Herijanto, Muin, Lie v RRT and Ors

[2000] HCATrans 311

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

For mention

GAUDRON ACJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 10 JULY 2000, AT 9.00 AM

(Continued from 27/6/00)

Copyright in the High Court of Australia

___________________

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

MR J. BASTEN, QC:   With MR R.T. BEECH-JONES, Your Honour, for the respondents, other than the Tribunal.  (instructed by the Australian Government Solicitor)

HER HONOUR:   Well, where are we today?

MR ROBINSON:   Your Honour, in terms of the agreed statement of facts, the parties have come a fair way since the last occasion.  The only other issue that the plaintiffs wish to agitate is a further joinder of about 30 people that we have who we would like to join.  In that regard, we have filed an affidavit of Mr Cruice, Mark Andrew Cruice of 7 July 2000.

HER HONOUR:   Yes.  You can take it I have read that.  When you say that is the only other matter you wish to agitate, do you not wish to cross‑examine the deponents on the - - -

MR ROBINSON:   I meant today, your Honour.

HER HONOUR:   You meant today.  I was very optimistic. 

MR ROBINSON:   In terms of the draft agreed statement of facts, I have a set here that will, if I could hand up on a preliminary basis to at least show your Honour where the parties are at today, that is more an indication - - -

HER HONOUR:   Very well, thank you.

MR ROBINSON:   I should say to your Honour that the parties have been discussing the Herijanto document at some length and will continue to do so, including from today.  The Muin and Lie document is not yet substantially agreed but the principles will flow largely from the agreement in Herijanto.

HER HONOUR:   Yes, thank you.  And the questions – we will have to formulate some question but I gather they are not difficult.

MR ROBINSON:   No, your Honour.

HER HONOUR:   Yes, very well.  Do you oppose the joinder of the additional parties?

MR BASTEN:   We do not consent to it, your Honour.

HER HONOUR:   Very well.  There will be an order for the joinder of parties in terms of the short minutes of order attached to the affidavit of Mark Andrew Cruice, sworn 7 July 2000.

MR ROBINSON:   If the Court pleases.

HER HONOUR:   Your witnesses are available next week?

MR BASTEN:   Yes, they are, your Honour.  We have prepared a list of the order.  I do know whether your Honour wishes to have that now, but I do not think there is any – this is purely as a matter of convenience but I think Mr Robinson is happy that as long as he knows how we would wish to call them then they will simply be run through in that order.

HER HONOUR:   Yes.  Is that - - -

MR ROBINSON:   Yes, we are happy with that, your Honour.

HER HONOUR:   I indicated that we might – you wish to say something else?

MR BASTEN:   I was going to invite your Honour, if I might, or I should seek to clarify, I suppose, one matter which your Honour raised on the last occasion.  The step which will occur next, as I understand it, is that your Honour will hear the evidence and make findings of fact.

HER HONOUR:   Well, I will need to be told what I am to make findings on.

MR BASTEN:   Of course, and that raises the first administrative matter.  The document that Mr Robinson has handed up includes a statement – if your Honour has the Herijanto matter, it includes statements which have against them “agreed” or “not agreed”, and there were two possibilities:  one was to simply leave it in that form for your Honour so that we would have, as it were, at this stage, a ready reference so your Honour would know what was said to be relevant by the plaintiffs but not agreed to by the respondents, and then if the matter were to go by way of a stated case, one could presumably take out of the document the “not agreed” facts and then your Honour could simply annex that which was agreed.

HER HONOUR:   Yes.

MR BASTEN:   But that would indicate, I suppose, what my friend would be asking your Honour to find.  I say that with some hesitation because he has said more than once that he does not wish to commit himself to giving a comprehensive list of what is still factually to be determined but at some stage, no doubt, that will have to happen.  So that was my first point.  The second was that your Honour was proposing, in effect, to state a case pursuant to section 18, as I understood what your Honour said on the last occasion.

HER HONOUR:   Yes, unless you have a better proposal.

MR BASTEN:   No, I do not have, your Honour.  I understood that that was what was going to happen.  So that rather than draft a further set of issues, although we have done that, should we be preparing a draft stated case to address before your Honour on the next occasion, as it were?

HER HONOUR:   I thought, perhaps, that might emerge from this once the facts were found.

MR BASTEN:   Yes.  I think that was what Mr Robinson said on the last occasion, that perhaps that could await your Honour’s findings.

HER HONOUR:   Yes.

MR BASTEN:   I am just mindful of the fact that your Honour put a date of 21 August by which all this had to be completed so we will obviously do whatever is required as soon as possible.

HER HONOUR:   Yes.  I would need to state a case for the Full Court by the end of August at the latest.  That means, in effect, the 21st, otherwise I am somewhere else.

MR BASTEN:   Yes, we understand that timetable.  If your Honour looks again at the draft statement of agreed facts which Mr Robinson handed up, your Honour will see that it is actually footnoted to documents either in affidavits – and we can drop that material out in due course if that is necessary, but it is convenient, I think, for present purposes to keep it in, but also to a bundle of documents.  Now, that bundle is obviously simply an administrative matter.  Now, we have all the documents we need.  That would either be annexed to this statement of facts or simply handed up to your Honour and tendered on the next occasion.

HER HONOUR:   Well, it would be preferable if it were annexed, at least when it comes to a case stated.

MR BASTEN:   Certainly, yes.  It would be an agreed bundle.  The question is, really, whether your Honour wants it in advance of the cross‑examination of the witnesses, I suppose.

HER HONOUR:   I am in the hands of the parties; whichever you think will be the more convenient.

MR BASTEN:   We will make some arrangements, your Honour.

HER HONOUR:   Yes, thank you.  Yes, Mr Robinson.

MR ROBINSON:   Briefly, in response to one of the matters my learned friend raised, if it is physically possible, it is my intention before the hearing to produce to the other side and for discussion a list of the precisely formulated inferences that I would ask your Honour to draw and the factual basis for those inferences.  The conclusions, as it were, the final inference is in this document.  The facts upon which the inference is based is in our evidence and I will draw together the threads of what I am able to do that does not necessarily arise out of cross‑examination before the hearing and my learned friend will be less troubled in that regard.

HER HONOUR:   Very well, thank you.  Well, that being so, shall we commence at 9.30?  It is Wednesday next, is it not, Wednesday week?

MR BASTEN:   Yes, that would be convenient, your Honour, to me.

HER HONOUR:   Because we must conclude by lunchtime on the Friday.

MR ROBINSON:   We are happy with that.

MR BASTEN:   Yes, thank you, your Honour.

HER HONOUR:   Yes.  I will certify for the attendance of counsel.  I have made the order requested, and we will adjourn until Wednesday, 19 July at 9.30 am.

AT 9.12 AM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 19 JULY 2000