'Secret defence' delays Habib case

(AAP) An application to have Mamdouh Habib's compensation case thrown out of court has been delayed because the federal government is refusing to reveal its "secretdefence" to the case.

Mr Habib is suing the government for damages in the Federal Court, claiming it sat
by and did nothing while he languished for four years in the Guantanamo Bay prison.
The Egyptian-born man also is seeking compensation for alleged government inaction
and complicity in his detention and torture in Afghanistan, Pakistan and Egypt.
Commonwealth barrister Barry Twomey QC on Thursday launched a comprehensive attack
on Mr Habib's claim in Sydney, applying for the entire case to be struck out.
The core of his claim against the government - that he was tortured at the
Australian High Commission in Islamabad in the presence of Australian officials -
had already been dismissed by the court.
Mr Twomey said the rest of the claims were similarly unreliable and the case should
therefore end.
"This is already a case which has cost a huge amount of money," he told the court.
"People have been brought from all over the world (to give evidence at the earlier
High Commission question hearing).
"In the circumstances we think are apparent, the case should be terminated now."
Rising to his feet to respond on Mr Habib's behalf, Ian Barker QC called for access
to the commonwealth's "secret defence", prompting a puzzled look from Justice Nye
Perram.
"I believe it's in the Registrar's safe," Mr Barker stated.
The highly classified document was filed by the commonwealth in defence to Mr
Habib's claims and Mr Barker said it could only be released to Mr Habib's lawyers on
the proviso that they not show it to their client.
"The undertaking required is not to speak to our client (about the contents) which
would make the whole exercise useless," Mr Barker said.
Despite earlier asserting that unnecessary delays and costs should come to an end,
Mr Twomey said a formal application would need to be made to see the document.
He also foreshadowed that the government might call evidence against releasing the
material.
After reading the document, Justice Perram adjourned proceedings so both sides could
seek legal advice.
"It's going to present considerable forensic difficulty as to how this defence can
see the light of day," the judge remarked.
Mr Twomey suggested that part or perhaps all of the compensation case could be heard
in closed court, if it proceeded.
Mr Barker said as in the case of fellow Guantanamo Bay inmate David Hicks, there was
little legal precedent for the matter.
"There has never been a case like this, at least in Australian history," he said.
"In my respectful submission this is an extreme case and we should be able to call
evidence and argue that in failing to request Mr Habib's repatriation Australia
caused him immense damage."
The case resumes on Friday.