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High Court of Australia Transcripts |
Last Updated: 8 December 2022
IN THE HIGH COURT OF AUSTRALIA
Office of the
Registry
Sydney No S102 of 2022
B e t w e e n -
ENT19
Plaintiff
and
MINISTER FOR HOME AFFAIRS
First Defendant
COMMONWEALTH OF AUSTRALIA
Second Defendant
GAGELER J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 8 DECEMBER 2022, AT 12.00 NOON
Copyright in the
High Court of Australia
MS L.G. DE FERRARI, SC appears with
MR J.D. DONNELLY and
MS E.A.M. BRUMBY for the plaintiff. (instructed by
Zarifi Lawyers)
MR S.B. LLOYD, SC appears with MS A.M. HAMMOND and MR J.G. WHERRETT for the defendants. (instructed by Australian Government Solicitor)
MS DE FERRARI: Good afternoon, your Honour. Thank you for those proposed minutes. We have a couple of suggested amendments but otherwise are content with them.
HIS HONOUR: Yes. The minutes did not come from me. I think they came from the Registry. So, you can be more robust in your criticism of them.
MS DE FERRARI: Thank you to the Registry. The first amendment is that at proposed order 1, we would also add, and any further or amended notice of a constitutional matter. We are still thinking about the matters arising from this morning, your Honour. The only other amendment would be that in order 3, we would wish to file and serve the revised application book rather than have the defendants do it.
HIS HONOUR: Could you please repeat that? Order 3?
MS DE FERRARI: Order 3 would read, the plaintiff file and serve a revised application book, rather than the defendants.
HIS HONOUR: Why? You can talk to each other, can you not?
MS DE FERRARI: We certainly can talk to each other. It is just a matter of convenience of having it in-house. But I am happy to leave it as it is and we will talk to the defendants, your Honour.
HIS HONOUR: Now, Ms De Ferrari, while you are on your feet, I have a couple of questions for you. There is, at least notionally, outstanding an interlocutory application that you have filed to adduce further material ‑ ‑ ‑
MS DE FERRARI: Yes.
HIS HONOUR: ‑ ‑ ‑ that will be subsumed in this new process.
MS DE FERRARI: That is what I thought. Your Honour, on reflection, when I was preparing again for this case, I definitely think that we should have the affidavit of my instructor that started the whole proceeding that attests to facts that are important, including the status of the family and so on.
HIS HONOUR: Let us do this. In your proposed second further amended application, in the section of that that requires the facts to be recited would you please give very close attention to all of the material facts upon which you rely so that in the response there can be a traversing of those facts that you seek to allege ‑ ‑ ‑
MS DE FERRARI: Yes, your Honour.
HIS HONOUR: ‑ ‑ ‑ so we can have a very clear understanding of any issue of relevance that might arise in relation to the material? Now, you are both here, you were both intending to be here for the entire day, I would be surprised if you cannot come to some understanding as to what material is to be relevant. There will not be an application to the Full Court to adduce further material.
MS DE FERRARI: That is understood.
HIS HONOUR: I would be very surprised if there is any application at all, but if there is one, I will deal with it.
MS DE FERRARI: That is understood, your Honour, and I am sure we can find some time during the rest of today to discuss.
HIS HONOUR: Very good.
MS DE FERRARI: That probably also answers some of the questions that my learned friend had in respect to order 2. But if I may – your Honour said you had a couple of matters for me?
HIS HONOUR: That might cover them, I think. Yes.
MS DE FERRARI: That might cover it.
HIS HONOUR: The other thing is this. You might give some very close attention to the rest of your further amended application as well, perhaps with a view to pruning some of the verbiage, given that you will be explaining yourself fully enough in written submissions.
MS DE FERRARI: Yes.
HIS HONOUR: But it would be very useful if this document is
a very concise document that, one, effectively pleads the material facts and,
two,
identifies with precision the grounds upon which you rely.
Ms De Ferrari, it is a matter for you entirely, of course –
and
speaking only for myself –
some of your grounds seem to be
stronger than others. You might give some consideration to whether you wish to
pursue all of them.
MS DE FERRARI: Thank you, your Honour.
HIS HONOUR: Yes. Very good.
MR LLOYD: May I, first of all, ask in relation to the proposed, one, slight changes to the dates, which I think my friend does not have a problem with. So, in order 3, it would be the 13th, rather than the ‑ ‑ ‑
HIS HONOUR: Mr Lloyd, there seems to be a conspiracy almost of silence here. I can barely hear you.
MR LLOYD: I am sorry. I was asking if we could change some of the dates ‑ ‑ ‑
HIS HONOUR: Yes, of course.
