Matson v The Attorney-General of the Commonwealth of Australia [2022] HCATrans 109 (16 June 2022)

Last Updated: 16 June 2022

[2022] HCATrans 109

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B20 of 2022

B e t w e e n -

BARON PHILLIP MATSON

Plaintiff

and

THE ATTORNEY‑GENERAL OF THE COMMONWEALTH OF AUSTRALIA

Defendant

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 16 JUNE 2022, AT 4.08 PM

Copyright in the High Court of Australia
HIS HONOUR: This is a telephone directions hearing.

MR B.P. MATSON appears in person.

MR M.D. McKECHNIE appears for the Attorney‑General of the Commonwealth of Australia. (instructed by Australian Government Solicitor)

HIS HONOUR: Let me make it clear that this is a directions hearing only. My concern is only with the procedure to be adopted for the hearing of the applications that have been filed. I do not propose today to make any substantive orders. The only orders I propose to be making today are orders that are concerned with timetabling.

Now, I have before me two applications. I have a principal application for a constitutional or other writ, which was filed on 27 May, supported by an affidavit sworn by Mr Matson and filed on that same day. I also have an interlocutory application for an injunction and for other orders, which was filed on 14 June, accompanied by another affidavit of Mr Matson that was filed on the same day.

Now, within the second of those affidavits, as exhibits, I see a draft outline of submissions for the principal application as well as a draft outline of submissions for the interlocutory application. Mr Matson, can I just address a couple of questions to you?

MR MATSON: Yes, your Honour.

HIS HONOUR: Are those the submissions that you would propose to rely on for each of those two applications?

MR MATSON: Your Honour, that would be conditional upon whether or not your Honour was minded, as part of the procedural orders today - as to whether or not your Honour felt it appropriate in the circumstances to make a direction for pro bono legal representation in respect of the application filed on 14 June. If that was the case, I believe it would be appropriate for counsel to settle final submissions in respect of the application.

HIS HONOUR: Yes, I understand that, thank you. It appears to me that the most efficient course to be adopted would be for me to consider the principal application in the first instance by reference to rule 25.09.1 of the High Court Rules 2004 (Cth). The question that arises under that procedural rule is whether or not the application appears to me to disclose an arguable basis for the relief sought. If the answer to that question is yes, then further issues of timetabling would arise and interlocutory orders of various kinds might or might not be made. If the answer is no, then the result would be that the principal application would be dismissed and the interlocutory application would fall away.

I do understand, Mr Matson, you are seeking, as part of the interlocutory orders, an order for the appointment of pro bono counsel. It does appear to me that you have had the assistance of counsel in the past and it does appear to me that your documentation as filed clearly enough articulates your legal argument, at least sufficiently for me to be able to make that preliminary assessment.

The assessment under rule 25.09.1 would ordinarily be made only after the filing of a response by the defendant. I am not exactly sure what day such a response would be required in accordance with the ordinary rules because that depends on the precise date of service of the application but, Mr McKechnie, are you able to tell me whether or not such a document could be filed soon?

MR McKECHNIE: It could be filed soon, your Honour. The deadline by reference to the date of service was 24 June, but that could be filed shortly.

HIS HONOUR: It seems to me it would be most efficient if that document were filed, and Mr Matson were given such opportunity as he would seek to respond to it. I would be able to make that assessment, and a decision in accordance with that rule very soon thereafter. Mr McKechnie, are you able to enlighten me as to the position in relation to the possible surrender of the plaintiff?

MR McKECHNIE: Yes, your Honour. So, the situation of urgency arises out of the statutory deadline that is put in place under section 26(5) of the Extradition Act. That timeline requires the warrant to be executed by 28 July. Now, of course, there are a number of procedural and organisational matters that need to be put in place before such warrants are executed, and my instructions are that we would ideally seek this matter – or seek a timetable that would have this matter resolved, at least that first question of what your Honour is proposing, that question be resolved by 30 June.

Any later, on my instructions, jeopardises the compliance with that 28 July deadline. Of course, if your Honour decides that there is merit in the case, as your Honour indicated, then there would be orders that flow from that, but my instructions are to seek a timetable that attempts to resolve this matter by 30 June, and we are prepared to put responses in to facilitate that. I gather your Honour is considering determining this on the papers?

HIS HONOUR: That is one option that arises under the Rules, so I am not foreclosing that as a possibility. I think the first step is to have the papers filed, and you are not, at this stage, proffering an undertaking?

MR McKECHNIE: I have instructions that I could proffer an undertaking up until 30 June.

HIS HONOUR: Very well. When can you file your response?

MR McKECHNIE: I am just taking instructions on that, your Honour.

HIS HONOUR: Bearing in mind that Mr Matson will need to be able to consider it.

MR McKECHNIE: Just one moment, your Honour, I am waiting for instructions - my instructor is in a different location to me. Your Honour, the 21st – Tuesday next week?

HIS HONOUR: Are you able to formulate the undertaking you are prepared to give?

MR McKECHNIE: I can. It would be an undertaking that the Attorney‑General would not execute the surrender warrant prior to 30 June – let us say prior to 1 July 2022, or the determination of this matter. That, again, is on the basis that this matter would be determined before the 30th.

HIS HONOUR: Shall I put it in these terms? It would be an undertaking of the defendant not to execute the surrender warrant prior to 1 July 2022, or the earlier determination of the principal application.

MR McKECHNIE: Yes, your Honour.

HIS HONOUR: Yes. Now, Mr Matson, you have heard that. If a response were filed next Tuesday at 4.00 pm, how long do you wish to have to file a reply, if you choose to make one?

MR MATSON: Your Honour, in my experience it would probably take anywhere from two or three days from the time that I have considered the material to then get it printed and then signed and forwarded to the Court via the Arthur Gorrie Centre’s management. That said, the question is, is how quickly I will be provided the response. I will probably need at least 48 hours to consider the defendant’s material.

I am not sure how lengthy or voluminous that is going to be, but I think that realistically a period of seven days for the whole process, from the time of filing by the defendant, would be a realistic period of time for me to prepare the necessary reply and have that filed, noting that that would not give your Honour a lengthy or a sufficient period of time to consider, or would certainly only give a short period of time for your Honour to consider that material. I would endeavour to get it done at the earliest availability, though, so there is the potential that it could be filed sooner than that. It would just depend upon the logistics here at this end.

HIS HONOUR: Yes, I understand. I will set a date of Tuesday, 28 June, but of course that is the latest date for filing. If you can get it done earlier then that, of course, is preferable.

MR MATSON: Yes.

HIS HONOUR: I am proposing to accept the undertaking and give directions for the filing and service of the response by 4.00 pm on 21 June and for any reply by 4.00 pm on 28 June. I take it that there is nothing further to discuss and, therefore, I make the following directions:

On the undertaking of the defendant not to execute the surrender warrant prior to 1 July 2022, or the earlier determination of the principal application:

1. The defendant file and serve a response to the principal application and to the interlocutory application at or before 4.00 pm on Tuesday, 21 June 2022; and

2. The plaintiff file and serve any reply at or before 4.00 pm on Tuesday, 28 June 2022.

Those are the directions that I have made.

Thank you for your attendance at short notice, Mr Matson and Mr McKechnie.

The Court will now adjourn.

AT 4.26 PM THE MATTER WAS ADJOURNED