Herijanto v Refugee Review Tribunal

[2000] HCATrans 86

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 WEDNESDAY, 15 MARCH 2000, AT 10.00. AM

Copyright in the High Court of Australia

______________________

HER HONOUR:   Call the matter of Lie.  I will take each of the matters separately.

MR M.A. ROBINSON:   If your Honour pleases, I appear for the plaintiff in this 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:   Now, this is a simple matter, is it not?  This was one of the three - this was the one in which there was only a single issue, was there not?

MR ROBINSON:   There is a single issue in this case.

HER HONOUR:   Yes.  Now, I would like to know why the directions given earlier in this matter have not been complied with in this matter.

MR ROBINSON:   Your Honour, in relation to the ‑ ‑ ‑

HER HONOUR:   First of all you might remind me what the single issue is.

MR ROBINSON:   The issue in that case is an issue that is common to Herijanto and Muin as amended and that is whether or not what is known as the Part B documents, that is documents relied upon by the original decision maker, the Minister's delegate, which were relevant to the decision under review, were delivered to the Refugee Review Tribunal and, if they were delivered, were they considered by the Tribunal in the making of two decisions:  one, the decision on the papers and two, the final decision under review. 

The two provisions of the Migration Act that are invoked are section 418(3) and section 424(1). Your Honour has just been handed, I notice, the latest version of the Act in which the provisions have been changed. They were changed since the commencement of these proceedings. My learned friend has a copy of the extracts from the Act but I can hand up to your Honour a copy of the Act in the form that it was at the relevant time. Section 418(3) is the first provision that we say was breached, that “The Secretary” of the Department of Immigration and Multicultural Affairs “must give to the Registrar” - that is the Registrar of the Refugee Review Tribunal – “each other document” - that is other than the findings of fact and the reasons for the decision that is in the Secretary's possession or control.

HER HONOUR:   Yes.  Now we will go back to my question.  Why were not the directions complied with in respect of this matter?

MR ROBINSON:   Your Honour, a request was made last night by the Registrar of the Court to my instructing solicitor and an affidavit in regard to all three matters has been filed and a copy has been served on the other side.  I rely on and read the affidavit of Adrian Phillip Joel, sworn 15 March 2000.  That is an affidavit which explains in broad terms the answer to your Honour's question in relation to ‑ ‑ ‑

HER HONOUR:   It does not explain anything.  It does not explain anything.  There were orders made, including liberty to apply.  No application was made to this Court.  The parties just went ahead on their own merry way.

MR ROBINSON:   In relation to Lie itself, in my submission, as it were, it was swept up in the Herijanto and Muin proceedings.

HER HONOUR:   Why?  It did not have to be, did it?

MR ROBINSON:   On the last occasion, that is 26 October 1999, the things that were to happen next were the pleadings were to be amended in the two related proceedings.  That was done.

HER HONOUR:   Yes, there was no need to amend the pleadings in this matter.

MR ROBINSON:   The next thing to happen was discovery was to occur in relation to all three proceedings, including Lie.  That discovery was not concluded until just before Christmas Eve, your Honour.

HER HONOUR:   Why not?

MR ROBINSON:   I understand that the Commonwealth has an explanation which they will put on by way of affidavit but they have their reasons.  But from our perspective, your Honour, there were many, many documents that we received just before Christmas and, indeed, it was something in the order of, by way of discovery, over seven volumes, 3,233 pages of material, that we received just before Christmas. 

The other factor, your Honour, is that in early December last year, in response to the amended defences, we sent a request for particulars in all three matters in which we sought particulars of the defences - the defence in Lie and the ‑ ‑ ‑

HER HONOUR:   When were the defences filed, 5 November?

MR ROBINSON:   The defence had been filed earlier, your Honour.

HER HONOUR:   5 November, I think, had it not?

MR ROBINSON:   On 5 November 1999 the Herijanto and Muin defences, the amended defences, were filed.

HER HONOUR:   There was no need for any defences in Lie?

MR ROBINSON:   In Lie the defence had already been filed, yes, your Honour.

HER HONOUR:   That is right, yes.  We are dealing strictly with Lie at the moment, when did you seek - did you seek particulars of that defence?

MR ROBINSON:   We did not seek them any earlier, your Honour, than 7 December.

HER HONOUR:   Although they had been earlier filed.

MR ROBINSON:   They had been earlier filed, yes, your Honour.  I have no reason, other than an apology, to offer to your Honour in that regard.  That should have been done earlier.  I readily concede that, your Honour.  In terms of the matter generally, we were not in a position to even see what the discovered documents were until just before Christmas.

HER HONOUR:   Why was that?  The documents discovered in Lie, why could you not see them until Christmas?

MR ROBINSON:   They were not delivered to us until Christmas, your Honour.  They were delivered in dribs and drabs, as the affidavit of Mr Joel sets out.  They were delivered in six bundles on six different occasions, the last one being 3.20 pm on 21 December last year. 

Additional to that, your Honour, as the affidavit deposes of Mr Joel, there was an agreement between the parties that, because of the failure of the Commonwealth to comply with the discovery orders that your Honour made on 26 October, we do not need - the plaintiffs do not need to file their evidence in the main case.  I should say to your Honour the evidence of the plaintiff will be very, very short, going to one or two issues.  If there is any other evidence ‑ ‑ ‑

HER HONOUR:   What led you to think that the parties between them could reach agreement on those matters when I had made orders?

MR ROBINSON:   Two matters.  Firstly, the original orders were made by consent.  They were not made after a heavily contested argument between the parties and we assumed, rightly or wrongly, your Honour, that there would be no inconvenience caused or trouble caused as a result of the agreement, which is set out in writing, your Honour, and was done - was made before the time for compliance with the order No 7, that we filed by 17 December, our evidence.  It was made before that time arose.  So the parties had an agreement before we had to put on our affidavit evidence that we could do so after the Commonwealth put on their evidence.

Now, the Commonwealth put on their evidence - they did it late but we do not take issue with that, your Honour, at all.  The evidence that they put on, as served to us just before the earlier date for the second directions hearing and before it was vacated, was something in the order of 2,231 pages.  The discovery and the affidavit evidence combined of the Commonwealth, your Honour, standing from the floor, is about five foot high.

HER HONOUR:   This is in a case where there is a single issue.  We are still talking Lie?

MR ROBINSON:   We are still talking Lie, but the discovery in Lie is intermingled with the discovery in the other matters.  In other words, apart from the actual Tribunal's file in Herijanto and Muin, apart from the Department's file in Herijanto and Muin, each of which is about one or two inches thick, and apart from the Part B documents in those two matters, the discovery documents are the same.  So a substantial part of that material that has been filed is in the Lie Case as well, your Honour.  And bearing in mind the issue is the same, on this issue, in all three matters, in my submission it was reasonable for us, the plaintiff, to consider all three together before taking any step further, particularly ‑ ‑ ‑

HER HONOUR:   Where are these plaintiffs?

