Montgomery v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor; Attorney-General of the Commonwealth v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Ors [2021] HCATrans 201 (29 November 2021)

Last Updated: 2 December 2021

[2021] HCATrans 201

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

Office of the Registry
Canberra No C21 of 2021

B e t w e e n -

ATTORNEY‑GENERAL OF THE COMMONWEALTH

Applicant

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

MINISTER FOR HOME AFFAIRS

Second Respondent

SHAYNE PAUL MONTGOMERY

Third Respondent

KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE

ON MONDAY, 29 NOVEMBER 2021, AT 9.25 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 in S173/2021. (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 Commonwealth parties. (instructed by Australian Government Solicitor)

HIS HONOUR: Gentlemen, I have the previous proceedings in S173/2021 in which Mr Montgomery is the applicant and I also have an application for removal and an affidavit in support by Niamh Catherine Lenagh‑Maguire filed on 26 November 2021. Perhaps in terms of doing things in good order, it might be best to deal first of all with S173/2021 in which Mr Montgomery is the applicant. Mr Willis, I understand your position is that your client should be given leave to discontinue those proceedings and the Minister should pay your costs.

MR WILLIS: That is so, your Honour.

HIS HONOUR: Mr Solicitor, you do not oppose that. Do I understand that correctly?

MR DONAGHUE: That is correct, your Honour, yes. We have previously indicated – as to the costs position we have given undertakings in that respect and we do not seek to resile from that, so we have no difficulty with that course, your Honour.

HIS HONOUR: All right, we will just park that for the moment. Then, going on to C21/2021, Mr Solicitor, as I say I have your application for removal and Ms Lenagh‑Maguire’s affidavit. I also have an email from Mr Montgomery’s solicitors to the Deputy Registrar dated this morning in which it is indicated that there has not been really enough time provided to Mr Willis’ side to deal with your application satisfactorily. What do you want to say about that.

MR DONAGHUE: Your Honour, can I just check you also have our submissions that were filed yesterday – or provided to the Court yesterday evening – with some proposed orders attached, or have they not made their way to you?

HIS HONOUR: I think I do have them – I have the application for removal, and I do have – yes, I have the submissions of the Commonwealth dated 29 November 2021.

MR DONAGHUE: Thank you, your Honour. Very briefly, by way of background, your Honour will understand that, in effect, the reason that the applicant in the other proceeding, in S173, is discontinuing is that he succeeded in obtaining habeas in the Federal Court.

The case for habeas that was advanced in the Federal Court, as it turned out, did not involve any attempt to show that the detaining officer did not hold the suspicion to which 189 of the Act expressly refers, that is a suspicion that a person is an unlawful non‑citizen. Justice Derrington recorded that the existence of that suspicion was uncontroversial.

The argument, as it played out, was all about Love and Thoms and that the Migration Act needed to be read down or disapplied so that in addition to having the suspicion to which the section refers, there was also a need to have a suspicion that the applicant was an alien and it was said because there is uncertainty about the tripartite test and, in particular, whether someone could be an alien even if they are not biologically descended, the suspicion that was held by the detaining officer that Mr Montgomery was an alien was not reasonably held and therefore that detention was not required by 189. So, habeas was granted and he was released.

In our submission, the issues that our appeal from that order throws up are exactly the same as the constitutional issues that were raised in the application that is to be discontinued. Because they are exactly the same, and your Honour will appreciate that the appeal is against part of the same proceeding that is now being discontinued, that proceeding was bifurcated by partial removal into this Court and the appeal is therefore connected in that sense with the part of the – the removed proceeding that has been discontinued.

We considered it appropriate that your Honour have the full picture, so to speak, in working out how to deal with both the discontinuance application in S173 and the removal application. I do not know if your Honour has had an opportunity to read Justice Derrington’s judgment – I know all this material came to your Honour late.

HIS HONOUR: I have not studied it, I have to confess. My immediate concern is whether your appeal is an appeal that involves a challenge to findings by her Honour that Mr Montgomery does satisfy the tripartite test. Has her Honour actually found that?

