Montgomery v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2021] HCATrans 188 (8 November 2021)

Last Updated: 11 November 2021

[2021] HCATrans 188

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S173 of 2021

B e t w e e n -

SHAYNE PAUL MONTGOMERY

Applicant

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

MINISTER FOR HOME AFFAIRS

Second Respondent

KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE

ON MONDAY, 8 NOVEMBER 2021, AT 9.26 AM

Copyright in the High Court of Australia
HIS HONOUR: In accordance with the Court’s protocol when sitting remotely, I will announce the appearances for the parties.

MR P.G. WILLIS, SC appears with MR M.L.L. ALBERT, MR A. ALEKSOV and MS E.R. TADROS for the applicant. (instructed by Russell Kennedy Lawyers)

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia, appears with MR P.M. KNOWLES for the respondents. (instructed by Australian Government Solicitor)

HIS HONOUR: I have before me the draft special case that was provided this morning and I have the affidavit of Niamh Catherine Lenagh‑Maguire sworn today. I understand the issues that are between the parties in relation to the terms of the draft special case relate to the annexing to the draft special case of affidavits and other material of a factual nature and a difficulty as to the terms of the question. So, Mr Willis, you might assist by telling us the problem.

MR WILLIS: Certainly. If I could just address, first, your Honour, the inclusion of the affidavit material. The special case has been negotiated with detailed footnotes which your Honour will have seen which cross‑refers to affidavit material. The stated case essentially is a precis of material. There are 128 pages of text across the nine affidavits that are referred to. The pages blow out simply because of repetition and of inclusion of annexures which includes the standard kind of births, deaths and marriage certificates and various other things which would not really be of moment for the Court.

It is the 128 pages or so of text which the applicant – or Mr Montgomery considers would be essential for the Court to understand the true nature of his position because the affidavits are one of Mr Montgomery himself, which is 23 pages, which tells his story in his words. There are three affidavits of members of the Aboriginal community and people – the Munanjali people who have adopted him, being immediate family of the adoptive family. There are three affidavits of elders of adjoining groups testifying either directly to knowledge of Mr Montgomery and the Munanjali people or else of elders who have confirmed his status.

There is an expert anthropologist report of 64 pages, which puts in context in the way that expert anthropologists do, the other materials which have been filed. We consider that that would be of material assistance to the Court, and also essential for Mr Montgomery’s case to be explained and his situation – his position as an adopted member of this Aboriginal community to be fully understood.

There is a complexity – there is not a standard circumstance – we accept that, and for that reason we consider that the Court would really best understand the position from which the legal issues arise if it has access to this material. In that respect we would say it is very much like – the analogy would be with a case in the appellate jurisdiction where there has been a trial and there comes up to the court findings of fact by trial judge.

The appeal book will invariably include the selected and relevant factual material on which the trial judge has found facts. Here, the agreed stated case forms an equivalent to the trial judge findings, or an equivalent to a fully argued statement of claim, if we are using a different analogy, the demurrer analogy, and the affidavits in that respect would form the particulars which support that statement.

We consider that there is no prejudice to the Commonwealth in them being included, and despite Ms Maguire’s suggestion that there are 1,000 pages, which might suggest some burden, as I have indicated there are only 128 pages of substantive text. The rest are exhibit sheets, photographs and, as I say, repetition.

The last matter is that we note that the Commonwealth itself, in submissions on the first occasion we came before your Honour, which were dated 24 September I believe, or filed at that point, said that the Commonwealth took no issue with any of the essential – or material facts that were set out in these affidavits except for one matter which we would not read. There are four paragraphs of one witness who we would accept raises an anthropological contention which is unnecessary for this case and we would not rely on that. We have indicated to the Commonwealth to that effect.

If I could then turn, your Honour, to the question – and your Honour will see in the draft that has been provided in a green box – this in on the last page, page 20 of the proposed ‑ ‑ ‑

HIS HONOUR: Yes, I have that.

