Herijanto, Muin, Lie v RRT

[2000] HCATrans 492

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

COMMONWEALTH OF AUSTRALIA

Second Defendant

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS

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

COMMONWEALTH OF AUSTRALIA

Second Defendant

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS

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

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 1 NOVEMBER 2000, AT 9.35 AM

(Continued from 8/9/00)

Copyright in the High Court of Australia

___________________

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

MR J. BASTEN, QC:   And for the second and third defendants, with MR R.T. BEECH‑JONES, your Honour.  (instructed by the Australian Government Solicitor)

MR ROBINSON:   Your Honour, before we commence on the questions for referral to the Full Bench, might I trouble the Court to move a motion to join 286 further persons in the Lie and Muin proceedings.  It is 263 in Lie and 23 in Muin.  That makes a total of 286.  We can file today in the Registry - and I would if I may seek to read the affidavit of Adrian Phillip Joel, sworn 31 October 2000, and filed that day.

HER HONOUR:   Has Mr Basten seen - yes, it has been filed and served?

MR BASTEN:   We have the same position as before, your Honour; we hope for the last time.

HER HONOUR:   Yes.

MR ROBINSON:   The short minutes are in - - -

HER HONOUR:   I have read that affidavit.

MR ROBINSON:   Thank you, your Honour.

HER HONOUR:   You have no objection to it, Mr Basten?

MR BASTEN:   No, your Honour.

HER HONOUR:   No.  The affidavit can be taken as read.

MR ROBINSON:   Your Honour, the orders that we seek are annexure A to that affidavit. 

HER HONOUR:   You take the same position.  I take it you do not may any submissions?

MR BASTEN:   Yes, your Honour, yes.

HER HONOUR:   Well, in that case, for the reasons given on an earlier occasion, orders will be made in accordance with annexure A to the affidavit of Adrian Phillip Joel, sworn 31 October 2000, and filed in this Court on 31 October 2000.

MR ROBINSON:   If the Court pleases.  Your Honour, in relation to the substantive matter, my learned friend has a number of matters he wishes to agitate as I understand it but your Honour may be aware that the plaintiff has filed three sets of draft questions for referral to the Full Court in accordance with section 18 of the Judiciary Act in light of your Honour's last judgment in this matter.  The parties have been unable to agree as to the precise questions to be referred and I understand my learned friend has cause to be filed the defendant's version of the draft questions for referral and they will be before your Honour.

HER HONOUR:   Yes.

MR ROBINSON:   The third category of documents that your Honour will be troubled with this morning is a set of draft statements of fact.

HER HONOUR:   I thought that was agreed.

MR ROBINSON:   The word "agreed" has dropped away for some reason which I cannot recall, your Honour, but there is no reason from our part subject to two paragraphs that have appeared for the first time - one paragraph which has appeared for the first time yesterday and part of another one which appeared a few days ago.  We do not have any problem with them at all, your Honour, so, from our side, they certainly can be - well, we do not have any problem with them.

HER HONOUR:   Except for one-and-a-half paragraphs.

MR ROBINSON:   Well, one paragraph is a rather substantial one.  It goes for about a page and we oppose it for quite a number of reasons.  If it is

pressed, it would take me about an hour to agitate those reasons but I am prepared to do so this morning, your Honour.

HER HONOUR:   As a matter of logic, the statement of facts should be determined before the questions.

MR ROBINSON:   Indeed, your Honour.

HER HONOUR:   Yes.  Well, Mr Basten, did you prepare this statement of facts?

MR BASTEN:   Well, I do not know.  I thought it was a joint effort, your Honour.  Your Honour has a copy of the one in Herijanto?

HER HONOUR:   Yes, which is - - -

MR BASTEN:   The reason "agreed" has been dropped out is simply that we have sought to incorporate findings that your Honour made in the form that your Honour suggested, so that was the reason, but it means nothing more than that and it can be placed back in if that is appropriate.  Paragraph 2 is in italics and that indicates that there is a disagreement about that.

HER HONOUR:   And the other one is?

MR BASTEN:   The other one is 36.  It is at page 9.

HER HONOUR:   Well then, we should hear Mr Robinson on them.

