Herijanto & Ors v RRT

[2000] HCATrans 97

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, 17 MARCH 2000, AT 9.01 AM

(Continued from 15/3/00)

Copyright in the High Court of Australia

______________________

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

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

HER HONOUR:   I have received the written submissions, although I must say I have not had time to consider Mr Robinson’s in detail.  Do you wish to speak – perhaps if you speak to your submissions ‑ ‑ ‑

MR BEECH-JONES:   Firstly, could I just thank your Honour for meeting my convenience this morning and can I also often what I might call an ironic apology for the other day where I was asking your Honour about your Honour’s movements and I realise that I may have been transgressing upon – indirectly, not of course intentionally – as to who may be sitting on special leave applications.

HER HONOUR:   I do not remember it.

MR BEECH-JONES:   In my submission, that is not without irony, given that what we say Mr Robinson is seeking to do by his interrogatories, that is seek out the inner workings of the quasi-judicial officer’s mind.

Your Honour, I have my friend’s submissions.  Can I perhaps make a couple of points.  Paragraphs 1-14 are a discussion of the concept of the immunity and I think the effect of what my friend says is he concedes there is an immunity applying to the Refugee Review Tribunal concerning interrogating the manner and exercise of its

judicial functions and powers, but he does not necessarily concede that is contained within section 435 of the Act and in paragraph 13 suggests that Justice Sackville was wrong in Guo in suggesting that it does.  I am not entirely sure where that takes the matter because he nevertheless concedes that the immunity exists, so the real debate between us is the extent of the immunity and – perhaps not its source – but we would add there does not seem to be any manner of ‑ ‑ ‑

HER HONOUR:   The only word used in the Migration Act is “immunity”, is it not?

MR BEECH-JONES:   I think it is “protection and immunity”, your Honour.

HER HONOUR:   “Protection and immunity”?

MR BEECH-JONES:   Yes, your Honour.  That is 435 – “the same protection and immunity”.  The rest of my friend’s submissions are directed towards what I could perhaps inadequately summarise as two propositions: firstly, even accepting the existence of the immunity, one can nevertheless interrogate or discover what was “before” the relevant judicial officer or quasi‑judicial officer and/or to determine what was the “record” of the proceedings before the relevant judicial or quasi‑judicial officer.  Then the second point he says, and implicitly, our interrogatories are directed towards establishing what was before them and/or what was the record of the proceeding.

Now, when my friend refers to “the record”, for example, in paragraph 15, it is not clear whether he is talking about it in the Craig sense - it appears he really could not be because the matters that he is seeking to establish as the record which, on any view of Craig, travelled far beyond what could be described as the record for the Refugee Review Tribunal.

HER HONOUR:   How do you say you do prove the record in cases of this kind?  I mean, there would have been no difficulty but for the fact of technological change, is that right?

MR BEECH-JONES:   Yes, your Honour, but can I – if we mean by the record in the Craig sense, the record could not be any wider than the application for review and the statement of reasons at the end.  But perhaps the real debate is to proving what was before the Tribunal.

HER HONOUR:   Yes.

MR BEECH-JONES:   And that is really, I think, the nub of the difference.  I accept that the authorities are to the effect that you can establish what was before the Tribunal, but I submit you cannot establish what they looked at.  That is a fundamentally different matter.  There is a clear distinction between asking, for example, the judge’s associate whether a particular exhibit was tendered and then asking the judge or the judge’s associate “and did his or her Honour look at the exhibit, and if so, how long, and where were they?  What were they doing at that time?”  Really, with respect, that is where my friend, we say, goes over the line.

Just to develop that, your Honour, I should just go back over what are the issues raised by the pleadings.  In paragraph 32 of my friend’s submissions, on the top of page 6, in the context of discussion of one, in particular, of the interrogatories, in the first full paragraph of that page, my friends states:

an inference can plainly be drawn that the Tribunal did not look at the Part B documents by way of the computer system ‑ ‑ ‑

HER HONOUR:   Where is this?

MR BEECH-JONES:   The top of page 6 of my friend’s.  Your Honour will see the second-last sentence in that paragraph appears to suggest that we allege in our defence that the Tribunal did look at the Part B documents.  Our defence does not allege that.  What our defence alleges was that they were before the Tribunal and if there was any doubt about that, in our answers to particulars, we specifically said “We do not know and are not going to ask the Tribunal whether they actually considered or looked at a particular document.”

Now, your Honour will recall that when we had the debate over the amendment to the pleadings I sought to emphasise that the pleadings prior to amendment were seeking to state that there was a breach of a particular legitimate expectation because the relevant documents were not before the Tribunal.  That was what the plaintiff said.  We put that in issue.  And the debate between us to that time was, what is “before the Tribunal”?  We had said, factually, if it on the computer system and you have the reference, it is before the Tribunal.  No doubt my friends say that is incorrect.  We could be right or we could be wrong. 

HER HONOUR:   The Act talks about sending papers, does it not?

MR BEECH-JONES:   It does in 418, your Honour.  It talks ‑ ‑ ‑

HER HONOUR:   Documents.

MR BEECH-JONES:   Yes, documents.  It says about giving documents ‑ ‑ ‑

HER HONOUR:   Is “document” defined?

MR BEECH-JONES:   My friend tells me it is not.  It does not appear to be, your Honour.  Mr Markus tells me there may be something in the Acts Interpretation Act about that.  The other matter, of course, it has to be in the opinion of the Secretary.  But, can I come back to this, your Honour, it is one thing, we would submit, to ask about – in determining what was before a Tribunal where there is a contention that it was before it in electronic form, you might say, well, it is legitimate to ask about the capacity to access the document, because if it really is the case that you have to have a PhD in Computing, one might say, factually, it is not really before them.  That may, or may not, be a legitimate scope of inquiry.  But these interrogatories go well beyond that because they are not looking at questions of whether they are before, including in an electronic sense, capacity to access, they look directly to the question, “Did you look at them?  Did you read them?”

We would submit that if one has an immunity about the manner and exercise of one’s functions and powers, asking someone whether they looked, and read, at a document, as opposed to asking about their ability to look, and read, at a document is a fundamental distinction.  One might look at it this way:  if the answer to the question is “No”, then the plaintiffs have an answer about – I will go back.  I think my friend would concede they cannot ask this question, “Look at this document.  Did you read it?  What weight did you give it?”

MR ROBINSON:   That is conceded, your Honour.

HER HONOUR:   Do they concede that you cannot ask, “Look at this document.  Did you read it?”

MR BEECH-JONES:   No, they do not concede, that.  That is what the interrogatories asked.

MR ROBINSON:   The reasons are set out in our submissions, your Honour.

MR BEECH-JONES:   We would submit that if you simply ask someone, “Did you read it?”, the answer really could be, yes, no, cannot remember.  There may be some variations on that, but they are the most likely answers.  If the answer is “No”, you really are asking, in effect, what weight did you give it, because if the answer is “No”, then you obviously did not take it into account in the exercise of your functions and powers.  At the risk of restating the analogy, we would submit it is completely analogous to the situation – the difference between asking whether an exhibit was in on the Court file and tendered to the Court and then, compared with the situation “Was it read by the judge?”, and that is where, in a broad sense, the interrogatories go well over the line of the immunity.

There is just a further point, your Honour, in what I might call – in relation to the general issue between us.  That concerns paragraph 22 of my friend’s submissions.  In paragraph 22 my friend points to section 424 of the Act, which is the “Review ‘on the papers’” provision, and says, well, there is an obligation to specifically consider the material, that is the material in this case given under section 418, and then he says, “Why can’t we ask about what was considered?”  The first answer is, just because it is relevant, we say it is still covered by the immunity.  But further, even if that be some point of distinction with the other cases, that is the precise wording of 424, that could never justify interrogatories directed to what was read for the purpose of making the final decision on the application for review.  When it comes to the final decision. the Tribunal has an obligation under section 430 to provide a statement of reasons.  I think I brought over copies of 430, unless it is in my friend’s ‑ ‑ ‑

HER HONOUR:   I think I have an Act which is, at least close very close to what it was at the time.

