Minister for Home Affairs & Anor v FRX17 as Litigation Representative for FRM17; Marie Therese Arthur as Litigation Representative for BXD18; DJA18 as Litigation Representative for DIZ18; Minister for Home Affairs & Ors v DLZ18 & Anor [2020] HCATrans 39 (20 March 2020)

Last Updated: 23 March 2020

[2020] HCATrans 039

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M121 of 2019

B e t w e e n -

MINISTER FOR HOME AFFAIRS

First Applicant

COMMONWEALTH OF AUSTRALIA

Second Applicant

and

FRX17 AS LITIGATION REPRESENTATIVE FOR FRM17

Respondent

Office of the Registry
Melbourne No M122 of 2019

B e t w e e n -

MINISTER FOR HOME AFFAIRS

First Applicant

COMMONWEALTH OF AUSTRALIA

Second Applicant

and

MARIE THERESA ARTHUR AS LITIGATION REPRESENTATIVE FOR BXD18

Respondent

Office of the Registry
Melbourne No M123 of 2019

B e t w e e n -

MINISTER FOR HOME AFFAIRS

First Applicant

COMMONWEALTH OF AUSTRALIA

Second Applicant

and

DJA18 AS LITIGATION REPRESENTATIVE FOR DIZ18

Respondent

Office of the Registry
Sydney No S289 of 2019

B e t w e e n -

MINISTER FOR HOME AFFAIRS

First Applicant

COMMONWEALTH OF AUSTRALIA

Second Applicant

SECRETARY OF THE DEPARTMENT OF HOME AFFAIRS

Third Applicant

and

DLZ18

First Respondent

FZR18

Second Respondent

Applications for special leave to appeal

KIEFEL CJ
NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO MELBOURNE

ON FRIDAY, 20 MARCH 2020, AT 10.23 AM

Copyright in the High Court of Australia

____________________

MR C.J. TRAN: May it please the Court, I appear on behalf of the applicants with MR A P YUILE in each of those matters. (instructed by the Australian Government Solicitor)

MR G.M. WATSON, SC: May it please the Court, I appear with MR J.P. WHEELAHAN in the FRX17 matter for the respondents, and I appear in the DLZ18 matter with MS D.H. TANG for the respondents. (instructed by The National Justice Project)

MR C.J. HORAN, QC: May it please the Court, I appear with MR J.E. HARTLEY and MS S. GOLD for each of respondent BXD18 and DIZ18. (instructed by Maurice Blackburn Lawyers)

KIEFEL CJ: Mr Tran, we might hear from the respondents as to why special leave should not be granted.

MR TRAN: If the Court pleases.

MR WATSON: Could I take your Honours then to the questions as posed, page 397 of the application book. There are said to be three questions. I will come to them in due course, but the second and third, we respectfully submit, just do not arise. If your Honours just look at the first question, the way that it is framed begs a larger question. It is framed in a fashion so that, it is said:

where the Commonwealth exercises –

et cetera, et cetera. With respect, that is wrong. The question would need to be framed this way. Did the Full Court fall into error in its evaluation of the facts and circumstances in determining that the Commonwealth did not exercise, et cetera? The actual question ‑ ‑ ‑

KIEFEL CJ: You are converting it to a question of fact.

MR WATSON: Well, it is a question of fact.

KIEFEL CJ: What about the grounds of appeal? Is it not more pertinent to say whether or not there is a difficulty with the grounds of appeal?

MR WATSON: Well, your Honours, I started with the special leave questions. I should have started with the grounds. It raises exactly the same problem which is that in its heart it is actually assuming or asserting, without saying so, that there was an error, akin to an error of fact, in the evaluation process undertaken by the Full Court.

KIEFEL CJ: I thought it was raising a question of construction and that is the question of general importance.

MR WATSON: That is true, but you only get there, we would say, with respect, after looking at the evaluation process which involves, if I do it this way, to take your Honours straight away to the statute. Would your Honours just turn to page 412 of the application book. This is, of course, the heart of it, section 494AB. In each instance in subsection (1), and in each instance in each of the sub‑subsections, the emphasis is on the proceedings. So it is a question about whether the proceedings, put bluntly, these very proceedings, are ones which can be characterised in that way and it is a question of whether these proceedings can be or could ever have been instituted or continued. So that is the question. It is about the proceedings. Following that ‑ ‑ ‑

NETTLE J: That is correct, but why does that not exactly accord with ground 1 of the grounds of appeal?

MR WATSON: Because to get to ground 1, your Honour, would require demonstrating that there was some error in the first determination, which we say is this. It involved making a characterisation of the actual proceedings.

