Herijanto, Muin, Lie v RRT

[2000] HCATrans 132

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 FRIDAY, 31 MARCH 2000, AT 9.29 AM

(Continued from 17/3/00)

Copyright in the High Court of Australia

______________________

HER HONOUR:   May I take it the appearances are as before. 

MR J. BASTEN, QC:  I appear today, your Honour.

HER HONOUR:   The application in these matters was heard by me in Sydney on Wednesday, 15 March and Friday, 17 March 2000.  I have reached a decision in this matter which I will shortly publish. 

The orders in the various matters are as follows: 

In the matter of Herijanto:

Interrogatories 3, 5, 6, 7(b), (c), (d) and (e) and 8 to 67 inclusive are set aside.

The plaintiff is to pay two-thirds of the defendants’ costs.

In the matter of Muin:

Interrogatories 3, 5, 6, 7(b), (c), (d) and (e) and 8 to 59 inclusive are set aside.

The plaintiff is to pay two-thirds of the defendants’ costs.

In the matter of Lie:

Interrogatories 3, 5, 6, 7(b), (c), (d) and (e) and 8 to 56 inclusive are set aside.

The plaintiff is to pay two-thirds of the defendants’ costs.

I publish my reasons.  There are pamphlets available in the Registry.

MR ROBINSON:   If the Court pleases.

HER HONOUR:   Now, what do we need to do today.?

MR ROBINSON:   Your Honour, in relation to the short minutes of order which we sent to the Court prior to the 15 March hearing, the remaining issues were particulars, discovery and the last three orders, liberty, certification and costs.  Now, in relation to the first order that we sought, we seek leave to abandon that, your Honour.  We do not wish to press the particulars question any further as we believe the matters can be satisfactorily dealt with by discovery in the proceedings.  So the remaining issue that we would seek to agitate today, with your Honour’s leave, is the question of discovery.  I sent some written submissions to the Court late yesterday afternoon in relation to that.

HER HONOUR:   Yes, I have those.  But the decision today may well cut across what you seek.

MR ROBINSON:   Then it might be convenient if we take some time to consider those, your Honour.  In relation to the discovery issues, however, we say they are fairly discrete issues in circumstances where we are seeking documents and perhaps software, but we are certainly not seeking to interrogate the Tribunal in any fashion, and in circumstances where the first defendant has already been ordered to put on discovery and it has in fact gone part of the way, we say, in discovery and verified a list of documents and produced documents to us by way of inspection, so in circumstances where we are merely asking, we say, for proper discovery or further discovery in the alternative.  We do not believe, your Honour, that it impacts on the judicial immunity question, bearing in mind ‑ ‑ ‑

HER HONOUR:   Do you know what you actually sought?

MR ROBINSON:   I am sorry, your Honour?

HER HONOUR:   Discovery of what are you seeking?

MR ROBINSON:   We seek discovery on matters relating to electronic or computer issues, in particular ‑ ‑ ‑

HER HONOUR:   Yes, we need the particulars, I think, do we not?

MR ROBINSON:   Yes, your Honour.  The particulars are set out in the submissions that we have delivered.  The discovery goes to the issues raised in the letters between the parties’ respective solicitors.  Paragraph 7 on page 2 sets out the questions of fact that are in issue in relation to the discovery documents sought and the issues that we seek to have discovery in relation to revolve around the question of whether or not the Tribunal actually accessed this material.  That is not something that we seek to do by way of ‑ ‑ ‑

HER HONOUR:   Do you mean whether the individual members of the Tribunal concerned accessed this material?

MR ROBINSON:   Yes, your Honour.  We do not seek to do that by way of interrogatories in this case in relation to discovery.  We seek merely access to the computer records.  We have put on an expert’s report, which I will come to if I am able to, that shows clearly that it is a simple matter for the Commonwealth to show us the access security protocols of the network that must exist in relation to the Tribunal seeking access to these documents, the Part B documents of course, your Honour.  The issue that we seek discovery on is set out in the pleadings as to whether or not the Tribunal actually accessed these documents.  It does not go further than that.

HER HONOUR:   Whether the individual members ‑ ‑ ‑

MR ROBINSON:   Whether the individual members concerned – and at this stage discovery is limited to the named plaintiffs in each three proceedings, so that the discovery would only go to the three members that decided Mr Herijanto, Mr Muin and Ms Lie.  In that sense we do not seek to open up every decision in relation to the numerous people that are represented parties, we say, in these proceedings.  However, we do wish to have access to those computer records in relation to these three named people.  That would mean three Tribunal decision makers.

The order that we seek is set out in paragraph 14 of the submissions.  Our application in short, your Honour, is in circumstances where discovery has occurred.  The basis for the discovery, we say, is plainly raised in the pleadings, both the statements of claim, the defences and the replies which have been filed and in relation to the evidence which has been adduced by the defendants in these proceedings and, in addition, the evidence of Mr Richard Weatherly, the computer expert, and Mr Joel in taking

documents from the discovered materials.  So I would wish to put all that before your Honour in the discovery application if we were to make it this morning in detail.

HER HONOUR:   I will see what Mr Basten has to say.  Yes, Mr Basten.

MR BASTEN:   Your Honour, it seems to me difficult to address your Honour without knowing precisely what your Honour’s reasons were because this is really the collateral issue which ‑ ‑ ‑

HER HONOUR:   I think that is right.  What would be convenient to the parties in that regard?

MR BASTEN:   I was going to suggest that we might have an adjournment to allow us to peruse those reasons and then come back if your Honour is available later this morning.

HER HONOUR:   Yes, I am available today.  What else needs – at some stage we are going to have to get a list of issues in these matters, are we not?

MR BASTEN:   That might indeed be useful, your Honour.  As far as we are concerned, once this discovery issue is resolved, the matter is ready to be set down for trial subject to those sorts of additional steps.

HER HONOUR:   Yes.  What say I give you until 10.30; is that sufficient?

MR BASTEN:   I do not know how long your Honour’s judgment is, but I am sure it would be.

HER HONOUR:   Is it convenient to you?

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

HER HONOUR:   Very well, I will adjourn until 10.30.

AT 9.40 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 10.28 AM:

HER HONOUR:   Yes, Mr Basten?