MR WILLIS: Our concern with the framing of the Commonwealth’s question is that it is not anchored to the particular legislation, or the particular head – the particular power which is being invoked in this case and, therefore, it has the potential, as expressed, to raise a question about whether it is within the power of the Commonwealth of the Parliament to treat Mr Montgomery as an alien for the purposes of the Marriage Act or for the purposes of the Social Security Act.

So, it was really a technical difference in perspective between ourselves and the Commonwealth. We thought that the question should be
framed directly referring to the matter which has brought the constitutional question into focus because it is only that question which the Court would answer.

We understand the Court, in the recent Mineralogy decision handed down on 13 October, with which your Honour is fully familiar, to be in a sense making the same point to all litigants that the Court does not give advisory opinions and only addresses those questions of statutory power or statutory validity which are directly related to the facts in issue between the parties. So, on the question of the framing of the question, that is really the only issue – that is why the applicant has proposed a different framing of the question.

HIS HONOUR: I suppose it could be said that - to the extent that that is your problem with the question as framed by the Commonwealth, it could be met by the addition of the words after the words “as an alien” “for the purposes of the Migration Act 1958 (Cth)” rather than referring to the authority to authorise or require your client’s detention.

MR WILLIS: Yes.

HIS HONOUR: One can understand that that does perhaps raise the possibility that there might be other issues lurking around rather than your client’s status as an alien or not.

MR WILLIS: It certainly – we accept that it is the status as – not as an alien is the issue. So, certainly tying to the Migration Act – whether it is tied to that Act generally, your Honour, or whether it is tied to section 189 as the operative provision of that Act is the further question perhaps.

HIS HONOUR: Thanks, Mr Willis. Yes, Mr Solicitor. What do you want to say?

MR DONAGHUE: Thank you, your Honour. Your Honour, the Commonwealth has ringing in its ears, so to speak, the recent statement of six Justices of this Court in Mineralogy at paragraph 55 where the Court emphasised the obligation of the parties to bring no less precision to the framing of adjudicative facts in a special case than is necessary to be brought for the framing of the facts in a pleading that is appropriate for a demurrer.

That is what we have tried to do in the document that your Honour has in front of you, but, in our submission, that precision simply cannot be achieved if, in addition to the statement of facts in that way, there is then in addition some hundreds of pages – 946 pages even on our friend’s case – hundreds of pages of material that diverge in various respects as between each other in the attached affidavits and also perhaps more importantly as between the affidavits and the facts that are agreed by the parties in the special case.

Can I give your Honour just one practical illustration of the problem. I will not detain the Court for long on it, but if your Honour has the special case, could you look at paragraph 51(c) of the draft. You will see – it is at the bottom of page 14 – the second sentence in that paragraph says:

This initiation and cultural education went for approximately three months –

No problem there:

and is the same process that any other Munanjali boy would have undergone to bring him into manhood and onto country.

Then there is a footnote, 65, and you will see there is a reference to three affidavits plus the expert report there. That sentence that I have just read – “would have undergone the same process as any other Munanjali boy” – reflects the evidence in Ms Chetty’s affidavit at the identified reference almost precisely. So there is a foundation in the affidavit evidence for the agreed fact.

But if one looks at Mr Goltz’s affidavit – and your Honour does not have it in front of you, but I can tell you what the relevant paragraph says – in the paragraph immediately after the one cited, 42, Mr Goltz says, and I quote: “Initiation does not really happen very much any more, but Shayne’s initiation was done especially for him as the last bit of his journey of connection to us”.

Now, the parties in negotiating the special case can deal with tensions or uncertainties in the evidence or affidavits by negotiating about precisely what the facts should be taken to be for the purpose of the Court resolving the dispute. As I say, there is a proper evidential foundation to agree the fact. But if the Court is confronted with a special case that has an agreed fact and then has a body of affidavits that say various different things about the very same topics that are addressed in the agreed facts, in our submission the parties do not know and the Court does not know what the relevant factual foundation actually is.