MR DONAGHUE: No. Her Honour has not.

HIS HONOUR: The further step extending the tripartite test, to use what might be a contentious expression – to extending the tripartite test to a person who is not of biological descent.

MR DONAGHUE: Her Honour has found that because there is a question mark about whether or not such a person satisfies the tripartite test that the suspicion the detaining officer held, which was a suspicion that Mr Montgomery was an alien because he was not biologically descended, her Honour accepted that the detaining officer held the suspicion that he was an alien for that reason but she then said because there is a question mark around whether that is actually the law the suspicion was unreasonable and so release was ordered in the face of what we say is a clear statutory obligation to detain unless Love and Thoms means something different than it means on its face.

So, our appeal puts in issue her Honour’s conclusion that the suspicion was unreasonable, both as a matter of constitutional law and in the second ground on the facts. But, for your Honour’s purposes, the core point is that had her Honour not read down section 189 of the Act for constitutional reasons it clearly would have required Mr Montgomery’s detention.

I can take your Honour through it briefly if that would help, but, in our submission, at the core of her Honour’s reasoning is the proposition that in order to ensure that the section did not exceed constitutional power under section 51(xix), it had to be confined and, having confined it, her Honour held that the suspicion that was held by the detaining officer, even though it was a suspicion that in terms conformed to the Act, did not authorise or require detention.

So, our appeal will put in issue whether there is – the correctness of Love and Thoms, whether there is any need to read down the Migration Act in the way that her Honour suggested and whether or not you do in fact need biological descent to satisfy the tripartite test. All of those issues will arise on our appeal, just as they arose in the discontinued proceeding.

HIS HONOUR: The one area where I am uncertain is in relation to whether, for the purposes of the argument in the High Court, it is – whether, for the purposes of the argument here, on the assumption that Love and Thoms is correctly decided and there is a question whether it should be extended to someone who is in a situation like Mr Montgomery because of his association with people who satisfy the tripartite test, whether the facts necessary for that argument are established or agreed. Now, I take it from what you have told me that Justice Derrington has not made any findings about that.

MR DONAGHUE: Your Honour, Justice Derrington’s findings are all through the lens of whether or not the Act required Mr Montgomery’s detention which turned on not the objective jurisdictional facts but the reasonable suspicion because that is what the section says. So there were facts as to what the detaining officer suspected and those facts included – perhaps, your Honour, we can make this concrete. If your Honour goes to exhibit NLM-2 to Ms Lenagh‑Maguire’s affidavit, you will find the judgment.

HIS HONOUR: Yes.

MR DONAGHUE: Perhaps, your Honour, in order to – I will just go straight there. I could give your Honour some context, but if you go to paragraph 58 on page 18 of the judgment, you will see Mrs McBroom was the detaining officer. She was satisfied that:

Mr Montgomery is not and never has been an Australian citizen -

That:

was uncontroversial . . . does not currently hold a visa –

also uncontroversial. The challenge concerned her satisfaction as to whether he is an unlawful non‑citizen under 189 because she suspected he is an alien by virtue of not being an Aboriginal Australian. Then 59 records the evidence that she relied upon in reaching that state of satisfaction. One is about the uncontroversial matters. Two is about Love and Thoms – she had read Love, attended training, was satisfied he met the second and third limbs, but suspected he did not satisfy the first, deposed that her current understanding of the first limb to be that a person must show biological descent and, therefore, that adoption is not sufficient. So, that was why she suspected that Mr Montgomery was an alien.

Now, we do have a lot – in terms of the evidence about the cultural adoption and the kinds of matters that your Honour is, I think, concerned about, there is a detailed extract at paragraph 53 of matters to which Mr Montgomery himself deposed which include quite a bit of material on that topic, but there is a lot less than there is in the current draft special case.

So, when our friends indicated their intention to discontinue the current part of the proceeding in this Court we wrote to them straight away and said we are considering appealing and removing the appeal into this Court and while what we do in that regard does not depend on your discontinuance decision we thought you should know in case that affected your decision because on one view of it, it might have been thought to be in the applicant’s interests to have our appeal and the current special case go forward together because there would have been more material before the Court on those factual questions.

