Herijanto, Muin, Lie v RRT

[2000] HCATrans 180

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

Directions hearing

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 28 APRIL 2000, AT 9.32 AM

(Continued from 31/3/00)

Copyright in the High Court of Australia

______________________

MR M.A. ROBINSON:   If the Court pleases, I appear again for the plaintiffs in this matter.  (instructed by Adrian Joel & Co)

MR R.T. BEECH-JONES:  If the Court please, I appear on behalf of the second and third defendants.  (instructed by the Australian Government Solicitor)

HER HONOUR:   Thank you.  Mr Robinson, you have an application for a stay?

MR ROBINSON:   Yes, your Honour.  I have a few more applications, your Honour.  They will be brief. 

HER HONOUR:   How many more?  Are they reduced to writing?

MR ROBINSON:   Yes, they are, indeed, your Honour.  If I could hand up – the stay is the first order that is sought.  I seek, in addition to the affidavit in support of the stay ‑ ‑ ‑

HER HONOUR:   Yes, I have read that.

MR ROBINSON:    ‑ ‑ ‑to file in Court an affidavit of Mr Joel sworn this morning.  The other side have only just received that this morning.  However, I discussed with my learned friend yesterday afternoon the nature of the matters that we would be agitating today – we would be seeking to agitate today.

HER HONOUR:   Yes.  First I should ask, do you oppose the stay?

MR BEECH-JONES:   We do, your Honour.  We oppose it in the sense that what Mr Joel says in his affidavit is that he would not expect the leave application to get on until October.

HER HONOUR:   That is just about what I was to tell you.

MR BEECH-JONES:   And we were about to raise with your Honour the possibility of if we could seek expedition of the leave application.

HER HONOUR:   Yes.

MR BEECH-JONES:   And in terms of the stay, we did not really apprehend that it was really appropriate for a stay; it was really a matter of asking your Honour not to set the matter down for trial.

MR ROBINSON:   That is our alternative ‑ ‑ ‑

HER HONOUR:   Yes.  It is a leave application, is it not, rather than a special leave, is it, or ‑ ‑ ‑

MR ROBINSON:   It is a leave application, yes, your Honour.

HER HONOUR:   That can be heard on 22 May.

MR ROBINSON:   That is excellent, your Honour.

HER HONOUR:   Sorry, 26 May, but it would be done on these terms.  I think the appropriate way in which it would be dealt with, because Mr Beech‑Jones is the one who is asking for expedition in some respects, if the applicants were to file their summary of argument and draft notice of appeal in each matter by 9 May, which I think gives you a good fortnight, I think, Mr Robinson, does it not, nearly a fortnight?

MR ROBINSON:   It is about 10 or 11 days, yes, your Honour.

HER HONOUR:   Could you comply with that?

MR ROBINSON:   Yes, your Honour.

HER HONOUR:   And if the respondent was to file its summary of argument by 16 May in each matter, that gives you a week, which I think should be ample.

MR BEECH-JONES:   Yes, your Honour.

HER HONOUR:   I think, in the circumstances, Mr Beech-Jones, it would be appropriate, seeing you seek expedition, for you to prepare the application books and to have them lodged in the Registry by 3 pm, so that they can be distributed, on Monday, 22 May.

MR BEECH-JONES:   Yes, your Honour.  I did not really seek to put myself in the position of seeking expedition.  I thought it more that it was the applicant - your Honour, as a condition of stay, would require an undertaking to that effect, but I am quibbling now.  Yes, your Honour, we can do that.

HER HONOUR:   I think it is either that or there is no possibility of a hearing date before August, so I think you would not quibble.

MR BEECH-JONES:   We would not demur to that, no, your Honour.

HER HONOUR:   I think it would be more – you will have the facilities to prepare the application books more readily than perhaps the applicants will, will you not?

MR ROBINSON:   Your Honour, could we reply by 23 May?

HER HONOUR:   Could you reply by 3 pm on 22 May, and the replies can be distributed separately from the application books.

MR ROBINSON:   We are happy to do that, your Honour.

HER HONOUR:   That solves one matter.  I otherwise intend to adjourn the matter until the outcome of the leave application and any appeal that may eventuate.