MR BASTEN:   I am indebted to your Honour.  As I understand the position, the only documents which it is said have not been discovered are the notes of the Tribunal member and computer records which might indicate that the Tribunal member had or had not looked at a specific Part B document.  If that is correct, then your Honour’s ruling that the immunity protects the decision making process, and your Honour’s ruling that the member could not be asked a question as to whether he or she had looked at and read a particular document, would mean that a document in the Tribunal files, which was designed to elicit that fact, could also not be the subject of compulsory discovery.

HER HONOUR:   I think there is Privy Council authority about notes.

MR ROBINSON:   I have not been discovered, your Honour.

HER HONOUR:   No, no, but as to whether you could gain access to the judge’s notes.

MR BASTEN:   Yes.  There was some discussion in Zanatta v McCleary about that in Justice Samuel’s judgment, a decision to which his Honour refers in (1976) 1 NSWLR at page 237, at paragraph E is the Crown v Harvey.  I think your Honour also has that, but his Honour quotes the relevant passage.  It may be that there is other authority on the point, but that is the point of principle.  What we say is that apart from that material, there is nothing that has not been the subject of discovery and, therefore, the discovery process on that basis is complete.

HER HONOUR:   You say these documents, using that compendiously, are not discoverable.

MR BASTEN:   That is so, yes.  Those are my submissions.

HER HONOUR:   Thank you.

MR ROBINSON:   Your Honour, if I may respond to that:  in relation to the notes, we would have expected that if there were any notes whatsoever that have not been discovered already, or set out in the list of documents, they should have been set out in the list of documents and the privilege invoked at that time.  I am not aware of any file note, as it were, of the kind that my learned friend is talking about, that is in the discovered material.  I am also not aware that these file notes have been withheld, if they exist, by reason of the immunity.  This is the first that we have heard about the existence of file notes that have been held back, as it were, from the existing discovery process in these proceedings. 

If there were file notes in existence of the members that are relevant to these proceedings and which might constitute the record or part of the record, in my respectful contention, that the defendants should have at least set that out in a list of documents and given us the benefit of telling us that there existed these documents and “We are not going to produce them to you because of this immunity that we claim”.  I should say to your Honour,  that has not been done in relation to file notes.  The issue having now been raised that there do exist these documents, we would ask that we be told of their existence with some precision and that the immunity that is now claimed be made plain so that we can then at least consider our position in relation to that, your Honour.

The second issue, in terms of computer records, as it were, your Honour will recall on the last occasion when I took your Honour to what purportedly was, or will be, the documents that will be put forward by the defendants at the hearing of this matter as constituting, or purportedly constituting, the record.  It is, on its face, unsafe for this Court to rely on those documents as being the records in the particular circumstances of these three.

HER HONOUR:   I do not understand that.

MR ROBINSON:   Well, your Honour has set it out quite plainly and correctly in paragraph 7 of your Honour’s judgment that the Part B documents that were forwarded by the Secretary to the Registrar – they were not forwarded physically; many of the documents were on a computer database to which the Tribunal had access, and some of the documents are only available in libraries.  So, your Honour, it is unsafe, in my submission ‑ and I do not propose to argue this point further, only to move on to the next point – to rely on that material on its face.  We simply wish to ‑ ‑ ‑

HER HONOUR:   Which material?  The affidavit material?

MR ROBINSON:   The affidavit material which purports, presumably, to establish the record before the Tribunals in these three matters.  In those circumstances, we do not seek to ascertain what we say might be an aspect of the decision‑making process, we merely seek to establish what was the record in the circumstances of these particular cases.  Your Honour has referred to, in your Honour’s decision at paragraph 16, the clarity with which the record can be established in judicial proceedings and the difficulty of establishing the record, as it were, in the context of administrative decisions.

In this particular case, the record is unable, we say, to be relied on on its face in the circumstances and we merely seek to establish what the record was before the Tribunal so that this matter can go on for final hearing.  In the affidavit of Richard Andrew Weatherley, which I would seek to read, it is set out there in some considerable detail precisely why I say what I have just said, your Honour.  If it is appropriate, I seek leave to read the affidavit of Mr Weatherley, sworn on 27 March ‑ ‑ ‑

HER HONOUR:   Is that objected to?

MR BASTEN:   No.

MR ROBINSON:   We say that he is an expert in computer networks, database management and computer and network security.  Paragraph 4 sets out the documents that he has read and paragraph 5.  He was asked by the plaintiffs in paragraph 6 “to advise as to computer and network issues”.  Paragraph 7, he came to the view, based on reading the documents, that the Tribunal members “have computer access to an electronic database…..called “CISNET”, which “comprises of a number of other databases”.  Paragraph 9, it is his view, your Honour, because the Tribunals are in Melbourne and Sydney and CISNET lives in Canberra, that they are physically linked by some sort of computer network.  At paragraph 10 he refers to annexure B, the “Country Information Service”, which is a document we obtained on discovery in these proceedings.  The principal aspect of that document is that the electronic holdings of CISNET are not publicly accessible.  He deduces from that that there must be some form of security involving log on, as it were, to this database. 

Similarly, if I could take your Honour to annexure D, which is an extract from the department’s Procedures Advice Manual, known as PAM 3 – I am sorry, your Honour, the pages are not numbered, but if I could take your Honour to the first page of annexure D, this is the Onshore Refugees Procedures Manual, which is also known as PAM 3 in this regard.  Item No 3.3, Country Information Service, paragraph 3.3.1, “The prime task of the case officer” – and this document I should explain, your Honour, deals with protection visa applicants and decisions made by the Minister’s delegate – the primary instance decision-making level.

The prime task of the case officer before decision is to collect as much relevant information as reasonable considerations of time and resource permit.  After examining the applicant’s claims, the major focus is to test these claims as far as possible against the accessible knowledge of the situation in the country in question.  A key tool for this critical exercise is the range of services provided by the Department’s Country Information Service Section.

Turning the page, two pages on, your Honour, is a section headed 3.5, Electronic databases of the Country Information Service.  The CISNET database and CISNET basics, which appears to be also part of CISNET, is set out there.  If I could show your Honour paragraph 3.5.4:

Entries in the databases are either ‘full text entries’ or ‘index entries’.  ‘Full text entries’ provide the complete text of the item in the database.  ‘Index entries’ list relevant hard-copy information which are considered too long to be entered in full text in the database, and provide reference to the physical location of the information outside the database.

