Herijanto v Refugee Review Tribunal
[2009] HCATrans 32
[2009] HCATrans 032
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 228 PLAINTIFFS LISTED IN THE SCHEDULE ATTACHED
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 -
DEVIRIA SURIYADI (AS THE REPRESENTATIVE OF THE 142 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 -
SUGIANTO KOA (AS THE REPRESENTATIVE OF THE 483 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
Summonses
GUMMOW J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON TUESDAY, 17 FEBRUARY 2009, AT 9.50 AM
Copyright in the High Court of Australia
__________________
MR M.A. ROBINSON: If the Court pleases, I appear for the original three plaintiffs. (instructed by Adrian Joel & Co)
MR J.D. SMITH: If it please the Court, I appear for the second and third defendants in each matter. (instructed by Australian Government Solicitor)
HIS HONOUR: There is a submitting appearance in each of these for the Tribunal, which is the first defendant. Now, you have summonses, have you?
MR SMITH: Yes, your Honour, there are three. The first was filed in the matter named Koa on 11 December ‑ ‑ ‑
HIS HONOUR: In Koa previously was Lie, was it not?
MR SMITH: Yes.
HIS HONOUR: Suriyadi was previously Muin?
MR SMITH: Yes.
HIS HONOUR: The other one is the same?
MR SMITH: Yes. The other two summonses were filed later, on 22 December last year.
HIS HONOUR: Yes. I am right, am I not, that there were three proceedings in this Court but they seem to have been – I do not know whether they were ever formally consolidated, but they were treated together, were they not, and questions were reserved for consideration by the Full Court?
MR SMITH: Yes.
HIS HONOUR: One of them had a different point, a further point?
MR SMITH: One of them was conceded by the defendants in 2001. The other two went for determination upon referral of questions by Justice Gaudron.
HIS HONOUR: Yes. The Full Court decision I have been referring to is in (2002) 190 ALR 601.
MR SMITH: Yes, your Honour.
HIS HONOUR: Looking at your summons, am I right in perceiving from it some apprehension on the part of the Commonwealth that there is some double dipping anticipated by Mr Robinson’s client in these bills? What are we debating?
MR SMITH: All we are debating is, in essence, the liability of each of the plaintiffs in these matters for legal costs towards the proceedings. The issue arises out of the fact, not only that each of the plaintiffs did pay a certain amount of costs, but also did many thousands of other people and, despite our inquiries through correspondence, we have not been able to ascertain what the particular liability, if any, and if there is, what extent that liability is for, whether it be, for example, as suggested in one letter, limited to $500, as was the original amount paid by the plaintiffs, or whether it is some larger amount as now claimed in the bill of costs.
HIS HONOUR: The bills that have been prepared contain an endorsement under Part 57, do they not?
MR SMITH: Yes, they do.
HIS HONOUR: They request that the taxing officer make an estimate and then the way the rules work, if that estimate was unsatisfactory to your client, you would serve a notice of objection. That is right, is it not?
MR SMITH: Yes.
HIS HONOUR: That would trigger 57.02 and these matters would then be thrashed out, would they not, by the taxing officer?
MR SMITH: Yes, your Honour. The trick is though, that in filing that notice of objection, objection will have to be taken not only to any questions of liability at a general level, but also to each specific item which would enlarge the inquiry that necessarily need be made. So that what we are seeking to do today, if possible, is to obviate that extra and expensive work, both for the parties as well as for the Registry.
HIS HONOUR: Why can that not be done by some appropriate arrangement at the time in the 57.02 procedure?
MR SMITH: It can be done, but it can only be triggered by the objection being taken in the first instance to everything.
HIS HONOUR: Yes, that is right.
MR SMITH: Because if we do not take the objection to everything in the first instance, we cannot do that ever without leave. So it is in order, if you like, your Honour, to overcome that obligation, and obviously the obligation then is upon the plaintiffs to meet those objections to bring forward what will be in issue in the taxation in any event.
HIS HONOUR: That is not quite right, is it? Rule 57.02.1 says:
a party on whom a bill of costs is served may by notice object to any item –
It does not say “may only object to any item”.
MR SMITH: But 57.02.3 says that:
Without the leave of the Taxing Officer a party on whom a bill of costs is served may not object to any item ‑ ‑ ‑
HIS HONOUR: Why would you not get the leave?
MR SMITH: I cannot say one way or the other whether we would get the leave.
HIS HONOUR: If you do not get the leave, you can complain to a judge, but, prima facie Registrar Harris will deal with these matters, as she usually does, in a competent fashion. Why do you have to rush to court, rush to a judge?
MR SMITH: The only reason, your Honour, is what I have stated and that is to obviate the amount of work which would be required by the objection on an itemised basis.
HIS HONOUR: Would there by any inhibition upon the taxing officer calling for those documents that you seek in paragraph 2 of your summons?
MR SMITH: Once the objection is taken, there is no inhibition. There is a power.
HIS HONOUR: Yes, I would have thought so.
MR SMITH: That is quite correct, your Honour, yes.
HIS HONOUR: The guiding principle in all of these procedures is Part 55.01, is it not?
