Herijanto, Muin, Lie v Refugee Review Tribunal

[1999] HCATrans 372

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S97 of 1998

B e t w e e n -

HERIJANTO (As the Representative of the Plaintiffs listed in the Schedule)

Plaintiff

and

REFUGEE REVIEW TRIBUNAL

First Defendant

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Defendant

COMMONWEALTH OF AUSTRALIA

Third Defendant

Office of the Registry
  Sydney  No S36 of 1999

B e t w e e n -

MUIN (As the Representative of the Plaintiffs listed in the Schedule

Plaintiff

and

REFUGEE REVIEW TRIBUNAL

First Defendant

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Defendant

COMMONWEALTH OF AUSTRALIA

Third Defendant

Office of the Registry
  Sydney  No S89 of 1999

B e t w e e n -

NANCY LIE (As the Representative of the Plaintiffs listed in the Schedule

Plaintiff

and

REFUGEE REVIEW TRIBUNAL

First Defendant

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Defendant

COMMONWEALTH OF AUSTRALIA

Third Defendant

Summons for Directions

GAUDRON  J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 26 OCTOBER 1999, AT 10.15 AM

Copyright in the High Court of Australia

______________________

MR M.A. ROBINSON:   If your Honour pleases, I appear for the plaintiffs in all three matters.  (instructed by Adrian Joel & Co)

MR J. BASTEN, QC:   I appear for the second and third defendants in each of the matters, if your Honour pleases, with MR R.T. BEECH-JONES.   (instructed by the Australian Government Solicitor)

HER HONOUR:   Thank you, Mr Basten.

MR BASTEN:   I should say that my instructing solicitor does represent the Tribunal.  We may be able to answer questions on its behalf if that is required.

HER HONOUR:   We will deal with that shortly.  The three applications can be dealt with together, can they?

MR ROBINSON:   Yes, your Honour.

HER HONOUR:   And it is your motion, Mr Basten?

MR BASTEN:   Yes, it is, your Honour.

HER HONOUR:   Perhaps I could ask at this stage:  to what extent are the motions opposed, Mr Robinson?

MR ROBINSON:   Your Honour, there have been short minutes forwarded to us recently.  The last version of those is largely agreed, subject to one issue on discovery.  Perhaps your Honour could be handed a copy.

HER HONOUR:   That is very helpful because, although the issues may have been agreed between the parties, I may need some persuading on some matters.

MR ROBINSON:   We have a copy of the current draft orders.  Subject to us seeking that the first defendant in each case discover as well, those are largely agreed.

HER HONOUR:   Yes, thank you.  Now, Mr Basten, perhaps you can tell me what has happened to the first-named defendant.

MR BASTEN:   The Tribunal is not taking an active part in the proceedings except that it is willing to answer notices for discovery and I was going to indicate that, in the fourth and fifth paragraphs of the short minutes, we would seek to add "First" before "Second", so that it is clear that discovery will be given in relation to each of the defendants.

Does your Honour wish me to say a few words about the nature of the proceedings and how the matter has got to this stage?

HER HONOUR:   I can guess. 

MR BASTEN:   There is an affidavit of Mr Markus affirmed on 17 September which was in support of the summons.  If your Honour has that, there is attached to that a proposed further amended statement of claim in the matter of Herijanto which is perhaps the easiest ‑ ‑ ‑

HER HONOUR:   Yes.  That seeks to raise the decision on the papers point in that matter.

MR BASTEN:   Yes, it does.

HER HONOUR:   Does that mean that the decision on the papers point is now in each of the three cases?

MR BASTEN:   Yes, that will be common to each of them.

HER HONOUR:   Am I right in thinking that is the only point in Lie?

MR BASTEN:   Yes.

HER HONOUR:   But in ‑ ‑ ‑

MR BASTEN:   In Herijanto and Muin there is a breach of representation in relation to adverse material which is pleaded as a general breach of procedural fairness..

HER HONOUR:   Yes.  Thank you for that.  I just needed to understand that.

MR BASTEN:   Your Honour will be conscious that that raises an issue which cannot readily be dealt with in the Federal Court under the scheme of Part 8 of the Migration Act.

HER HONOUR:   It is not being alleged that there was a breach of a statutory requirement by the Tribunal, because it was not a requirement on the part of the Tribunal.

MR BASTEN:   There was originally a point in those terms.  I was going to say these matters have been around for a while in parts because the decision in Eshetu has been awaited and there have been amendments made to delete reliance upon section 420.

HER HONOUR:   Yes, I see.

MR BASTEN:   In any event, I think the intention is that in Herijanto and Muin there are, in effect, the two separate causes of action.  The stage has been reached where discovery has been given in relation to the first, but not the second, the second having been added only recently.  So there may still be some questions about whether the discovery is complete and there may be some questions as to whether discovery has been given separately in relation to each of the first and third defendants.  Those matters are administrative, but we hope that within the timetable we would be able to sort that out. 