MR BASTEN:   Can I just indicate two things:  firstly, paragraph 2 is italicised because of our concern.  We just thought it was not an appropriate paragraph in an agreed statement of facts.  If it is thought to be appropriate, then we are not going to raise any issue about it.  In relation to paragraph 36, your Honour, that is ours.  Can I simply indicate why it is we sought to have it included?  Paragraph 35 asserts that no document has been discovered, indicating that the Tribunal member "sought", "obtained access to", "or read", "the Part B documents".  All we sought to do in paragraph 36 was to indicate the history of the proceedings and amendments to the statement of claim and responses to requests for discovery.          We would obviously rely on those documents to say that the inference the plaintiff, no doubt, will seek to derive from paragraph 35 is not reasonably available.

Now, we do not need paragraph 36 to do it if we can have all the documents in the agreed bundle, and I do not understand that there is any objection to these documents going in although my friend says that there are others which may need to go in to complete the picture.  So, all I say in

relation to that is that paragraph 36 appeared to us to be helpful for the Court but if there is some objection taken to it, we can deal with it in the alternative way.  That is all I wanted to say.

HER HONOUR:   Yes.  Thank you, Mr Basten.  Yes, Mr Robinson.  You cannot really object to paragraph 2, can you?  If the matter goes to the Full Court, there is going to be some need for background - - -

MR BASTEN:   In that sense, we the ones objecting to that, your Honour, so I am saying - - -

HER HONOUR:   You are the ones - - -

MR BASTEN:   We are the ones who thought it might in inappropriate.  If your Honour takes a different view, we have nothing further to say.

HER HONOUR:   It will be just as easily incorporated there as in addresses.

MR BASTEN:   Well, we do not take any point about paragraph 2.  We are agreed about it.

HER HONOUR:   Very well, thank you.

MR ROBINSON:   Your Honour, I do not object to the removal of paragraph 2 of the draft statement of facts.

HER HONOUR:   We have decided that it is going to stay in.

MR ROBINSON:   In any event, I would ask your Honour, whilst your Honour is concentrating on that paragraph, in making the referral, to refer only to the Full Court that part of the proceedings that relate to the named plaintiffs personally; that is Mr Herijanto, Mr Muin and Ms Lie in their personal capacity because what is not to be referred to the Full Court from our perspective and from the understanding of the defendants is the full class action or representative proceedings, as it were.

HER HONOUR:   No.  I do not think that - - -

MR ROBINSON:   Your Honour, there is no provision for what I have just said in my learned friend's draft questions for referral.

HER HONOUR:   The applicability of the principles to the other individual named plaintiffs - - -

MR ROBINSON:   This reflects an agreement between the two parties.  That will not impact on the wording of your Honour's referral.  These words are not reflected in my learned friend's draft proposed questions for referral and I would ask that they - - -

HER HONOUR:   As I understand what is intended by Mr Basten is that this be annexed to the questions referred.

MR ROBINSON:   Yes, your Honour.

HER HONOUR:   Well, it is relatively helpful, is it not, for the Full Court to understand how these somewhat unusual proceedings came about?

MR ROBINSON:   I agree, your Honour.  I am content for them to stay in.

HER HONOUR:   Yes, very well.

MR ROBINSON:   But, your Honour, I do ask, in the referral itself, that your Honour make some reference to the fact that your Honour is not referring the entire representative proceedings upstairs, as it were.  That is something that we would - - -

HER HONOUR:   If that is the agreement in paragraph 2, it will emerge from that, that is the situation.

MR ROBINSON:   I am comforted by that, your Honour.  My learned friend omitted reference to paragraph 18 which is reflected in the other two draft statements of facts.  That reads:

All of the Part B documents listed in Schedule 1 as being held on the CISNET database comprised the full text of the original article except that with item 2, the report by -

that is the Chinese of South-East Asia report -

the CISNET database only contained that section of the article which dealt specifically with Indonesia.