There is obvious scope – and I have just picked that as one example. We could do multiple examples of that kind of issue for a factual dispute to break out in the High Court if our friends start referring to parts of the affidavits and we say, hold on, there is a paragraph about this same topic in the special case.

In our submission it is an extremely undesirable precedent to set to allow parties to negotiate a special case and then for one party to supplement that document by saying, “We’ll have all of our primary evidence as well in case in some way we’ve missed something that we later decide we want to rely upon in the course of our argument”. It just destroys the whole utility of the special case procedure, in our submission, where the rule contemplates that all of the material facts will be set out in the special case itself and the material documents will be exhibited.

So, in our submission, it is a misuse or a subversion of the special case process to do what is proposed here and it can only lead to uncertainty and difficulty and absence of precision of the very kind that the Court has emphasised is necessary.

Could I also just add briefly, your Honour, that in fact, at least as the Commonwealth sees it, almost all of the facts in this special case are unnecessary to the resolution of the legal issues before the Court. The two main issues, as I said to your Honour on the last occasion, are whether Love and Thoms should be overruled, and if it is not overruled, whether a person who is not biologically descended from an indigenous person can be a non‑alien. The Court could answer those two questions on the basis of about one page of facts, the first page or so of the relevant facts, and there is not actually any real ground for any serious dispute about those facts.

Almost everything else in this document is going to the issue of what kind of connection might be sufficient if you do not need biological descent, and the Commonwealth has indicated right from the start in this case that we do not seek to join issue on that point, which is why two months ago we provided a draft that had lots of information about cultural adoption and we agreed that Mr Montgomery satisfies the second and third limb of the tripartite test, we agreed that he had been adopted in accordance with traditional laws and customs that have their foundation in pre‑sovereignty, in the period pre‑sovereignty.

So what has happened since is there have been months of delay and negotiation over facts that are really on a ground that the Commonwealth has not wished to fight, but where we have been able to reach agreement, because facts that are said to be relevant to that issue that is not really in dispute, from our perspective, at least, cut across issues that are live in other native title proceedings in the Federal Court. So in a way, what I am saying is we have been bogged down over what is really, from the perspective of the resolution of the two key legal points of importance in this Court, very much peripheral.

And it would be, in our submission, undesirable to be further dragged into that quagmire by the potential for lack of clarity arising from the inclusion of the affidavits, particularly in circumstances where, as Ms Lenagh‑Maguire’s affidavit, affirmed this morning, makes clear, the Commonwealth has made plain to the applicant from the moment it was suggested that the affidavits be attached, or from very shortly thereafter, that we did not agree to that course, and the applicant has totally failed to identify what it is in those affidavits that they need, in addition to the 20 pages that are already there. We are totally in the dark as to in what respect it is said to be the case that there are missing facts in the document that is being negotiated.

So that, your Honour, is all I would seek to say about the affidavit question. On the form of the legal question, the form that we have proposed is the question that was stated by Justice Nettle in Chetcuti, and dealt with then on appeal from his Honour by the Full Court in Chetcuti, and it reflects the point that her Honour the Chief Justice made in Love as to the appropriate framing of the question, noting that the question was, to quote her Honour in paragraph 4:

The question is perhaps best understood to be directed to whether it is open to the Commonwealth Parliament to treat persons having the characteristics of the plaintiffs as non‑citizens –

or as aliens:

for the purposes of the Migration Act.

Your Honour will recall in Chetcuti that the Court accepted what it called the “settled understanding” that alienage is a status that depends on parliamentary choice, so that the question is one of the constitutional limits on parliamentary choice rather than a question of status that can be answered by reference to the Constitution itself, and that is why we submit that the question should be: is it open to Parliament to treat Mr Montgomery as an alien rather than some question of status that ignores the fact that we are concerned here with a limit on power.