MR ROBINSON:   Your Honour, there are three plaintiffs.  The parties have agreed between them ‑ ‑ ‑

HER HONOUR:   Oh yes, but the represented ones as well.  Where are they?

MR ROBINSON:   They are all in Australia, your Honour.

HER HONOUR:   Yes.  Are they in custody or in the community?

MR ROBINSON:   Some of them are in custody.  There have been some attempts to deport some of them.

HER HONOUR:   Yes.  Well that is precisely why it is not open to the parties to reach agreement between themselves as to times.

MR ROBINSON:   I hear your Honour on that.

HER HONOUR:   Yes.

MR ROBINSON:   It is something which, in future, we most certainly will not do, in light of what your Honour has said.  But I do say, your Honour, in defence of the plaintiffs and the way it has been conducted, two things:  firstly, we do not take issue with what the Commonwealth has done and, secondly, we have documented - or sought to document - any departure from the timetable in advance of the time for compliance so that, if your Honour is troubled, the evidence is there ‑ ‑ ‑

HER HONOUR:   I am very troubled when people are in custody.

MR ROBINSON:   I hear that your Honour is troubled and I am not taking issue with that at all, your Honour.  I am saying to your Honour if there is to be any departure from the timetable in future, we are on notice.

HER HONOUR:   What remains to be done in Lie?  What is ‑ ‑ ‑

MR ROBINSON:   Has your Honour received some draft short minutes of order that I sent to the Court yesterday?  There are a number of issues that relate to Lie.

HER HONOUR:   I have not got it.

MR ROBINSON:   It is eight paragraphs long.  Does your Honour have that?

HER HONOUR:   Yes, I do have that.

MR ROBINSON:   There is an error in the first paragraph, I should say.  The “29 February” should be excised and replaced with 1 March.  Otherwise, in Lie, the plaintiff seeks orders in relation to particulars ‑ ‑ ‑

HER HONOUR:   So we are still - is there a debate as to whether the particulars are appropriately requested?

MR ROBINSON:   The order that I would prefer to deal with - I have had some discussions with my learned friend this morning.  The order in which I would prefer to deal with the directions that we would ask your Honour to make today are amendments of the pleadings, interrogatories ‑ ‑ ‑

HER HONOUR:   Why?  Let us just deal with Lie.  You have had a long time to get your mind around all this, I have a short time.  What remains to be done in Lie before that matter can be heard?

MR ROBINSON:   The plaintiff asks the Court to amend the pleadings, a small amendment.

HER HONOUR:   Why?  Whose pleadings?

MR ROBINSON:   The plaintiff's pleadings in Lie.  We ask the Court to permit them to be amended.

HER HONOUR:   Why?  To raise what?

MR ROBINSON:   To raise squarely an issue which we say is already raised in the pleadings, but which the Commonwealth does not accept is squarely raised and by which, having taken that position, the Commonwealth has refused to discover in relation to that issue and we have pressed them for discovery in relation to that issue, and the Commonwealth has refused to answer what we say are proper requests for particulars in relation to that issue.  Thirdly, the Commonwealth has an application, as I understand it to be made today, to refuse to be interrogated in relation to that issue.  So in order to bed down, as it were, those three positions of the Commonwealth, in my submission, for an abundance of caution and to have the issue raised on the clearest footing, the amendments that we seek I have sent to your Honour yesterday as an attachment to the short minutes of order on the second half of the page.  I have incorporated those into ‑ ‑ ‑

HER HONOUR:   Just one moment, please.

MR ROBINSON:   I have the consolidated statement of claim here in the Lie matter with the amendments incorporated into the draft document.  I will take your Honour to the passage in Lie.

HER HONOUR:   How many plaintiffs are involved in this case, incidentally?

MR ROBINSON:   In Lie, as I understand it, as at late last year it was 1,018.  I am instructed now it is in the order of 2,000 people.  But, your Honour, I do say that those people are not all primary applicants.  Those 2,000 people include the families of others who are primary applicants.  So it is not as large as it seems, your Honour.

In relation to the pleadings, these pleadings have not been amended. If I could take your Honour to paragraph 14, that deals with the relevant period, that is from the time of the “delegate's decision.....to the time when the first defendant”, that is the Tribunal, “considered the review application”. That is where the duty that I mentioned earlier under section 418(3) of the Migration Act arises, that is to deliver the documents to the Tribunal.

In the next paragraph we say the Part B documents were the relevant documents.  In paragraph 16 we say that the documents were not given to the Tribunal and we say that is defined as a 418(3) breach.  In the next paragraph is set out the duty of the Tribunal to undertake what is called, in the heading to the Act and what is called within the Tribunal itself “the review on the papers”.  We say, in paragraph 18:

As no, or no substantial, Part B documents were delivered by the second defendant to the first defendant.....during the relevant period, the first defendant could not and did not comply with section 424(1) of the Migration Act 1958 in that the review on the papers could not be conducted -

Now, stopping there, your Honour, we say the words “and did not comply”, in my submission, going back to the words of the statute which say, in that provision, that “the Tribunal must consider the material it receives from the Secretary of the Department”, w say that squarely raises the issue on the face of the pleadings as pleaded, that the Tribunal did not read or consider the Part B documents. The Commonwealth does not agree with that position. So for an abundance of caution we propose that a new paragraph 18A be inserted into the pleadings at that point and that would make it very clear that what we also refer to as a section 424(1) breach is that “the first defendant”, the Tribunal, “did not consider the material.....at all or in substantial respects”. So it is a pleading amendment - and I have quite a number of things further to say on that, your Honour - but at this preliminary stage it is an amendment which should not shock the Commonwealth because it has been squarely raised in the correspondence between the parties - and I will take your Honour to that. It is also an issue that screams out of, as it were, the evidence that has been filed by the Commonwealth. But be that as it may, we say it is all really squarely raised. So that is the work that we ask 18A to do.

In paragraph 21 as it is presently pleaded we seek to remove the last 11 or 12 words of that paragraph and replace it with a new 21(a) and (b), that is to make it clear that we say there is a legitimate expectation and a breach in two respects, a breach of the legitimate expectation in relation to “the review on the papers” stage and “in the making of the final decision” under review stage.  Now, we say, your Honour, that it may be that if the papers had been received by the Tribunal and looked at by the Tribunal at the relevant time, there might not have been any need to go to the next stage.

It is also sought to insert paragraph 21A which is in the same respects, similar respects, to paragraph 18A, that is to make it plain that we say “the first defendant” - Tribunal – “did not consider the material contained in the Part B documents at all or in substantial respects”.  Now, out of an abundance of caution, we seek to make those amendments in relation to Lie and the other two matters as well.

