Plaintiff S195-2016 v Minister for Immigration and Border Protection (Cth) & Anor [2016] HCATrans 272 (15 November 2016)

Last Updated: 17 November 2016

[2016] HCATrans 272

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S195 of 2016

B e t w e e n -

PLAINTIFF S195/2016

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION (CTH)

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 15 NOVEMBER 2016, AT 9.28 AM

Copyright in the High Court of Australia

MR T. MOLOMBY, SC: If it please the Court, I appear for the plaintiff, and MR J. WILLIAMS appears with me. (instructed by O’Brien Solicitors)

MR G.R. KENNETT, SC: May it please the Court, I appear with MR P.D.. HERZFELD for the defendants, at this point. (instructed by Australian Government Solicitor)

HER HONOUR: Yes, thank you. I am afraid, gentlemen, that there seems to be some difficulty with the video link screen, so I think we will just bear with it.

MR MOLOMBY: If it please the Court.

HER HONOUR: Yes, Mr Molomby.

MR MOLOMBY: Your Honour, the parties are in agreement on one point, and it is a fundamental point, and that is that there is another party who should be joined - - -

HER HONOUR: Yes.

MR MOLOMBY: - - - Broadspectrum, and therefore some time is needed to accommodate their interests and their response to being served. We are in the position to ensure that they are served today. Their head office, I am instructed, is close by - I think it is in North Sydney - and on our willingness to achieve that, we would be seeking that the Court make some appropriate order as to their entrance of an appearance and then a date on which we come back before the Court.

HER HONOUR: Yes. It would be convenient, would it not, Mr Molomby, for there to be some opportunity for the parties to have discussions before the matter comes back before the Court. I have had the opportunity to read the outlines of submissions filed for today’s directions hearing and there are some questions that are raised on behalf of the Commonwealth parties that might be usefully considered in endeavouring to crystallise the issue or issues that might be suitable for a special case.

MR MOLOMBY: Yes, and, your Honour, we have no dispute with that.

HER HONOUR: Yes. What I had in mind, Mr Molomby, was if the matter were to come back - I will be in Canberra, but it could be done by video link on Wednesday, 7 December, would that suit you, at 9.15?

MR MOLOMBY: It would suit me personally, your Honour, yes.

HER HONOUR: Mr Kennett, how are you and Mr Herzfeld placed?

MR KENNETT: Your Honour, the 7th is suitable for me, maybe for Mr Herzfeld, but we would just have to muddle on without him.

HER HONOUR: Thank you, Mr Kennett. All right, if we work to that. Now, Mr Molomby, just one further matter. I note the Commonwealth parties do not oppose the grant of leave to file the amended application for an order to show cause that was filed on 3 November 2016.

MR MOLOMBY: Yes.

HER HONOUR: It might be that some attention could be given to paragraphs 14 and following described as particulars. It is unclear to me what function they serve.

MR MOLOMBY: Yes, your Honour.

HER HONOUR: Again, that is a matter perhaps that attention can be directed to over the course of the period between now and 7 December.

MR MOLOMBY: Yes, your Honour. We accept attention needs to be given to the – it is really a critical question - the factual substratum on which the case is to be argued.

HER HONOUR: Yes. Some time ago, before the commencement of these proceedings, in proceedings brought on behalf of Plaintiff S99 and a number of other plaintiffs, from which it was ultimately proposed that the present proceeding would be hived off, as I understood it there was a central issue relating to the significance of the finding by the Supreme Court of Papua New Guinea in the Namah Case that PNG did not have authority to enter into the arrangement which was the subject of the retrospective provisions of section 198AHA.

MR MOLOMBY: Yes.

HER HONOUR: If that is the issue, it seems to me that the pleading could still do with some refinement to make clear the precise basis, and I did not understand the particulars really assisted in that endeavour. In terms of orders today, apart from standing the matter over for further directions to 9.15 on Wednesday, 7 December, an order should be made for the joinder of Broadspectrum. Is there anything else that need be attended to today, Mr Molomby?

MR MOLOMBY: We had submitted in a written submission yesterday, your Honour, that it would be appropriate to deal with the extension

question, merely as a matter of practicality. If an extension were not to be granted the parties would be spending time without any cause from now on.

HER HONOUR: As I understand it, the making of the extension today is opposed. A convenient course, it would seem, would be to deal with it at a time when the parties have had an opportunity to discuss the matter. One might expect little opposition in the event there were agreement on the basis on which the matter might proceed, Mr Molomby, but at the present time I am by no means sure that that is the case in light of the Commonwealth party’s submissions. It seems to me the more fruitful course would be to stand over the extension application. There is, as between you, an issue as to whether an order under section 486A is required or whether orders dispensing with time under the rules are required, and that in turn depends on an analysis of precisely what is the subject of contention.

MR MOLOMBY: If it please the Court.

HER HONOUR: Yes, very well. Mr Kennett?

MR KENNETT: Your Honour, I do not think there is anything else. I took it that your Honour was inclined to postpone the question of leave to amend until the next occasion to give our friends an opportunity to consider those paragraphs.

HER HONOUR: It seemed to me that is the sensible course.

MR KENNETT: In that case, there is no need for me to say anything about the question of leave to refer to the evidence in the other case. I think that can wait to see how much of it is actually referred to. So I do not think there is anything else that I need to mention, your Honour.

HER HONOUR: Very well. I direct that Broadspectrum Australia Pty Ltd be joined as the third defendant to the proceedings and I stand the proceedings over for further directions to 9.15 am on Wednesday, 7 December 2016 in Canberra. The proceedings may be conducted by video link with the parties appearing in Sydney. I will adjourn.

AT 9.38 AM THE MATTER WAS ADJOURNED