The problem with our friend’s version of the question, in our submission, is that the reference to the present detention of Mr Montgomery would, on a natural reading, suggest that the focus of attention is on the validity of his detention as at the date of the special case, but that is not the issue in this appeal. The only claim is for habeas, and we concede that if the Court finds that it is not open to the Parliament to treat Mr Montgomery as an alien, then it would follow that, from that moment, he would need to be released.

The problem with focusing on the present detention is that that raises a question that is not live in this case at all, but which is live in the Thoms proceeding, we will be hearing shortly, in that in the Thoms matter there is a squarely‑raised question of the extent to which section 189 of the Migration Act might authorise the detention of a person who is not an alien but who is reasonably suspected of having that status, so is there a sufficient connection between the detention power and the aliens power even with respect to someone who is not an alien?

Just as the corporations power can authorise laws that affect the rights and obligations of people who are not corporations, the aliens power, in some circumstances, can authorise laws that affect the status of persons who are not aliens. That is an issue that we will be litigating in Thoms, it does not arise here, but our friend’s form of the question throws it up, or brings in that complication, so in our submission, it is best to avoid that and, as I say, the form we have used is a form that the Court has found acceptable before in Chetcuti.

If it is necessary to add some reference, as your Honour proposed at the end, for the purposes of the Migration Act generally, I cannot at the moment see any objection to that course, but we would object to a reference to section 189 for the reasons that I have mentioned, that really, that then brings in questions that go beyond the question of status of a kind that do not properly arise in this proceeding. If the Court pleases, those are my submissions.

HIS HONOUR: Thanks, Mr Solicitor. Mr Willis, in relation to the annexures, while I can understand that your client is concerned that his story be told fully, it is the case that the procedure that we are embarking on is a procedure which assumes agreed facts. It is quite distinctly not the procedure that parties can argue and roam at large by reference to the evidence to invite inferences or to resolve differences between witnesses in this Court. I mean, it is agreed ‑ it is a special case upon facts agreed by the parties, but the point is not just procedural, and it is not there as some sort of mean‑spirited pettifogging attempt to prevent people telling their story fully.

It is a concern that did not emerge in a hearing before the Full Court, issues of fact that may either derail the proceeding or put a different complexion on them, the point being that ‑ the point I am trying to make is that, so far as the facts are concerned, everyone’s cards need to be on the table, and the best way to do that is with agreed facts. If there is a problem in agreeing exhaustively on the terms – on the facts of a special case – that is not a problem that I am going to resolve either by browbeating the parties or otherwise. The procedure does contemplate agreement by the parties.

If that is not going to do the job because there are facts on which your client wishes to take a stand – and he is perfectly entitled to do that – if there are facts on which he wishes to take a stand then, to the extent that the parties are not in agreement about that – then they would have to be resolved before the matter could go before the Full Court and that might mean remitter of some questions of fact back to the Federal Court under section 42 of Judiciary Act.

So that is the ultimate resort if the parties cannot reach agreement – and I am saying all these things subject to hearing further from you, but I am putting to you my very tentative view that at the moment, where there has been what does seem to be relatively comprehensive agreement on the facts that are relevant material facts to the issue that we all understand is coming before the Court, then I must say I think my colleagues would be not happy with me if I confronted them with a large volume of factual material, the upshot of which – that is to say the factual implications of which – are not actually spelled out and articulated so that everyone sees what the case is. They are facts that have to be stated and said, it is not a matter of sort of immersing oneself in a body of factual material and then forming impressions about the facts. So, that is what I would say about the position, or the differences between the parties on the facts.

As to the terms of the question, I do have to say we all understand, I think, that the issue is about whether it was open to the Commonwealth Parliament to treat your client as an alien – and that is for the purposes of the Migration Act – and I have to say I cannot see anything wrong in terms of the undue narrowness of that question, and I have to say I can understand the concern that there may be, even though there is not at the moment but, in the pressure of argument, in the excitement of argument, opportunities present themselves to the advocate to seize upon an approach or review that has not previously been seen to be a good idea but then becomes a very good idea to the discomfiture of your opponent and to the frustration of members of the Court. So, that is what I would say about that.