But, in our submission, in the end that is a matter for the applicant and they have decided that they want to discontinue their case. But given that we have lost on habeas, and we are entitled to appeal, the factual foundation is what it is in terms of the application of the Act. There will not be any way to supplement that factual record in an appeal in the normal course and, in our submission, it is quite possible for us to win our appeal by saying the suspicion that this detaining officer held, and was accepted to have held, particularly in the part that I have just identified to your Honour,
that Justice Derrington erred in finding that that suspicion did not require detention, because if Love is wrong, or if you do actually need biological descent, then the suspicion that she held was plainly a reasonable one and, therefore, detention was required.

So, the correctness – those two points of law will arise because if we win them then the only basis upon which the suspicion was held to have been unreasonable will have fallen away.

HIS HONOUR: Thanks for that, Mr Solicitor. Mr Willis, I appreciate from the email from your solicitors, that I have mentioned, that your primary position is that you are embarrassed for time in the sense that this has arisen rather suddenly, but are you in a position to respond to what the Solicitor has just said? What is your position?

MR WILLIS: Your Honour, the position, in our submission, is more complex than the Solicitor‑General has outlined – or there are complexities beyond those which the Solicitor‑General has referred to. The first is the competence of the appeal and while we have not.....this area appears to be an area of specialised, if not arcane, knowledge.

My present researches would suggest that there is no - no appeal of the kind which the Commonwealth has launched in the Federal Court is competent. That is based on a special principle which applies to decisions where the writ of habeas corpus has issued and a person in detention has been discharged from detention. That is a decision of this Court in Wall v The King; Ex parte King Won (No 1) [1927] HCA 4; (1927) 39 CLR 245 at 250, a migration decision curiously, in which five Judges of the Court followed and applied House of Lords authority tracing back to 1890 in a case of Cox v Hakes.

Now, the basic principle is that there is no appeal from the issue of a writ of habeas corpus discharging a person from custody unless the appeal is specifically given by the legislation and the further point is that general language of the kind found in section 24 of the Federal Court of Australia Act is not sufficient to override that principle.

That was confirmed within the Federal Court, so far as my researches to date have discovered, in a Full Federal Court decision which Justice Deane gave the opinion for the Full Court, in Thompson v Mastertouch TV Service Pty Ltd [1978] FCA 24; (1978) 38 FLR 397, the relevant passage particularly of Justice Deane at page 412 in which the habeas corpus principle was applied in the cognate field of double jeopardy and the Full Court essentially interpreted section 24, appeals to the Federal Court, as saying that there is no – the general words of granting appeal are not sufficient.

Now, I have only essentially spent the weekend to establish these points and we would need proper time to trace them through and to establish that they remain good. So far as I have been able to see, they do. But that is a matter which is not a matter to be rushed.

The second point would be that even if that submission, or that instruction were not correct, the second matter is that the grant of the issue of habeas corpus is arguably to be classified as an interlocutory order for which, under the Federal Court Act again, leave is required in order to bring an appeal. I am not going to go into all of that, that has just been identified as an issue for consideration.

What those matters suggest is that there is complexity within the nature of the appeal which the Commonwealth parties are seeking to bring, which requires proper research and articulation of submissions on each side in order to resolve. I am just concerned that the kind of – it just seems to me that the timetable that the learned Solicitor‑General has outlined is inappropriate for that kind of proper research and attention on both sides.

The other question that arises is are these matters which the High Court is to determine or are these matters which really ought to be determined in the Federal Court as a preliminary question or otherwise, as a threshold question, because they do go to the competence of the appeal. Certainly, the practice of the House of Lords in the intermediate decision which Wall v The King adopted of the Home Secretary v O’Brien [1923] AC 603 dealt with competence as a threshold question and never got to merits. As the House of Lords said you do not go into the merits when that question – when principle is involved.