So, your Honour, for the Commonwealth to say that the Tribunal had access to CISNET only raises a number of other questions in relation to whether or not it accessed an index entry, a full text entry, if it was an index entry did it then request of Country Information Service, or of its own library, the full text of the item concerned?  We do not know, your Honour, and in my respectful submission, these issues go to the question of whether or not the integrity of the record can be established in this case.

Four pages on, your Honour, Citation Guidelines, at the top of the page, paragraph 3.8.1 says:

All supporting evidence used in a case assessment should be individually cited in the decision record.

It goes on to say:

This is important because in the event that a case proceeds to judicial review and a hard copy of the cited information is requested, CIS -

has to go ahead and do it as it were, and make it available.  Paragraph 3.8.5, the second paragraph from the bottom, it talks about how the CISNET documents should be cited.  It says in the second sentence:

Full details of the reference source should be included in the PV decision record –

that is the protection visa decision record –

under Part B Evidence before me heading along with details of any other reference sources used.

In the next paragraph at 3.8.6 it says:

When supporting evidence is obtained from one of the electronic databases, it is important to clearly indicate the source so that there is no confusion over which particular version of the electronic record was used.

Now, that enlivens the question to the plaintiffs that if CISNET was accessed, not only was it possible that an index entry, as opposed to a full text entry, was there, in which case something else needed to happen in order for the document to travel, as it were, to the Tribunal and be before it. But there are different versions of the electronic records on CISNET, and there is no mistaking that this passage is talking about CISNET.  Indeed, over the page at paragraph 3.1.7, BACIS records “have a unique identifier which is prefixed by the letters CX”.  And I would ask your Honour to take it that many of the documents referred to in the Part B documents do have a CX reference. 

So, it is unclear in two respects, the index or full text entries, and what version of what documents reside on CISNET.  It is a most unhappy situation from the plaintiffs’ point of view and we are merely seeking, we say, in this case, to establish the record so the matter can happily, as it were, go on for hearing.

In Mr Weatherley’s affidavit, he sets out at paragraph 13 that there are references to a LAN, a Local Area Network of computers operated by the first defendant.  In paragraph 14: 

In these circumstances, based on my experience, it is reasonable to expect that a computer network security policy would be in place that addresses these issues –

what we say are the discovery issues. 

This security policy would mandate a form of authentication and logging for accesses to these electronic holdings and that these access records should be available for inspection and subsequent analysis.

The nub of what we are seeking is set out in paragraph 15, your Honour.  We are seeking discovery as to the question whether and if so, when, access was gained to the CISNET databases in certain specified periods of time.  Those periods of time have been identified by reference to the period from the constitution of the Tribunal to the date of review on the papers and from that date to the date of the actual decision, the final decision, and they have been set out in Mr Joel’s affidavit of 13 March 2000 at page 30 of that affidavit.  The times that we seek in respect of Mr Muin, Mr Herijanto and Ms Lie are set out at page 30 of that affidavit.

So we are not free-ranging, with respect, your Honour; we are not saying, give us everything over a wide period of time.  It is relatively narrow periods of time that we are asking for this information and it is material which we say could be easily provided, and he says as much so from paragraph 16 and 17.  In 17, he says that the information that we need, by way of documents, that should be provided, is set out in paragraphs (a), (b), (c) and (d), going over the page to 4, and that is the detail by way of documents that we seek in further discovery. 

It looks slightly intimidating, your Honour, in the sense that it is very technical and it is very detailed, but I am instructed by this expert that it is material which has already been set in place and which the Commonwealth would easily, he says, be able to provide; it is information which could easily be provided.  The core of it is paragraph (c), were the access records which can be down-loaded or copied or printed to the CISNET database, so it is merely a matter of providing those records and we will be able to, with some precision, In my submission, inform the Court by way of evidence, what it was the Tribunal had before it.

He says at paragraph 18 that he would take “approximately six weeks to consider and analyse” the material once it is discovered, and we have asked in my submissions on discovery, at paragraph 14, for about four weeks for the Commonwealth to give this information.  They do have a computer expert at the Commonwealth, Mr Stephen Bottomley, who is referred to in the affidavits of Mr David Palmer in each proceedings.  Mr Palmer is in charge of or connected with the country information service and in each of his affidavits he refers to and relies upon information told to him by Mr Stephen Bottomley ‑ ‑ ‑

GAUDRON J:   No, I am not familiar with that.

MR ROBINSON:   I will show your Honour.

GAUDRON J:   I have got the affidavit of Mr Palmer of 31 January 2000.

MR ROBINSON:   I have the Herijanto one.  Does your Honour have that one?

GAUDRON J:   I have the Lie ‑ ‑ ‑

MR ROBINSON:   Well they are identical, your Honour, relevantly identical.  He refers to Mr Bottomley at paragraph 13 of the affidavit; that should start with “Departmental decision makers have access to CIS information”.  Does it say that in your paragraph 13, your Honour.

GAUDRON J:   Sorry, paragraph 13, “Access to CIS Information Holdings”.

MR ROBINSON:   The heading is “Access to CIS Information Holdings”, yes, your Honour.

GAUDRON J:   Yes.

MR ROBINSON:  

Departmental decision makers have access to CIS information holdings through desk‑top computer access to CISNET and through the CIS Library loan service.  I am advised by Mr Stephen Bottomley, a computer programmer involved in the establishment of CISNET, that CISNET has been operating since 1994.

And he goes on to talk about the library loan situation.  He also refers to Mr Bottomley in the next paragraph, 15, where he says in the last sentence:

I am advised by Mr Stephen Bottomley that RRT access to CISNET was provided in 1994, some months after access was provided to primary decision makers.”

Now, your Honour, that is all well and good; it is of too general to be of assistance here in relation to Muin, Herijanto and Lie and we say it would be a simple matter for the Commonwealth to have Mr Bottomley, or to have somebody from the Department, produce these records and then we would be able to bring the matter to trial with at least the most basic of questions in judicial review resolved.