HER HONOUR:   We are dealing only with Lie.

MR ROBINSON:   Indeed.

HER HONOUR:   I take it that is not consented to.

MR BEECH-JONES:   No, your Honour.

HER HONOUR:   Very well.  That is the first question.

MR ROBINSON:   That is the first reason for the pleading amendment, your Honour.

HER HONOUR:   That is the first matter that is outstanding in Lie.  By the time I leave here today, and it might be very late, I am going to have these matters in some sort of order.

MR ROBINSON:   Yes, your Honour.

HER HONOUR:   If you have other commitments ‑ ‑ ‑

MR ROBINSON:   No, your Honour, we are content with that course.

HER HONOUR:   Let us deal with this issue.

MR ROBINSON:   In Lie, the other outstanding ‑ ‑ ‑

HER HONOUR:   No, no, we will see if this is outstanding.  We will determine this issue here and now because, if it is not determined, the rest is just hypothetical.

MR ROBINSON:   Yes, your Honour, it is.

HER HONOUR:   Well, Mr Beech-Jones.

MR BEECH-JONES:   Does your Honour want to hear from me about the explanation, because I do not want to leave the suggestion that we are so shockingly non-compliant as my friend would ‑ ‑ ‑

HER HONOUR:   Well, you were non-compliant.

MR BEECH-JONES:   I accept we ‑ ‑ ‑

HER HONOUR:   And it is like being a little big pregnant, is it not?  It does not matter.  When this Court makes orders it expects them to be complied with.  Now, whether you are seriously non-compliant or even a little bit non-compliant, it does not seem to me to make any real difference, does it?

MR BEECH-JONES:   With respect, your Honour, it may do, depending on the course that your Honour proposes to take as a result of that.  But if the matter is to be pursued, there are some matters that I would seek to point out and I do not know if it is a convenient time now or your Honour would like to hear ‑ ‑ ‑

HER HONOUR:   It seems to me the only thing we can now do is try and get these matters back on track.

MR BEECH-JONES:   Your Honour, then, can I just turn to this question of the pleading.  Your Honour, there are really two aspects:  first, we say that it is in part futile and, secondly, we say that the pleading is done - the purpose of the pleading is to allow my friend's client to interrogate the Tribunal member as to what documents they looked at and read in the manner of the exercise of their duties.  When your Honour comes to the dispute over discovery and interrogatories, the real question of principle between us concerns that attempt.  What that part of the pleading that we say would remain, after your Honour excises it for the question of futility, is at attempt to ‑ ‑ ‑

HER HONOUR:   What do you mean “futility”?

MR BEECH-JONES:   Can I put it this way. Your Honour will see that what is said is that there is a section 424(1) breach and then, in paragraph 21, it is said:

In breach of the plaintiff's legitimate expectation -

which is defined in paragraph 20 -

the first defendant did not have before it any or substantially all of the documents listed in the Part B documents:

(a)  in the making of the review on the papers; and/or
(b)  in the making of the final decision on the plaintiff's refugee application.

“Legitimate expectation” is defined in paragraph 20 and that, in turn, is said to arise from the first and/or second representations which are set out in paragraphs 19 and 13.  Now, to the extent that it arises in the sense set out from the second representation in paragraph 19, that is a letter that was said to be written by the Tribunal setting out the statement:

“the Tribunal has looked at all the papers relating to your application but it is unable to make a favourable decision on this information alone”. 

That letter was written after the Tribunal determined - my friend says wrongly under section 424 - that it could not reach a favourable decision on the papers.

We would submit that you cannot say that that exercise of that power under 424 somehow miscarried because of a legitimate expectation that is said to have arisen after the exercise of the power.

HER HONOUR:   Do you want to demur - do you say it does not give rise to a proper point?  Do you want to run this as a demurrer, as it were?

MR BEECH-JONES:   Yes, your Honour.  My friend then says ‑ ‑ ‑

HER HONOUR:   Why do we not then allow the pleading and have the demurrer?

MR BEECH-JONES:   It could be done that way but, equally, we submit, that if the matter is futile then ‑ ‑ ‑

HER HONOUR:   If it is a demurrer, it is at least determined in a final way. 

MR BEECH-JONES:   Your Honour, we got the amendment yesterday and we took the view that if we - your Honour's time is precious, we had the opportunity today to ‑ ‑ ‑

HER HONOUR:   Oh, it was; it used to be; it is no longer.

MR BEECH-JONES:   I do not want to drift back to the explanation.  I know your Honour referred to the liberty to apply.  Can I just say - and I am sure my friend takes the view that we do not like to waste a High Court Judge's time unnecessarily - so I do not think either party tries to exercise liberty to apply, even if somehow wrong-headedly or muddle-headedly we get out of whack on the timetable.

HER HONOUR:   Let us deal with this.  So you say, if 21 and 21A were allowed - you do not object to 18A, as I take it?

MR BEECH-JONES:   On this question of futility, no.  I will come back to that.

HER HONOUR:   But 21, 21A, you say there can be no breach.

MR BEECH-JONES:   There could be no breach in so far as it is reliant on what is pleaded as the second representation in paragraph 19.  My friend also relies on what is said to be the representation in paragraph 13, which is the first representation, and all that recites is that the first defendant had written to the plaintiff with a letter saying we have asked “the Department of Immigration and Multicultural Affairs to forward a ‘copy of its documents about your case’ to the first defendant”.  Now, we would submit that, by itself, that could not give rise to the legitimate expectation pleaded in paragraph 20.  So, your Honour, we would submit that, firstly, in so far as paragraph 21A seeks to trace through and somehow claim that there was a breach of a legitimate expectation in the making of the review on the papers, the amendment is misconceived.

HER HONOUR:   I do not understand that, but I do not see why, if you wish to pursue that, we cannot allow the pleading and have a demurrer, refer it to a Full Court immediately.

MR BEECH-JONES:   Your Honour, I have raised that now on the question of the amendment.  In my submission, if the pleading cannot establish a cause of action, your Honour ‑ ‑ ‑

HER HONOUR:   I just do not follow why you say it cannot.  You have put it, but I cannot follow it.

MR BEECH-JONES:   With respect, your Honour, a legitimate expectation, as I understand what this case is about, is an assertion in the Haoucher sense that here is a power, you represent it as to the manner of the exercise of the power, and you did not comply with your representation in the manner you exercised the power.  The difficulty for my friend is, to the extent he complains about the exercise of the 424 power, that is the review on the papers, the legitimate expectation he said was created is something that was created after the exercise of the power, not before.  So it is not a legitimate expectation about how a power will be exercised; it is a statement about how a power, on his case, was exercised.  Now, I cannot put it - if your Honour is not persuaded by that, I am not going to waste any more of your Honour’s time.  But that is the point.