MR BEECH-JONES:   Section 430 has not been amended.  It is the subject of an enormous number of decisions.  Section 430(1) is the obligation to provide reasons including, in 430(1)(d) that:

refers to the evidence or any other material on which the findings of fact were based.

So that, at the end of the day, you at least, particularly if you have been unsuccessful with the Tribunal, you have a document setting out the reasons why you were unsuccessful and the material on which the findings of fact which presumably led to you being unsuccessful were based.  Thus, your Honour, we would submit that even if 424 provides some means of saying the immunity should not apply because there is a specific obligation to consider the material, there is no equivalent obligation for the final decision of the RRT and, therefore, any interrogatory directed to that process of reasoning should, in the alternative, fail.  I should emphasise, that is an alternative to the more general proposition that there is a qualitative and significant difference between asking whether something was before the Tribunal and whether the Tribunal read it.

Can I then just take your Honour to the interrogatories themselves.

HER HONOUR:   Before you do that, I may need to see again exactly how it is put in the statement of claim, and I am looking, of course ‑ ‑ ‑

MR BEECH-JONES:   Perhaps it might be a convenient course to go to the Lie statement of claim, your Honour.

HER HONOUR:   Yes.  That is the only one that we have really got, is it not?

MR BEECH-JONES:   I think the application applies to all three, but we all concede they are identical.

HER HONOUR:   Yes, but the only one we have in proper form at this stage, I think.

MR ROBINSON:   No, they are all there, your Honour.

HER HONOUR:   They are all there, are they?

MR BEECH-JONES:   Does your Honour have that?

HER HONOUR:   Yes, thank you.  I have read that now.  I think that is all right.  Yes, you wanted to take me to the interrogatories.

MR BEECH-JONES:   Yes.  Interrogatory 1 I think, as I said in the, submissions, there is really not much problem with that, asking:

On what date were you constituted…..to deal with the plaintiff’s application?

No 2, 3 and 4 perhaps need to be considered together.  2 asks whether they actually came:

to the view that you could not make a decision in favour of the plaintiff in respect of the plaintiff’s application without first conducting an oral hearing?

As I pointed out in the submissions, in I think it is Muin and Lie, there are in fact two documents recording the fact of the decision to that effect.  But I think the real problem is 3:

If the answer to interrogatory 2 is yes:

(a)On what time and on what day did you come to that view?

Now, that is really a much different question to saying, when did you make your decision?  Your Honour, we would submit it is similar to, perhaps, your Honour handing down a decision allowing an appeal but asking your Honour, but when was it you actually formed in your Honour’s own mind the view that the appeal would be allowed?  That is, at a time prior to the making of the decision.  Then (b) is:

Over what period of time did you consider the plaintiff’s application in relation to your coming to that view?

Again, by analogy, we submit, that is similar to asking a judge, “Well, over what period did you, in your own mind, ruminate upon the issues raised by the case before coming to your decision?”.  Then (c) asks:

At what physical address were you during the period of time you identified in answer to (b)?

Really, that could take - if properly answered, could lead to all sorts of completely unnecessary answers.

My friend is saying, “Well, people log on from home”, but so what?  I mean, it is similar to asking a judge, “Where were you physically when you, in your own mind, considered the issues raised by the relevant proceeding?”

No 4 is a bit difficult to deal with.  It seems to be asking, “If you did not come to the view – make that decision, who did?”  I am really not sure why the Tribunal individually should be asked that.  Perhaps that could have been simply written to us and say, “Who made that decision?”  But perhaps I can skip over that.

Five comes back to the question of the reading.

If the answer to interrogatory 2 is yes –

that is in relation to the review on the documents –

identifying each one, that related to your consideration of the plaintiff’s application did you read in the period of time only from the time and date –

the relevant document, and the submissions I made about asking whether they read it goes directly to an interrogatory about the manner of the exercise of their power as opposed to questions directed to their ability to access it, which are more appropriately characterised as, “Was it before you?”. 

Then interrogatory 6 says:

To the extant that you did read documents…..in the period –

when you considered the application under section 424, the sub‑interrogatory (a):

Did you view any material by way of a computer or computer terminal?

Then if so, answers a whole series of questions prefaced on that answer about when and where and matters of that kind.  Now, I repeat my submissions about the impropriety of asking, because of section 435, “Did you read it?”, because “read” and “view” not being, we submit, any relevantly different, but also, this does not appear to limit itself to material relating to the plaintiff’s application for review.  The opening question is, “Did you view any material by way of a computer or computer terminal?” in a specified period.

My friend says to the extent that you did read documents in respect of the plaintiff’s application, but it does not appear that the questions are somehow that limited.  The opening words of (a) is:

“Did you view any material by way of a computer of computer terminal?”

Then, your Honour, interrogatory 7 goes even wider because it asks in respect of this period, that is the period while you were considering the matter under section 424, in sub-question (a), “Did you do any Tribunal related work” – which is not defined – “other than work” – I think that should be “relating” – “to the plaintiff’s application?”  Then a whole series of questions are asked about that.

Now, that asks for some complete inventory of all Tribunal-related functions they undertook in a particular period of time.  Your Honour, leaving aside the question of the immunity which I have already addressed at length on, we submit that it is so plainly wide.  Now, it is attempted to be justified in my friend’s submissions at the bottom of pages 5 and 6 in paragraph 32.  What is said is:

Interrogatory 7 is unusual and requires some explanation.  It is designed to act in aid of the further discovery sought by the plaintiffs as to the Tribunal’s electronic records.

And over the page at the top of page 6 adds:

In short, once the period of time is established from the constitution of the Tribunal on a review to the end of the review on the papers, if the Tribunal undertook no other work on Tribunal related matters, and CISNET (the computer link to the Department) was not accessed by the Tribunal member concerned in that period, an inference can plainly be drawn that the Tribunal did not look at the Part B documents by way of the computer system –

Your Honour, thus my friends says it may have some relevance, but we would submit, leaving aside the immunity point which we do raise in relation to this, that that does not nevertheless mean it is not oppressive to ask a Tribunal member about all the other work they did during a particular period.  And it is not an answer to an oppressive interrogatory to say it could yield an answer that could support a particular inference.  That is really beside the point.

Your Honour, interrogatory 8 then asks a specific series of questions in relation to the first Part B document referred to in the delegate’s decision.  The question is asked in the context of the exercise by the Tribunal of its powers under section 424, that is that it is asked in relation to the period between constitution and the review on the papers.  The opening question is:

(a)  Did you read this document?

Then the remainder of the questions all proceed upon an analysis of the answer to that question. 

(b)  If your answer to (a) was yes, did you read this document in the same form that you are now looking at?

(c)  If your answer to (a) was no, in what form was the document when you read it?

et cetera, et cetera.  Consistent with what I submitted earlier, we would submit that the vice in that is in asking whether it was read, because that is transgressing into the immunity.

Your Honour, paragraph 9 asks the same question concerning the same document, but this time in relation to the period between the review on the papers and the final decision, that is, “Did you read it?”, all those sort of matters.  Again, we submit it suffers from controverting the immunity and this is particularly in a context where there is no specific statutory obligation that says you must consider all the material.

The remainder of the interrogatories then just repeat those questions for the rest of the Part B documents.  The first question about the first period and the second question about the second period.  So interrogatory 10 is, “Look at that document”, interrogatory 8 is repeated.  That is just the second document in the Part B.

Just before I conclude, your Honour, just two matters.  Firstly, section 25 of the Acts Interpretation Act does contain a definition of “document”.  It is an inclusive one.  Subparagraph (c) provides, “Document includes any article or material from which sounds, images or writings are capable of being produced with or without the aid of any other article or device.”