Now, there is a footnote there, your Honour, which has been inserted by the respondents.  This is their wording which is not agreed in the absence of the text.  I had not seen this document, your Honour, until just a few moments ago.  I am told my learned friend sent it to me yesterday but I had not received it until this morning.  Footnote No 6 on page 14 says, "But not the boxed information set out at page X of the bundle" of documents.  Your Honour might recall that was - the Chinese of South-East Asia was a large booklet of many pages.

HER HONOUR:   Yes.

MR ROBINSON:   And all that was contained on CISNET was that part which related to Indonesia and not the other countries of South-East Asia. What was also not reproduced on CISNET was a large bundle of information contained within a box at the start of the Indonesian section and it is simply that which I wished to include in the statement of facts and not to relegate to a footnote.  So, I have communicated with my learned friend about this and he has asked me, if I want it corrected, then I should agitate the issue before your Honour.  So, your Honour, in my submission, the words at footnote 6 ought to be incorporated into the body of paragraph 18 so that it reads:

of the article which dealt specifically with Indonesia but not certain other information contained in that article -

or:

and not certain other information -

and then the footnote would have to - - -

HER HONOUR:   Well, why not a sentence, "It did not contain the boxed information", exactly as the footnote says?

MR ROBINSON:   I am sorry, your Honour?

HER HONOUR:   Why not just say, "It did not contain certain boxed information" and then put the footnote "as set out at page so-and-so of the bundle"?

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

HER HONOUR:   Yes.  Are you happy with that?

MR BASTEN:   Yes, your Honour.

HER HONOUR:   Yes.  Very well, that is sorted out.

MR ROBINSON:   Now, paragraph numbered 36, which we saw for the first time yesterday, we say it is incomplete.  It is not unhelpful information.  It is all historical fact.  We do not take issue with the accuracy of what is there in the broad picture, your Honour.  Some of it is demonstrably inaccurate but overall it is - - -

HER HONOUR:   Sorry?

MR ROBINSON:   Your Honour, there are some dates that are wrong; there are some things that can be fixed up with a pen but, broadly, my submission is that it does not cover the entire relevant picture.  That is firstly.  Secondly - - -

HER HONOUR:   What is missing?

MR ROBINSON:   I will take your Honour to it.  If I could hand up to your Honour a summary chronology of proceedings.  That is a document your Honour has seen before in an earlier version.  This starts at the commencement of the proceedings in Herijanto on 31 July 1998 and all that it happens to go to is the fourth directions hearing before your Honour on 27 April 2000.  The history that is given in paragraph 36 commences on 17 December 1999 and it does not make any reference to the events that occurred between 31 July 1998 and 5 November 1999.

HER HONOUR:   So far as Herijanto is concerned, which ones do you say should be - - -

MR ROBINSON:   Well, in Herijanto, your Honour - - -

HER HONOUR:   The plaintiff's notice for discovery was filed and served?

MR ROBINSON:   The writ of summons was filed.  There was an appearance.  The Commonwealth was joined.

HER HONOUR:   Yes, but why does that matter?  "The history of the provision of discovery" it is headed, "concerning Part B documents".

MR ROBINSON:   Yes, your Honour.  There was discovery in Herijanto on 17 December 1998, one year before.

HER HONOUR:   Yes, I know.  What I am asking you is why do you need to set out details there of the writ of summons and statement of claim?

MR ROBINSON:   The short of it is this, your Honour - and I can show your Honour the original statement of claim in Herijanto - the defendants discovered to that document and in that discovery plainly discovered or looked for, with a view to discovering, file notes of the members of the Tribunal - of the Member that constituted the Tribunal for the purposes of Herijanto at least.  There is no doubt about that and, indeed, before your Honour in the last proceedings, exhibit E or D was a letter which evidenced that very thing.  That was exhibit D, the letter to Mr Markus from the Registrar, I think it was, of the Refugee Review Tribunal saying that, "The Member does not have any notes.  There are electronic records", and so on.