The other aspect to the amendments, your Honour - and this is unfortunately tied up with the other matters in dispute - is when your Honour reads the - if your Honour has had the opportunity to read the correspondence annexed to Mr Joel’s affidavit ‑ ‑ ‑

HER HONOUR:   Not in detail.

MR BEECH-JONES:   But I think it is safe to say that there is this:  there was this emerging issue that came out of the particulars whereby the plaintiff's solicitors attempted to ask my solicitors, “Did the relevant Tribunal member read this document?” and, in particular, “Did they look it up on the computer?”  If I could perhaps go one step back.  What emerges from our evidence is this procedure whereby a departmental delegate makes a decision and then, after they have made their decision, they bundle up the file and they send it to a registry in the knowledge that there may be a review application.  The file contains a copy of their decision - that is the delegate’s decision - and in part of that decision called “Part B” they list the documents they have relied on and that includes external sources, magazines and newspapers and matters of that kind. 

Copies of those documents are not bundled up on the file.  The file remains in the central repository.  An application for review is lodged and it is sent to the Tribunal.  My friend’s complaint is:  “Was a breach of 418 because you didn’t give to the Tribunal the documents that were, in the Secretary’s opinion, relevant to the review and then there is a breach of 424 because there was not before the Tribunal the documents relevant to the review.” 

The answer, we say, is we put the documents on a computer system to which they all have access to.  Either in putting them on the computer system to which the Tribunal has access to, they were given to the Tribunal and/or the forming of the opinion as to what was relevant to the exercise of the Tribunal’s review powers did not miscarry because the person who formed that opinion knew they were on the computer.  Now, we say other things about what relief flows if we are wrong, but they are the two aspects to our case.

What my friend’s solicitors have been seeking to get by discovery and interrogatories is to find out whether, in fact, the Tribunal did access the computer system, the relevant Tribunal member to actually view the document listed in Part B of the delegate’s decision.  We wrote back and said two things.  We said, first, “It is not relevant to the pleadings as they currently stand because what they are directed to is what was a complaint that it was not before the Tribunal member” thus to take in Lie, in paragraph 18, my friend referred your Honour to the part that says:

did not comply with section 424(1) of the Migration Act –

but it goes on:

in that the review on the papers could not be conducted as the Part B documents relied on by the delegate as set out in the delegate’s decision had not been given to the first respondent.

That was the complaint.  Then, equally, in paragraph 21, before amendment, the relevant part of the pleadings said:

In breach of the plaintiff’s legitimate expectation, the first defendant did not have before it any or substantially all of the documents listed in the Part B documents.

I do not have the remainder but I do not understand it is inconsistent.  So, our answer was, “Look, you’re not complaining about the Tribunal not looking at it.  You are - - -”

HER HONOUR:   And this answer appears on the pleadings?

MR BEECH‑JONES:   Yes, your Honour.

HER HONOUR:   In the statement of defence?

MR BEECH‑JONES:   Yes, your Honour, and we say - - -

HER HONOUR:   And did it appear on the statement of defence when the matter was last before me?

MR BEECH‑JONES:   Your Honour, the defence in Lie was filed on 31 August.

HER HONOUR:   So, it was there when it was last before - - -

MR BEECH‑JONES:   It was.  Can I just say this:  my friend – and the defences in Herijanto and Muin on this point are identical.  My friends did write the particulars letter and if, we say, it is not clear what we said, well, the answer was in the terms I have just told your Honour in the particulars letter and, we say, it is clear from the affidavits.

HER HONOUR:   Your defence is simply that the Tribunal looked at the documents on the computer?

MR BEECH‑JONES:   No, your Honour.  Our defence is the Tribunal had access to the documents on the computer.  We have not asked the Tribunal members whether they looked at them.

MR ROBINSON:   It is in paragraph 20, your Honour.  It is made plain ‑ ‑ ‑

HER HONOUR:   It is no good telling me “paragraph 20”.  I could drown in these papers.  Paragraph 20 of which document?

MR BEECH‑JONES:   I think my friend is referring your Honour to paragraph 20 of Lie pleading, and what he is saying is, “Look, there is our legitimate expectation.  We claimed it was”:

the first defendant had received, looked at and considered –

but as I was trying to point out to your Honour, the breach is said to be, “Not that you did not look and consider them, is that you did not have them before you because you weren’t given them.”  Your Honour, so what emerged was we said on the pleadings, “The issue that was joined was, was it given to the Tribunal?”, and our answer was, “It was given to them in a computer form or what was given was relevant, given the access on the computer.”

My friend’s solicitors then sought discovery and now interrogatories to determine whether the Tribunal actually looked at the particular documents.  We wrote back and said, “It’s not raised on the pleadings” and, as an immunity point, we say you cannot interrogate the Tribunal as to the manner of the exercise of its powers.  That has then provoked this amendment. 

Now, coming back to where I was, your Honour.  We say, when you look at what the case was initially about, these amendments are brought in – it is really the reverse of the ordinary process.  Having determined what they want discovery about and having determined what they want interrogatories about, they now seek to bring a pleading to justify the discovery in the interrogatories rather than - - -

HER HONOUR:   We are dealing with people here, individual people.  We are dealing with the most basic of human rights.  We are dealing with human rights and people in custody.  We are not going to play any games in these proceedings, Mr Beech-Jones, not a one, and we are certainly not playing any technical games.  We will isolate the issues.  If we have to stay here until 6 o’clock next Monday morning, we will do that and we will get the documents in order and we will certainly not play any games with the human rights of people who are in custody.

MR BEECH‑JONES:   I accept that, your Honour.  I do not seek to play games but, your Honour, just on that.  We have put on our affidavits, we put on our discovery, we have answered our particulars and it is my friends who, in terms of getting the matter for trial – there is a lot of letters but there is not much else coming from their side.  We are very keen to get this on as early as we can.  But, your Honour, what was joined issue was, “Look, the 418, 424 process wholly misconstrued because the documents weren’t before the Tribunal.”  Now, as part of that, they sought to interrogate to determine what did the Tribunal actually look at and we are now at the heel of the hunt, in effect, being given an amendment which tries to justify the interrogatories and discovery.  Your Honour, that is the submission I make on the amendments.

HER HONOUR:   Now, that is a submission about delay, is it?

MR BEECH‑JONES:   Yes.

HER HONOUR:   It is not a submission that the amendments do not raise a legal issue?

MR BEECH‑JONES:   No, I do not suggest the amendments do not raise a legal issue.

HER HONOUR:   But you do suggest that 21 - - -

MR BEECH‑JONES:   - - - A.

HER HONOUR:   - - - A does not raise a legal issue?