MR ROBINSON:   We are content with that.

MR BEECH-JONES:   I think the remaining issues my friend has do not in any way traverse the dispute between us that your Honour resolved.

HER HONOUR:   They do not?

MR BEECH-JONES:   They do not.  They are other issues that do not touch upon that matter.

HER HONOUR:   I see, and they are 3, 4, 5, 6 and 7 in the short minutes of order?

MR ROBINSON:   Yes, your Honour.

MR BEECH-JONES:   Yes, your Honour.

HER HONOUR:   And they are not opposed?

MR BEECH-JONES:   They are opposed, your Honour, but they are not matters that are germane, if I can put it, to the leave application.

HER HONOUR:   What do you oppose?

MR BEECH-JONES:   We oppose 3 and 4, your Honour, with 3 – 3 is to add names of persons and Mr Joel, in his affidavit, says, well, we have been consenting up to a certain point and now we are not, and that is right.  The basis, upon our reading of the schedule of the new persons, it appears to us – we have not checked it – that many of them - their cause of action, if I could put it that way, has arisen after the date of the filing of the relevant statement of claim, at least for many of them, and thus we would submit ‑ ‑ ‑

HER HONOUR:   Does that matter?

MR BEECH-JONES:   The other thing is – and this is an extra legal – there is a bill.  Now, of course that is nothing of your Honour’s concern but it is of my client’s concern.

HER HONOUR:   I can understand that, but it is a bill and ‑ ‑ ‑

MR BEECH-JONES:   That is a non-legal reason why we would not consent.  I accept that it is not a legal matter we can rely on, but we are not doing this willy-nilly, as it were.

HER HONOUR:   I have to operate on the law as it is.

MR BEECH-JONES:   Quite so, your Honour.

HER HONOUR:   Does the law as it presently stands provide any reason for not joining them?

MR BEECH-JONES:   The first reason I have outlined, your Honour, that ‑ ‑ ‑

HER HONOUR:   On what do you rely for that?  I mean, I will accept the fact as you state it, but why does that matter?

MR BEECH-JONES:   Your Honour, as I – and it has come on a bit quick for me – apprehend the High Court Rules, the Baldry v Jackson position is still the case in relation to amendment in the High Court, that is unless you have consent, you cannot raise a cause of action that arises after the date of filing.

HER HONOUR:   What is the rule?

MR BEECH-JONES:   I think it is really more what the Rules do not provide.  The general power to amend is in Order 29 rule 12 and your Honour would not be surprised to learn that allows your Honour to make:

all necessary amendments…..for the purpose of determining the real question or issue raised by or depending on the proceeding.

Now, there is nothing in the Rules that specifically enables the Court, as I recall the Supreme Court Rules now provide, to allow the addition of a cause of action that arose after the date of the filing of the statement of claim.

HER HONOUR:   In a sense it is a little odd to speak of a cause of action, is it not?

MR BEECH-JONES:   Well, if you do not have a Tribunal decision to ‑ ‑ ‑

HER HONOUR:   Because what one is concerned about here is the exercise of this Court’s constitutional jurisdiction under section 75(v).  It may or may not be appropriate to describe that as a cause of action and one would really, I think, need something more substantial than that to decline to extend the 75(v) jurisdiction.  In fact, if there is something that would operate in that way, there seems to me then to be a constitutional question as to its validity.  I am prepared to adjourn this aspect to give you some little time to think about it.

MR BEECH-JONES:   If your Honour please.  Can I just add this:  your Honour, it would seem one could not really come to this Court in this case in the way it is pleaded and ask ‑ ‑ ‑

HER HONOUR:   Sorry?

MR BEECH-JONES:   In this case, one could not really come to this Court and ask for a writ until one had a Tribunal decision.

HER HONOUR:   No, that is not at all – that is not right.

MR BEECH-JONES:   That may happen in other cases, but the way this case is pleaded.

HER HONOUR:   These are not people who have had Tribunal decisions?

MR BEECH-JONES:   They are.

HER HONOUR:   Yes.