Now, that was in relation to the first round of discovery in 1998 done by the defendants.  Now, during that time, on the then pleadings, the defendants were on notice by letters from the plaintiffs' solicitors, which I can show your Honour and it is in evidence in the interlocutory proceedings, not in the factual hearing.  They were on notice that we were not happy with the failure to discover at least the computer file notes and we put them on issue that we thought it extraordinary that no file notes had turned up in the discovery.  Now, all of this happened in 1998.  There was a series of communications where we put them on notice, plainly, that we wanted file notes.  We say they put us on notice that they had looked for file notes.  They never included in that first round of discovery - and there was a round of discovery in Muin and Lie, your Honour, before paragraph 36 commences its story.  But they never said to us then that they did not have file notes in all three matters or that they were taking an immunity of privilege point in relation to the file notes or that they would discover them in put them in Part 2 and refuse to make them available for inspection.  They simply said, "We don't" - there was total silence on final notes from the other side during this period.

Now, the original pleadings in Muin and Herijanto did not raise the Part B documents point that the proceedings in Lie raised until 29 October 1999 but, your Honour, we say - our primary contention is notwithstanding that, the adverse materials claim in Muin and Herijanto up to that point should have caused the Commonwealth to discover all relevant documents, and all relevant documents up to that point should have included the file notes that the Tribunal kept, the hearing notes kept by the Tribunal's staff in the hearing room.  A running record is kept in the hearing room.  That was not produced to us.  I can take your Honour through, in the affidavit of Mr ‑ ‑ ‑

HER HONOUR:   Would it not be more sensible - and, really, the parties have had some eight weeks, maybe nine weeks, since this matter was last before me.  Is that not right?  Nine weeks?  Eight weeks?

MR ROBINSON:   Yes, your Honour.

HER HONOUR:   When did this paragraph emerge?

MR ROBINSON:   Yesterday at about 2 o'clock, your Honour.

MR BASTEN:   Monday.

HER HONOUR:   Would it not be more sensible if you set out what you think should be included?  That is your complaint, that it does not set out the whole picture.

MR ROBINSON:   Your Honour, it needs another two pages.  Your Honour, I do not agree it should be included at all.  Your Honour, this is really, effectively, an attempt to go back to the factual hearing.

HER HONOUR:   You may not agree but it does seem to me that it may well be relevant to any inference drawn and your complaint thus far has been that it is not a complete picture.

MR ROBINSON:   Your Honour, it should not be included.

HER HONOUR:   Why not?

MR ROBINSON:   It is a back-tracking exercise by the Commonwealth that they could have raised at the last hearing, the factual hearing, and was not raised.

HER HONOUR:   It may well be relevant to any inference that is drawn, may it not?

MR ROBINSON:   I am ready to deal with it today, your Honour.

HER HONOUR:   On what basis are you ready to deal with it today?  On the basis that it is not relevant to any inference to be drawn?

MR ROBINSON:   Because it is incomplete, yes.

HER HONOUR:   No, no, forget about its being incomplete for the moment.  The fact that it is incomplete can be corrected by its being made complete.

MR ROBINSON:   Yes, your Honour.

HER HONOUR:   That requires you to propose some changes to the document.

MR ROBINSON:   Your Honour, my learned friend has a fact that he would want the Court to find as a result of paragraph 36.  Now, if he has a fact that he wants to put, fine.

HER HONOUR:   No, excuse me, you want the Court to draw an inference as set out, I think, in paragraph - - -

MR ROBINSON:   It is an agreed fact, your Honour, at 35.

HER HONOUR:   You want an inference found somewhere in one of these documents that they did not look at these documents.

MR ROBINSON:   Yes, your Honour.

HER HONOUR:   Right.  This material may well - well, I would have thought, prima facie, is relevant to whether that inference is to be drawn.  It may not be of great relevance but it may well be relevant.  Now, it seems to me that that paragraph should only be deleted if you can say, "No, it is entirely irrelevant."  If it is not entirely irrelevant, you should put forward the matters you wish to have incorporated to give what you say is a complete picture.

MR ROBINSON:   I am content to do that in writing, your Honour.  Otherwise, I am happy to do it today but as I have said at the outset it will take me an hour or so to respond to the paragraph.

HER HONOUR:   How long would it take you to put it in writing?

MR ROBINSON:   It could possibly be done before 4 o'clock today, your Honour.

HER HONOUR:   Are counsel free at 9.30 tomorrow or Friday?  I do not mind which but this matter is going to be finalised this week.

MR ROBINSON:   I am on Friday, your Honour.