Second, your Honour, there are two typographical errors in my submissions.  In paragraph 6, the reference to section 437 in the fourth line should be section 435.  In paragraph 8(ii), the reference to section 457 should be to section 435.

Your Honour, just in summary, we do raise some questions of the oppressive nature of the interrogatories.  I think I have addressed those and they are specified in the submissions but the real nub of the issue between my friend and I is his proposition that in order to determine what the record was and/or what the material before the Tribunal was, he is thereby entitled to ask what the Tribunal read, as opposed to what it was capable of having access to.  Unless there is anything further, your Honour.

HER HONOUR:   Yes, Mr Robinson.

MR ROBINSON:   Your Honour, could I invite your Honour to take a few moments to read the submissions that I have sent and then I am content to talk to them, your Honour.  Is that a convenient course?

HER HONOUR:   Yes.  I have read them but I have not absorbed them in full detail is what I am saying.  I had somewhat more time to read Mr Beech‑Jones’ than I had to read your’s.

MR ROBINSON:   Well, if that is a convenient course, I am content to do that, otherwise I am happy to start right now, your Honour.

HER HONOUR:   Yes, perhaps if you would start now.

MR ROBINSON:   In relation to the plaintiffs’ position, we do press all of the interrogatories, and there is not a lot I can add, your Honour, to paragraphs 1 to 14 of the submissions in how we characterise the source of the power.  There is not much more I can say on the fact that the immunity here is not a peculiar judicial immunity, it is an immunity that also applies to statutory and other tribunals.  So that it is not correct to sheet home this source of this immunity to section 435(1) of the Migration Act where the privilege and immunity expression appears.  Of course, as my learned friend says, we agree that the immunity does exist and it is founded in the common law and it has a very long history as set out by Lord Denning when he was Master of the Rolls in Sirros v Moore, and that is referred to at paragraph 1 of the submissions. 

The primary and only meaning, we say, of section 435(1) refers to the immunity that Lord Denning describes in Sirros v Moore.  The 435(1) immunity, we say, contains nothing more than, in effect, an immunity from civil suit.  Having said that, we accept that there is a general common law principle which may be conveniently called judicial immunity but applies to all those who act judicially in the sense of the Ridge v Baldwin sense, or a tribunal that is required to act judicially.  Either way, it is an immunity that we concede might be applicable in circumstances of the Refugee Review Tribunal for common law reasons, not because of the protection and immunity that stems from section 435(1).

We say, at paragraph 7 of the submissions, that the principle here that we have to contend with is best explained by his Honour Justice Windeyer in Electronic Rentals Pty Ltd v Anderson.  I do not wish to take your Honour to that case.  The extent of what we rely on is there but the emphasised parts in relation to the arbitrator there, we say, the extent of it all – the arbitrator may be questioned as to what matters were presented for his consideration.  Now, in essence, that is all we are trying to establish here, your Honour.  We are simply attempting, in very difficult circumstances – and I will come to that as to why it is difficult – to ascertain what was the record before the decision maker. 

In these cases there is an immunity and it is an immunity that can be described in a number of ways which I have referred to variously in the submissions and which my opponent has referred to in his submissions as well.  We do not take issue with that.  What we do say, your Honour, is it is the particular features of this Tribunal that make the interrogatories that are pressed here special that make the questioning that we wish to make of the Tribunal special in that we are seeking only to establish what the record was.  We are certainly not seeking to probe the mind of the administrator or probe the mind of the Tribunal here.

The primary submissions that go to that are paragraph 15 onwards of the written submissions.  The true issue, we say, is whether the plaintiff is to be permitted by this Court to seek to establish by compulsion the record before the Tribunal.  It is the two-staged decision-making process that is relevant here.  There is no analogy between a judge in this case, none whatsoever.  In this case, the statute mandates everything that has to occur.  And as your Honour is well aware from the decisions in Eshetu and Abebe of this Court, those procedures were put in place and were designed in such a fashion by Parliament that it justified the excision of at least five of the grounds of judicial review from the Federal Court’s consideration in judicial review proceedings.

So, that is why I make the jurisdiction point later on in the submissions, your Honour.  These matters go to jurisdiction and the procedure is not one which may or may not be complied with.  The price, as it were, for setting out a detailed procedure is the removal of grounds of judicial review in the Federal Court, and that is plainly what Parliament has said in the second reading speeches in relation to the Migration Reform Act 1992 which, as your Honour knows, commenced on 1 September 1994, truncating the grounds of review and setting out an incredibly detailed procedure.

Now, the essential difference between what the Tribunal does and what a judge does or a justice does, is a justice is not bound by the same procedures that the Tribunal is bound by.  The two-stage decision-making process is mandated in law in the Migration Act.  The first stage is the review on the papers.  It is undertaken privately.  There is no transcript, no record.  There are no file notes or other documents discovered, and I think my friend will concede that in the discovered documents.  If I am put to proof on that, I am content to put the discovered material before your Honour to show the absence of any material relating to the documents viewed by the decision maker in the making of the review on the papers.

So, we are here, your Honour, with the first defendant having all the knowledge and the ability to easily inform the plaintiff as to whether or not it had the documents before them; whether or not it considered them. 

The first stage is 424(1), the “Review ‘on the papers’”.  The second stage is the oral hearing that is provided for in section 425 of the Act.  Now, the peculiar features of the oral hearing and the ultimate making of the decision under review which may or may not be at the conclusion of the hearing, there may be a short period of time allowed for written submissions to be filed after the hearing, but it is a period of time from the hearing to the final decision in the matter which is identified in section 425.  Now, that is done in private.  It must be in private – section 429 of the Act.  It is tape recorded normally.  I do not think my friend would contest that.  That is not in the Act though.  I should add to paragraph 17 of my submissions that in there no lawyer is permitted.  Section 427(6):  no lawyer is permitted to appear on behalf of a party.  Indeed:

A person appearing before the Tribunal to give evidence is not entitled:

(a)  to be represented before the Tribunal by any other person; or

(b)  to examine or cross-examine any other person appearing before the Tribunal to give evidence.

So, this is a situation where the record to the extent that it can be proved by the tendering of an affidavit by a lawyer who was there on behalf of a party is often not able to done.  Lawyers do appear at the Tribunal, as I am instructed, from time to time, with leave, and are permitted to become involved at a very rudimentary level, usually in the sense of assisting by way of submissions or by way of an undertaking to give written submissions.  They are on my instructions, your Honour.  In relation to participation, they do not participate, as a rule, in an active fashion.

That also removes the analogy that my learned friend has tried to make from a judge and a court process, and they cannot be excised.  A judge does his or her business in court, as it were, and the Tribunal’s business.  In this hearing, this oral private hearing, documents are passed, from time to time, back and forth between the Tribunal and the applicant.  And, of course, the other significant point to differentiate the two, a justice from a tribunal, there is no contradictor appearing at the hearing.  At least in a Magistrates Court or a Supreme Court, if judicial review is required for bias or for any other reason, both parties are entitled to put on affidavits, both parties have the ability to prove what it was that was tendered in evidence and both parties can have access to the judge’s associate to create or settle a list of exhibits.  So, these matters remove the analogy that my learned friend has sought to make.

In the absence of any formal procedure in respect of these matters being done in private, either in the Tribunal’s office, which could be at home or at a building in the city – I am instructed that some Tribunal members – I do not know if they are the ones relating to Herijanto, Muin or Lie specifically, but I am instructed that some of them work from home and some of them access their computers from home, access the network from home.  There is no way to prove these matters satisfactorily except by discovery, by interrogatories, discovery in the normal process, and the record, in circumstances where the papers are unable to speak for themselves in that they do not show – and I do not think my friend takes issue with this, they simply do not show what was looked at – what was before, might be a better word, or what was considered.  The word in the statute is “considered”, your Honour.  The duty in section 424(1) is “to consider”.  I used the word “read”.  The plaintiffs use the word “read” in the interrogatories but the statutory duty in 424(1) is “to consider”.  It is quite specific.  If your Honour has Reprint No - - -

HER HONOUR:   I can read it but there may be an argument as to precisely what section 424(1) does direct.

