FEDERAL COURT OF AUSTRALIA

Plaintiff S111A/2018 v Minister for Home Affairs (No 2) [2020] FCA 499

ORDERS

THE COURT ORDERS THAT:

1.    Order 1 made on 17 March 2020 be varied to the effect that the applicant file and serve a proposed further amended statement of claim by 12 May 2020.

2.    By 20 April 2020, the applicants file and serve:

(a)    any amendment to paragraphs 2 and 3 of their interlocutory application dated 15 April 2020 (the applicants’ interlocutory application); and

(b)    a document identifying in short form the Court’s power to make each of the orders there sought.

3.    By 30 April 2020, the respondents file and serve any evidence on which they rely in opposition to paragraphs 2 and 3 of the applicants’ interlocutory application.

4.    By 7 May 2020, the applicants file and serve any evidence in reply to the respondents’ evidence filed pursuant to order 3 of these orders.

5.    By 14 May 2020 the applicants file and serve written submissions, limited to 5 pages, in support of paragraphs 2 and 3 of their interlocutory application.

6.    By 21 May 2020, the respondents file and serve written submissions, limited to 5 pages, in response to the applicants’ written submissions filed pursuant to order 5 of these orders.

7.    Paragraphs 2 and 3 of the applicants’ interlocutory application and the respondents’ interlocutory application dated 13 March 2020 be stood over before the docket judge at a time and on a date to be notified by the Registry or by the docket judge.

8.    Costs reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ROBERTSON J:

1    On 17 March 2020 I made an order that the applicants file and serve a proposed further amended statement of claim by 9 April 2020. The proceedings, including an interlocutory application filed on behalf of the respondents on 13 March 2020 for summary orders dismissing or striking out the proceedings in whole or in part, were stood over for case management to today.

2    The solicitor for the applicants wrote by email to the solicitors for the respondents on 7 April 2020 requesting an additional six weeks to comply with the order for a further amended statement of claim. (I note that the original statement of claim was filed in the High Court as long ago as August 2018.) The respondents did not consent to that proposal and set out their reasons in a letter dated 8 April 2020. I will return to the contents of that letter below.

3    By interlocutory application filed on 15 April 2020, the applicants sought the following interlocutory relief, as written:

 1.    That time to file a further Amended Statement of Claim for 6 weeks.

2.    That the applicant be granted exclusive use of his own personal laptop while in detention at Villawood Detention Centre.

3.    That the first respondent be directed to facilitate a single room for the first applicant in Villawood Detention Centre.

 4.    Costs.

That interlocutory application was supported by an affidavit of the solicitor for the applicants, affirmed on 14 April 2020 and filed on 15 April 2020.

4    The issue of a personal laptop was raised informally by senior counsel for the applicant, who had just come into the matter, at the case management hearing on 17 March 2020. I indicated then that any such application would need to be made in proper form and supported by evidence. The issue of a single room was not then clearly raised, so far as I am aware.

5    The respondents maintained that they were not in a position, this morning, to deal with the personal laptop issue and the single room issue but were in a position to respond to the application for an extension of time.

6    I propose to give the respondents time to put on evidence in relation to those issues and they may then be the subject of submissions.

7    In relation to the further time to file a “further Amended Statement of Claim”, the solicitor’s affidavit to which I have referred state the following at [14]-[19], as written:

14.    We seek an extension to file a further amended statement of claim given the complexity and scope of the discovery documents and difficulty with face to face instructions with the first respondent.

15.    During the Covid 19 crisis, my counsel, Mr Michael Finnane Q.C has been working entirely from his home where he has been isolating following advice that people over 70 years do so.

16.    At the time we appeared in Court the current isolation situation had not arisen, and Mr Finnane and I were going to see our client at the Villawood Detention Centre, however I was informed of some detainees put in isolation due to displaying COvid-19 symptons. However, Mr Finnane declined on health grounds and I became aware that there may have been Covid 19 cases at the Detention Centre. I did not go there for that reason.

17.    Communication with my client has been entirely by email. Because Mr Finnane is in isolation at his home, I have not been able to confer with him other than by email. He declines to confer in person. There are considerable complexities in this case because of the need to consider large numbers of documents, including interviews of the client. I would respectfully seek a further 6 weeks to file a Statement of Claim 21 May 2020.

18.    Further in respect of face time with the first respondent, this may be difficult given he is not afforded privacy, given the real possible dire consequences the first respondent will face if removed to Egypt, the seriousness of his case, the complexities and the numerous change of Counsel in the matter, and that the first Respondent is currently not in the best of health, additional time to apply due diligence to the large amount of documents would be required for the further amended statement of claim.

19.    The respondents would not be prejudice given the first respondent’s time and attention to date and the additional time to draft the further amended statement of claim may likely avoid further delays seeking further amended statement of claim.