HER HONOUR:   Is Mr Basten free at 9.30 - - -

MR BASTEN:   Yes, your Honour.

HER HONOUR:   Are you free on Friday?

MR BASTEN:   I know I am free tomorrow, your Honour; I think Friday too.

HER HONOUR:   It seems that there is another chamber matter on here tomorrow.  I can do it any time on Friday but, really, this matter has to be completed.

MR BASTEN:   Well, I am in your Honour's hands.

HER HONOUR:   If 9.30 is not suitable, will you let the Registrar know, but otherwise this particular issue should come back in a more considered

form at 9.30 on Friday.  That particular paragraph, however, is not going to affect the questions, I should not have thought.

MR ROBINSON:   No, your Honour.  It is merely that the whole of the paragraph is leading, it seems to me, to a contention of a factual nature or an inferential nature by the defendants.  It is not set out there.  On the face of it, in the absence of some inference that the defendant seeks to draw from all of this which I can guess, is a factor that would go to being a fact to counter the inferences that we seek to be drawn that are set out in our draft questions for referral.  I can see that, your Honour, but it has not been articulated.  They have set out a potted, we say, history of part of the proceedings but they have not said why.

HER HONOUR:   Is that not a matter you can take up between now and Friday?  If they do not set it out, what difference does it make?  You are further advanced.

MR ROBINSON:   Yes, your Honour.

HER HONOUR:   In any event, it is obviously - - -

MR ROBINSON:   I can see where they are leading, of course, your Honour.

HER HONOUR:   Yes, and it is quite within your capacity to complete the picture.

MR ROBINSON:   Yes, indeed, your Honour.

HER HONOUR:   Very well.  Now, the questions.  I have only Herijanto.  It is sufficient to work on Herijanto, is it not?

MR BASTEN:   I think it is, your Honour.  Your Honour, we did produce some short minutes or orders in each matter.  Would it be convenient to hand up a copy of those?  I do not know that it is necessary but it will at least indicate to your Honour where we were going.

HER HONOUR:   Yes.

MR BASTEN:   As your Honour will see in Herijanto, what we sought to do in paragraph 12 was to identify what we understood to be the issues.  The plaintiff had sought - - -

HER HONOUR:   I did not know that that is right. 

MR BASTEN:   As I was merely going to say, your Honour, on the last page, we have an alternative if we were in error in our first - - -

HER HONOUR:   It seems to me that, for example, question 1(a) is not really - is the ultimate question to be answered.  That is a step in the process of answering what would seem to be the real question, namely, 1(b).

MR BASTEN:   I think that is right, your Honour.  We understood it was an essential step in the pleadings but if it is not - - -

HER HONOUR:   Now, one thing I was concerned about in question (b) is - and it is probably sufficient if it is just on the record - when you refer to the "adverse material" are you including in it the Minister's report that came after the oral hearing.

MR ROBINSON:   It is defined in that way, your Honour, yes.

HER HONOUR:   I think that is correct, your Honour.

MR ROBINSON:   It is swept up in it, your Honour.

HER HONOUR:   Yes.  Well, so long as that is clear somewhere.  If it is clear enough on the transcript, I suppose that is sufficient.

MR BASTEN:   For the transcript, it is the Secretary's report.  We accept what your Honour - - -

HER HONOUR:   It is the Secretary's report, I am sorry.  That is clear enough, is it not?

MR BASTEN:   We think so, your Honour.

HER HONOUR:   Yes, and you are happy that that is clear enough?

MR ROBINSON:   Yes, your Honour. 

HER HONOUR:   Why does anything more have to be asked, at least in relation to the adverse material than what is question 1(b)?

MR BASTEN:   Your Honour, the pleadings are included.  It is the ultimate question which arises from the pleadings.  We would say that one reads it in the context of the pleadings but, having said that, we would be content with it.

HER HONOUR:   Yes.  Well, all one is doing is deleting (a) which would seem to me to be a step in the question.

MR BASTEN:   Yes.

HER HONOUR:   Now, on that basis, that reflects the first question you pose, does it not?

MR ROBINSON:   In essence, your Honour, yes.