MR BEECH‑JONES:   Yes, your Honour.  Can I just say this, your Honour:  I do not suggest that the allowance of 21A will cause greater expense and delay in the conduct of the proceedings if the amendments are otherwise allowed.  I should - - -

HER HONOUR:   But you accept that 18A does raise a genuine issue of law?

MR BEECH‑JONES:   Yes, your Honour.

HER HONOUR:   Well, in that case the amendment will be allowed.

MR BEECH‑JONES:   If the Court pleases.

HER HONOUR:   And you say that 21and 21A will not in any way cause any prejudice if 18A is allowed?

MR BEECH‑JONES:   Not that I can point to at the moment, your Honour.

HER HONOUR:   Well, in that event they will be allowed too.

MR ROBINSON:   If your Honour pleases.

HER HONOUR:   On that matter we will determine the costs of that issue now.  Is it an issue in which each party should bear their own costs?

MR ROBINSON:   Your Honour, in the circumstances, we are content for costs to be costs in the cause in that matter.

HER HONOUR:   I am sure you are.

MR BEECH‑JONES:   Well, can I just say this, your Honour.  I would submit that my submission as to what the pleadings formally did raise was correct, that is, properly considered, those pleadings complained of a breach of legitimate expectation by the failure to have it before the Tribunal as opposed to what the Tribunal considered and that we raise that – proceedings have been on foot for a substantial period time and it was yesterday that the text of these amendments was presented to us.  So, for that reason, your Honour, we will submit that we would be entitled to some order for costs, given those two matters.

HER HONOUR:   Of that issue, they will be costs in the cause.  They seem to raise a legal issue.

MR BEECH‑JONES:   If the Court pleases.

HER HONOUR:   Still with Lie.  What happens now?  When can you file your defence to that?

MR BEECH‑JONES:   A week, your Honour.

MR ROBINSON:   Your Honour has before your Honour the amended copy.  If your Honour grants leave to have that filed in Court now, that can be engrossed and everything that can be done is now done.  There is a provision for a date underneath the title of “Amended Statement of Claim”.  If your Honour has made that order your Honour can insert the date and it can be regarded as having been done now.

HER HONOUR:   Very well.  There is no objection to that course?

MR BEECH‑JONES:   No, your Honour.

HER HONOUR:   Very well, that can be filed in Court.  Amended defence will be filed by - - -?

MR BEECH‑JONES:   The 22nd.

HER HONOUR:   Of March.  Now, it seems that replies are out of fashion.  It is not the Federal Court where you can do things by amazing means.

MR ROBINSON:   Your Honour, I am content, on this occasion, to consider the filing of a reply, if I could have 7 days after that last date.

HER HONOUR:   A reply to be filed by 29 March.  Now, what is the position with respect to discovery in Lie?

MR ROBINSON:   In Lie:  the discovery that we now seek, in my respectful submission, is raised squarely on the pleadings.  So, my friend might wish to consider his - - -

HER HONOUR:   In this 3 metres of documents, there are not enough documents in the 3 metres?

MR ROBINSON:   Your Honour, we simply want to know if the Tribunal received, by way of access or by way of going down to the State library wherein some of the Part B were said to reside – we wish to know whether the Tribunal did that; whether it accessed its computer to look at a data base of the department called CISNET or whether it went to the library, the State library, and looked at the Part B documents where the evidence of the Commonwealth seems to indicate that some of the documents, the Part B documents, resided.  It is a fairly straightforward issue and the - - -

HER HONOUR:   And you want that on discovery or - - -?

MR ROBINSON:   Your Honour, we are content to have the answers to this issue dealt with by whatever means the Commonwealth finds it most ‑ ‑ ‑

HER HONOUR:   But it just does not seem to me to be a discovery point, is it?

MR ROBINSON:   Your Honour, it is presently cast in three veins, as a particulars, discovery and interrogatory point.  I must say to your Honour ‑ ‑ ‑

HER HONOUR:   If need be, it can be dealt with by evidence, can it not?

MR ROBINSON:   It can be dealt with by an answer to the interrogatories.

HER HONOUR:   I know that.  But if need be, subpoenas can be issued, can they not?

MR ROBINSON:   Yes, your Honour.

HER HONOUR:   And the various people brought before – we can deal with it.  I mean, if it comes to that, it can be dealt with by subpoena, can it not.  I am happy to sit here every morning that I am in Sydney starting at 8 o’clock, to sit here until I go back to Canberra, every week, until it is sorted out.

MR ROBINSON:   Your Honour, I am content to adopt this position:  if it is dealt with by way of direct evidence as to whether or not the Tribunal received, in the sense of considered, the material, then we will not press for discovery on this issue and we will not press for an answer to the requests for particulars on this issue.  We would be content to have it dealt with by direct evidence.  That is the purpose of the interrogatories.  They were designed to either work in tandem with the discovery to find out what happened in relation to the computer access and to ask the Tribunal members directly simply what did it have before it and what did it read at the time it made its decision, and that is the decision on the papers, the review on the papers and the final decision.  Now those issues are now squarely raised by the pleadings, it might be convenient to deal with the interrogatories question to show your Honour that those questions have

been squarely asked by the plaintiff in Lie and the plaintiff has sought, in the short minutes of order that I sent to your Honour yesterday and I sent to the other side.  Order 4 relates to the interrogatories that have been administered by the plaintiff in Lie and we merely seek an order – we do not say it is strictly necessary, your Honour.

HER HONOUR:   But wait a moment, there is this summons.  A summons came in this morning.

MR ROBINSON:   That is the short minutes of order, not the summons.

HER HONOUR:   Yes, but before you get to your summons, has Mr Beech‑Jones given you this summons?

MR ROBINSON:   He has given me, in Court this morning, a draft summons in all three matters dealing with the interrogatories.

HER HONOUR:   And does that raise this issue in this case?

MR ROBINSON:   It does, your Honour.  But if I could take your Honour to the issue before my friend moves on that summons, if he does move on it.  We regard the interrogatories which have been filed and served on 13 March as requiring an answer within 14 days on their face.  If my friend has taken issue with it, or chooses to take issue with it, the order that we seek in paragraph 4 of the draft short minutes of order is merely out of an abundance of caution that the Court has looked at the matter and has directed that the first defendant - - -

HER HONOUR:   But Mr Beech‑Jones says there is an immunity.

MR BEECH‑JONES:   Yes, your Honour, that is the case.

HER HONOUR:   They claim immunity on that.

MR ROBINSON:   As I understand it, in the past, Mr Basten, leading Mr Beech‑Jones, has appeared for the Secretary of the Department and the Commonwealth has not appeared for the Tribunal.  If he now appears for the Tribunal in this regard, I am content to have him deal with – make his application now.