Otherwise, your Honour, just to address the matters the learned Solicitor‑General raised following from your Honour’s question about if all of these questions were resolved in the Commonwealth’s favour and there was a properly constituted matter to be remitted, or removed into this Court, what is the material on which the Court would have. Her Honour’s findings are principally those – she sets out material extracted from Mr Montgomery’s affidavit which was read in full and her Honour at paragraph 53 summarises it.

Paragraph 23 of the judgment, her Honour sets out the material which was read and there were additional affidavits on Mr Montgomery’s behalf which were read. They were read in two, it appears from her Honour’s comments, parts but we would apprehend that appropriately all of those affidavits might form part of the – would, in the ordinary course, form part of an appeal book.

There are not findings of fact on them and that is less desirable perhaps for the High Court to be – but the underlying materials, and particularly the materials which had formed the foundation for the stated case - and it might be possible for the Commonwealth and Mr Montgomery to agree facts for the purposes of the appeal, if it were to be an appeal, but that is a long way – that is somewhat down the path because as I submit there are these preliminary questions.

HIS HONOUR: Thanks, Mr Willis. Mr Solicitor, do you want to respond now to the questions about the competence of the appeal ‑ ‑ ‑

MR DONAGHUE: I do, your Honour, yes, I do.

HIS HONOUR: Yes, thank you.

MR DONAGHUE: I appreciate my friend has only been looking at this quickly, but with the greatest respect, in my submission, there is no question as to the competency of the appeal and to illustrate, your Honour will recall earlier this year, the Full Court of the High Court decided a case called The Commonwealth v AJL20. That case was an appeal from an order of Justice Bromberg granting habeas corpus which was appealed to the Full Federal Court and removed by the Commonwealth into this Court. So that is just a very recent example of the exact procedure that we are proposing to follow here, being followed in that case.

But actually one can go back for 100 years. In this Court there is a case called Lloyd v Wallach [1915] HCA 60; (1915) 20 CLR 299 where Justice Isaacs looked at the foundational UK case, Cox, that Mr Willis mentioned and distinguished it on the basis that section 73 of the Constitution allowed an appeal in a case of that kind. Ex parte Walsh and Johnson is another example. I think that one was a removed appeal in a habeas case.

So it is true that there was historically a common law position in England that restricted appeals in habeas cases. It has substantially been supplanted by legislation in the UK, but it has not been the law here for 100 years and certainly, unless our friends are going to challenge AJL20, they cannot contend that an appeal against a habeas order is incompetent because such an appeal was allowed by the Full Court of the High Court only six months ago.

Now, another example in the Federal Court, a famous example, is Ruddock v Vadarlis, the Tampa‑related litigation where Justice North made a habeas order and that order was appealed to the Full Federal Court. So, if our friends want to take a competency point, in our submission, that would itself be a matter for the Full Court. It would raise questions of principle. It would not be appropriately decided as a threshold issue because it would engage with those authorities that I have just referred to. So our friends can take whatever time they want to decide whether they do want to pursue that kind of point but it is a point that, if they are going to pursue it, should be being pursued in.....proper, rather than as some threshold procedural impediment.

So, your Honour, in our submission, really the appeal plainly raising constitutional questions, on the application of the Attorney‑General it should be removed as of course and there is no good reason for our friends to seek to delay that, such that the matter cannot continue for the resolution of the substantive legal questions on the same timetable as had previously been proposed. Obviously because we are now the appellant, the timetable would be flipped around, so our friends would have longer to get ready than they had previously. Our proposed order does not require them to file submissions until early February.

We respectfully submit that the legal questions are important. At the moment we submit that there is an authority in the Federal Court that, if applied by other justices in that court, will suggest that people can be released on the basis of Love and Thoms even without satisfying the biological descent limb. That has significant potential to complicate the proper administration of the Migration Act and cast doubt over the legal obligations of detaining officers.

In our submission, it is a very important legal question to have resolved as soon as possible. Everybody had been working towards trying to have that happen by March and, in our submission, there is no reason why that cannot still be achieved and we have proposed orders to try to achieve it. The kinds of objections that our learned friends are raising are, we submit, not of sufficient substance to warrant a derailing of that timetable.