MR LLOYD: In order 3, instead of 11 January, it would be 13 January; then in order 4, instead of 16 January, it would be 18 January; then in order 5, instead of 13 February, it would be 15 February; then order 6 would be 22 February. That is the first matter.
I heard what your Honour said about order 2. The difficulty we face is that our entire counsel team is largely unavailable between 19 December and 9 January and, indeed, for some time after that, as well, but I take it that your Honour sees value in the facts being fully agitated or clarified as to what is the ambit of any factual dispute.
HIS HONOUR: I do.
MR LLOYD: We will do the best we can ‑ ‑ ‑
HIS HONOUR: When does the unavailability begin, Mr Lloyd?
MR LLOYD: For some, the 16th. I think it will not make much difference changing it from the 9th to the 15th or something, so I think we will just live with the 9th. It is what it is.
HIS HONOUR: Yes.
MR LLOYD: Can I raise one other thing which your Honour might not want to opine on, but we prepared today a further affidavit from Ms Wood. Ms Wood is a person who does an affidavit with her opinion that the applicant is an unlawful non‑citizen, which is relevant to the habeas corpus part of the case. At the moment, there is an affidavit which says her opinion in July and we thought, in case somebody agitated it, we would have one up to yesterday so it is current. Does the Court think we should have one as at March next year, in which case we will bring one along to the hearing. If it is not going to be agitated, we would rather save the cost but ‑ ‑ ‑
HIS HONOUR: Mr Lloyd, I confess that I am not across that particular evidence. How is her opinion relevant?
MR LLOYD: She is the person who is holding the plaintiff in detention and she has to have the opinion that he is an unlawful non‑citizen.
HIS HONOUR: Yes, I see.
MR LLOYD: And that she has taken into account the relevant things that – I do not want to say it is formal, but I did not understand it to be controversial.
HIS HONOUR: I follow, yes.
MR LLOYD: It is just a matter of time of getting it done. If either my friend or the Court thinks it should be done, we will, of course, have one up to date saying – I mean, habeas corpus is – we have to show the lawfulness of it at the time of the hearing.
HIS HONOUR: I am sorry, I do understand that. Have you discussed that with Ms De Ferrari?
MR LLOYD: I had not raised it with her yet. If I put it this way: if my friend is not going to take issue with it, should I assume that the Court is unlikely to agitate the point?
HIS HONOUR: Well, it really is a matter between the parties.
MR LLOYD: Certainly. Well, I will deal with it that way. A matter of question about – our existing submissions with the existing grounds are already 20 pages. We had formulated some alternative orders which would suggest supplemental submissions.
HIS HONOUR: Mr Lloyd, I am sure that Ms De Ferrari, when she has a very good look at her current grounds and the grounds she wishes to raise, and then rewrites the submissions, will be able to put everything that matters in 20 pages, and you can respond in the same number of pages.
MR
LLOYD: Thank you, your Honour. The only other thing I was going to
raise was the question of the length of the hearing. I apprehended
that
with the existing grounds, my friends were thinking that they
would – well, it would go the whole day, and we think there is
some
time involved in the new ground, and so we did not know if we should say to the
Court, maybe it is a day and a half matter now.
That was all.
HIS HONOUR: I see. Thank you. Was there anything else, Mr Lloyd?
MR LLOYD: I do not think so.
HIS HONOUR: Ms De Ferrari?
MS DE FERRARI: Your Honour, my estimate is still a day. I mean, once the submissions are revised and down and we have more time to think about it and make them more condensed, particularly with the benefit, in a sense, of the Court already having an appreciation of some of the factual background and material ‑ ‑ ‑
HIS HONOUR: Yes.
MS DE FERRARI: I do not want to be heard entirely against a day and a half, but my view is it still can be done in a day.
HIS HONOUR: I will take both estimates on board. Thank you. And Ms De Ferrari, will there be any issue about the affidavit expressing the opinion of the detaining officer?
MS DE FERRARI: No, your Honour. I mean, the only question is that, in a sense, it is ships sailing in the night because she is not really talking about the relevant matters that might make the detention unlawful.
HIS HONOUR: So, you will accept the affidavit as being current as at the date of the hearing?
MS DE FERRARI: Yes.
HIS HONOUR: Thank you. Is there anything else either side wishes to raise?
MR LLOYD: No, thank you, your Honour.
HIS HONOUR: Okay.
The orders I will make are as follows:
Any
such application I will deal with, but I really do not expect any such
application.
Very well, the Court will now adjourn.
AT
12.13 PM THE MATTER WAS ADJOURNED
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