Other than that, your Honour, in relation to my summary submissions on discovery, I would draw your Honour’s attention to paragraph 10 of those submissions.  Your Honour ordered on 15 March this year that the pleadings could be amended to raise the very issue on which discovery is now sought.  Just stopping there.  Your Honour will also recall our contention on 15 March that the issues were already raised in the pleadings and because the Commonwealth had refused to discover the material, by way of a letter to us, that it would not discover the material because, we say, as in paragraph 9 of the submissions, they indicated that the reason that the defendants refused to comply with the particulars request, which we no longer seek, because it is wrapped up in discovery, or the further discovery was that the issue was not fairly raised on the pleadings.  Our response to that was, to amend the pleadings.  The issues are now, we say, unarguably squarely raised and the discovery that is sought is on that basis.  We say the discovery is relevant to the proceedings, that there is a plain legitimate forensic purpose in the document sought.  It comes not only from the pleadings, but from the actual evidence that I have taken your Honour to in these proceedings.  That is from the Commonwealth’s own material that demonstrates this unhappy situation.

HER HONOUR:   But you do not want simply to know if they accessed the database, do you?

MR ROBINSON:   I am sorry, your Honour.

HER HONOUR:   You do not simply wish to know if a member accessed the database?

MR ROBINSON:   Yes, we do, your Honour.

HER HONOUR:   That is all?

MR ROBINSON:   That is all.

HER HONOUR:   You do not wish to know what they saw in there?

MR ROBINSON:   We wish to know if they accessed what is alleged to be the Part B documents.

HER HONOUR:   Exactly.

MR ROBINSON:   But, your Honour, we cannot ascertain that, on my instructions from this expert.

HER HONOUR:   I know, but the question is whether you are entitled to ascertain that.

MR ROBINSON:   Well, we say these are purely discovery questions arising from the pleadings which go to the issues in these proceedings which do not touch, as it were, upon the mind of the decision maker or the decision-making process.  The nub of the Commonwealth’s case in regard to the Part B documents is that they resided on the Commonwealth’s computer in Canberra and that anyone ‑ ‑ ‑

HER HONOUR:   The Tribunal’s computer in Canberra.

MR ROBINSON:   No, the Commonwealth’s computer.

HER HONOUR:   The Commonwealth’s, I am sorry.

MR ROBINSON:   CISNET, a departmental computer, and that the Tribunal was allowed in to have a look at it.  So, once the Tribunal accesses that database for the purposes of pulling out, as it were ‑ ‑ ‑

HER HONOUR:   Do you want to know if a member can access the base?

MR ROBINSON:   And did access.

HER HONOUR:   Did access the base.  That is the question, is it not:  are you entitled to find out, and did?

MR ROBINSON:   We say we are, your Honour.  In terms of the third step, whether they actually looked at the documents in what is known as a folio views database which is the software that drives, as it were, the databases in CISNET of the Department in Canberra.  I am instructed by our expert that that is not possible.  In other words, a record of what documents transpired over a screen or were examined by the person accessing the computer is not able to be provided because of the nature of the software that has been used by the Department.  Having said that, we are not seeking to interrogate the Tribunal about what it looked at, we are merely seeking to discover whether or not it accessed it in the relevant periods.  That is all that this discovery would go to, your Honour.  It does not touch on the mind of the decision maker.

HER HONOUR:   I do not understand.  You do not want to know what documents were accessed?

MR ROBINSON:   We are not able to, your Honour.

HER HONOUR:   On any of the databases?

MR ROBINSON:   No.

HER HONOUR:   No.  You just want to know if the member accessed the database?

MR ROBINSON:   Yes, your Honour, in the relevant periods defined.

HER HONOUR:   What would be the relevance of that?

MR ROBINSON:   If the member did not access the database from the time it was constituted to the time, for example, on the review on the papers, then we would rely on that in seeking to make an inference that the members did not have the documents before them.  That issue is squarely raised in the pleadings and that is how we would seek to prove it,

your Honour.  In the absence of the member giving evidence in relation to these proceedings, and as I understand it, all of the Commonwealth evidence is in and all of the plaintiffs’ evidence is in, as your Honour ordered on the last occasion, in those circumstances that is how we would seek to prove it, by inference, without interrogatories, without interrogating them at all and by way of the provision of documents.

They have gone part of the way, your Honour.  They have given us discovery, the first defendant.  It was done by consent and by your Honour’s orders on 26 October, order No 4 – 26 October 1999 – where your Honour ordered, by consent, that the first, second and third defendants, discovery in all matters be limited to the plaintiffs.

HER HONOUR:   But, this is really discovery that you are asking to, because I can well understand if there is already computer record - - -

MR ROBINSON:   There is, your Honour.  That is precisely what we say there is.  We say that there resides in the security software of the Department or the Tribunal or both, a program or a log, an access log, which is described in Mr Weatherley’s affidavit in paragraph 17(c) which shows:

All authentication and access control records which record or evidence Tribunal member’s activity in accessing any of the CISNET databases.

Now, that information, I am instructed, is easily able to be downloaded, printed or produced by way of a computer record and if there is software that is needed to drive it, as it were, or understand it, that can be done as well.  I am instructed it would be a simple matter to produce these records, records which exist already and which would not need inquiry from the first defendant Tribunal at all.  So, it does not impact on the sort of questions which your Honour had obvious problems with, as it were, in the interrogatories.  It does not travel that same course, your Honour.

So, in relation to the plaintiffs’ case we seek discovery in relation to that, and orders 6, 7 and 8 of the short minutes of order that we seek, your Honour.  That is just liberty, certification and costs, your Honour.

HER HONOUR:   Yes.  Well, Mr Basten, what do you say about these notes?

MR BASTEN:   Your Honour, the first stage is to say, can I ask the member, “Did you look at document A?”  That is out.  Paragraph 15 is the second ‑ ‑ ‑

HER HONOUR:   No, what I mean by that is really, if they – I would have thought that the Tribunal and the individual members were different people and what the Tribunal has is not necessarily the same as what the members have, so, are there notes?  Do you follow what I am saying there, Mr Robinson?

MR ROBINSON:   Yes, your Honour.

MR BASTEN:   I did not mean to say before that there were or were not notes.  What I was – and my friend says that the discovery we gave did not identify any notes and did not seek to assert a privilege or immunity.  That was because, as my friend said at the end, we had suggested that this was not a relevant issue until the amendment came up and since then the issue has not been the subject of an order for further discovery.  So, we have not taken a position on that.  We say, though, in relation to the question your Honour asked me, I think, a moment ago, if the notes are in the possession of the Tribunal, as opposed to the individual member, that is not a relevant distinction for present purposes.