HIS HONOUR: Mr Willis, I am inclined to accept the submission by the Solicitor that if there is a question as to the competence of the appeal, and even if it is subject to the grant of leave, those are questions which plainly can and should be resolved by a Full Court. As to their preliminary nature, then that would be a matter for the Full Court as well to determine whether to entertain the argument in that regard and whether or not to determine it before going on to deal with the substantive questions that the Commonwealth seeks to raise. So, that is where I am at the moment.

I am minded to proceed on the footing that if there is a challenge to the competence of the appeal, that is an issue that can be raised in the appeal if it were to be removed into this Court. While there might be some room for dispute as to the material on which this Court can act, I think that probably the central questions, or the basic questions which the Solicitor
seeks to agitate before a Full Court, are raised and at the moment I cannot see that your side would be prejudiced, given the way that the case has been determined thus far, in your client’s favour by Justice Derrington and bearing in mind, of course, that the application for removal and the order sought by the Commonwealth – or by the Attorney‑General – is an order that the Attorney‑General is entitled to as of right once the question arises in relation to the Constitution or its interpretation.

So.....to make the orders that are sought in the draft order subject to the questions as to the timing of the filing and serving of written submissions. Given that there is nothing, I think it is fair to say, surprising, about the arguments that are at the heart of the Attorney‑General’s appeal, I see some force in what the Solicitor has said in relation to the fairness of the timetable that would require your client to respond at the beginning of February. Is there anything you would want to say about the actual times in the draft order?

MR WILLIS: What I first wanted to say, your Honour, was – I do not want to go over old ground, but my understanding the AJL20 case was not an appeal from a habeas corpus application or writ – issue of writ and certainly going back to the case of Lloyd v Wallach, Justice Isaacs’ decision, that was taken account of in Wall v The King and was treated as a case about the Constitution, about the High Court. It is not a case about appeals in lower courts, which is what this is. In my submission, the removal of the case into the High Court does not change or transform or transmute the nature of the case or the appeal to the Federal Court. But putting those aside ‑ ‑ ‑

HIS HONOUR: You might be right about that. I am quite distinctly not entering upon a decision ‑ ‑ ‑

MR WILLIS: Of course.

HIS HONOUR: ‑ ‑ ‑ the resolution of the contest that has been raised between you.

MR WILLIS: Yes.

HIS HONOUR: I am taking that course on the hopefully clear footing that a resolution of that question must inevitably be a matter for the Full Court of the High Court and, to the extent that the Full Court is minded to deal with the question before proceeding to deal with the other questions, that is something that will be determined by the Full Court at the hearing that we are seeking to move towards.

So, I do hear what you say. There is certainly no suggestion of trying to foreclose the argument. I am just saying that as a single Justice I am not going to enter upon what sounds to me like – on the view you are putting to us - a very substantial question.

MR WILLIS: Yes, thank you, your Honour. I was not seeking to have it resolved here, but rather it bears upon two things. It bears upon the time that should be allowed for us to address these questions and the notion that we would be moving straight into a timetabling discussion – I would actually – I do not have instructions and I would like to confer with my instructors about this question. I do not know whether it is possible to – and I hesitate, particularly if I do not know what the Solicitor‑General – or the Court’s commitments rather are for the balance of the morning – but whether I could have a short 15 minutes or 10 minutes to be able to confer with my instructors.

HIS HONOUR: I am aware, Mr Willis, that the Solicitor has another matter – I am not quite sure what time it is – to be heard. Mr Solicitor?

MR DONAGHUE: I believe it is 11, your Honour – 11.00 am your time.

HIS HONOUR: 11.00 Brisbane time.

MR DONAGHUE: Yes, 11.00 Brisbane time. Justice Edelman is – no, sorry, 10.00 Brisbane time, 11.00 Canberra time.

HIS HONOUR: Mr Solicitor, would it be convenient for you, or not inconvenient for you, if we resume this hearing at 11 o’clock Brisbane time, which would be midday Canberra time, to give Mr Willis time to take instructions?