MR SMITH: Yes, that is correct.
HIS HONOUR: You would say, or you apprehend, that there has been some unusual expenses, would you?
MR SMITH: No, we have not gone to assess every item of the bill as yet. The question really is at an anterior stage, that is, regardless of whether the items have been properly or necessarily incurred for the purposes of the litigation, the proceedings, whether, in fact, each of the plaintiffs is liable for the whole of the amount or only $500 or for nothing, depending on the proper construction of the Legal Profession Act 1987.
HIS HONOUR: Of New South Wales.
MR SMITH: Yes.
HIS HONOUR: Yes, all right. Yes, Mr Robinson. Why should this matter not proceed through the ordinary channels? If there is some problem that emerges before the taxing officer, it can be looked at then.
MR ROBINSON: That is exactly what I have said so, your Honour, in my written submissions. I have filed written submissions in these proceedings.
HIS HONOUR: Yes, I see those.
MR ROBINSON: They say that the application of the Commonwealth is premature, unnecessary and misconceived and I maintain those submissions today. This is not about what communications or what arrangements were made with the – I am instructed, your Honour, there are 7,500 members of the class. This is a class action that was determined in 2002, argued in 2001 and commenced in 1998. The arrangements made with those persons who were not named plaintiffs, your Honour, in terms of litigating the proceedings before the Court, are a matter for them.
The summons is unrelated to my learned friend’s submissions, I should point out. I did point that out in the submissions. Namely, the summons is a scattergun to everyone in the class whereas the Commonwealth should be concentrating on the proceedings of taxation. It should concentrate on asking for, if needs be, the relevant documents relating to the three named plaintiffs, that is, Muin, Lie and Herijanto, and it should go through the process. That is our primary contention, your Honour, and the summons should be simply dismissed, all three summonses.
HIS HONOUR: What about costs of the summons?
MR ROBINSON: As I indicate in the written submissions, your Honour, I do ask for costs of the summonses. I ask for costs to be assessed by your Honour, and I can hand up, your Honour, the relevant notes, and I ask for them to be paid forthwith. In that regard, your Honour, if it is convenient, I can hand up to your Honour handwritten assessments by my instructing solicitor and by my ‑ ‑ ‑
HIS HONOUR: It is an unusual situation that has emerged, though.
MR ROBINSON: Your Honour, in my respectful submission, it is not unusual and it is straightforward and the Legal Profession Act 1987 (NSW) has not really got anything to do with the proceedings. If it does, in any event, it is premature and completely unnecessary, these summonses, for the
reasons I have set out in the submissions, your Honour. May I hand up the handwritten assessment of costs that we ask your Honour to make?
HIS HONOUR: Not yet. Yes, Mr Smith.
MR SMITH: I will not repeat what I have already said, your Honour, but simply to address the possibility the summons is dismissed. If the matter is to go through the procedure foreseen by the rules, it might focus the attention of the Registrar to have the summons and questions set out in the summons extant before the Registrar in order that there is a proper determination and rather than then go up to the process of review and ‑ ‑ ‑
HIS HONOUR: At the moment I am minded to stand the summonses over pending the outcome of the taxing procedures before the taxing officer.
MR SMITH: They would achieve the same result.
HIS HONOUR: If some problem emerges, it can be restored and supplemented, if need be, by further reference to the taxing officer.
MR SMITH: If that were the order made by your Honour, then the question of costs should be reserved in addition.
HIS HONOUR: Yes, and I would reserve the question of costs. I fear we are not at the end of the saga.
MR SMITH: No, your Honour.
HIS HONOUR: Yes, Mr Robinson, anything you want to say about that?
MR ROBINSON: Only that I have raised in the submissions, and I do now raise the question of your Honour’s power. I say that with some trepidation since the Court has ordinarily a wide power over matters relating to costs, but since I sent my written submissions yesterday, your Honour, I have received, courtesy of the High Court Registry, sealed versions of the orders in all three proceedings and I think I can say with clarity that they have all been dismissed long ago so that the power that your Honour ordinarily exercises, for example, under the Judiciary Act provision, I think it is 26, which is specific to costs, does not apply, in my respectful submission. So that while I appreciate your Honour is minded to stand the matter over, in my respectful submission, your Honour ought to dismiss them now and let the Registrar ‑ ‑ ‑
HIS HONOUR: What, as incompetent?
MR ROBINSON: Yes, your Honour, and let the Registrar deal with the matter.
HIS HONOUR: What do you say about that, Mr Smith? It is said that you have instituted a summons in a matter that is dead basically.
MR SMITH: It is not entirely dead, your Honour. There is still the question of costs, taxation of costs, which is consequent upon the order, the award of costs, which is under section 26 of the Judiciary Act.
HIS HONOUR: That must be correct. Yes, very well.
In each matter I stand the summons over and reserve the question of costs. This is done with a view to the taxation proceeding in each matter according to the ordinary provisions of the Rules that have been triggered under Part 57. If any further problems arise in the course of the consideration by the taxing officer, the summonses can be restored and, if need be, supplemented by further prayers for relief.
AT 10.05 AM THE MATTER WAS CONCLUDED
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