If the court file contains notes by the judge, those notes are part of the protected area, whether or not the judge is personally responsible for keeping the file, and whether or not notes exist is by itself, I would have thought, an irrelevant consideration.  Similarly, in relation to the computer records, if the – I am not sure whether my friend is adhering to the question set out in paragraph 15 of Mr Weatherley’s affidavit, but that question is whether “the first defendant gained access to the database”.  Well, if that means the Tribunal as a whole that cannot be a relevant issue.  If it means the member – individual member who determined a case, that is like saying, “We wish to draw the inference from a document that you the member produced that you had access to and therefore we would infer looked at, or did not look at, a particular document”.  He rephrased the question, in a sense, to withdraw it one stage further but the inference is still, “Did you look at that document?”

To take the questions one stage further back and in the third case, “Were you capable of having access through these security procedures to the relevant documents?” is simply no more than asking, “Did the judge have a key to the filing cabinet in which the notes were kept?”  We do not ‑ ‑ ‑

HER HONOUR:   Well, that is different, is it not?

MR BASTEN:   Well, the key might be, I am sorry, yes, because it is not a documentary record but it may be that the judge filed a request for a key to a filing cabinet.  But if it is the capability of access, that may be a separate factual question.

HER HONOUR:   Yes.

MR BASTEN:   The inference sought to be derived is still the same but if the documentation which is sought is, “Did the individual member have authority or access to a password in order to get into the CISNET?” that, we would say, is too remote but we would also say that it is still a question from which the inference is sought to be derived that she did or did not look at a particular document.  But this question of capability of access to the database has never been raised before.  It is not the way that Mr Weatherley puts the question in paragraph 15 and, with respect, my friend is simply moving the ground as certain doors are shut on him and this is becoming so remote that we would simply say it is not an appropriate matter for additional discovery.  The purpose still seems to be to get access to some matter which is relevant to the decision‑making process by the member.  That is the forensic purpose, but I do not know that I can take ‑ ‑ ‑

HER HONOUR:   Yes.  Though should you not, as the Tribunal, forget the individual members concerned, indicate what it is you have got and then claim privilege?

MR BASTEN:   Got about what, I suppose, your Honour?  There is no issue, as my friend says, that we have a database which is used from time to time.  I did not know that was ever in issue.  It has never been suggested that the members do not have access to it.  The only question is, “Did this member look or not look at a particular document?”

HER HONOUR:   Yes.  Do we know from the affidavits whether the Part B documents are, in fact, on the database?

MR BASTEN:   Yes, absolutely.

HER HONOUR:   And from when?

MR BASTEN:   Yes.  Yes, your Honour.

HER HONOUR:   And we know what are not on the database?

MR BASTEN:   What are not?

HER HONOUR:   What other documents – what Part B documents are not on the database?

MR BASTEN:   Yes.

HER HONOUR:   And we know where they are, where they reside?

MR BASTEN:   Yes.

HER HONOUR:   And that is all in evidence?

MR BASTEN:   As far as I am aware, your Honour, yes.

HER HONOUR:   And it is not disputed?

MR BASTEN:   It is not disputed that I am aware of.

HER HONOUR:   And it is admitted that individual members have access to the database?

MR BASTEN:   Yes.

HER HONOUR:   And perhaps access to the other documents, wherever they might be?

MR BASTEN:   Yes.

HER HONOUR:   Yes.  And then you want to know did they, in fact, access the database?

MR ROBINSON:   Yes, your Honour, that is right, precisely, thank you.

MR BASTEN:  And the specific document, I suppose, on the database.  Databases have lots of documents.

HER HONOUR:   Prima facie, Mr Robinson, that seems to me to be really in the same category as Zenatta.

MR ROBINSON:   As what, your Honour?

HER HONOUR:   Zenatta.  Is that not the case?

MR BASTEN:   Yes.

HER HONOUR:   Zenatta in the Supreme Court and the Court of Appeal.

MR ROBINSON:   At page 237, is it, your Honour?

HER HONOUR:   You are seeking to interrogate me now, are you?

MR BASTEN:   I referred your Honour to 237 at the bottom of the page, E.

MR ROBINSON:   Your Honour, this is not about events that occurred in the courtroom or the events occurred in relation to the course and conduct of proceedings in court.  This is a world apart from that.

HER HONOUR:   No, because this is a different sort of proceeding, is it not?

MR ROBINSON:   Yes, your Honour, and this is the only ‑ ‑ ‑

HER HONOUR:   It is no different from saying, “Are the judge’s fingerprints on that volume of CLRs that contain that particular case?”, is it?

MR ROBINSON:   Your Honour, the CLR is in a different category.  It is a legal material upon which a finding of fact is not made.  These Part B documents are the documents upon which the original decision maker made a finding of fact in relation to the country of origin of these people which was adverse to the applicant.  Now, the Tribunal in considering this material was required to consider it by the Migration Act and it is not in the same category of ‑ ‑ ‑

HER HONOUR:   Well, that first question surely is in dispute?

MR ROBINSON:   That it is not a legal material, your Honour?

HER HONOUR:   No, no, that they are required to consider it.  That first question is surely in dispute.  That is one argument you have got to make good.

MR ROBINSON:   Your Honour, they say in their defence that they complied with 424(1).

HER HONOUR:   Yes.

MR ROBINSON:   They make an assertion that the first defendant complied with it.  We have contended that the first defendant in pleadings has not complied with it.  The documents were not physically transferred and that they did not look at them.  The only way that we can adduce evidence in this regard is by this process.  In respect of the documents, it does not disclose anything to do with the judicial mind or the judicial process.  This goes to, in my submission, the correct characterisation of this situation is, “What establishes the record before the court of what was before the Tribunal?”

That is the primary thing that we are seeking to establish here.  There is no other way the integrity of the record can be established, your Honour.  I show your Honour one further document, if I may.  It is in the large affidavit of Mr Joel.  For example, at page 237 – I am sorry, your Honour, the affidavit of Mr Joel is sworn ‑ ‑ ‑

HER HONOUR:   27 March.