As I say again, tentatively, if there are issues about the final terms on which the facts would be agreed, then obviously I am amenable to the matter being adjourned for some time to enable that further agreement to take place. But I do have to, I think, make it clear that subject to what you want to say the idea of having the agreed facts supplemented by material which is essentially of an evidentiary nature, from which different possible views of the facts might emerge, would be not consistent with what the Court would expect to have in terms of an agreed factual basis for the question that is to be determined – the questions that are to be determined. And, bearing in mind that, as I apprehended, an aspect of your case is that when previous cases have spoken of biological descent, you have a view
that that may be modified by the facts on the ground as to custom and culture.

But, as I say, we do need to have the cards on the table about what those facts are. And, they have to be stated so that they can be understood and applied, rather than left in a state where they might be said to involve some emerging inferences that have not yet been crystallised. So, having said all that tentatively, what do you say?

MR WILLIS: Thank you, your Honour.....terms in which that has been expressed. Can I just – because I think, it is a short matter – first deal with the question. We were not seeking to keep up our sleeve some argument that might surprise even the applicant, let alone discomfort our opponents, or discombobulate the Court. My experience is that those arguments that emerged in that way are often caps rather than benefits. So the guidance your Honour has given in terms of the question with the reference – the Commonwealth’s formulation with the reference to the Migration Act, is one that we could, I believe, agree with the Commonwealth though I will not say anything further about that.

Going back to the submission question of the inclusion of the affidavits. First, could I address the case study that the Solicitor‑General raised, and treating that as an example which could be multiplied, my first submission would be that having agreed the facts and matters set out in the stated case, my client, Mr Montgomery, would not be seeking to controvert those facts. So, if there were matters of inconsistency, as inevitably there often is in a trial or in any evidence in any.....assembled even by a party, or differences of emphasis, the extent that there is an agreed position stated in the agreed case, which has been fully negotiated, we would not – and I say that frankly, state that now – we would not seek to raise or to gainsay what had been agreed. The purpose of not going into detail was in order.....indeed to pin down as much as possible.

The point remains that it is, of course, open on rule 27.08 for additional material to be included, not only the stated facts, but the special case should identify the documents necessary. It is, although your Honour has indicated.....why – and all parties would wish to have clearly identified key facts and not have them just – that the Court is permitted to draw inferences.

Now, I am not seeking to put those affidavits in for that purpose because I accept that, if there is a fact which is of fundamental or high materiality, it should be stated, and we have sought to negotiate them, and to state them by agreement. Nonetheless, it is a bloodless precis of matters which are.....in authentic.....in the affidavits. The affidavits are not a lawyer script, they really are the witnesses speaking – the deponents speaking in their own voice, and it is that which we apprehend was lost when all we have ‑ particularly if you do not have footnotes, we do not, therefore, have an indication of how many sources or how many of the various witnesses provide the basis for the agreed statement, our concern is that that part of the power of these facts is lost.

Now, that is of concern to the applicant because it is the applicant’s case. The applicant filed these originally in the Federal Court with the intention of relying on them and having a court force the standard forensic puzzle. The Commonwealth in the Federal Court long before uplift or referral into this Court was thought of, chose not to file any answering material. Now, that did not prevent them, it proceeded in the Federal Court from cross‑examining and from exposing potential inconsistencies or differences of emphasis of a kind which the Solicitor‑General has referred to by way of example.

But the Commonwealth then having chosen to uplift the case has precluded us.....from testing the strength of that material which was otherwise unanswered and that is our concern, that that is lost and that we are at a disadvantage in conveying to the Bench the material – as I say, the voices of the applicant and of his family and community.