MR BEECH-JONES:   And the difficulty is, as we apprehend it, a number of the Tribunal decisions are dated after the date of the filing of the relevant statement of claim.  That is the one in Lie.  It does seem to us that you are putting a round peg into a square hole by seeking to join such people to the Lie Case as it is pleaded, because the whole case is predicated on you having had a Tribunal decision ‑ ‑ ‑

HER HONOUR:   So that does not apply in the Muin Case?

MR BEECH-JONES:   There are no amendments to the Muin Case.  These are all to the Lie Case.

HER HONOUR:   I am sorry, I am looking at No 3, “Leave granted by way of filing and serving amended statements of claim in the Muin and Lie matters.”

MR BEECH-JONES:   I am sorry, your Honour.

HER HONOUR:   And I presume from that that it was intended to replead.

MR BEECH-JONES:   I am sorry, my comments also apply to the Muin one as well, to some of the decisions in the Muin one. 

MR ROBINSON:   Only to add new parties, your Honour, not to change the substance of the pleadings.

MR BEECH-JONES:   Now, if your Honour is not content to deal with that today but wishes to hear more, proper submissions on it, and that would allow us to get the exact dates so that I am not submitting to your Honour on a somewhat vague basis.

HER HONOUR:   Yes, I am prepared to give you some – you have only got these short minutes, I take it, much the same time as I have.  Prima facie, at least, I do not see any reason why an order should not be made in terms of order 3 by reason of the invocation of the constitutional jurisdiction of this Court, but I am certainly prepared to give you time to put further submissions on it.

MR BEECH-JONES:   Can I just say this, your Honour:  it is not something that, from my side, I would seek to hold up the rest of the case because I really do not think it is, in terms of the substance of the issues, it makes no difference whatsoever at this stage.

MR ROBINSON:   If I could be heard on this issue, your Honour, before it is adjourned.

HER HONOUR:   Yes.

MR ROBINSON:   I should say there is some urgency in that these people ‑ ‑ ‑

HER HONOUR:   Mr Beech-Jones has just said he does not want to hold it up.

MR ROBINSON:   I say that for this reason, your Honour.  After a refugee applicant is refused by the RRT, within 28 days after the decision they are liable to be forcibly removed and detained and deported without any further administrative decision being made, so these ‑ ‑ ‑

HER HONOUR:   I think Mr Beech‑Jones does not wish me to stand this matter over at all.  He has consented for me to deal with it on the basis I have indicated.

MR ROBINSON:   We are content with that course.

HER HONOUR:   The basis is that it being an invocation of the constitutional jurisdiction of this Court, I would make an order in terms of order 3.

MR ROBINSON:   Thank you, your Honour.  In addition to that, we do say that the pleadings in all three matters are flexible enough so as to entertain the addition of further parties after the date of filing.

HER HONOUR:   Mr Beech‑Jones also opposes order 4.  All of it?

MR BEECH-JONES:   Would your Honour just excuse me?  Just part of (d), your Honour.  We have never had a request in that form before and I do not have instructions one way or another.  That is, “a copy of the electronic database CISNET on CD-ROM as at today”. 

Mr Robinson will tell you what that is all about.

HER HONOUR:   Yes.  You do not object to 4(a), (b), (c) ‑ ‑ ‑

MR BEECH-JONES:   Sorry, we object to the rest.  As for 4(d), I do not have instructions – 4(d), the first part, “a copy of the electronic datebase CISNET on CD-ROM as at today”, I do not have instructions.

HER HONOUR:   Yes,“and as at the relevant period in these proceedings.”

MR BEECH-JONES:   I oppose that.

HER HONOUR:   On what basis?

MR BEECH-JONES:   I think we have indicated to Mr Joel that we do not have it.  What it is is CISNET has been ‑ ‑ ‑

HER HONOUR:   Can we start with (a)?  On what basis do you oppose 4(a)

MR BEECH-JONES:   Your Honour, in that it has absolutely nothing to do with proceedings.  It is an administrative circular relating to the processing of appeals to and remittals from the Federal Court.  Now, that has really got absolutely nothing to do with the issues raised by this proceedings which is, in both cases, about the administrative procedures adopted by the Department when sending files to the Tribunal and then adopted by the Tribunal when processing applications.  But what happens when the matter goes on appeal to the Federal Court and then sent back, in my submission, is really completely irrelevant.

