.

MR DONAGHUE: If it please the Court.

HIS HONOUR: I am grateful to counsel for their assistance. The Court will now adjourn to the Court on Level 23.

AT 9.33 AM THE MATTER WAS CONCLUDED