MR ROBINSON:   Yes, your Honour.  I should point out, if your Honour is looking at Reprint No 5 - - -

HER HONOUR:   No, I have Reprint No 6.

MR ROBINSON:   No 6.  In 424(1):

If, after considering the material contained in the documents given –

“given” implies physical documents, if construction is required, the heading, “Review ‘on the papers’” would also assist, but in relation to the documents being given, they are the documents, under section 418.

HER HONOUR:   Section 424(1) confers a power.

MR ROBINSON:   Yes, your Honour.

HER HONOUR:   There may be a question whether it also entails a duty as a matter of statutory construction.

MR ROBINSON:   Yes, your Honour.  There is a power but, your Honour, 425, the heading “Where review ‘on the papers’ is not available’”, that is where 424 does not apply.  The Tribunal must conduct or give the applicant an opportunity to conduct the oral hearings.  So, your Honour, it is a jurisdictional point here, we say.  If 424 is not complied with, and we say ‑ ‑ ‑

HER HONOUR:   But there may be an item of the precise meaning of section 424.

MR ROBINSON:   I concede that, your Honour, but my learned friend has not raised an argument here that 424 does not apply.  It is not contended by the Commonwealth that in this case, certainly in relation to Herijanto, Muin and Lie, that 424 does not comply.  Therefore, we say - - -

HER HONOUR:   I do not understand that.

MR ROBINSON:   They have not said that it does not apply.  In other words, I think it is fair to say that in this case, tracking back to 418(3), there were documents given by the Secretary, the Commonwealth concedes, to the Tribunal upon the commencement of the review application by the refugee applicant.  That having been done, it enlivened the power or duty under section 424(1).  Therefore, it would be the plaintiff’s argument that 424 was enlivened, and it did apply.  That being so, section 425 applies.  So we characterise this as a jurisdictional matter in the Barwick v Law Society sense.

HER HONOUR:   Yes, I know you do.  I realise that is how you would characterise it.  I am just saying it is not so obvious that that is how it operates.

MR ROBINSON:   At this stage, your Honour, at this interlocutory stage, I would press it as an arguable matter only.  I do not wish to convince your Honour in any final fashion on this.  But it certainly is arguable, in my submission, that it is a jurisdictional point here and that the procedural ultra vires issue flows from that.  Be that as it may, the power ‑ ‑ ‑

HER HONOUR:   What is the representation, though?  Is there a representation that is related to this in your ‑ ‑ ‑

MR ROBINSON:   There are two issues.  There is the procedural ultra vires issue and ‑ ‑ ‑

HER HONOUR:   Just stay with me for a moment just so that I – you have lived with this for months.  I have not.  Is there a representation pleaded by reference to section 424?

MR ROBINSON:   The representations are - your Honour has the Lie proceedings?

HER HONOUR:   Yes.

MR ROBINSON:   The representation there is set out at paragraph 13.  That is the first representation, that the plaintiff was written to.  And she was told that the Department had been requested to forward a copy of its documents about her case to the first defendant.  That is the 418(3) procedure.  And it also reasonable to assume that that is the 424(1) procedure.  The purpose of the documents being given to the Tribunal is so as to enliven the 424(1) power.  The next representation that is relevant to the Tribunal ‑ ‑ ‑

HER HONOUR:   This is in paragraph 19?

MR ROBINSON:   Paragraph 19, that the refugee applicant has been told the Tribunal has looked at all the papers.  The words of the statute have not been used.  The word “consider” has not been used.  But the words “looked at” have been.  I do not know that a lot turns on this, your Honour.  But the representation there is a representation made before and after, or just after, the review on the paper has been conducted.  So the applicant turns up at the hearing believing, reasonably, we say, based on the representation, that all of the papers have been looked at, including the Part B documents, and that may or may not have ever been the case, and we contend in the pleadings that it was not the case, and we may need to do so by way of inferences drawn at the trial of the matter, at the hearing of the matter.  We do that most unhappily, your Honour.  We would prefer to do that by way of direct evidence.

I should say, your Honour, further on in the pleadings, the breaches, the procedural ultra vires breach, and the natural justice breach, as alleged, are the breaches that flow from these representations and that is set out at paragraph 26 of the pleading.  As a result of the said breaches, that is, the technical breaches and the breaches of representation that are referred to above in the pleadings from paragraph 13 to 25.  We say the two grounds of judicial review are procedural ultra vires and breach of procedural fairness.

HER HONOUR:   Procedural ultra vires can go to the Federal Court, is that right?

MR ROBINSON:   Procedural ultra vires can, yes, your Honour.  And your Honour will recall on the first occasion both parties conceded - at the first directions hearing Mr Basten and I conceded that part of this matter could be split and could be referred to the Federal Court, but both parties were content for the matter to reside here without binding your Honour, my learned friend reminds me.

HER HONOUR:   He has to remember that.  Yes.

MR ROBINSON:   In terms of how the differences between a justice and the court and a tribunal member and the Tribunal operates, we say, there is a chasm between the two and additionally, of course, the Tribunal is not bound by technicalities, legal forms or rules of evidence, and that is set out in the submissions at paragraph 19.  That is section 420(2)(a) of the Act.  So there is no duty, as it were, or requirement to keep the record – or create a record for later examination by a court on judicial review.

So the question is, your Honour, whether the words “looked at”, “considered”, or “before the Tribunal” are acceptable.  We say there is not a lot of difference between those three words in the context of the specific Tribunal here.  In the absence of any analogy, the work of a justice - and we say the protection that is accorded to a justice is the protection against a civil suit under the Act, but even if the common law concept applies here, and we say it does, the protection that is given to a justice is not a protection from establishing or creating the record in a form, in an intelligible form, to a court on judicial review proceedings.

My learned friend took your Honour to paragraph 22 of my submissions and took issue with the two-stage decision‑making process.  We say there that the specific – I hear your Honour on the question of duty, whether or not it is a duty under 424(1).

HER HONOUR:   Well, that is what you would call your procedural ultra vires ground, ultimately.

MR ROBINSON:   Yes, your Honour; 418(3) and 424(1) combined.  The duty as set out there ‑ ‑ ‑

HER HONOUR:   That presents a simple question of law, does it not, that really ‑ ‑ ‑

MR ROBINSON:   Yes, it is, very, very simple.  And the 418 breach that we allege has occurred has, in terms of “Did the documents get moved from below to above?”, has effectively been conceded by the Commonwealth in the physical transfer of the documents sense.  In other words - and I think my learned friend said this the other day - the Commonwealth concedes that the papers upon which the review on the papers was conducted, in the sense of the Part B documents, your Honour, were not physically transmitted to the Tribunal.  And their answer to that is they were made available to the Tribunal by some means, somehow on a computer and the Tribunal could, if it wanted to, access them. 

Your Honour has heard my response to that on the last occasion, a few days ago, that that is not a complete answer because, on their own evidence, which I am content to take your Honour to briefly for the purposes of this motion, but I do not believe I need to unless my friend requires me to.  It is fair to say, your Honour, that in respect of some of these documents, in relation to ‑ ‑ ‑

HER HONOUR:   Perhaps you might take me to it.  I am not too sure that I am familiar with it.

MR ROBINSON:   All right.  I will give your Honour an example.  In Herijanto, there is an affidavit of Robert Stephen Wilson sworn on 22 February 2000.  Does your Honour have that affidavit?

HER HONOUR:   I think it is being checked at the moment.

MR ROBINSON:   It was filed on 3 February, and the affidavit of David Palmer, as well, on that day.

HER HONOUR:    Yes, I now have that affidavit of Robert Stephen Wilson.