NETTLE J: Yes.

MR WATSON: It is these proceedings. At the time that the question was posed, of course, that could only be done through the pleadings.

NETTLE J: Yes.

MR WATSON: It had to be done as a matter of substance and I might say that the Full Court recognised this as the issue tendered to it. I will just mention these references. It is at application book page 316, paragraph 104, having built that on the back of.....for example, our submissions before the Full Court, at paragraph 99, which is at application book page 316.

NETTLE J: But what is wrong with determining or characterising the proceedings by reference to the issues as disclosed in the pleading?

MR WATSON: We say that is the right way to go about it, and we say that their Honours in the Full Court did it the right way, and that they were perfectly correct, or, to put it more bluntly, it certainly could not be shown that in conducting that characterisation their Honours erred.

NETTLE J: That is the question for appeal, is it not?

MR WATSON: That is not the way that the ground of appeal was framed. It rather assumed the characterisation of the proceedings was in error and then you would come to those.....under the statute. The Full Court ‑ ‑ ‑

KIEFEL CJ: This is, perhaps, on one view, a rather technical approach. One always starts with the statute, we know that, and the question is whether or not proceedings relating to the performance or exercise of a function in relation to a transitory person, that is what is involved. So one construes what such proceedings might be by reference to the phrase “relating to the performance or exercise of a function” and then one goes to the proceedings to see if they are of that character.

MR WATSON: Well, that is what we say ‑ ‑ ‑

KIEFEL CJ: I mean, I know that you would like to start the other way around and then you would have a question of fact and an inappropriate vehicle but that is not actually how it works.

MR WATSON: With respect, we would contend that the way in which the Full Court approached the question accords with your – the Chief Justice’s analysis. Could I say this?

KIEFEL CJ: Does not that just point up that this is a question of general importance? There are more than 50 proceedings hanging on this question. True, it is, it is interlocutory, but this is, of its nature, a true preliminary question, is it not, because its determination, once and for all, will determine the outcome of a large number of matters. Your clients have the protection of the undertaking with respect to costs, so what is there that would prevent the grant of special leave?

MR WATSON: I could not, in good conscience, say if your Honours got to that point that the case would not warrant special leave but our submission is ‑ ‑ ‑

NETTLE J: I am sorry, I am not following it because you put and I accept because it appears to be correct, that the court below characterised the proceedings as not relating to the performance or exercise or function within the meaning of 494A. They were either right or wrong about that.

MR WATSON: Yes.

NETTLE J: What is the difficulty then in us deciding whether they were right or wrong about that?

MR WATSON: Well, there would be no difficulty. It is just whether or not that actually raises a process in which your Honours wish to engage, bearing in mind that their Honours came to that after an analysis which took over 100 paragraphs in the book or judgment – a careful look at each of four sets of pleadings and arrived at it really as a question of evaluation. It is not a matter of law. Unless that process was demonstrated to have been an error we would respectfully submit that this Court would just not intervene and because that is the way that this Court would need to approach the question we would say that it does not give rise to a special leave point.

KIEFEL CJ: Essentially you are saying their Honours were correct and there is no reason to doubt it.

MR WATSON: A little more than that. We say that their Honours were not only correct but they were correct in making what is ‑ ‑ ‑

KIEFEL CJ: A factual evaluation, there is no question of law. If there is a question of law, that is the end of your argument.

MR WATSON: Would your Honours just look at page 353 of the application book. It is really paragraphs 208 and 209.

KIEFEL CJ: Yes.

MR WATSON: Your Honours, we say that the process which their Honours came to was impeccable in the sense that their Honours found this has little or nothing to do with the statute, it is not under the statute, it is not dependent upon the statute, it does not emerge from it. The statute might be there by way of background but this is a common law negligence claim.

NETTLE J: Well, it is, in substance, but why does that make any less important the question of whether such a proceeding is one which relates to within the meaning of the section?

MR WATSON: Your Honour, I would only be repeating myself.

NETTLE J: I am sorry, I am missing the point. I just ‑ ‑ ‑

MR WATSON: Your Honour, our point is simply this, that what their Honours in the Full Court were engaged in was essentially a factual question involving an evaluation at which they arrived at a conclusion. Now, we say it is right but even if it was arguably wrong it would not be an appropriate special leave question to ask this Court just to review.

KIEFEL CJ: But the factual question is determined in light of the application of the statutory provision as interpreted by the court. You do not do it in a vacuum. The leading question is what do the words that require - is it simply a relationship required or is there something more direct?