MR DONAGHUE: I can do that, your Honour, yes.

HIS HONOUR: Mr Willis, does that suit you?

MR WILLIS: Thank you, yes, it would, your Honour. I am indebted to the Court and to the Solicitor‑General.

HIS HONOUR: All right. On that footing then I will adjourn the matter until midday Canberra time. Adjourn the Court, please.

AT 10.03 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 11.57 AM:

HIS HONOUR: Good morning again, gentlemen.

MR DONAGHUE: Good morning.

HIS HONOUR: Mr Willis, I think when we adjourned, the ball was in your court.

MR WILLIS: I believe so, your Honour. We have taken stock as best we can, and we remain.....that this removal application has really short‑circuited the usual procedures and orders in the manner in which it has been conducted. One of the other aspects, your Honour, is that the filing of the notice of appeal, assuming it is competent, under the Federal Court Rules, of course, gives the respondent an opportunity and 21‑day period within which to file a notice of contention as well as theoretically a cross‑appeal. Now, I do not believe – we are not going to be cross‑appealing. There is nothing for us particularly to cross‑appeal against.

The matter of a notice of contention is a matter which is a live matter.....we would submit, we should have the opportunity to address and to file. My proposal would be, while our first preference would be that simply the application for the removal order might be adjourned to allow the filing of conventional submissions, appreciating that it is a matter as of right, and were the Court not minded to adjourn today’s application by the Commonwealth into December to allow us to file, we should at least have the 21 days allowed under the Federal Court Rules to prepare and to file notice of contention.

We would propose at the same time to file a short notice of objection to competence so that the Commonwealth would be on notice in formal terms if our researches, notwithstanding what has fallen from the Solicitor‑General this morning.....consider, we should have the opportunity to put that on notice and it would be more efficient for the further conduct of the matter.....so that would take us to about the 17th ‑ ‑ ‑

HIS HONOUR: Mr Willis, I am sorry, I lost the last several sentences you just said.

MR WILLIS: I beg your pardon, your Honour. So, if I go back. What I was proposing was that we should have until 17 December, that is 21 days I
believe it is, from the date of filing of the appeal by the Commonwealth, we should have the period allowed which would apply under the Federal Court Rules in which to file a notice of contention in this Court responsive to the issues that the Commonwealth seeks to bring up and we would at the same time give notice of objections to competence by the same date. That would be to 17 December.

Then, running through the timetable based on what the Commonwealth put.....pass over a date or two and that would be something after that date, but that for order 3 if the Commonwealth’s submissions be 28 January. Any intervener in support of the Commonwealth might be 11 February. Mr Montgomery’s written submissions in response be 25 February.

HIS HONOUR: Sorry, I missed that date.

MR WILLIS: 25 February and the length is to deal with, to expand on the objections to competence and other questions – the length might be 30 pages rather than 20. I raise that. Then, for any interveners in support of Mr Montgomery, say 9 March; reply by the Commonwealth parties might be 25 March and perhaps 10 pages rather than five if they are going to deal with competence questions as raised by us and joint bundle of authorities equivalently with a date in 2 April.

HIS HONOUR: Mr Willis, did you have any suggested alteration in relation to order 2, that is the ‑ ‑ ‑

MR WILLIS: Well, a date of the Commonwealth’s convenience in January, I suppose, really would be – unless they want to do it before Christmas, your Honour. It is relatively less critical.

HIS HONOUR: Yes.

MR WILLIS: We do not – we are in the Court’s hands and the Commonwealth’s hands on that date.

HIS HONOUR: Okay, all right. I will ask the Solicitor‑General what his response is. Mr Solicitor, what do you say about all this?

MR DONAGHUE: A few things, your Honour. First, as to the filing of a notice to objection to competency, that is of course our friend’s right. I have no objection to that. I am not sure why it would take until 18 December to do that and my suggestion is that that could easily occur – or the 17th, I think he said, could easily occur, a week earlier on the 10th which would mean it would happen a bit further away from the date when the Commonwealth’s submissions would be due under our original proposal.