MR ROBINSON:    Your Honour, he is, and I read it only for the purpose of the interlocutory proceedings, by way of admission.  He is the director of research of the principal registry of the Tribunal.  He deposes to the best of his knowledge and belief.  He talks about, at paragraph 4 - that various members of the Tribunal, and its research staff, have access and he is talking about present day, I presume, your Honour, “have access to, through their desktop computers, to CISNET a collection of databases maintained by what is known as the country information service (CIS) of the Department.”  And CISNET comprises a number of databases, and they are set out there.  And the Tribunal also has access, in paragraph 5, to ISIS which is a software package; and it maintains a library, in paragraph 6; and in paragraph 7 is, “and documents can be usually obtained.”

In paragraphs 9 and 10, it is dealing with the part B documents.  Now, your Honour will recall the part B documents are the documents set out in the original decision made by the delegate of the Minister refusing refugee status to an applicant.  In that decision, there is a decision record which sets out, in essence, the reasons for the decision.

It is usually split into part A, part B, part C and so on, and part B is usually, and in all three cases here is, headed “Evidence Before Me”, and it is headed “Evidence Used in Making My Decision” is found in the following documents.  And then in Herijanto’s Case there follows a list of 37 documents being the evidence before the original decision maker, upon which they relied, we say, plainly.  In addition to the Department’s file, it comprises the bundle of documents that we say ought to have been physically delivered to the Tribunal in the procedure 418(3) and 424(1).

Now he sets them out there, over the page, in paragraph 11.  I think there is an error in that my copy refers to Nancy Lie.  That is meant to be Herijanto, I presume.  We will take it that is an error, because the documents, I could tell your Honour, do relate to Herijanto.  There are 37 of them and I have checked them myself.  They are the Herijanto documents.  So set out on pages 4, 5, 6 and 7 of this affidavit are the part B documents in one of the matters in Herijanto.

It sets out in five columns; the first column is the item number, the original numbering of the item from the Part B documents list before the original decision maker.  The second column is document name, third column is the date on the document itself.  The next column is its source.  That is presumably its source today.  The next column is the date the document became available from the source.  So, working through that, your Honour, I can tell your Honour the evidence reveals – item No 1 is not relevant.  That is the departmental file, that was transferred to the Tribunal.  Item Nos ‑ ‑ ‑

HER HONOUR:   By hand?

MR ROBINSON:   It was physically delivered to the Tribunal.  That is conceded by my learned friend.  These are the only items from this list that were specifically referred to in the Tribunal’s decision:  4,7,9,12 and 19 out of 37.  So five of these documents were, we must concede and we do not take issue with, looked at or read or considered or before the Tribunal out of the 37.  It really is 36, if you take away the departmental file, in fact.  Of these Part B documents, 11 of those were not on CISNET at all.  Now, I can say that by taking your Honour to item No 3.  If your Honour looks in the source, it is in the RRT library or the CIS library, it is not on the computer. 

Item No 7, that is in the RRT library.  That is presumably how they got access to it.  Item No 8 is only in the CIS and RRT library, not on the computer.  Item No 10 is in a similar fashion.  Item No 12, which the Tribunal had access to, which the Tribunal mentioned in its decision.  Item No 17 is the handbook and that is not on the computer, but we would not take issue with item No 17, your Honour.  That is the refugee’s handbook which we would expect members would have their own copies of.  Item Nos 19, 20 and 21 are only found in the RRT library, so I cannot fathom the explanation for that.  Items No 35, 36 and 37 – 35 is not on anyone’s data base, it is on NEXUS, an electronic data base.  I do not know if your Honour is familiar with NEXUS, but it resides somewhere in America, certainly not in Australia, that data base.  Items 36 and 37 are said to be at the State library.

Now, a similar pattern is revealed in relation to Muin and Lie in these proceedings on the evidence that has been filed.  It gets worse or better, depending on which side one is on, your Honour, but the short of it is merely to say they have access by a computer is not enough in circumstances where the Commonwealth’s own evidence does not readily establish what the record was.  So in this circumstance, in this particular circumstance, it makes the administration of interrogatories all the more necessary, we say.

If I may go back to my submission on paragraph 22, my learned friend said that even if we did have an argument between the period of time that the Tribunal was first constituted to hear the matter and the review on the papers, even if there was an issue there that the plaintiff could take, he says there is no issue between the time of the review on the papers being conducted and the final decision refusing refugee status to the applicant.  Our answer to that, your Honour, is firstly, we are merely seeking to establish the record and it is not analogous to that of a judge in the particular circumstances of the Tribunal here.  But, secondly, he took your Honour to section 430 of the Migration Act and showed your Honour that the evidence referring to the findings on which the findings of fact were based – “evidence or any other material on which the findings of fact were based” has to be set out in the decision.

Your Honour, anything set out in the decision, we would concede, was read and was before the Tribunal.  We concede that, your Honour.  But 430 of the Act, subsection (3) shows another corresponding duty of the Tribunal, to send back to the Secretary of the Department, 430(3)(b).  When the Tribunal has written its decision, it has to return that decision to the Secretary of the Department, but it also has to:

give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.

So, your Honour, there is not only a duty for documents to be given upstairs to be considered by the Tribunal, there is a corresponding duty for the documents – or any other documents that came to the attention of the Tribunal, and which it used in relation to making findings of fact, to be sent back to the Secretary – copied and sent back to the Secretary of the Department.  So, the statutory matrix does not just stop at the review on the papers here, your Honour, it relevantly continues.  We do not take issue with this in the pleadings.  I merely raise it to identify that the powers and duties continue.

In my submissions at paragraph 24 I mention a case which I have not given your Honour a copy of, Glover v Warden, a decision of his Honour Justice Young in the New South Wales Supreme Court.  Might I also hand your Honour a copy of Xiang Sheng Li v Refugee Review Tribunal 36 ALD 273. That is merely to complete the copies that – I understand your Honour did not have access to the ALDs.

The Glover v Warden Case, which I regret, your Honour, I have had insufficient time to work it up, as it were, to elucidate the principle further, but the short principle appears at the bottom of page 487, the last paragraph:

From early times this court and its predecessors in England have exercised jurisdiction to cause inferior tribunals to explain why they have acted the way they have purported to do.

He sets out the reference to the word “certiorari’ as coming from the Latin root of “to be informed”.  He discusses the theory of it and, over the page at page 488, sets out his Honour’s view that even in a case where an ouster clause or a privative clause might apply, the court still retains – the Supreme Court of New South Wales still retains jurisdiction to make a “please explain” order, as they are known.  In the middle of the page at 488, just after the numbers 295, he says”

that this court can always issue such orders with respect to matters upon which it itself has jurisdiction to adjudicate.

We would say that in the alternative to the administration of the interrogatories generally, here, this Court would plainly have that power to cause the Tribunal to explain to this Court precisely what documents it had before it or it considered at the two periods of time that the pleadings….., at the two stages of the decision-making process here.

In relation to the interrogatories aspect of the Tribunal, it has to be remembered that this is only discovery by way of interrogatories.  It is not the same as the case of his Honour Justice Sackville in Guo’s Case which my learned friend has given to your Honour.  This is not a hearing where the Tribunal has put on evidence and the members are being subjected to cross‑examination.  We are merely seeking to put the record straight so that the matter can get on for a hearing.

The other aspect of it is that the interrogatories are located in a part of the High Court Rules that deals with discovery and, indeed, in Order 32 rule 1 it is headed “Discovery by Interrogatories”, and that is all that we are seeking to do, your Honour, that the test that ought to be applied to the interrogatories, when your Honour comes to consider them individually, the test that your Honour ought bear in mind, in our submission, is that this is discovery by way of interrogatories.  This is not a cross‑examination of the kind sought to be conducted by Mr Rares in Guo’s Case.  That is why strict adherence to proving matters and not proving matters is not necessarily the correct test.  Similarly, in our submissions your Honour will see, that my friend has referred to, that we are seeking the administration of interrogatories to be combined with discovery of documents, to put the two together, the answers and the documents together, in order to make a proposition of fact before this Court at the final hearing.  It is not a new concept and it is not a difficult concept, to do those two things. 