The question then, your Honour, is how to resolve this, what to do with this. As your Honour says, it is a matter that has to be agreed. We would be open to perhaps a further two‑week period by which we would consider what additional matters we would wish to have included if it were a matter of any further facts rather than simply the voice with which people are speaking, but we have not done that exercise because we were hoping to avoid it and it was difficult.....enough to reach agreement on the matters which we have done.

Extensive as they may appear there was – your Honour is not interested and does not need to know the detail of the backwards and forwards but there was considerable backwards and forwards in order to come to where we have got to. But if we had a two‑week period in which to consider what to do with that and then perhaps another week or two for the Commonwealth to respond and us to discuss with them would be a way forward if we cannot otherwise – with the kind of assurance.....sought to give that we would not be contemplating what is currently set out in this and, therefore, no recourse to the affidavits if they were included in the special case or referred to. If that is not satisfactory to the Commonwealth then I think a further period of time in which to discuss and for us to really to nut out what it is if there are additional facts which we seek to agree.

HIS HONOUR: Thank you, Mr Willis. Mr Solicitor, if it helps your consideration of what has just been said, I should perhaps say that I think it
is true that with the best will in the world the prospects of the matter being heard in the February sittings next year are probably not realistic. So, in terms of – I mean, one understands the concern that you have about the urgency of the matter. On the other hand, I mean, it is Mr Montgomery’s case and he is entitled to pursue it as best he sees fit.

I should repeat for the benefit of both sides, though, that if there are live disputes about the facts that cannot be resolved then the ultimate solution to that is remitter to the Federal Court for the resolution of the areas of factual dispute. Now, so far as your side is concerned, Mr Willis, that would mean that the facts would be found, the desirability from your client’s point of view of having his voice heard, that would inevitably be mediated through the findings of fact of the Federal Court judge. So, there would be facts found as facts. So, I say that to both sides.

Mr Solicitor, if I understand Mr Willis right, what has been proposed is a couple of weeks, perhaps three weeks, for the parties to have another go and then we would have another mention. What is your attitude to that?

MR DONAGHUE: Well, your Honour, probably somewhat more receptive to it in light of your Honour’s indication about the hearing date. We are keen to have these questions resolved as soon as possible and we are concerned that from our perspective having produced a document that we thought was a very advanced document two months has taken a very long time. It would be a great pity for us to spend another three or four weeks to come back before your Honour and be in essentially the same position as we are now. But, having said that, if your Honour has expressed some clear views that will hopefully assist the parties in the process going forward and so from my part, I must say, I think the question of voices being heard is just something that cannot be achieved in the special case.

So, if the intention – I cannot see how our friends can hope to address that and if that is the purpose of the delay then it is probably not fruitful. But, if as Mr Willis puts it, they need to do work that has not yet been done to work out whether there are any missing facts from the affidavits that would be proposed to be added to the existing draft then there is probably not much I can say against that but we would urge your Honour to keep everybody on a tight leash in terms of the amount of time available to make sure the matter does continue to move. So, if your Honour said, for example, two weeks for Mr Willis and then for us to come back a week after that or something to that effect at a convenient date to the Court then, in my submission, that would be appropriate.

HIS HONOUR: Mr Willis, what do you say about that?

MR WILLIS: Broadly acceptable, your Honour, it does give one week to respond and if nothing happens to come back maybe a little tight but I suppose the real question is from the Commonwealth’s point of view if there is nothing to discuss, they do not want to hang around. They want to come back quickly and if, on the other hand, we were part way through a discussion and there was light at the tunnel we could always seek the Court to defer by a few days in order to give us any extra time so that three weeks ‑ ‑ ‑

HIS HONOUR: It just seems to me that while it is, no doubt, another burden on the parties, it does seem to me that it is entirely without hope and the alternative is a much more serious delay because if the agreed fact procedure cannot be effected, then the alternative is remitter.

MR DONAGHUE: Yes.

HIS HONOUR: So, with a view to avoiding that, I would propose then to mention the matter again at 9.30 am, Canberra time, on 29 November. Is that satisfactory to the parties?