The suggestion that there could be a notice of contention in this case is to say the least a little surprising in circumstances where our friends put one argument and they won on it – on habeas. So, normally a notice of contention would be to say we advance some other ground that the Court did not decide but upon which we should also have succeeded. It is very hard to see how that could have any application in this scenario, and if our friends are contemplating running some part of a new case on appeal, then that would be, of course, a substantial concern to us.

If that be a path that our friends do seek to pursue, we suggest that that should also be done by 10 December so that the lay of the land can be clear. If the matter is removed into this Court it is, of course, a matter for your Honour as to the relevant procedural timetable and that still gives our friends a couple of weeks.

If your Honour were receptive to those submissions, then we respectfully contend that nothing that has fallen from our friends explains why, in effect, the timetable should be pushed back a month, which is what Mr Willis put to your Honour. It would be us who would be under the pressure to file our submissions before Christmas. Our friend’s substantive submissions would be due early in February.

Your Honour might recall that under the orders your Honour has already made, our friends would have been required to file their substantive submissions on the constitutional questions next week. So, one assumes that work is well under way on all of that and that what our friends have to do is to finish that off plus add their submissions on the competency point. In my submission, there is no reason that 2 February should cause any difficulty with that.

So, if your Honour is minded to extend the timetable by a month, then I have no problem with the dates that our friend has proposed for the various steps, but, in my submission, there is no reason to push the timetable out in that way which would, of course, mean a March hearing would be impossible, whereas on our proposal that would remain a viable option.

As to page limits, I have some sympathy with what our friend has said about extending the page limits in orders 5 and 7, but, in my submission, there should also be an extension in order 3. If that is to happen I would respectfully ask for 25 pages for our submissions in‑chief, 30 pages for the respondent and then an extended reply for us to deal with
the competency point plus any other issues, if your Honour were receptive to that kind of extension.

Subject to those adjustments to the page limit, my primary submission is the orders should remain as we have sought them. If your Honour is against us on that then Mr Willis’ dates would be fine and the date in order 2 could be a date - say, 21 January for the sake of argument.

HIS HONOUR: Mr Willis, I have to say I am in tentative sympathy with the Solicitor’s view that any challenge to the competency of the appeal, or any notice of contention, are matters that could be attended to by 10 December. But even if you really do need until the 17th, the burden, really of responding to that, is on the Commonwealth. They are the party that would be subjecting themselves to any degree of oppression to respond to a challenge to competency or a notice of contention.

I am also mindful that there is something in what the Solicitor says about the substantive issues to be addressed are not something new. They are something about which both sides presumably have been thinking and certainly should have been thinking since the last mention. So that my inclination, unless you tell me that there is some good reason why the dates proposed in the draft order that the Solicitor‑General has prepared cannot be met, I would not be minded to disturb those dates. Is there some good reason why one should approach this as if your side were thinking about these issues for the first time?

MR WILLIS: The issue, your Honour, is fundamentally a matter of procedural fairness, as we would put it.

HIS HONOUR: I do understand that.

MR WILLIS: The process of removal should not be one which short‑circuits or shortcuts the well‑established timetable really was the point, and then the second one was the burden on any party of working over the January holiday period and it was really, if we were in the middle of the year it would be more convenient.....time. We would not be having some of that lassitude that appears to be in the timetable. So it was really that which was driving it.

The other matter is that the Commonwealth has said it will not be offering to pay the costs of Mr Montgomery’s team and so they will be reverting to acting pro bono and must balance, in the ordinary way, proper commitment to this matter with other matters which sustain practice. That is simply a factor and I was not – the timetable we thought has always been tight and we, in proposing the dates that I had, had been seeking to respect
the disciplines which the Court has already imposed at earlier points of the other proceeding – the related proceeding.

So it is not, I thought, an excessive time and those are the reasons that we were saying that in order to address properly matters of great significance we thought that these were tight timetables and it just happens to be that because of the Christmas period and the whole of the January holiday it does not matter how much.....busts its boiler to get it done before Christmas if they really wanted to do that – I am not sure – we were not seeking to impose that on the Commonwealth.