In my submission, the Commonwealth ought not resist it in those circumstances.  This is simply a forensic exercise to get the record clear and if the record is not clear on the papers, then it would give the plaintiff the ability to make submissions on inference that ought to be made as to a finding of fact in the matter.

In Zukerman’s v Law Society of New South Wales Case, mentioned at paragraph 27 of my submissions – I do not propose to take your Honour to it – but the short points about discovery and interrogatories which we adopt are set out in my submissions there at the bottom of page 4 and the top of page 5, that:

Where one party knows all the facts and the other party has no means of knowing those facts, the administration of interrogatories will be permitted –

We say that applies here, your Honour.  The Law Society there had certain statutory duties or powers.  And:

Interrogatories may be administered against a decision-maker where the applicant is merely seeking to establish the evidence or raw material which was before the decision-maker (where no transcript has been kept and no other way exists by which the existence of that material can be established) –

We say that is precisely the situation here.  This matter went on appeal to the Court of Appeal and his Honour was reversed, but not on a question or issue that related to the rulings I have just taken your Honour to.

Now, in relation to the individual interrogatories, if I may take your Honour to those.  Does your Honour have the Herijanto interrogatories?

HER HONOUR:   I have the Lie ones.

MR ROBINSON:   Lie.

HER HONOUR:   They are the same, are they not?

MR ROBINSON:    They are the same, your Honour, except for after 8 and 9, they only vary because of the numbers of the Part B documents but ‑ ‑ ‑

GAUDRON J:   I can have the Herijanto ‑ ‑ ‑

MR ROBINSON:    Thank you, your Honour.  Firstly, over all of the interrogatories we press them.  In relation to the general submissions of my learned friend, we do say that any oppression that he alleges has not been proved and is not self evident.  It would be a simple matter for the Commonwealth to come today with an affidavit saying that it is too difficult to answer these interrogatories.  It is too oppressive because of a number of reasons.

GAUDRON J:   Well, wait a moment.  Mr Beech-Jones is not appearing – I mean, he is appearing for the Commonwealth but, relevantly, he is here now appearing for the Tribunal.

MR ROBINSON:    Yes, your Honour.

GAUDRON J:   That is right, is it not?

MR BEECH-JONES:   Yes, your Honour.  It is a degree of incongruity me standing up saying Tribunal members should not be interrogated about their duties, but here is an affidavit from a Tribunal member saying how hard it is to answer these questions because I had all these other cases, bearing in mind, we got the interrogatories Monday.

MR ROBINSON:    Your Honour, whoever Mr Beech-Jones appears for, at whatever stage, if the interrogatories are oppressive, your Honour has already seen an affidavit from an officer of the Tribunal.  An affidavit could have been put on which could have established, or sought to establish, some form of oppression.  In any event, we say there is no oppression but, be that as it may, that is our general submission in relation to the interrogatories.  They also need to be considered in the light of the discovery that has occurred in the context of where the proceedings are at.

Interrogatories – 1 is not objected to;  2, 3 and 4, we say, plainly go to issues identified in the pleadings and in addition to that are an aid to the further discovery that we seek in relation to electronic log-ons and access to computer systems.  In other words, to ask, as we do at paragraph 2, “Did you come to the view that you could not make a final ‘decision’, and if so, when?”, we are asking that, your Honour, the date and time, so that we can identify by reference to a date and time whether or not the Tribunal logged on between the date and time when the Tribunal was first constituted to the date and time of when the Tribunal made its decision on the review on the papers.

That can be married up against the information that we are seeking in relation to discovery of the electronic records and the log-on and access to computer terminals records and if the two are put together, your Honour, it tells us something.  One way or another, it tells us something that goes to a fact in issue that we can then seek to put before the Court at the time.  So, in that context, your Honour, it is plainly relevant, in my submission.  The fact of, and the date of, the decisions of the review on the papers is not a matter that ought to be difficult for the Tribunal to elucidate to the extent that it appears on the files that have been discovered and are going to be put into evidence, as I understand it, by the Commonwealth by way of exhibits.

My learned friend said that from those files it is clear of what date the Tribunal made its decision.  Well, in my submission, it is not clear from those documents the date the Tribunal made its decision on the review on the papers.  It is not necessarily the date that a letter was sent to the applicant saying that, “The Tribunal has looked at all the material and please come in for an oral hearing if you want to”, and that it is not favourably disposed to making a decision in the applicant’s favour.  So, there is quite an incentive there, your Honour, for an applicant to come in and attend an oral hearing.

So they do have a legitimate forensic purpose.  It is in the nature of discovery, not in the nature of a cross-examination on settled issues and it is in no way analogous to questioning a Justice as to the time spent on a matter, and I have addressed your Honour on that. 

In terms of why we are asking for the physical address, we are not privy, your Honour, on the evidence so far provided by the Commonwealth to us to how this network was constructed:  if it is a network; if the computers are hooked up over the Internet;  if they are hooked over a land line; if they are hooked up over a radio cable; or a microwave cable; or a satellite link; we do not know, your Honour.

What we do know is, based on my instructions, that some of the Refugee Review Tribunal members work from home from time to time, and it is simply to cover that period as an aid to discovery that we seek the physical address of where they were in a certain period. 

As to interrogatory 5, identifying the documents that were before the decision maker.  We say that can hardly be oppressive, it has been objected to ‑ ‑ ‑

GAUDRON J:   Well, it said did you read?

MR ROBINSON:    Well, your Honour, read or consider.  At the end of my submissions I will submit that if your Honour has a difficulty with the word “read”, I am content to use the word in the statute, “consider”.  But the means of considering it, and the form in which the document was considered, is highly relevant.  That is because the Part B documents that have been discovered, many of them cannot have come from a computer.  Many of them are hard copy, as it were, from what is apparently, on its face, the original document.

There is no evidence about images being scanned into a computer and being reproduced as images, in which case it would look just like a photocopy of a book or a photocopy of a written document.  These databases that the Commonwealth have been referring to appear on the evidence of Mr Palmer and Mr Wilson to be text databases, primarily, not image databases.  So, all we want to know, your Honour, is when we see a Part B document that has been provided by the Commonwealth that looks like it is an image, a photocopy, did that come out of a computer from CISNET or did it come from somewhere else?

But, surely, your Honour, establishing what was before the Tribunal, what documents were before the Tribunal, goes to the heart of paragraph 5, of interrogatory 5 and we have not received a letter from the other side.  We have not received an answer to a specific particular request that we made in December last year on this very issue.  My learned friend mentioned that they did answer it and they answered it by invoking 435(1) of the Migration Act, “We have an immunity, we will not answer it and we will not ask our client whether or not it had these documents before it”.

GAUDRON J:   Then there is some imprecision of language here.  You have slipped from “read” to “Did you have these documents before you?”.

MR ROBINSON:    I will go back to my earlier submission ‑ ‑ ‑

GAUDRON J:   I have before me a range of documents at the moment, physically, some of which I have read, some of which I have glanced at, some of which I have read parts.  You see, it is a very slippery concept.

MR ROBINSON:    Your Honour, it is not everything that your Honour has before you has been documented, it is recorded, it is in public and your Honour’s associate is able to record a list, and the fact that your Honour did not complete reading a document at this stage, or did later on, is not an issue because the record is able to be established ‑ ‑ ‑

GAUDRON J:   No.  What I am talking about is the imprecision of the language you are using in your submissions which really masks – well, in one sense, it highlights it, and in another sense it masks the real problem here.