MR WATSON: Your Honour, I have done my best to deal with that.

KIEFEL CJ: You have.

MR WATSON: I will just mention quickly why we say that second and third questions should not come to this Court. The second question is, in effect, an assertion that the Full Court decision means that a negligence claim, no matter how it is pleaded, no matter how it is particularised, will not come within the bar. Now, the answer to that is that the Full Court never said any such thing and what is more such an idea is quite incompatible with the way in which the Full Court engaged in the evaluation to determine whether or not these four proceedings did or did not come within the bar. That question just simply does not arise because the judgment below does not stand for the proposition.

NETTLE J: I took it to be a question and, with respect, it is broadly drafted but nonetheless one directed to the point of whether the section is confined to proceedings or review of jurisdictional error like other not dissimilar sections in the Act or whether it goes more widely to other sorts of proceedings.

MR WATSON: That would fall within the first question, in any event.

KIEFEL CJ: That is probably – it might be right – they might be all subsumed.

MR WATSON: If your Honours look at the third question, with respect, it is a little..... It is an assertion that their Honours in the Full Court dealt with the matter as a matter of form rather than substance. That just should be rejected out of hand. Their Honours, three of Australia’s most respected judges, twice said that the matter that they were dealing with needed to be dealt with as a matter of form not substance.

I will just give your Honours the references to that - paragraph 154 on application book page 333 and paragraph 181 on application book page 343. Again, if their Honours in the Full Court were dealing with this as a matter of mere form not substance, how is that compatible with the idea that their Honours spent 100 paragraphs of the judgment going through that careful factual analysis. Unless your Honours wanted to hear more from me, that is – I would say special leave should be refused.

KIEFEL CJ: Thank you, Mr Watson. Yes, Mr Horan.

MR HORAN: If the Court pleases. We, as your Honours will have seen from our written response, say that the question of statutory construction does not raise a question of general importance, that is, for a couple of reasons. The first is that the Full Court correctly identified the applicable principles of statutory construction and applied orthodox principles and approaches to resolving the question before it.

The construction adopted by the Court was clearly available if not clearly correct and that that construction satisfactorily resolves the questions about the application of the statutory bar to these particular proceedings and provides guidance for other proceedings in the fairly specific class that is affected.

Ultimately, the practical effect of a decision concerns simply whether a special category of proceedings are required to be recommenced or moved into this Court and further in circumstances where if those proceedings can then be remitted they would simply end up back before the Federal Court or the other relevant State or Territory court to continue. Now, we say, that the question ‑ ‑ ‑

KIEFEL CJ: You are pointing to the interlocutory nature of this question, are you?

MR HORAN: No, what I am – in one sense it is – that aspect is a submission on which the court below placed little weight which is the inconvenient consequences of the construction but, we say, although that might not have been a factor that bears upon the construction of the section and the Full Court did not treat it as such it is, nevertheless, a factor that bears upon the discretionary considerations going to whether it is a suitable case for the grant of special leave.

Ultimately, the Parliament can address the legislative policy by, if necessary, making amendments to the section to – if it is thought that the way in which the section is operating is undesirable or unintended. We say that, in particular, the appeal does not raise any question about the nature and scope of Commonwealth Executive power which is one of the questions that is said to attract a grant of special leave whether generally or in relation to regional processing countries and so this is not a – these cases are not a suitable vehicle to address any question about the nature and scope of those issues or the construction of section 198AHA.

KIEFEL CJ: These are provisions which affect the jurisdiction of courts.

MR HORAN: It is but only in a sense that as the respondent – as the applicant, the Commonwealth themselves say, to allocate cases between differing courts in a way that would shuttle these cases into this Court and deprive any others ‑ ‑ ‑

KIEFEL CJ: You mean the fact that the High Court can hear 50 or so of these cases does not affect the fact that this is a – these are provisions affecting the jurisdiction of courts more generally.

MR HORAN: In so far as they do, they have been resolved in a way that is, we say, correct and which provides a satisfactory framework by which these proceedings, the current cohort and any future proceedings can be managed. So, in those circumstances, the implications of the construction are very confined and do not raise any question of general public importance that would require consideration by this Court.

KIEFEL CJ: Is there not a question – is there not an issue of public importance in a body of litigation that is awaiting final determination? I mean, until this Court pronounces upon it, there will be appeals to other intermediate appellate court benches in an attempt to obtain differing decisions or differing views and there may even be – and there will be further litigation. Why would not this Court pronounce upon something in these circumstances?

