Plaintiff M174/2016 v Minister for Immigration and Border Protection & Anor [2017] HCATrans 36 (22 February 2017)

Last Updated: 2 March 2017

[2017] HCATrans 036

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M174 of 2016

B e t w e e n -

PLAINTIFF M174/2016

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

IMMIGRATION ASSESSMENT AUTHORITY

Second Defendant

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 22 FEBRUARY 2017, AT 8.59 AM

Copyright in the High Court of Australia

MR R.C. KNOWLES: Your Honour, if it pleases the Court, I appear for the plaintiff. (instructed by Victoria Legal Aid)

MR N.M. WOOD: Your Honour, if it pleases the Court, I appear for the first defendant. (instructed by Australian Government Solicitor)

HIS HONOUR: Any advances, Mr Knowles?

MR KNOWLES: Yes, your Honour. I am pleased to say that I can hand up to the Court a proposed form of order which the parties have agreed to.

HIS HONOUR: Excellent. Perhaps I should not, but I shall inquire as to what is to be done with the Federal Circuit Court proceedings, Mr Knowles.

MR KNOWLES: Yes, your Honour. The position is that I am instructed to give the undertaking that appears in the other matters in the order and I do so.

HIS HONOUR: Yes.

MR KNOWLES: That is that the plaintiff will, by 4.00 pm on 23 February 2017, file a notice of discontinuance under the Federal Circuit Rules 2001 with respect to Federal Circuit Court proceeding no MLG 1257 of 2016 which is known as BLW16 v Minister for Immigration and Border Protection. So that is what is to occur with the Federal Circuit Court proceeding. I should say, your Honour, that in terms of a notice of discontinuance being filed, my client does that on the understanding that there will not be any adverse costs consequences to my client as a result of filing the notice of discontinuance.

HIS HONOUR: There will be unless the Federal Circuit Court otherwise orders.

MR KNOWLES: That is so, your Honour, and it is hoped, although I do not believe there is a final position on this yet – I will wait to hear from my learned friend – but it is hoped that there will be agreement about that, that there should be no order as to costs in that Federal Circuit Court proceeding.

HIS HONOUR: Yes, thank you. Mr Wood.

MR WOOD: Your Honour, I agree with my friend that these orders are agreed as appropriate. The premise, that perhaps is not apparent on the face of the document, your Honour, is that the parties, I think, agree that it is appropriate that there be negotiation of a special case that would focus on the existing ground pleaded in the application for an order to show cause.

HIS HONOUR: Yes.

MR WOOD: That ground is the ground that we think can or can only be decided by this Court, or in any event should be, it depending on the validity of the delegate’s decision which can only be decided by this Court. The plaintiff, as I understand it, intends to file a further amended application for an order to show cause that would identify an additional ground of the kind, I think, that was discussed upon the last occasion.

HIS HONOUR: That is to say the legality of the immigration from Iran.

MR WOOD: It is a different ground of review focused only on the decision of the Immigration Assessment Authority. That ground plainly could be considered by the Federal Circuit Court and it is on the basis that this Court does not need to decide that part of the matter when it is pleaded. The intention, as I understand it, is that that the parties will negotiate a special case limited only to the issues that need to be decided by this Court.

HIS HONOUR: Yes, I see.

MR WOOD: That is the basis upon which – and in recognition of the concerns raised by the Minister about possible abuse of process issues – and I understand the plaintiff does not agree that running two proceedings about the same decision would involve abuse of process, but to avoid any issue about that is why, as I understand it, the plaintiff proposes to discontinue the Circuit Court proceeding on the footing that he has leave under order 2 to plead an additional ground in this Court, but the only ground in effect that is proposed to go up to the Full Court would be the ground that needs to be decided by this Court, which is the existing ground.

Now, of course, it may not prove necessary for any part of the – for the remainder of the matter to be remitted to the Circuit Court. That will depend on the Full Court’s consideration of the existing ground, for example, if the High Court considers that the Immigration Assessment Authority has made a jurisdictional error because the delegate’s decision is affected by jurisdictional error, then of course there is nothing that needs to be remitted.

If, on the other hand, the Minister succeeds in the special case that the parties are contemplating, then it may be necessary or appropriate to remit the additional ground back down to the Circuit Court. That is the thinking behind the orders as I understand it, your Honour.

HIS HONOUR: That sounds very satisfactory and sensible, Mr Wood. What is to be done with the costs of the Federal Circuit Court proceeding?

MR WOOD: That is the only untidiness, your Honour. I think it is fair to say that no one had thought about the issue of costs until this morning. Your Honour is correct, of course, that if the plaintiff simply files a notice in the Circuit Court the default rule would be the plaintiff pays the costs, I think, in the fixed amount of the order of $1,600. We are endeavouring to obtain instructions as soon as we can but it has been too early as yet to get those.

I cannot commit to our position but I hear my friend has given, I think, now a qualified version of the undertaking recorded in the other matters, which seems to be qualified on the basis that the Minister in effect agrees to an order being made in the Circuit Court proceeding that there be no order as to costs.

HIS HONOUR: Yes.

MR WOOD: Perhaps the practical thing to do, your Honour, is – and I will confirm my instructions in a moment, but if that qualified undertaking be given and perhaps recorded clearly, there will be no need to come back to your Honour if, of course, the Minister in due course later today does agree that there will be no order as to costs and then the undertaking will take effect and only if the Minister has a different position might the parties need to come back to the Court. It is unfortunately messy, your Honour, but it reflects the fact that no one had thought about the costs issue until this morning.

HIS HONOUR: So it is proposed that I should make an order conditional upon the Minister consenting to seeking no order as to costs in the Federal Circuit Court, or we just make the orders as they are unconditionally and hope for the best with the Minister - - -

MR WOOD: Can I just have a moment, your Honour? Thanks for that, your Honour. The proposal, which I have just briefly discussed with my friend, is that if your Honour take this document and if your Honour is prepared to do so, make the orders in chambers later today, unless the parties contact you, in the anticipation, which I do not know, that the Minister might agree during the course of the day to bear the costs of the Circuit Court proceeding in which case these orders can be made in unqualified and uncomplicated terms.

HIS HONOUR: Very well. In that event I shall do so, having noted that when and if these orders as proposed are to be made later in chambers, they will be done so upon the basis that the plaintiff will have undertaken by his counsel to the Court that he will, by 4.00 pm on 23 February 2017, file a notice of discontinuance under the Federal Circuit Court Rules 2001 (Cth) with respect to Federal Circuit Court proceeding no MLG 1257 of 2016. If you can let me know at some time then I will make the rest of the orders, as it were, in chambers without any further necessity for attendance of counsel.

Thank you both, gentlemen, very much.

I will adjourn now.

AT 9.09 AM THE MATTER WAS ADJOURNED