HER HONOUR:   In detail, is there any problem with it?

MR ROBINSON:   If your Honour would bear with me for a moment?

HER HONOUR:   It is question 1 on the first page of the document ‑ ‑ ‑

MR ROBINSON:   The submission that your Honour mentioned of the Minister does not appear in the body of the pleadings.  It appears in the schedule of adverse material that is attached to the pleadings; certainly the original pleadings, so that it is intended that the schedule of specified adverse material which includes the ministerial submissions, that is the section 423 submissions, is to form part of the amended statement of claim.  So, the short answer is, yes, your Honour, we do not have any problem with that.

HER HONOUR:   So, you have no problem with the first question?

MR ROBINSON:   No, your Honour.

HER HONOUR:   It simply says: 

Upon the facts agreed by the parties and those found by this Court.....
(2)  Did the Third Defendant -

no, sorry, was there a denial of procedural fairness?

MR ROBINSON:   The only issue might be discerning which are the facts agreed by the parties and which are those found by the Court.

HER HONOUR:   Well, that would not seem to be your problem, would it?

MR ROBINSON:   Well, it is only in the question of whether or not they can be easily identified by the Full Court and I do not know whether it is necessary.

HER HONOUR:   Why is it not simply said, "On the facts set out in the agreed statement of facts"?  There is no disagreement about the facts.  They

are the primary facts.  What inferences are drawn, are inferences drawn, are they not?

MR BASTEN:   Yes.

MR ROBINSON:   Your Honour, my only hesitation is that the facts which led to the inferences of the documents not being read.  I have not included or sought to include them in the agreed statement of facts.  I have included them in the draft questions for referral.  They would need to be - - -

HER HONOUR:   The inferences, really, are inferences to be drawn from the primary facts.

MR ROBINSON:   Yes, your Honour.

HER HONOUR:   There is no doubt, is there - let me get this clear.  There is no difficulty in the Court drawing inferences on a question reserved, is there?  Whatever the law might be about stated cases, there is no difficulty about the drawing of inferences on questions reserved?

MR ROBINSON:   I would not have thought so, your Honour, no.

HER HONOUR:   No.  I am fairly confident there is not.  So, it could read, "On the facts set out in the agreed statement of facts and the inferences, if any, to be drawn therefrom; (1) Was there a denial of procedural fairness?"

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

HER HONOUR:   I will just see if Mr Basten has any problem with that?

MR BASTEN:   Yes.  I am sorry, it is not any longer our 1(b) because it is not specific to the adverse material in that form which would pick up question 3(2), would it?  Is that the - - -

HER HONOUR:   It seems to me that, ultimately, that is the question:  "Was there a denial of procedural fairness?".  The parties can separate it in argument how they want.

MR BASTEN:   Yes.  Well, that is, in a way, why we ended up with an alternative at the end once we had reduced it to the ultimate question.  It is a matter for your Honour, really, whether these distinctions should be drawn within the questions or not.  We will obviously seek to draw them because we think it is helpful to particularise how one might reach that conclusion.

HER HONOUR:   Yes, but that is a matter for argument, is it not?

MR BASTEN:   I think so, your Honour.  Well, I am content with that.  We thought there were two ways of doing it, your Honour.

HER HONOUR:   Yes.  You are content with that?

MR ROBINSON:   Yes, your Honour.

HER HONOUR: Now, then, that brings - the second question is going to the plaintiffs and the defendants. Well, then, is not the next question simply "Whether, on the facts set out and the inferences, if any, to be drawn therefrom, there was a failure to comply with section 483 of the Migration Act?"

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

MR BASTEN:   Yes, your Honour.

HER HONOUR:   Then there is a third question.  I must say, I, myself, always thought this was a side issue in some respects, but that is the failure to comply with 424(1), is there not?

MR ROBINSON:   Yes, your Honour.

HER HONOUR: When I say that, I simply indicate it seems to me to be caught up, really, in the others more than the question by itself but I have no reason to think that it should not be specified, again in terms, "Whether, having regard to the agreed statements of facts and the inferences, if any, to be drawn therefrom, there was a failure to comply with section 424(1) of the Migration Act 1958."