MR ROBINSON:    I appreciate that, your Honour.  My earlier contention was, I do not accept that there is a lot of difference, your Honour, between “read”, “consider”, “looked at” and “before”.  There is not a lot of tension between those concepts.  In terms of a Tribunal, in my submission, that conducts itself in secret or in private, that is required to establish the record, in my submission, it is reasonable to require it to say what it read in this situation where some of the documents are apparently not even able to have been before the Tribunal in any sense, such as the documents that were at the State library presumably at all relevant times.

So, your Honour, it is not an analogous situation to a court at all.  If your Honour takes away material and reads it in chambers, that is a different matter because the record establishes that your Honour had it all before you.  But the Tribunal has used the words “looked at”, that is set out in the pleadings; the duty, the statutory power or duty is the word “consider”.  My learned friend presses “before” the Tribunal and we press “read”.  But, your Honour, if “read” has to go, I would be content with “consider” in the alternative, or “looked at” in the alternative.

I would not be happy with a concept of, “Was it before you?”, in the general sense, in relation to this Tribunal because, your Honour, if they had a terminal connected to the Internet, they would also contend, I presume, that 80 million web pages were also before each Tribunal member in which case the record could never be established.  So, merely to say that the Tribunal had access to the State library and had access to the Internet, or had access to a network of some description, is insufficient in this particular case.

Interrogatory No. 6 is designed to deal with the issues in the application in the pleadings and the defences and again go to whether or not the Tribunal actually accessed some or all of the Part B documents by way of a computer.  I am not wedded to the word “read”, your Honour.  If your Honour is content to replace it with “consider” or “looked at” but, be that as it may, if I do say the word “read” in the interrogatories, I am not asking at all what went through the mind of the decision maker.  If there is difficulty with the word “read”, your Honour, I have not asked in the interrogatories - the plaintiff has not asked, “Did you read it fully; did you read every word; did you read it carefully; did you read it lightly;  did you read and reflect upon?”, none of which have been asked.  It is a very dry read.  It would even include “cursory read”. 

But, your Honour, it plainly means “look at” in the context of the interrogatories and they ought to be construed in that fashion by the respondents.  If we really were probing the mind of the administrator, as it were, that is a reference to an American article referred to by Justice Hunt in Zukerman’s Case, but if we really were probing the mind of the decision maker here, we would be asking more than the word “read”.  So, that seems to be the main objection to these interrogatories.  But if I could deal with 6.

Interrogatory 6 is in no way oppressive.  It simply deals with those access and the computer-related issues that I have set out in my submissions at paragraph 31.  Paragraph 7, interrogatory 7:  we have conceded it is unusual and we would ask your Honour’s leave to amend, if it can be done that way, to add the word “in” in paragraph 7(a) after the word “work”.  So, “Did you do any Tribunal related work other than work” we say “in” or “work relating” “to the plaintiff’s application?”  It is plainly a typographical error and we would ask that it be amended in all three interrogatories in all three matters.

MR BEECH-JONES:   I have no objection, your Honour, dealing with it on that basis; that is how I read it.

HER HONOUR:   Yes, it will be amended.

MR ROBISON:   But, your Honour, we are not asking them here to set out all the work that they did in that time.  My learned friend indicated that we are asking that.  If we did it would be too much and I would concede that.  We are simply asking that did they do other work and, if so, at what times?  These deal with log-on issues.

HER HONOUR:   If you were to ask that question of me, I would find it oppressive, I should tell you.  I would.

MR ROBISON:   Yes, your Honour.  I hear you, your Honour.

HER HONOUR:   I mean, I could not remember, for example, when I looked at something in relation to something and ‑ ‑ ‑

MR ROBISON:   If your Honour did your Honour’s work, all your Honour’s research on a computer, and your Honour was able to say to the Registry, “Please give me a print out of my log-on access”, and the Registry were able to punch a few buttons and print out a list of your Honour’s Registry access, your Honour would be armed with the ability to at least have a go at it, and that is what we say is the situation here.  This Tribunal is so heavily computerised, and it is proud of it, and it sets it out plainly in its annual reports and so on.  It has a World Wide Web page as well and it has access to many data basis and so on. 

If the Tribunal conducts itself and it writes judgments this way and it accesses research in this fashion - not research at large, your Honour, not on the Internet or anything generally; we are talking about logging onto a specific computer using a specific method, which has security around it, and that is in the affidavits of Mr Joel’s second affidavit that I have made reference thereto in my submissions, at the bottom of page 5.  I do not wish to take your Honour to the letters in detail, but at the bottom of my submissions at page 5 I refer to four letters:  three from Mr Joel to AGS asking for discovery in relation to the electronic records and one from AGS to Mr Joel saying, “We will not give you discovery of anything to do with log-on access codes or electronic records” and so on.  So that issue remains outstanding.

But, in those letters, your Honour, it is clear that the RRT talks about - the Tribunal talks about, a secure network between it and the Department.  Our computer experts tell us that it would be a simple matter to identify the security access codes and to print out a report of who accessed what data base and when or, at least, of who accessed the network, called CISNET, and when, from the RRT end.  Now, we are told by experts that that is an easy matter to achieve if the Commonwealth discovers the relevant material. 

So those interrogatories go to establish that.  I do not have anything further to add.  That is why interrogatory 7 is unusual, your Honour.  It is meant to act in aid of discovery, the further discovery that has not yet occurred.  Interrogatories 8 and 9 are plainly at the heart of the issues and all the remaining interrogatories are at the heart of the issues between the parties about what the Tribunal had before it or – and I appreciate the looseness of the language again - what it looked at in relation to the matter generally.

If your Honour is not contented with the interrogatories as drawn, but they are capable of rectification in a fashion, then I would ask your Honour to permit us to readminister the interrogatories in an amended fashion, if your Honour is minded to excise these matters.  Now, they are my submissions. 

I do not know if your Honour is aware of what occurred in Parliament on the day before the last directions hearing – in the Federal Parliament – in relation to a Bill that was introduced by the Minister for Immigration, to shut down any further High Court class actions.  Is your Honour ‑ ‑ ‑

HER HONOUR:   I did not know it related to High Court class actions.

MR ROBISON:   It does, your Honour; it is designed specifically that on and from 14 March 2000, anyone that joins a High Court class action, it looks like, or anyone that commences a High Court class action, will, on the date of proclamation, to use my shorthand expression, be de-classed, and they will then have 28 days to commence their own individual proceedings in relation to the period of time after the Bill is proclaimed to commence, if it is passed.  It operates in such a way as to shut down any further class actions of any kind in relation to migration matters in both the High Court and the Federal Court.  I do not know if there is any issue as to time, but I wanted to make sure that your Honour was aware of that.  I have a copy of the Bill and the Act if it is ‑ ‑ ‑

HER HONOUR:   Well it has not passed the Parliament

MR ROBISON:   It has not passed the Parliament.

HER HONOUR:   And it does not bear on the issues I have to determine.

MR ROBINSON:   No, your Honour.  It does relate to these proceedings though.

HER HONOUR:   Yes, but it does not bear on them, does it?  It does not have any impact on these proceedings at this stage.

MR BEECH-JONES:   Not that I am aware of.  Your Honour, my friend told me about it, which probably shows how well informed I am, but I have not had the chance to look at the Bill; I have been a bit busy between now and Wednesday.  I can only relate Mr Markus’ understanding that its effect on these proceedings – and we say this tentatively – is that it would affect persons who seek to be joined to the class from 14 March.  If passed, and I do not profess any expertise as to whether a Bill introduced ever gets passed, what form it ends up in.  Your Honour, can I just address some matters briefly in reply.

HER HONOUR:   Yes.

MR BEECH-JONES:   The essence of my friend’s submissions is, we need to ask what was read/looked at/considered in order to determine what the “record” was.  That is really what it has boiled down to, what my friend really has to say.  Now, there are two relevant powers:  the first power is section 424 and, in the sense my friend uses the word “record”, the documents referred to in 424 are the documents given to the Registrar under sections 418 and 423.  I realise your Honour has a lot of papers to look at, consider or view – that is in 424; that is the material referred to. 