8    In oral submissions, senior counsel for the applicants put the following, in summary. The preliminary arrangements for him to see the first applicant at the Villawood Immigration Detention Centre had been cancelled and he had not been there or spoken to the first applicant. Senior counsel had now read the documents, provided on a USB drive, but had not spoken to the first applicant. Communication was very difficult, communications thus far being by computer. The possible amendments to the pleading centred on a potential denial of procedural fairness so that senior counsel had to understand what the first applicant had been given and what he had not been given. This involved getting instructions from the first applicant. Senior counsel, from his reading of the documents, had some 10 or 15 factual issues which he wished to discuss with the first applicant.

9    The respondents’ written reasons for opposing the application for further time were set out in their solicitors’ letter dated 8 April 2020. They were, in summary, that in light of the history of delays in this matter, the applicants’ solicitor had not identified any sufficient basis which would justify a period of more than 9 weeks to file a proposed further amended statement of claim. The matters raised by the applicants’ application were historical in nature, largely documentary and did not turn on matters particular to the applicants’ knowledge. Both the applicants and the applicant’s solicitor had access to the material discovered by the respondents: electronic copies were provided to them on 20 September 2019 (the Director-General of Security’s material) and 1 November 2019 (the Minister for Home Affairs’ material) and hard copy documents were provided to the first applicant at his solicitor’s request on 10 March 2020. It was therefore unclear why instructions on the application could not be given by email or by telephone. It was also unclear why the applicants’ legal team could not work on these matters electronically and remotely, including by telephone.

10    The respondent submitted that the applicants’ solicitor had identified the need to review “interviews of the client” (which they assumed to be the transcripts of the first applicant’s ASIO interviews). However, those documents were furnished on 11 February 2019. Given that they were provided more than a year ago, the need to review those documents did not provide a sufficient basis for any extension of time.

11    The respondents contended that it was also not clear why it was only on 7 April 2020 that the issues to which the applicants’ solicitor referred had become apparent to her. Visits to immigration detention centres had been temporarily prohibited since 24 March 2020. The Prime Minister advised people aged over 70 years to self-isolate at home on 29 March 2020. The New South Wales government issued the New South Wales Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 on 30 March 2020. Yet, the request for an extension was not made until two days before the deadline for the proposed further amended statement of claim.

12    In oral submissions, the respondents made five additional points. First, they submitted that the applicants’ solicitor had been able to obtain instructions, as evidenced by her recent affidavit. Second, it appeared that up to now there had been only email communication with the first applicant. Third it appeared that the first applicant had a mobile telephone which could be used to obtain instructions and also the applicant could communicate by FaceTime. Fourth it was not clear why a face-to-face meeting between the first applicant and his lawyers was necessary. Fifth, the respondent submitted that it was not necessary for the first applicant personally to review the discovered documents.

Consideration

13    The respondents’ interlocutory application, which I have referred to in [1] above, was not agitated this morning. Neither was the substance of paragraphs 2 and 3 of the applicants’ interlocutory application, which I have set out at [3] above.

14    The basis of the application for further time rests at a general level. For example it is not explained what work has been done by the legal representatives of the applicants in relation to the material provided both electronically and in paper form by way of discovery many months ago. While I accept that the present senior counsel for the applicants came into this matter only shortly before the last case management hearing on 17 March 2020, I am not persuaded that six weeks is needed for the legal representatives of the applicants to get to grips with the material, including obtaining instructions as to the procedural fairness points, and consequently framing a proposed amended statement of claim. As the respondents point out, the materials are historical in nature.

15    The procedural history of this matter from the applicants’ side of the record has been worse than slow. It has been quite unsatisfactory. It was over a year ago that the proceedings were remitted by the High Court and just under a year since the proceedings were consolidated in this Court. I recited some of the procedural history in Plaintiff S111A/2018 v Minister for Home Affairs [2019] FCA 1271. I have noted at [2] above how long ago the original statement of claim was filed.

16    I will grant some further time but for three reasons only. First, in my view the applicants should not be visited fully with what seems to me to be the procedural inefficiencies of their legal representatives in the past. Second, the applicants have new counsel who has read the discovered material and identified the finite issues on which he seeks to get instructions from the first applicant. Third, I accept that the extent of the disruption caused by COVID-19 was not fully appreciated at the time of the last case management hearing.

17    The pandemic is not a basis on which, in this matter, the lawyers for the applicants may expect a procedural standstill or procedural delay. The applicants’ interests are not the only interests in the litigation. The respondents have an interest in getting the matter on for hearing and there is a similar public interest.

18    In these circumstances I am not persuaded that a further six weeks is appropriate or necessary. In my view the necessary instructions from the first applicant can be obtained by a three-way telephone hook-up. It may also be that audio-visual technology is available for a three-way conference. Instructions could be obtained within a very few days and amendments drafted soon afterwards. I would allow until 12 May 2020.

19    I will also make other procedural orders so that the remaining interlocutory issues may be heard and determined as soon as possible. I will reserve costs.

Associate:

Dated:    16 April 2020

SCHEDULE OF PARTIES