If I might just note, in the short minutes the first paragraph deals with the question of parties because, in relation to the new cause of action, the Secretary should be joined in those two proceedings of Herijanto and Muin.  That is not controversial.  Paragraphs 2 and 3 provide for the pleadings to be completed.

HER HONOUR:   Now, do they?  I looked at this in terms of the earlier minutes.  Do we not do replies any more and join issue any more?

MR BASTEN:   I think the answer, your Honour, is there probably will not be - we have seen the amended statement of claim ‑ ‑ ‑

HER HONOUR:   But you still have to file a reply, do you not?

MR BASTEN:   If the plaintiff is to file a reply, we are happy for that to be included.

HER HONOUR:   No, the reason I ask at this stage is that these are not proceedings which we are well equipped to deal with in this Court and if agreed factual matters can be isolated from the pleadings, that is all to the good.  So that there should be a 3(a) in there, should there not, as to the replies?

MR BASTEN:   Very well.  "The Plaintiffs file and serve replies to the amended defences in all matters"?

HER HONOUR:   Yes, by 15 November?

MR ROBINSON:   Yes, that is suitable.

HER HONOUR:   I will just note that.  Thank you, Mr Basten.

MR BASTEN:   Paragraphs 4 and 5 relate to discovery, which I have mentioned.  I note that it was proposed that discovery be completed by 12 November.  I think we are still content to live with that date, despite the 15th being the date for replies.

HER HONOUR:   We will make that 15 November.

MR BASTEN:   Paragraphs 6 to 9 deal with the proposed timetable for evidence.

HER HONOUR:   Could I just take you to paragraph 6.  What is contemplated by the direction that "evidence in all three matters be given by affidavit"?

MR BASTEN:   Simply as opposed to oral evidence, your Honour.

HER HONOUR:   It is not meant to indicate that there will not be - a possibility of cross-examination?

MR BASTEN:   No.  Your Honour, in the original summons for direction we had suggested in order 2 that there be a direction about listing for trial.  We have not sought to deal with that on the basis that until the evidence is complete, we do not know whether there are going to be disputes on the evidence.  It may be that the factual matters will end up without dispute or it may not be.  We are simply not in a position to advise, your Honour.

HER HONOUR:   If there are disputes it seems that the preferable course would be for factual matters to be determined by a single Judge who then states a case for the determination of the legal issues by a Full Court.

MR BASTEN:   Yes.

HER HONOUR:   I see your junior is shaking his head vigorously, but I do not know about Mr Robinson.

MR BASTEN:   Nodding, I think, your Honour.  That was our view of it.

HER HONOUR:   Yes, nodding.  I am sorry to interrupt, did you ‑ ‑ ‑

MR ROBINSON:   We are content with that approach, your Honour.

HER HONOUR:   Yes, thank you.

MR ROBINSON:   We also, of course, seek to minimise the dispute and at the end of the day, after the process set forth in the draft short minutes, we will be in a position to identify the precise area of any potential factual dispute.

HER HONOUR:   Yes, thank you.

MR BASTEN:   Your Honour, in paragraphs 7 and 10, it was proposed that the date be 17 December.  We have been put on notice that the plaintiffs may seek leave to interrogate and we have simply suggested that when they file their evidence, they file any draft interrogatories on us so that we know how to respond.  If there is an issue about that it will no doubt need to come back before your Honour on a directions hearing.

HER HONOUR:   Yes.  Probably one ought to - I take it there is no opposition to these orders as formulated.

MR ROBINSON:   No, your Honour.

HER HONOUR:   Probably the best course is to list this matter shortly after 11 February for further directions if required.  Will it be suitable at 9.30 am on 17 February to list it?

MR ROBINSON:   That is suitable, your Honour.

HER HONOUR:   Would that be suitable to Mr Basten?

MR BASTEN:   Yes, it is, your Honour.

HER HONOUR:   Very well.  Did you wish to say anything further in relation to this, Mr Robinson?

MR ROBINSON:   Only to make it clear, your Honour, that in paragraph 4 the word "First" appears after the first word and in paragraph 5 the word "First" appears after the first word.

HER HONOUR:   Yes, I have done that.

I have amended during the course of discussions the short minutes of order.  I will note the amendments:

that there is a paragraph 3(a) in terms that "The Plaintiffs are to file replies in each of these matters by 15 November 1999.";

paragraphs 4 and 5 are amended to insert the word "First" immediately after the word "The";

paragraph 5 is further amended to refer to 15 November as the date for providing the list and copies of documents;

paragraph 7 is amended to read 17 December, as is paragraph 10.

I will make orders in accordance with the short minutes as amended by me and initialled and placed in the papers.

Otherwise, I will adjourn the matter until 9.30 am on 17 February 2000 for further directions if necessary.

Thank you very much for your attention to these matters and having agreed on so much.

Court will now adjourn.

AT 10.30 AM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 17 FEBRUARY 2000