MR ROBINSON:   27 March, yes, your Honour.  At page 238 of the annexure – and it is the top right‑hand corner of the numbering, your Honour – is an e‑mail that was sent to the various members of the Tribunal in Melbourne and in Sydney.  The member who decided the decision, for example, in Herijanto, is Mr Lawry Herron.  Now, Mr Herron was plainly a member at the relevant time and he, in fact, based his decision on the memorandum or the submission of the Minister to which e‑mail relates, but he is not listed there, your Honour.  Not disputing that he might have received this e‑mail but he is not listed.

HER HONOUR:   What follows from that?

MR ROBINSON:   I deduce from that, your Honour, that he did not have a computer access at all.  He was not on the LAN, as it were, the local area network of the Tribunal.  If he was not on the LAN, then he would not be, we say, in the WAN, the wide area network, and he could not and, we say, by inference did not access CISNET at all in regard to the Part B documents.  In the absence of any file note that records – and I can tell your Honour there is none that we are aware of, subject to the Commonwealth telling us what file notes do exist and in respect of which privilege is claimed and I take it from what my learned friend said a moment ago about file notes that the Commonwealth will proceed to set out for us the file noes that have been held back, as it were, in discovery and accordingly claim privilege in respect of that, but, your Honour, this document clearly shows, in my respectful submission, that this Tribunal member was not connected to the network.

HER HONOUR:   Well, you do not need discovery for that purpose, if that is your submission.

MR ROBINSON:   Well, it raises the issue, your Honour.  That is all that I am saying about the integrity of the record.  It is all well and good to go and get documents from the State Library – and that is what has occurred here, your Honour, in the Part B document.  One of them has been copied at the National Library at the end of last year, in October last year.  Three of them we are told reside only in the State Library.  In these unhappy, as I term them, circumstances, it is imperative that this Court be satisfied ‑ ‑ ‑

HER HONOUR:   The expression “the record” is being used in various different ways in this ‑ ‑ ‑

MR ROBINSON:   I only use it to mean what were the documents before the decision, your Honour.

HER HONOUR:   No.  One can assume what documents were before the primary decision maker.

MR ROBINSON:    Yes, your Honour.

HER HONOUR:   There surely is a question as to the meaning and operation of – whatever the section is, is it 218(3) – and there is surely a further question as to whether any duty is opposed by ‑ ‑ ‑

MR ROBINSON:    Section 424(1).

HER HONOUR:   Section 424(1), is there not?

MR ROBINSON:    Well, your Honour, they say they complied with it.

HER HONOUR:   That does not mean that ‑ ‑ ‑

MR ROBINSON:    We say they do not.  These are factual matters, your Honour.  Be that as it may ‑ ‑ ‑

HER HONOUR:   I am not too sure that that is right ‑ ‑ ‑

MR ROBINSON:    My contention in that regard is set out in the reply.

HER HONOUR:   Yes, I understand what you are saying.  I am wondering, however, if your submission that it is the record ‑ and if all one were trying to ascertain were the record, then it follows from what I have earlier said, I would have no difficulty with that  What I am wondering is if your submission that it is the record does not itself involve questions of interpretation of those two sections.

MR ROBINSON:    Your Honour, that last question will be a consequence.  I am attempting to deal with factual issues.

HER HONOUR:   I know you are, but what I am putting to you is you do it by asserting that you are trying to establish the record as a matter of fact.  But I am not entirely sure that that is appropriate, that those documents are appropriately so described.  Let us assume, for example, in your favour, for the moment, that no member accessed the local area network at any time ‑ ‑ ‑

MR ROBINSON:    Or the CISNET data.

HER HONOUR:   Yes, at any time.  So what?

MR ROBINSON:    So what, your Honour?

HER HONOUR:   Yes.

MR ROBINSON:    Then they have not complied with, whether it is a duty or a power, they have not done what was set out in the Act ‑ ‑ ‑

HER HONOUR:   So you say.

MR ROBINSON:   And your Honour is saying what is the implications of that?

HER HONOUR:   Well, I am saying ‑ ‑ ‑

MR ROBINSON:    I have not answered, your Honour.

HER HONOUR:   Yes.

MR ROBINSON:    It is in the reply of Herijanto, Muin and Lie.  I should say to your Honour, in Lie’s Case, it was filed on 30 March, that was one day late, as I understand it from your Honour’s order, and that is my fault entirely.

HER HONOUR:   I do not think that matters.

MR ROBINSON:    All three were filed on 30 March 2000.  The Commonwealth have taken the “so what” point, as it were, in relation to 424(1) and our response to it in the reply is contained in paragraph  8, page 3, at the bottom of the Herijanto reply.

HER HONOUR:   I do not have that one ‑ ‑ ‑

MR ROBINSON:    It is substantially the same in all the others ‑ ‑ ‑

HER HONOUR:   I have Lie, tell me what it is there.  Paragraph 8?

MR ROBINSON:    No, it is a different paragraph in Lie, your Honour.

HER HONOUR:   I have Herijanto now.

MR ROBINSON:    The Herijanto one is paragraph 8 at the bottom.  We deny that the conduct that your Honour is talking about, that there is no legal right, obligation or other consequence which follows and we say ‑ ‑ ‑

HER HONOUR:   My paragraph deals with expectation.

MR ROBINSON:    Yes, your Honour, the expectation involves the 424(1) breach.  So we say the consequences are those set out at pages 4 and 5 in subparagraphs (a), (b), (c) and (d) ‑ ‑ ‑

HER HONOUR:   I am not following you, Mr Robinson.  What part of paragraph 8 do you want me to look at?

MR ROBINSON:    On top of page 4, subparagraph (a)., these, we say, are the consequence of the Tribunal not reading the Part B documents, or not having them before them, one or the other, we do not mind which.  They are pleaded in the alternative:

(i)  The plaintiff was deprived of his ability to have knowledge of the fact that the Part B documents were not delivered…..and/or that the first defendant did not consider the said documents;

(ii)  Not all of the Part B documents contained Adverse Materials…..

(iii)  Some of the Part B documents contained material which was supportive of the plaintiff’s case and in the case of some of the said documents, was significant supportive material;

that “Some of the Part B documents” - stopping there, your Honour, show what chaos it was in Indonesia at relevant times in this particular case of an Indonesian national.

(iv)  The plaintiff was led to believe that the said supportive material…..was in fact considered and taken into account by the first defendant in the making of the review on the papers and/or the final decision….. 