Now 423 is not particularly relevant here.  That is some of the material supplied by the applicant.  Section 418 is the material supplied by the secretary.  To date we have been in dispute as to what constitutes the documents given to the Registrar under section 418.  We accept that there is a dispute about that.  But asking what the Tribunal looked at, read or considered is of no moment to the resolution of that dispute, that is, the determination of what my friend calls the “record” under 424.  It has got nothing to do with it.

The second power is the power to determine the matter finally and my friend does an analysis of the way the Tribunal works and says it is all in secret and documents are handed over and matters of that kind.  We accept there is nothing wrong in principle with interrogatories to demonstrate during the hearing what documents were you given, but that is not what he does.  He asks, “What documents did you view or look at or read?” or he now says, “consider”, and the imprecision of language between what is before and what was read, we submit, is really what is critical in determining the issues between us.  So that, to the extent my friend says, “We are hampered in determining, at least in relation to the final exercise of the power, what was before the Tribunal”, all the matters he raised can be the subject of interrogatories, but they are not the interrogatories he asked.  He asked something different to that here.

HER HONOUR:   What do you say he can ask?

MR BEECH-JONES:   He can ask, during the hearing, what documents were handed over?  We have got a transcript, I mean, if there was any doubt, but if there was some dispute he could say, during the hearing what documents were handed over.

As to the 80 million web page proposition, the issue about that is, yes, we rely on the affidavit about the degree to which material was accessible or not.  Now, the difference is determining the extent to which it was accessible and whether it was, in fact, read.  Now, if at the end of the day we are wrong in saying - that because it was accessible in this form, it was before the Tribunal, then we are wrong, but, at the risk of repetition, there is no moment to that determination whether it was actually looked at. They really are quite different.

Now, the documents in question, the Part B documents, the Tribunal gets the delegate’s decision, has a listing of what they are.  That is not really the same as saying, “There are 80 million web pages out there, the world is your oyster.”  If we put that proposition up, we may have some difficulty in persuading the Court that a web page in Kazakhstan truly was before the Tribunal, but it is a bit closer than that.  I accept, we can have a debate as to whether it was before, but that is really quite different to “looked at”.  To the extent your Honour picked up my friend about the phrases he used, “which we have read, considered, looked at before”, to take a difference of “consider” and “read”, and no doubt it must have happened to my submissions on a number of occasions, the presiding judge would look at them and read paragraph 1 and say, “They are not going anywhere, I will put them aside” or you look at the opening document and you say, “Well, this exhibits massively interesting, but it really is going to be a waste of my judicial time to have to read it all.”  And that is where the imprecision of language becomes particular acute in a case such as this.

Just one other matter, your Honour, about the pleadings.  We, in the pleadings, specifically say, “Look, even if there was a breach of 424, it is of no legal consequence” - - -

HER HONOUR:   I have not got your pleadings yet in final form, have I?

MR BEECH-JONES:   Not to the latest amendment.

HER HONOUR:   No.  I tried to marry them up with no great success yesterday.  I see Mr Robinson is looking puzzled.  I tried to marry up the unamended defence with the amended statement of claim.

MR ROBISON:   The amended defence marries up, your Honour.

HER HONOUR:   Well, I might have had the wrong documents then.  At some stage the parties are going to have to give very considerable thought as to how the paperwork can be reduced.

MR BEECH-JONES:   To avoid your Honour having to read it all, no doubt.

HER HONOUR:   Exactly.

MR ROBISON:   We can put it on CD, your Honour.

HER HONOUR:   But it will not help me.

MR BEECH-JONES:   I am very confident of this, your Honour:  we say that, even if there was a contravention of, what you call a contravention of section 424, we do not say it is of any legal consequence, but that is a matter of submissions at the end of the trial.

HER HONOUR:   Yes, I understand that, and you say the same, of course, at the end of the day, with respect to the legitimate expectation, if you like, in a slightly different way.

MR BEECH-JONES:   Yes.  Once one gets to something affecting the final determination, it is getting a little bit more difficult then, but a step along the way may be different.

HER HONOUR:   Yes.

MR BEECH-JONES:   I am at risk of inquiring of your Honour, is your Honour proposing to reserve?

HER HONOUR:   I am, but I do not see why that should delay the parties in the steps that have already been ‑ ‑ ‑

T8:JJ
MR BEECH-JONES:   We would propose to continue.  I would ask your Honour stay our obligation to answer the interrogatories though.  There is a 14-day time that started last Monday and we have two Tribunal members on holidays and we would not be able to – I do not know if my friend has any objection to that pending your Honour’s ‑ ‑ ‑

MR ROBINSON:   No.

HER HONOUR:   There will be a stay.  That stay will be granted then.  Do I need to make any formal order other than stay the running of time for the answering of interrogatories?

MR BEECH-JONES:   Perhaps your Honour could until further order relieve all defendants from compliance.

HER HONOUR:   It is only the first ‑ ‑ ‑

MR BEECH-JONES:   The first defendants from compliance with Order 32 rule 6(1).

HER HONOUR:   Until further order?

MR BEECH-JONES:   Until further order.

HER HONOUR:   Yes, I will make that order in those terms.

MR BEECH-JONES:   Thank you, your Honour, and we will take it out.

HER HONOUR:   Yes.  I will reserve my decision.  I would hope to have it available within not more than 10 days anyway.  Unfortunately I go back to Canberra but I would hope to have ‑ ‑ ‑

MR ROBINSON:   Your Honour, in relation to the other matters that were moved on the other day dealing with further discovery and particulars, we are happy ‑ ‑ ‑

HER HONOUR:   It is all bound up in this, is it not?

MR ROBINSON:   It is.  The particulars do not really go anywhere in the sense that the particulars relate to the alleged Tribunal immunity under section 435 as part of the further electronic discovery, as it were, that we seek.  So really the only issue to go over or to be decided that we seek is in relation to further discovery.  The issues on the pleadings squarely raise the issue.  It may be that the Commonwealth in its amended defence might concede the point, I do not know, your Honour, but in that sense ordering further discovery on the electronic issues, as I call them in shorthand form, precisely what we want has been identified in those letters from Mr Joel to the other side which is in evidence before your Honour but which your Honour has not been taken to in detail.  We are content for the discovery questions to wait until after the Commonwealth has amended its

defence in response to our amended pleadings which was filed and served, as I am instructed, yesterday.

HER HONOUR:   Can we conveniently deal with all those matters on the 31st?  There is no need to deal with them prior to that, is there?

MR ROBINSON:   By then we will put on our evidence, such as it is.

MR BEECH-JONES:   If we have had the benefit of your Honour’s judgment, we will know what the consequences are.

HER HONOUR:   Exactly.  You should have a decision in this matter prior to then.  How much prior to then I cannot promise.  We should then be in a position on the 31st to see where we go.

MR ROBINSON:   We are happy with that course, your Honour.

MR BEECH-JONES:   Thank you, your Honour.

HER HONOUR:   In that case I will reserve my decision and I will adjourn the matter against until 31 March.

MR BEECH-JONES:   Could your Honour certify for counsel for both today and yesterday and Wednesday.  Mr Pearson reminded me.

HER HONOUR:   Yes, I will certify for counsel.  I had intended to deal with that as one of the matters on 31 March.  In the short minutes that were handed up there was ‑ ‑ ‑

MR BEECH-JONES:   Yes, there were 6, 7 and 8 and your Honour stood that over, yes, but maybe that is ‑ ‑ ‑

HER HONOUR:   I will not forget it,  but I will leave it until - 

Court will now adjourn.

AT 10.50 AM THE MATTER WAS ADJOURNED
UNTIL FRIDAY, 31 MARCH 2000