MR HORAN: Because all of those proceedings can be addressed and determined in accordance with the construction that has now been authoritatively determined by the Federal Court.

NETTLE J: But another court might think that this decision is plainly wrong.

MR HORAN: Well, it has not yet and, if so, that would potentially be the vehicle at that point for resolving any difference of opinion.

KIEFEL CJ: Exactly, that is the point. Why do we have to wait until then when there is a large body of cases out there awaiting what is truly a proper preliminary point? They do not often arise but this one truly is determinative of proceedings, is it not?

MR HORAN: Well, I accept what your Honour says. We say that there would be no productive consequence of revisiting the Full Court’s construction but ultimately it is a matter for your Honours as to whether that issue of statutory construction is sufficiently important to warrant its definitive settling by a Full Bench of this Court. So, I will say no more on that question.

I should say that that is primarily directed to the bar in 494AB(1)(ca) upon which most of the argument below proceeded but I will, to some extent, join with my learned friend, Mr Watson, in submitting that even if ground 1 which is directed to that particular paragraph of the bar is thought to warrant a grant of special leave, grounds 2 and 3 which are directed to
the separate paragraphs (a) and (d) of section 494AB(1) do not raise any similar question of importance. In fact, in the places in which I appear, those paragraphs were, in fact, attracted on the facts.

So, the Commonwealth succeeded in demonstrating that the proceedings were barred by reason of those paragraphs but we say the approach adopted by the Full Court to those sections firstly turns on contested issues of fact which were not agreed or determined below and, in fact, on which there was no evidence and, secondly, do not raise the same questions of importance that might be thought to arise from paragraph (ca).

Now, of course, in one sense it may be that if the Court is minded to grant special leave on ground 1 there may be little – I mean, granting it on grounds 2 and 3 insofar as the common issue as to the meaning of the term “relates to” will arise in relation to all grounds but, we say, that the issues raised by those grounds and those paragraphs are far more confined and they are problematic on the appeal because, ultimately, the Commonwealth is making contentions that are simply not open on the material that was before the court below, that is, that the only place to which the respondents could have been brought was Australia and that is simply not something that was agreed or demonstrated.

In the absence of any findings or even evidence on those questions then the Court is not in a position to determine the Commonwealth’s central contention bearing upon the application of those paragraphs to these particular proceedings. So, in short, if there is a grant of special leave it should be confined to ground 1. If your Honours please.

KIEFEL CJ: Yes, thank you, Mr Horan. Mr Tran, we would just like to hear from you in relation to whether grounds 2 and 3 arise.

MR TRAN: Your Honours, grounds 2 and 3 do not arise in all cases so as Mr Horan noted in one of the proceedings, BXD18, the grounds are not even pressed in that respect because the Commonwealth had success in respect of those. We do say that the question whether section 494AB(1)(a) and (d) should come up into this Court and the Commonwealth can give consideration to in which particular proceeding they arise when we are filing our notice of appeal because, first, these are test cases we had designed by the Full Court deliberately in choosing the four to assist in the determination of other cases. So, insofar as it is a discretionary element as to whether or not the Court would grant special leave in respect of those grounds, we say, there is a public importance in respect of those.

KIEFEL CJ: They should be left for argument on appeal.

MR TRAN: Indeed, your Honours, and in respect of other vehicles, not one in Mr Horan’s cases but other cases, the Commonwealth was not successful and we do agitate different orders in respect of those paragraphs.

KIEFEL CJ: What do you say you might need - you and your leader might need to give consideration to reframing ground 1 to make perhaps a question of construction a little clearer?

MR TRAN: Yes, if the Court pleases we will give attention to that, yes.

KIEFEL CJ: There will be a grant of special leave in this matter. What is your time estimate, Mr Tran?

MR TRAN: One day, your Honours.

KIEFEL CJ: Do you agree with that? Mr Horan, do you agree, one day?

MR HORAN: I think so, although there will be the two cohorts of respondents but we should be able to ‑ ‑ ‑

KIEFEL CJ: Is there any likelihood that it would spill over into a second day?

MR WATSON: There is a chance, your Honour, with the vague suggestion of the executive power argument it would spill over.

KIEFEL CJ: You do not agree, Mr Tran?

MR TRAN: I think one day so long as the respondent parties avoid duplication. I do not say that they would – say that they would duplicate but duplications avoided I would think one day, your Honours.

KIEFEL CJ: Thank you. Would you please ensure that your instructing solicitors obtain a copy of the timetables?

The Court will adjourn to reconstitute.

AT 10.48 AM THE MATTERS WERE CONCLUDED