MR BEECH‑JONES:   I am, and your Honour, perhaps - - -

HER HONOUR:   But you do have an application?  Is it an immunity application?

MR BEECH‑JONES:   Yes, your Honour, but it is brought by way of a seeking to set aside the interrogatories under Order 32 rule 5.

HER HONOUR:   Yes.  Well, I am not going to deal with that today.  I want written submissions on that and I will list the matter again.  I want written submissions from you by tomorrow, that is Thursday, and Mr Robinson’s written submissions thereafter by Thursday afternoon and I will deal with it at 9.30 on Friday, but I want full written submissions on that.

MR ROBINSON:   If your Honour pleases.

MR BEECH‑JONES:   When your Honour says you will deal with it at 9.30 on Friday, is that just to deliver judgment or you will take further oral ‑ ‑ ‑

HER HONOUR:   It may be 9.30 or it may be at the conclusion of the special leave list on Friday.  You will be informed of the time when further inquiries have been made, but I will receive full submissions on that issue.  Of course, if you succeed on that, then there will be oral hearings to obtain the evidence.

MR BEECH‑JONES:   Well, your Honour - - -

HER HONOUR:   Well, there will have to be, will there not?  We will have to see what - - -

MR BEECH‑JONES:   We would be submitting that would be doing what one cannot do with an immunity.

HER HONOUR:   Well, it depends.  There may be other ways of proving things besides asking the Tribunal.  We may have to have the computer itself and the hardware and determine that way what has happened.

MR BEECH‑JONES:   Your Honour, could I just address your Honour on that just so we understand it.  The immunity that the Tribunal has is the immunity the AAT has which, in turn, is expressed to be the immunity that a member of the High Court has in the exercise of their functions.  We would submit, in part, based on the authorities that if you cannot interrogate the relevant Tribunal member in the same way - - -

HER HONOUR:   You are very likely right.

MR BEECH‑JONES:   - - - as a judge ‑ ‑ ‑

HER HONOUR:   You are very likely right. 

MR BEECH‑JONES:    ‑ ‑ ‑you equally cannot seek to prove the same thing ‑ ‑ ‑

HER HONOUR:   I do not know.  You may be able to prove things by computer entry.  There are all sorts of things.  You could prove, for example – you might not be able to interrogate me about what I think or say or have regard to, but you could certainly see the Court’s files to see what documents had been filed.

MR BEECH‑JONES:   But, your Honour, we could not see - - -

HER HONOUR:   You could see the Court’s files to see all the annexures to an affidavit.  You could find out in absolute detail, if this Court were sitting at first instance, what evidence was and was not received.

MR BEECH‑JONES:   That is quite so, your Honour, but what we could not do is we could not subpoena your Honour’s notes back in your Honour’s chambers.

HER HONOUR:   No, I do not know that - - -

MR ROBINSON:   We are not seeking that.

MR BEECH‑JONES:   We could not subpoena your Honour’s associate to ask, “Exhibit 5, did her Honour read that?”

HER HONOUR:   No, that may be so, but that does not mean that we will not be able to embark upon some fact-finding.

MR BEECH‑JONES:   That is true.  I mean, I do not suggest that the line is a clear one in this case but, your Honour, we do submit that all that is sought to be done is either to ask the Tribunal member directly what we say us the kind of inquisition, “Did you look at this?  What were your notes?”, and/or to seek collaterally what cannot be asked direct and that also cannot be done, in the same way that you could not subpoena an associate to a superior court judge and say, “Did the judge read this or did the judge read that.  What notes did they write on their private copy of the submissions?”, matters of that kind, because that is what, we submit, is the effect of what is being sought.

HER HONOUR:   I will take written submissions on that.

MR BEECH‑JONES:   Just on the written submissions, your Honour.  I do not think your Honour has the copy of the interrogatories themselves in Lie.

MR ROBINSON:   They have been filed.

MR BEECH‑JONES:   My friend tells me they have been filed. I am happy to hand your Honour an extra copy.  There is also an affidavit of Mr Markus that goes - - -

HER HONOUR:   I think I have them.  Yes, I have them.  Which particular interrogatories?  All of them?

MR BEECH‑JONES:   It is all bar No 1, your Honour.  I should say there is a question of oppressiveness about one of them and I will just deal with that in the submissions. 

Your Honour, there was an affidavit of Mr Markus in support of the summons.  The only pertinent point is to add that the Tribunal member and the principal member of the Tribunal, having given instructions that to the extent necessary they assert the immunity, should that be considered relevant.

HER HONOUR:   Very well.

MR ROBINSON:   There is no objection to that, your Honour. 

HER HONOUR:   What, no objection to what?

MR ROBINSON:   No objection to the affidavit.

HER HONOUR:   No.  Well, I have read it anyway, thank you.  That will be determined on Friday and we will consider from there what happens then.  But it is more a matter of interrogatories than discovery, is it not?

MR ROBINSON:   Yes, your Honour.  I mean, I have said to your Honour plainly what it is the plaintiffs want and we basically do not mind which way it is done.  There is a hard way and an easier way.  In terms of the immunity that my friend is suggesting, one thing I want to make very plain that we are not seeking to do is interrogate the mind of the decision-maker here.  We are not seeking to interrogate as to what crossed the mind of the Tribunal at any time.  We are merely seeking to ascertain what was before the Tribunal at a certain point in time.  That is the extent of the inquiry, and to the extent that it goes any further than that, your Honour, we would concede that the authorities say that is not permissible.  I appreciate I am jumping into submissions but, your Honour, I thought I would say that at the outset.  We are not seeking to interrogate as to how they came to their decision or, indeed, into any aspect of the decision-making process in relation to reasoning and rationale.  But all that is set out in the reasons for decision which the Tribunal has published.

HER HONOUR:   In Lie, what has happened to the affidavits?

MR ROBINSON:   Well, your Honour, the plaintiff can put on the affidavits.  There have been discussions between the parties on the extent to which the plaintiff is required to put on evidence about – I withdraw that.  I am thinking of Herijanto and Muin.  There have been discussions that would limit the evidence required.  In relation to the plaintiff’s affidavit, it would only - - -

HER HONOUR:   In Lie.

MR ROBINSON:   In Lie alone, there would be no evidence to be led by the plaintiff herself because the only issue about – the relevant issues have been conceded in the defence.  The only affidavit that would be put on by the plaintiffs is an affidavit drawing some material together from the discovered documents that we now have in Lie.  It will be a fairly insubstantial affidavit.  We can put it on – I have said in the short minutes of order – on or before 27 March.  We are content with that course, or earlier if your Honour is minded to order it earlier.

HER HONOUR:   Well, I think you had better put on your affidavit by 27 March.  This is the Lie matter now.  Will you be replying to that affidavit material?