(v)  The plaintiff may have made alternative or additional submissions and/or sought to adduce alternative or additional evidence to the first defendant –

at various stages –

had the plaintiff been aware that the Part B documents…..was not before or not considered by the first defendant.        The plaintiff was deprived of this ability which may have resulted in a favourable decision by the Tribunal; 

So that the gravamen of the alleged badness here is that people came to the Tribunal hearing having received two letters from the Tribunal saying it looked at the material, one saying it called for the material, a second letter saying it has looked at it.  In the context of the provision under section 424(1), it does not matter, we say, so much whether or not it was a power as a legitimate expectation was enlivened and a duty to accord it and natural justice was enlivened by that legitimate expectation at about that time.

The practical implications of that we have set out in the particulars here.  In paragraph (vi) we say what the breaches were and over the page in paragraph (b), we say:

If the Part B documents were not considered by the first defendant at all, the review on the papers…..did not occur in circumstances where it should have occurred and…..the first defendant’s duty to provide an oral hearing pursuant to section 425 of the Act was not enlivened.  An oral hearing was in fact conducted and a final decision made…..unlawfully and in breach of the procedures in the Act;

So that is how we cast the jurisdictional point that I referred to on the last occasion in the pleadings.  Thirdly, in paragraph (c):

If the first defendant did not consider the Part B documents which were supportive of the plaintiff’s case, the plaintiff lost all prospects of receiving a favourable review on the papers which could have led to a grant of residency…..at that time; 

So the Commonwealth say that there is no consequence, they say no other consequence, from the Tribunal not fulfilling its duty.

Your Honour, these people could have received, at that precise time of the review on the papers, had the Part B documents been read, could have received a favourable decision of the Tribunal on the papers.  Your Honour, I am instructed that the RRT records, which are on the Internet, along with 80 million other web pages, show hundreds of successful decisions made on the records and a print‑out from the Tribunal ‑ ‑ ‑

HER HONOUR:   I think we are extending ourselves a little.

MR ROBINSON:   I am sorry, your Honour.

HER HONOUR:   I think you are travelling somewhat beyond the issues.

MR ROBINSON:   Your Honour, it is merely to show it is not a routine exercise.  It is not something which is - a piece of paper is stamped and an oral hearing is conducted as a matter of course.

HER HONOUR:   What we are coming back to though, how this debate originated, the question is, your attempt to categorise these documents as part of the record.  Now, I pointed out in the earlier decision it is not always easy to say what is the record in administrative decision matters.  It may be, in truth, if you look at some of the certiorari cases, the only record is the actual decision or perhaps an application.  It is not so easy to say we are getting into the record, as you say.  That is what I am asking you to address yourself to.

You cannot automatically say this is the record.  There may be a factual question whether or not they had this evidence.  We understand they had access to it.  We will call it evidence.  We understand they had access to it.  Now I have, for example let me tell you, I have access to Mr Joel’s affidavit.  At the moment I could not find my way through it with a direction finder, so it does not matter - are you then going to interrogate me on the basis of, “Did you open a file, did you look at this page, so forth and so on?”  That is necessarily, it seems to me, part of the decision‑making process.

MR ROBINSON:   Your Honour, in these proceedings, the documents which were before the Tribunal, not on the certiorari or any other judicial review point going to error on the face of the document itself, in which case your Honour’s comments concerning Craig in South Australia and the precise scope of the documents which constitute the record would be pertinent, in my respectful submission, are not the case here.  The nub of the plaintiffs’ case here is that the process, errors were incurred in the ‑ ‑ ‑

HER HONOUR:   We know what the nub is.  The question is can you prove it?

MR ROBINSON:   But, your Honour, when I say the record I mean all of the documents that were before the decision makers at the stages identified in the pleadings, the review on the paper stage and the final hearing stage.  In my submission, the plaintiffs’ case shows errors at those two stages. 

Now, in Lie’s Case, in fact all three cases, it relates to the Part B documents alone.  In Muin and Herijanto’s Cases it relates to the adverse materials point.  In order for the plaintiff to present to this Court cogent evidence in relation to what occurred before the Tribunal, as we must, in my submission, we must do in such a fashion that the Court has confidence that these were the documents before the decision maker at the time of the making of the two decisions, the review on the papers and the final hearing.

It is not a question whereby we are attempting to ascertain an individual record for the purposes of judicial review.  We are seeking to show errors in the making of the decision, not errors in the final decision.

HER HONOUR:   I understand all that, Mr Robinson.  Now, if you have anything further to put about the adverse materials, because I have not understood you to have said anything that is specifically directed to that issue so far.

MR ROBINSON:   Your Honour, there was adverse material in the Part B documents.  There may also have been adverse material generally but, in the Part B documents ‑ ‑ ‑

HER HONOUR:   No, so far as relates to your discovery point.

MR ROBINSON:   In relation to Muin and Herijanto and not Lie, your Honour, in relation to those two, the plaintiffs, we say, were entitled to sit back, as it were, and expect that the Tribunal would notify them of any adverse material that had been taken into account, that is adverse not just to the plaintiffs personally but is adverse to the plaintiffs’ case.  So that includes country information and that is material, that if it was adverse to the applicant or the plaintiffs, the plaintiffs expected, because of the Tribunal’s practice directions, that it would be notified to them and made available to them, or explained to them, as the Tribunal said it would in its practice directions that have been set out in the pleadings and in the evidence.  That is the point there, your Honour.

HER HONOUR:   Yes, but is there any discovery point relating to Muin and Herijanto?

MR ROBINSON:   I do not think so, specifically, your Honour.  It is more a consequences ‑ ‑ ‑

HER HONOUR:   No, it is just a simple one.

MR ROBINSON:   It is a “so what” point, your Honour.  It is the consequences of not establishing, what I call, the integrity of the record in these proceedings.  That is all I have, your Honour.

HER HONOUR:   Yes, very well.  Mr Basten, the question really is whether - if I could just identify these issues, because it seems to have been come at from an all points - the question really is whether there should be a further order for discovery.

MR BASTEN:   Yes, your Honour.

HER HONOUR:   And you say that would be futile because the material ultimately would be the subject of a claim for privilege?

MR BASTEN:   Yes, and we would say that the immunity extends to the preparation of a list.

HER HONOUR:   Which list, I do not know what ‑ ‑ ‑

MR BASTEN:   Presumably, the discovery is simply the providing a list of documents in relation to ‑ ‑ ‑

HER HONOUR:   Now, I wonder about that.