HIS HONOUR: Mr Solicitor, I have to say, bearing in mind that if this matter had proceeded in the ordinary way and your side, your party, was in the position of an appellant from the Federal Court or a party seeking leave to appeal from the Federal Court, the likelihood is that a condition would have been imposed in relation to the costs of the respondent. I do feel there is some force in what Mr Willis says about the position – the difficulty that his side finds itself in in terms of attending to this matter while also bearing in mind that they are doing so pro bono. On that footing I am inclined to accede to Mr Willis’ request for an extension of the times to reflect his suggestions. On that footing then, I am going to indicate the orders that I propose to make.

First of all, in relation to matter S173/2021, I order that the applicant have leave to discontinue the proceeding to the extent that such leave is required and that the respondent pay the applicant’s costs of proceedings C15/2021 and S173/2021 on a party and party basis.

As to proceeding C21/2021, I order:

1. Pursuant to section 40(1) of the Judiciary Act 1903 (Cth), the whole of the cause in proceeding No NSD 1233 of 2021 pending in the Federal Court of Australia is removed into the High Court of Australia.

2. The third respondent file any notice of objection to competence and any notice of contention on or before 17 December 2021.

3. On or before 4.00 pm –

Sorry, Mr Solicitor, what was the date you were proposing for that?

MR DONAGHUE: I pulled 21 January out of the air, your Honour, but I think that is ‑ ‑ ‑

HIS HONOUR:

on 21 January 2022, the first and second respondents file and serve a cause removed book.

4. On or before 4.00 pm on 28 January 2022, the first and second respondents file and serve written submissions of no more than 25 pages.

5. On or before 4.00 pm on –

What was the date, Mr Willis?

MR WILLIS: I had suggested 11 February, your Honour.

HIS HONOUR:

11 February 2022, any intervener in support of the first and second respondents file and serve written submissions of no more than 20 pages.

6. On or before 4.00 pm on 11 February 2022 ‑ ‑ ‑

MR WILLIS: No.

HIS HONOUR: Sorry.

MR WILLIS: That one was 25 February, I believe, your Honour.

HIS HONOUR: Sorry, very well, 25 February –

On or before 4.00 pm on 25 February 2022, the third respondent file and serve written submissions of no more than 30 pages.

7. On or before 4.00 pm on 9 March 2022, any other interveners file and serve written submissions of no more than 20 pages.

8. On or before 4.00 pm on 9 March –

Is that right?

MR WILLIS: No, I think the reply was to be 25 March, your Honour. It would be order 8.

HIS HONOUR:

8. On or before 4.00 pm on 25 March 2022, the first and second respondents file and serve a written reply of no more than 10 pages.

9. On or before 4.00 pm on 2 April 2022, the parties file and serve a joint bundle of authorities.

10. Subject to any further order, Part 44 of the High Court Rules 2004 (Cth) apply, with necessary adaptation, to this proceeding.

11. Compliance with Part 26 of the High Court Rules 2004 (Cth) be dispensed with.

MR DONAGHUE: Your Honour, it is a very minor matter, but I just noticed that that date for the joint book in order 9, 2 April, is a Saturday and it might be best if your Honour could make it 1 April.

HIS HONOUR: Very well. So that is in ‑ ‑ ‑

MR DONAGHUE: Order 9.

HIS HONOUR:

9. On or before 4.00 pm on 1 April 2022, the parties file and serve a joint bundle of authorities.

MR DONAGHUE: Thank you, your Honour.

HIS HONOUR: All right. Mr Willis, are you content with those directions?

MR WILLIS: They are made, your Honour, and I do not have anything to submit.

HIS HONOUR: I am sorry, I should have asked, is there anything further?

MR WILLIS: No, your Honour.

HIS HONOUR: Very well. Thank you, gentlemen. Adjourn the Court, please.

AT 12.21 PM THE MATTER WAS CONCLUDED