MR BEECH‑JONES:   I would be very surprised if we were, your Honour.

HER HONOUR:   Very well.  Is there anything else that arises in Lie?

MR ROBINSON:   No, your Honour, apart from the liberty, certification and costs issues.  I take it, your Honour, that the discovery, the particulars issue - - -

HER HONOUR:   I am not going to make any of orders 6, 7 and 8 today.  The matter will simply be adjourned today, the Lie matter.  It will be adjourned until Friday at 9.30 or such other time as the Senior Registrar should inform you, that being Friday, 17 March.  Now, I understand you say you could have your affidavits on by 27 March?

MR ROBINSON:   Yes, your Honour.

HER HONOUR:   The matter will be further adjourned – this is the Lie matter – to Friday, 31 March at 9.30.  Now, the orders made today have been with respect to the amendment – there does not need to be a further

order with respect to the statement of claim but there does with respect to the defence, reply, and affidavits. 

Mr Beech‑Jones, the Commonwealth should take out those orders, should they not?

MR BEECH‑JONES:   If the Court pleases, your Honour, yes.

HER HONOUR:   Yes, and there seems to have been some sort of bun fight between the parties as to who would take out the last orders.  Is that right?

MR BEECH‑JONES:   I think it was more like creative inertia in that neither side thought it was necessary, your Honour.

HER HONOUR:   Yes.  Well, on this occasion they will be taken out and I will hear from you further on 31 March as to what has been done.  Matters 6, 7 and 8 will stand over until 31 March, assuming that the matter is then in a position to have those orders made. 

We will then go to Muin.

MR ROBINSON:   In Muin’s Case I do not have a copy of the consolidated pleadings.  However, I have a copy of the pleadings that we seek amended which I can hand to your Honour in Herijanto.  The pleadings are, apart from the dates of when the person has claimed to be a refugee and when the hearings were conducted and so on, the paragraph numbering in Herijanto that we seek leave to amend the pleading is identical, but I can arrange for a Muin proposed amended statement of claim to be filed fairly quickly, your Honour.  It would be almost identical to what I have handed to your Honour just now.

HER HONOUR:   Again, you seek leave to amend?

MR ROBINSON:   I do seek leave to amend the pleadings in relation to substantially identical terms to what your Honour has dealt with earlier today in respect of Lie.

HER HONOUR:   There is no use telling me “substantially identical”.  You had better tell me what the precise differences are.

MR ROBINSON:   There is no relevant difference, your Honour.  Paragraph 30A is sought to be inserted.  That is in identical terms, relevantly identical terms, to the paragraph 18A that your Honour dealt with in Lie.  Paragraph 33 is sought to be amended by the removal of the last 10

or 12 words from the original version to the new paragraph 33 that your Honour can see before you in identical terms to ‑ ‑ ‑

HER HONOUR:   And those numbers will be the same in Muin, which is the matter I am dealing with now, Muin.  The numbers will be the same in Muin?

MR ROBINSON:   Yes, your Honour, the pleading is identical except for some dates, but the paragraph numbering is identical.  The defences are identical, the amended defences, to Muin and Herijanto, are identical.  So paragraphs 33 and 33A are the same relevantly as the paragraphs 21 and 21A that your Honour also dealt with in the Lie Case.  So, in terms of the reasons for moving the amendments, I am happy to make some submissions in respect of that but I adopt what I said earlier in relation to it.  If your Honour wishes to hear me further on that ‑ ‑ ‑

HER HONOUR:   I will see – are they opposed on the same grounds?

MR BEECH-JONES:   Yes, your Honour.

HER HONOUR:   Any further grounds?

MR BEECH-JONES:   No, your Honour.  There is just one thing:  33A is different to 21A in the Lie pleading in that there is an elaboration upon the failure – “did not consider the material contained in the Part B documents at all or in substantial respects” and then 33A adds two subparagraphs that were not there in 21A of Lie.

HER HONOUR:   I thought they were.

MR BEECH-JONES:   No, they were in 21.

HER HONOUR:   There was something very similar.  Yes, they were in 21.

MR BEECH-JONES:   They were added to 21 which is ‑ ‑ ‑

HER HONOUR:   But the substance is the same, is it not?

MR BEECH-JONES:   Except I understood that 21A in Lie was an alternative attack upon the final decision, not the review on the papers.  21 has the attack on the review on the papers.  Do you see ‑ ‑ ‑

MR ROBINSON:   I have made an error, your Honour, in that in the Nancy Lie pleadings I have omitted (a) and (b) from the copy at paragraph 21.

HER HONOUR:   That has now been filed in Court.

MR ROBINSON:   Which has now been filed in Court.  Your Honour, in the plaintiff’s proposed pleading, the document that I have sent to your Honour yesterday, those two paragraphs appear in relation to Herijanto and Muin but they do not appear in relation to paragraph 21A in respect of Lie.  That is my error, your Honour.  I would seek to uplift the Lie pleading to insert paragraph (a) and (b), if your Honour grants leave.  I do my own typing, your Honour, and I am not always as swift and as accurate as I would like to be.

MR BEECH-JONES:   Your Honour, I just repeat, without repeating them, the same arguments about 33A(a) and 33(a) of Muin that I did earlier and otherwise repeat everything that I put.

HER HONOUR:   In that case, the amendment will be allowed on the same basis as in Lie– we are talking now Muin.  You will file an amended statement of claim by tomorrow.

MR ROBINSON:   Yes.

MR BEECH-JONES:   That will be filed and served, your Honour?

HER HONOUR:   Filed and served by 16 March.  The dates in this case will then change.  You will have until 23 March, Mr Beech-Jones, is that, to file an amended defence.

MR BEECH-JONES:   Yes.

HER HONOUR:   And 30 March, Mr Robinson, to file the reply.

MR ROBINSON:   In Lie, your Honour, could leave be granted to amend paragraph 21A and file and serve that tomorrow as well?

HER HONOUR:   Will that change the dates?

MR ROBINSON:   No, your Honour.

HER HONOUR:   We will take it as it is.  You have leave to uplift it and fix it today.

MR ROBINSON:   Thank you, your Honour.

HER HONOUR:   How else you sort it out is your problem.  What else remains in Muin?  Do we have the same problem with discovery and interrogatories?

MR BEECH-JONES:   They are identical ‑ ‑ ‑

MR ROBINSON:   Exactly the same problem, your Honour, in Muin’s Case. 

HER HONOUR:   What has happened in the meantime to these particulars?  They have lost relevance, have they?

MR ROBINSON:   The particulars and the discovery that we seek – the answers we seek in particular from the discovery relate to what was before the Tribunal and when was it before the Tribunal.

HER HONOUR:   So it is all bundled up in the interrogatories.