MR BASTEN:   If we show no ‑ ‑ ‑

MR ROBINSON:   I am not seeking that, your Honour.

MR BASTEN:   Well, then that solves that problem.

HER HONOUR:   Well, you must be seeking that?

MR ROBINSON:   We want a dump of computer records, your Honour, that is all and a couple of ‑ ‑ ‑

HER HONOUR:   You want a dump of computer records.

MR ROBINSON:   And some manuals.

HER HONOUR:   Okay.  I do not know that you can ever get discovery of a dump of computer records, can you?  You might be able to subpoena them, I do not know, but can you get – of a dump ‑ ‑ ‑

MR ROBINSON:   Yes, your Honour.  Your Honour, the Acts Interpretation Act section 26 specifically provides for a dump, as it were, of computer records.

HER HONOUR:   Does it?  These are existing records, or ‑ ‑ ‑?

MR ROBINSON:   These are existing records, your Honour.  We do not want them to do anything other than give us what they have.  We do not want them to create anything.  What we would like is to discuss the situation with Mr Bottomley and have our respective experts sit down and discuss the matter.  That would be ideal but that option not being available, we will settle for a dump of the computer records, or a copy of the computer records that relate to these access protocols and actual accesses and the

Commonwealth will not have to do anything else.  And the file notes question as well, your Honour.

MR BASTEN:   A copy of computer records which are relevant to what issue?  As I understood it, and this is our point, we produced every record, documentary record which is relevant to the issues, other than those which go to the immunity point.  I do not understand from my friend’s submission any basis except for looking at some e-mail list to suggest the contrary.

HER HONOUR:   No, you see the difficulty you are in, Mr Robinson – and you are getting a little heated unnecessarily, I think – is that there is no order for discovery yet in relation to these amended pleadings.

MR ROBINSON:   No, your Honour.

HER HONOUR:   That is right.  You are asking me to make an order for discovery in relation to the amended pleadings.

MR ROBINSON:   Yes, your Honour.

HER HONOUR:   Mr Basten is resisting that on the grounds that it would be futile.  It does not go to any relevant issue, or any provable issue.

MR ROBINSON:   Your Honour, he would have some difficulty, with great respect, in that regard if he is going to claim judicial immunity in respect of identified records.  That is a matter for him but, at this stage, that has not happened yet. 

HER HONOUR:   Well, I have not ordered discovery yet.

MR ROBINSON:   No, your Honour.

HER HONOUR:   Because the proceedings have been telescoped.

MR ROBINSON:   Well, your Honour, we have identified the relevant powers in paragraph 14 of my submissions, it is Order 32, rule 12, 13 or 18 of the High Court Rules.  There is certainly sufficient power for your Honour to order general discovery or discovery of the new pleadings that has not already occurred, or discovery of particular classes of documents.

HER HONOUR:   Yes, thank you.  Very well, I will consider what I shall do about this.  But in the meantime, are there any issues that arise on the pleadings that do not require evidence?  The pleadings are now complete.

MR BASTEN:   Yes, legal issues, your Honour means?

HER HONOUR:   Yes.

MR BASTEN:   Yes, I think there are.

HER HONOUR:   Well, now, are they issues which will, if determined one way or the other, determine the outcome of the proceedings, or are they interlocutory type issues?

MR BASTEN:   Your Honour, I am not sure whether this answers your Honour’s question, but we had thought at an earlier stage of whether one could identify issues for separate determination which would prevent us going through the evidential exercise.  Our view was that the answer was probably no, in a useful sense, in part because I am not sure that there are ultimately issues of evidence which will require a lot of the Court’s time, as opposed to this process, which, of course, is the Court’s time prior to trial.  I am sorry, I meant at trial.  If your Honour wants us to produce a document, though, which lists the issues in order for your Honour to make a more informed judgment about whether it is appropriate to set down some questions for separate determination, we are perfectly willing to do that and we can do that within a short time span.

HER HONOUR:   Yes, well, we need to know, I think, what issues need to be the subject of factual findings, what legal issues arise on the pleadings and the ultimate questions to be referred to a Full Court.

MR BASTEN:   Yes, and your Honour needs to lift the stay on the remaining interrogatories and set a date for the answers to be provided.

HER HONOUR:   Yes.  That should not take you long, should it?

MR BASTEN:   No.

HER HONOUR:   The stay on those interrogatories will be lifted and you have 10 days in which to consider them.  Is that?

MR BASTEN:   My friend was asking for 11, but I think we will settle for 10.

HER HONOUR:   Eleven days?

MR ROBINSON:   No, 10 is fine.

HER HONOUR:   I will consider the position with relation to discovery, but let it be clear I am treating it on the basis that the submission is it would be futile to grant discovery because it would infringe the privilege that

attaches to individual members.  That may, I think, I am not sure, may involve some question as to issues that were not addressed about the record, what was the record, what is the record.  But, perhaps not, anyway, perhaps not.  I will consider that position and I will give a written decision in that regard shortly.

Now, the matter had better come back for further identification of the issues.  When should it come back?

MR BASTEN:   Would your Honour wish us to prepare that document and provide it to the Court and my friend before that?

HER HONOUR:   No, I think we might keep this on track.  On 20 April?

MR BASTEN:   I think I am in Adelaide that day, but if Mr Beech-Jones is available.  The 20th, Thursday.

MR BEECH-JONES:   The 20th, that suits me your Honour.

HER HONOUR:   Have you got a date convenient to you in that week, or the next week, the 28th?

MR BASTEN: The 18th I think I am in Sydney, your Honour, or any day the following week.

HER HONOUR:   Well, the 28th might be a better day.

MR BASTEN:   If I am not available, Mr Beech-Jones ‑ ‑ ‑

HER HONOUR:   Yes, and if you would have those issues identified in each matter on a nice, readily understandable table.

MR BASTEN:   We will do that, your Honour.

HER HONOUR:   Yes, thank you.

HER HONOUR:   The Court will now adjourn.  I will leave the question of costs and certification for the moment.

MR BASTEN:   Yes, thank you, your Honour.

HER HONOUR:   Yes, the Court will now adjourn.

AT 11.36 AM THE MATTER WAS ADJOURNED
UNTIL FRIDAY, 28 APRIL 2000