MR DONAGHUE: Your Honour, I have a directions hearing in this Court in another matter at 10.00 that morning.

HIS HONOUR: Well, nine o’clock?

MR DONAGHUE: Yes, your Honour.

HIS HONOUR: Mr Willis?

MR WILLIS: Certainly, your Honour.

HIS HONOUR: I am looking at the order I made on 11 October. The directions that I have in paragraphs 5 to 11 – I am very conscious of the Solicitor saying that we do not want the matter to get away and if those directions would still serve a purpose – and it seems to me that they would – that preparing the submissions might actually be of assistance rather than a hindrance to any further negotiations that are to occur about the agreed facts. My inclination would be not to vacate those orders but to leave them in place unless there is a cogent view to the contrary.

MR WILLIS: I was going to submit, your Honour, that in fact it was not either feasible or cost effective to proceed with that timetable.....do not know the dimensions of the ultimate form of the case. So, in particular, as ‑ ‑ ‑

HIS HONOUR: I am just conscious, Mr Willis, that, having regard to what has been said this morning, my sense is that there is unlikely to be a factual departure from the shape of the case that appears from the present draft. I can understand that there might be some nuances that might emerge but, in the end, if you tell me that there is no utility in maintaining those directions, then I will vacate them.

MR WILLIS: Certainly, your Honour, 15 November, which is the burden on us.....the first respondent as described in that order – which is next Monday – on a date, sensibly, we can – I really thought we would ‑ four weeks after the form of the special case was.....it was going to be my submission, as the minimum and that, therefore, we would submit that we should vacate the timetable. The other matter about it is that it had.....various other tasks which were already predicated on – originally, on the original version of trying to get into a December hearing of the Court and then we adjusted it. That is a separate issue, but the liminal point is that we would need more time, and therefore my submission would be that it would be preferable to vacate.

HIS HONOUR: Mr Solicitor, do you have anything you want to say about this?

MR DONAGHUE: Well, your Honour, I proposed the one‑week timeframe in response to Mr Willis on the same understanding as your Honour just expressed, that it did sound like we were talking about nuances or minor supplementation to the special case. We were not envisaging that our friends were going to regard the negotiating space as clean, and to produce a completely new document, when one has regard to the advanced state of the document already before you.

Your Honour has 20 pages of detailed facts which Mr Willis has said this morning that they would not in any way seek to controvert by reference to the affidavits. So if that is the case, we do know more than the skeleton; we know a lot about the case. It might be that there are some extra facts needed. As to the notion that there needs to be four weeks after the special case, your Honour has already made orders in this case which did not allow anything like that interval of time. Our friends should have been working to the assumption that their submissions would be due soon.

So while if our friends need another week, or something to that effect, for my part, your Honour, I cannot see any basis why twice as long as was allowed on the original order for their submissions should be added to a third date for the special case if all that is happening is that there are some minor supplementation to be proposed.

So in our submission, your Honour, I would not oppose some short extension of the existing dates, given what your Honour said about February, but I do oppose the notion that there should be some extended period after a special case that is now going to be at least three weeks away.

HIS HONOUR: Yes. Mr Willis, I must say, I am a bit inclined to think that it would be a shame to basically vacate the orders in their entirety because I think they do serve a useful purpose of keeping everyone’s minds focused. And I think it is probably fair to say that there is not going to be a great deal of difference in terms of the articulation of legal arguments that the parties are embarked upon. But I recognise that you do have the burden, and that things have changed a bit.

What I would propose to do is in paragraph 5, in lieu of 15 November – and I say this conscious that I am intending to mention the matter on the 29th – so I would say on or before 29 November. Then in paragraph 6, changed 22nd to – that would be 6 December.

MR WILLIS: I think that takes us into January, your Honour, then, probably.

HIS HONOUR: 13 December for paragraph 7.