The second matter is the Refugee Review Tribunal style manual.  As far as I am aware there is not any issue about the use of the particular forms of language by the Tribunal that could be said to have anything to do with the proceedings.  For the life of us, we really cannot see what the relevance is and all that has been said to us is, “Well, it is mentioned in one of the documents you discovered, therefore discover it.”

The third one equally, the legal research manual, which is a manual giving advice to Tribunal members about undertaking legal research and about seeking some assistance from a legal team within the Tribunal.  Again, given we are not talking about cases involving errors of law or about that their decisions are somehow under dictation from some central person within the Tribunal, we do not apprehend how it could be said that such a manual has any relevance whatsoever to the issues in the proceedings.  Your Honour, those are the – that is in relation ‑ ‑ ‑

HER HONOUR:   So (a), (b) and (c) you object to, only on the grounds of relevance?

MR BEECH-JONES:   Yes, your Honour.

HER HONOUR:   Now, (d)?  You do not have ‑ ‑ ‑

MR BEECH-JONES:   I do not have instructions on that first part.  On the second part, what my friend’s instructing solicitors have sought is “a copy of the electronic database CISNET on CD-ROM” during “the relevant periods in these proceedings”, that is effectively when the relevant Tribunal decisions were made.  We do not record CISNET as it was then.  It is a continually updated computer system and we – what my friend says is you send it out on CD-ROMs to various overseas posts way back at those times and he then asks us to conduct a discovery of all those effectively overseas posts to see if we have still got the CD-ROMS.  We submit that is somewhat excessive.  So, your Honour, the short answer to 4(d) is, as far as ‑ ‑ ‑

HER HONOUR:   There can be no doubt that (d) is directly relevant.

MR BEECH-JONES:   Yes, your Honour, as at the date of the proceedings, yes, I concede that.

HER HONOUR:   No, at the relevant period.  It should be “in the relevant periods in these proceedings”.

MR BEECH-JONES:   Yes.  I am sorry, your Honour, the relevance is the particular documents they have identified their presence on CISNET, not so much every document on CISNET.  Now, if it is ‑ ‑ ‑

HER HONOUR:   I am sorry, you may have some information that does not appear in the short minutes of order, but ‑ ‑ ‑

MR BEECH-JONES:   I will go back.  Your Honour asked me, is what is sought in 4(d) clearly relevant?  I think I said yes.  What I should modify that concession to is as follows:  we concede that the presence of the Part B documents on CISNET during a period is a relevant fact for the proceedings.  What we have said is we do not keep a copy of what CISNET looked like historically during those periods.

HER HONOUR:   I had better have some affidavit evidence as to what you do have in that regard, had I not?

MR BEECH-JONES:   Right, we do not have it today, your Honour.

HER HONOUR:   No, I understand that.  Is that sufficient for your purposes today, if Mr Beech-Jones gives me some affidavit evidence in relation to (d)?  We cannot really debate it without some evidence.

MR ROBINSON:   Your Honour, there is evidence to this effect ‑ ‑ ‑

HER HONOUR:   Well, you had better put it on too.

MR ROBINSON:   It is in the defendants’ material.  They have identified what documents are on CISNET as at today or as at the date of the deponents swearing their affidavits and they have also deposed as to when relevant material – the Part B material – was added to that data base.  So to that end, your Honour, they have already deposed to what the present CISNET ‑ ‑ ‑

HER HONOUR:   They may have, but I do not have it before me today, is what I am saying.  I just do not have it with me today and if it is in the affidavits filed in Court, then I do not have them.  I dare say I can get them, but Mr Beech-Jones wants to put on some evidence about it.  He wants to say that he does not in fact have what you are asking for.

MR ROBINSON:   Your Honour, we are content with that course.

HER HONOUR:   So, if you want me to deal with it, it is going to have to be dealt with on the basis of what does and does not exist.

MR ROBINSON:   Your Honour, if my learned friend wishes to put on evidence in response to a motion which I have only made this morning, and which I have only notified my learned friend of late yesterday afternoon, I obviously cannot oppose that, your Honour.

