Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCATrans 161 (24 June 2015)

Last Updated: 29 September 2015

Replacement Transcript

[2015] HCATrans 161

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M64 of 2015

B e t w e e n -

PLAINTIFF M64/2015

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Defendant

Directions hearing

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 24 JUNE 2015, AT 10.06 AM

Copyright in the High Court of Australia

MR C.J. HORAN: If your Honour pleases, I appear with MS K.E. GRINBERG for the plaintiff. (instructed by Russell Kennedy Pty Ltd)

MR S.P. DONAGHUE, QC: If your Honour pleases, I appear with MR N.M. WOOD for the defendant. (instructed by Australian Government Solicitor)

HIS HONOUR: Yes, Mr Horan.

MR HORAN: Your Honour will have seen the defendant’s outline of submissions which addresses what has been taking place since the last directions - - -

HIS HONOUR: Can I ask you this? Would there be any dispute about the inconsequence of the defect in an application?

MR HORAN: We are considering whether to amend our grounds to allege a further error arising from the misquotation of the criterion, but at this stage I do not think that would give rise to any further factual controversy. It would simply be a fall-back or an alternative argument as to whether or not that mistake gave rise to jurisdictional error.

HIS HONOUR: This is not intended to be in terrorem, but it seems to me, at least at first blush, that unless that problem, to describe it neutrally, can be disposed of now, this case is not really an appropriate vehicle for the determination of the general issue, just because it might go off on the defect in the notification.

MR HORAN: Yes. Well, that was the concern that led to the position initially taken by the defendants. It may be that the parties can address that – I propose that on the plaintiff’s side we would reconsider the grounds in the course of preparing a draft special case and if we propose to add an additional ground that that would be accommodated in the draft case. But, as your Honour points out, if reliance on that - - -

HIS HONOUR: I think it is off to the Federal Circuit Court in that case.

MR HORAN: Yes, well, there are the other difficulties presented in relation to that.

HIS HONOUR: There are, although they seemed to me to be surmountable last time with a bit of goodwill and dedication.

MR HORAN: Yes.

HIS HONOUR: That is to say by joining the parties who are really affected.

MR HORAN: What, perhaps, is the best way forward, your Honour, is for the plaintiff to consider whether or not it is prepared to agree with the defendants that that error in the reproduction of the criterion did not affect the decision.

HIS HONOUR: Yes.

MR HORAN: If, on our side, we do not rely on any error arising from that then - - -

HIS HONOUR: We can move forward fairly rapidly.

MR HORAN: - - - maybe we can move forward on the other questions. We will have to consider that in the course of finalising the special case and I think, for the purposes of today, we will take that on board, but the - - -

HIS HONOUR: I was wondering if I might not, say, give you a week to think about this point. If within the week you have come to the conclusion that you can, as it were, agree with the Commonwealth that the defect in the notification is of no consequence, we could then move forward rapidly on the special case basis. If you cannot agree by, say, a week, obviously not going to agree then we would have to, I think, pursue some of the sorts of directions that we were contemplating last time of joining other parties and remitting the matter to the Federal Circuit Court.

MR HORAN: Yes.

HIS HONOUR: Would that be satisfactory?

MR HORAN: I think so, your Honour.

HIS HONOUR: Thank you. Mr Donaghue, what do you have to say?

MR DONAGHUE: We would be very happy with that course of action. We think that there is a proper basis for us to ask our friends to agree that in fact the error was not made, notwithstanding what the notification letter says, and if they are prepared to agree that then the matter should be able to proceed without any real difficulty. But otherwise there is the risk that your Honour has referred to, which was the very thing that we were concerned about.

HIS HONOUR: If we can reach an agreement, as it were, by next week, how quickly then is it likely you could take to get through the preparations?

MR DONAGHUE: We thought there was a good prospect of being able to have an agreed document if your Honour brought us back around some time in the week of 20 July.

HIS HONOUR: That would be good. I will not make any directions about it now, but I will adjourn the further hearing of this matter until 1 July 2015 at 9.30 so that Mr Horan and his junior and others can consider whether they wish to agree that there is no consequence in the defect in notification that has been identified. If, by that stage, they are able to agree that, then we will set some directions for the filing of the special case, say, by 22 July and to come back then and have a look at it. If there is no agreement, then we will consider that next week and see what we are going to do about it.

MR DONAGHUE: Yes. If the Court pleases, I cannot be there then, but I believe my junior can be.

HIS HONOUR: Thank you very much.

MR DONAGHUE: Thank you, your Honour.

HIS HONOUR: At this stage, I will simply adjourn the further hearing of the summons for directions until 1 July 2015 at 9.30 am. Thank you.

AT 10.12 AM THE MATTER WAS ADJOURNED