MR DONAGHUE: Your Honour, it seems most unlikely there will be any interveners in the Commonwealth support, if possible, I suppose, but it does not seem likely, so your Honour could probably make that date 17 December, if you wanted to, because it probably does not matter.

HIS HONOUR: Yes. Well, I will. Since it is their problem, and they can oppress themselves if they wish. We will make that the eighth – paragraph 8, we will change that to 17 December. Then it is the reply. As you say, Mr Willis, that is going into January. Is that a problem for you?

MR WILLIS: It will be for ‑ ‑ ‑

HIS HONOUR: For at least some people on your team, I think.

MR WILLIS: Yes, your Honour. Yes, for some. That becomes 21 January, your Honour.

HIS HONOUR: Well, will we make that 4 February, or is that ‑ ‑ ‑

MR WILLIS: That is fine.

HIS HONOUR: 4 February, so then nine becomes 4 February 2022, and then is that 18 February? .....be enough?

MR WILLIS: .....

HIS HONOUR: Okay, 18 February 2022, and paragraph 11 can stay as it is.

MR WILLIS: Could I just address you ‑ ‑ ‑

HIS HONOUR: Yes, Mr Willis.

MR WILLIS: I am sorry, your Honour, what I would really be seeking or submitting, while I understand the process that has been outlined, that I would seek rather than 29th for the applicant, 6 or 13 December, because ‑ ‑ ‑

HIS HONOUR: I am sorry, Mr Willis, I lost you there.

MR WILLIS: I am sorry, your Honour. I was seeking if we could add some extra time at the front, that is, for the applicant by – the legal team that we have has been fully occupied first, or in parallel, and under considerable stress both during the Federal Court hearing which completes this Friday with final submissions on the habeas corpus matter and at the same time engaged in negotiations on the special case, and I really have a date in December rather 29 November for us to file, if that would be possible. That would consequently shift everything, but it would still leave the reply by 4 February, so even if the Commonwealth wanted to file ‑ ‑ ‑

HIS HONOUR: Well, going back to paragraph 5, we will make that 6 December, and then paragraph 6, 13 December, paragraph 7, 20 December, and we will continue to oppress the unlikely intervenors and otherwise as ‑ ‑ ‑

MR WILLIS: January something.

HIS HONOUR: ‑ ‑ ‑ we have discussed. So if I could just run through them then, or run through the orders that I propose to make ‑ ‑ ‑

MR DONAGHUE: Just before your Honour starts that, I did not catch the oppressive date for the intervenors, the unlikely intervenors. Did your Honour say a date?

HIS HONOUR: I was going to leave that ‑ ‑ ‑

MR DONAGHUE: Sorry, your Honour. It should, your Honour, come after the Commonwealth, in my submission.

HIS HONOUR: Yes, that is true. So the 27th, which is a pretty horrible date.

MR DONAGHUE: It is. Could I suggest, your Honour, given the time the respondent has asked for, for their reply, it would still be a horrible date, but your Honour could say 17 January without it changing the timetable in any other way.

HIS HONOUR: Yes. I will do that. Thanks, Mr Solicitor. So, the first order I will make is that the matter be mentioned again at 9.00 am on 29 November and then my order of 11 October 2021 be varied by in paragraph 5 altering 15 November to 6 December, in paragraph 6 altering 22 November to 13 December, in paragraph 7 altering 29 November to 20 December, in paragraph 8 altering 13 December to 17 January 2022, in paragraph 9 altering 20 December to 4 February 2022, and in paragraph 10 altering 21 January to 18 February.

MR DONAGHUE: If the Court pleases.

HIS HONOUR: Is there anything else, gentlemen?

MR DONAGHUE: Not from our perspective, your Honour.

HIS HONOUR: Mr Willis?

MR WILLIS: No, your Honour.

HIS HONOUR: Very well. Those are the orders I will make and I will ask the Court to be adjourned.

AT 10.26 AM THE MATTER WAS ADJOURNED