HER HONOUR:   And if you wish to counter it by reference to what is in the material, then you will have an opportunity to do that.  But I cannot deal with it on the basis of your statement from the Bar table.

MR BEECH-JONES:   Quite so, your Honour.  I think, given the timing, from my personal purposes, I would prefer to proceed on affidavit evidence because it may be that I misstate the effect of technical information when I state it from the Bar table in any event.  So the authors are the best person.  We have had one problem with this, that Mr Bottomley, the person within the Department, has been away for the last couple of weeks, so that has been a bit of a fly in the ointment on the technical side.  But, your Honour, I think I have said everything I need to say about 4(a), (b) and (c).

HER HONOUR:   Yes.  At this stage I would order discovery in terms of 4(a), (b) and (c) but I would stand over (d).  How long would it take you to have your affidavit material on, Mr Beech-Jones?

MR BEECH-JONES:   A fortnight, your Honour.

HER HONOUR:   A fortnight?  I suppose there is no great problem about that, as the matter is going over anyway.  I can list the matter on Monday, 16 May.  That is really the soonest ‑ ‑ ‑

MR ROBINSON:   Your Honour, we are content to have the matter listed for this purpose after 26 May.  I should say the other side have indicated to us by letter received last night that they will make CISNET as it presently stands available to us for inspection.  They will not burn it on to a CD-ROM or ROMs for us, but they say they will make it available for inspection.  We may well take them up on that course.  In any event, the urgency of the issue is not such that it needs to take the Court’s time until after the matter is listed for further directions after 26 May, I think it is.

HER HONOUR:   Yes, could I put it on then on – I do not know what has happened to this year – Monday, 29 May, would that be suitable, 9.30?

MR ROBINSON:   Yes, your Honour.

HER HONOUR:   What I should do today, then, is I should order:

1.  That leave be granted to the plaintiffs to add names and relevant details of further persons to the schedule of represented parties by way of filing and serving amended statements of claim in the Muin and Lie matters within seven days of today.

2.  The defendants provide to the plaintiffs by way of discovery and inspection with a copy of the following documents within 28 days of today:

(a)  administrative circular known as Procedures for Processing Appeals to and remittals from the Federal Court issued by the Acting Registrar of the first defendant on 22 November 1996;

(b)  the Refugee Review Tribunal’s Style Manual of the first defendant;

(c)  the Legal Research Manual of the first defendant.

3.  I certify that this is a proper matter for the attendance of counsel.

4.  Costs of and incidental of today to be costs in the cause.

5.  Stand over the question of discovery of CISNET and CD-ROM until 29 May.  Stand over all other matters outstanding until 29 May on terms that the applicants prosecute their application for leave by filing a summary of argument and draft notice of appeal by 9 May.  The respondents to file their summary of argument by 16 May and to lodge application books in the Registry by 3 pm on 22 May.  The applicants to have until 3 pm on 22 May to lodge its argument in reply which need not be incorporated in the application books.

Is there anything else I need to deal with?  Do you want times for the affidavit evidence?  You will not leave it to the last minute, will you?

MR BEECH-JONES:   We will not leave it to the last minute, your Honour.  Your Honour, the question of the index for the book, is that a matter we just liaise with my friend and the Registry about?

HER HONOUR:   I think so, yes.  If there is any trouble I am sure the Registrar will be able to sort that out.

MR BEECH-JONES:   Just one further matter.  Your Honour may have seen a letter we wrote, with my friend’s consent, to your Honour’s associate.  Could I just apologise that I did not bring that to your Honour’s attention during the argument.

HER HONOUR:   Certainly.  I do not think it matters greatly, does it?

MR BEECH-JONES:   I do not think it does.  I think I actually took that view then.  I cannot remember why I took that view, but the forces that be within the Commonwealth have ‑ ‑ ‑

HER HONOUR:   Your failure to bring it to my attention will have to be explained to the Bench dealing with the application for leave.

MR BEECH-JONES:   Yes.  I think I had better make myself unavailable that day.  Thank you, your Honour.

HER HONOUR:   Very well.  I will adjourn the matter until 9.30 am on Monday, 29 May.

MR ROBINSON:   If the Court pleases.

AT 10.01 AM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 29 MAY 2000