Then the fourth question would seem to me is much - "If the answer to any of questions 1 to 3 is, yes, then as set out in the plaintiff's question 6", is it - they would seem to be the right questions, would they not?

MR ROBINSON:   I think they might, your Honour.

HER HONOUR:   Well, the question set out is question 6 in the plaintiff's questions would seem to be the consequential question that arises if there was a failure to comply with either of the statutory provisions or a breach of natural justice. 

MR BASTEN:   That is much the same as our question 4, your Honour.

HER HONOUR:   No, I am reading your question 6, I think.

MR BASTEN:   No.  Well, I do not have a question 6.

HER HONOUR:   Sorry.  The plaintiff's, I am sorry.

MR BASTEN:   The plaintiff does have a question.

HER HONOUR:   I am sorry, I have the documents confused.  Do you have any trouble with that?

MR BASTEN:   Well, we preferred our 4 but it is merely stylistic.

HER HONOUR:   Well, let me have a look at your 4.

MR BASTEN:   There is no substantial difference.

HER HONOUR:   Yes, there is no real difference.  Then what is your question 5 should then become, similarly, question 5.  Is that not right?

MR ROBINSON:   Yes, your Honour.

HER HONOUR:   Now, have we all that?

MR BASTEN:   Yes, we have that, your Honour, yes.

HER HONOUR:   Yes, very well.  Well, the parties can reconstitute what is your draft questions referred to.

MR BASTEN:   That is my friend's yes.

HER HONOUR:   I am sorry?

MR BASTEN:   That is the plaintiff's.  We can incorporate what your Honour has just - - -

HER HONOUR:   I am sorry, I actually preferred the way you set it out, the preliminary.

MR BASTEN:   Yes.  Well, I was going to say we can incorporate your Honour's variation of - - -

MR ROBINSON:   What preliminary is that, your Honour?

HER HONOUR:   Paragraphs 1, 2 and then 10, I think.  I am sorry, I did not check this yesterday but I did intend to.  Is there any difference in the attachments to which you refer:  Mr Robinson in paragraph A and Mr Basten in paragraph 10?  Statement of claim, defence, reply; yes, there

is.  Yes.  Well, the only difference is the incorporation of the judgments which - - -

MR ROBINSON:   I am not fussed either way, your Honour.

HER HONOUR:   Very well.  There is no harm with paragraph 11 going in, is there; paragraph 11 in Mr Basten's document?

MR ROBINSON:   Your Honour, I do not regard paragraphs 1 to 9, or 11, as necessary.

HER HONOUR:   No, but it is a helpful summary.  I am thinking only of the convenience of the members of the Court.  This will be the document they first read and it will make it somewhat easier for them to understand, I thought.  It is a useful summary.  But you have no objection to that?

MR ROBINSON:   No, your Honour.

HER HONOUR:   So, Mr Basten, we will take in paragraphs 1 to 11 inclusive, and then the questions as reformulated in the course of today's discussion.

MR BASTEN:   As reformulated.  We will include those, your Honour.

MR ROBINSON:   Those questions are broad enough to cover all three matters, your Honour.

HER HONOUR:   Well, they specifically ask three matters:  breach of natural justice, but without compartmentalising it, although the parties will clearly be free - - -

MR ROBINSON:   Procedural ultra vires.

HER HONOUR: Breach of section 418(3) and breach of section 424(1).

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

MR BASTEN:   Does your Honour have a view about the title of the document?  Questions referred?

HER HONOUR:   Yes.  It will at least keep away any doubts that might arise about a stated case.

MR BASTEN:   Yes, I had that - - -

HER HONOUR:   Now, I think there is no need to deal with your short minutes of order at this stage, Mr Basten, is there, other than to say I will certify for the attendance of counsel, and costs of today will be costs in the cause.  I will stand the matter over until 9.30 Friday, but if that is not a convenient time, please speak to the Registrar and we will see what other time is convenient.  It would be helpful, I think, if we could get this finalised this week.  We will adjourn until 9.30 am on Friday.

AT 10.20 AM THE MATTER WAS ADJOURNED
UNTIL FRIDAY, 3 NOVEMBER 2000