MR ROBINSON:   It is all bundled up together.  We are content for it to go over, as in the Lie Case until after the Court has made a determination on the interrogatories, but otherwise we are content to deal with those issues today.

HER HONOUR:   Can the submissions in relation to the interrogatories – and again, it is the immunity point, is it?

MR BEECH-JONES:   It is the immunity point, your Honour, and they are identical interrogatories, so I do not want to burden your Honour with paper, with the submissions we will have in the matter of Muin, Lie and Herijanto.

HER HONOUR:   Then the interrogatories will go over till Friday.  Your written submissions by tomorrow, Mr Robinson’s by Friday morning.

MR BEECH-JONES:   Your Honour, can I just point out something that I am becoming increasingly confused about, what is called particulars.  What really does answer a particular request sent on 7 December, which we answered – I do not know if your Honour has Mr Joel’s affidavit.  Could I distract your Honour by taking you to this.  Mr Joel’s affidavit with the correspondence.

HER HONOUR:   I think I do.  Not 15 March, the other one.

MR BEECH-JONES:   13 March.  What we do understand to be a request for further and better provisions is at page 4 and we answered that at page 33.  But the other particulars that my friend refers to is the letter at page 26 and on page 27, under the heading “Further Discovery Issues” – and that is said to be the particulars.  Then the next document beginning on page 29, on page 31 there is some “please tell us about your computer

systems”.  So when my friend calls them particulars, we call then discovery requests.

HER HONOUR:   Yes, they did not look like particulars of pleadings to me.  They seem to be all tied up in ‑ ‑ ‑

MR BEECH-JONES:   They are.

HER HONOUR:   The interrogatories seem to be the area in which to determine how far we can go ‑ ‑ ‑

MR BEECH-JONES:   Once the interrogatories – I think we would agree that once they are answered, most of the other things will fold out.  There may be questions about width, but I do not think we need to bother your Honour about this at this stage.  It all must await ‑ ‑ ‑

HER HONOUR:   If you succeed on the interrogatories, all of that will disappear.  It will all become a question of ‑ ‑ ‑

MR BEECH-JONES:   It may be the collateral question, but ‑ ‑ ‑

HER HONOUR:    ‑ ‑ ‑evidence with objections being taken at various points.

MR BEECH-JONES:   Yes, your Honour.  I am sorry, I did distract your Honour from the Muin - I think your Honour dealt with interrogatories, discoveries, the same ‑ ‑ ‑

HER HONOUR:   I am dealing with - the interrogatories will go over until Friday.  What about affidavits in this matter?

MR ROBINSON:   Your Honour, I volunteered 27 March earlier in the Lie Case.  I notice in my short minutes of order I had allowed myself the luxury of 3 May.

HER HONOUR:   Yes, I noticed that.

MR ROBINSON:   I short changed myself earlier by some time.  But, your Honour, the position is, in relation to both Muin and Herijanto, there has been some discussions.  The only area of substantial evidence for the plaintiff personally in those matters to put on evidence goes to whether or not the adverse material – which is a separate point to that in Lie – was ever put to the plaintiff in correspondence or at the hearing.  Now, that can be dealt with, either on the papers or by a short technical affidavit by the plaintiffs.

HER HONOUR:   We had better have a short technical affidavit.

MR ROBINSON:   Indeed, it may not be necessary after discussions with the Commonwealth.  They might simply admit that.

HER HONOUR:   Yes.

MR ROBINSON:   That was the import of the discussions late last year, your Honour.

HER HONOUR:   I will need to have either an affidavit or formal admissions by 27 March.

MR ROBINSON:   By 27 March, we are content to file those affidavits or have submissions ‑ ‑ ‑

HER HONOUR:   Formal admissions.

MR ROBINSON:   Or have formal admissions made.

HER HONOUR:   Does that accurately reflect your understanding, Mr Beech‑Jones, that it might be a matter of formal admission?

MR BEECH-JONES:   Can I just say this, your Honour.  We have put on the whole file and we have put on the transcript and the trouble one always get into with formal admissions is the devil in the wording, so if there is anything my friend is not happy, I think, with, what is not on the file and what is not there, because you would have to be a great advocate to persuade a court that here is our file but there is some letter out there that we cannot find, so it may be just the short formal affidavits will, in the end, be the more expeditious way to go, rather than fighting over admissions between now and two weeks away.  I cannot imagine there is anything contentious about any of that, though.

HER HONOUR:   Very well.  You had better have your affidavit prepared.

MR ROBINSON:   We will put on an affidavit, your Honour.

HER HONOUR:   Is there any reason then why this matter should not also stand over until Friday, 31 March at 9.30, it having been adjourned in the meantime to Friday, the 17th, for determination of the interrogatories.

Very well.  That brings us to Herijanto.

MR ROBINSON:   Yes, your Honour.

HER HONOUR:   Is that in exactly the same position?

MR ROBINSON:   Exactly the same position, your Honour.

HER HONOUR:   Do you agree that it is exactly ‑ ‑ ‑

MR BEECH-JONES:   Yes, your Honour.

HER HONOUR:   So, in that matter, it is appropriate if I make orders as in Muin for the amendment of the statement of claim to be filed and for the amended statement of claim to be filed and served by 16 March, with amended defence filed by 23 March, reply by 30 March.  Questions of interrogatories to be stood over until 9.30 on Friday.  Affidavits - plaintiff’s affidavit to be filed by 27 March.  The matter otherwise adjourned to 31 March at 9.30 am in Sydney, with the Commonwealth to take out the orders in that matter, as in Muin and in Lie.

MR ROBINSON:   If your Honour pleases.

HER HONOUR:   Is there anything else to be done today?

MR BEECH-JONES:   No, your Honour.  Could I just raise two matters.  One, your Honour indicated that on Friday it would be before the special leave applications.

HER HONOUR:   No, no, it will either be at 9.30 or subsequent to the special leave applications.  You are in the special leave list, are you?

MR BEECH-JONES:   No, I am somewhere else, which will obviously have to be put back.  I do not wish to question it too further, but does your Honour mean, when it is at 9.30, your Honour will sit until your Honour is required on the special leave applications?

HER HONOUR:   No, no.  The problem is ‑ ‑ ‑

MR BEECH-JONES:   The court room.

HER HONOUR:    ‑ ‑ ‑the court room. 

MR BEECH-JONES:   All right, I will do my juggling as best I can.

HER HONOUR:   Tell me exactly what your problem is.  If you tell me exactly what your problem is we ‑ ‑ ‑

MR BEECH-JONES:   I am in the Administrative Appeals Tribunal at 10 o’clock part heard.

HER HONOUR:   Will you be there all day?

MR BEECH-JONES:   I do not think so, no, your Honour, but I am in Brisbane tomorrow before Justice Callinan, so I have to do –  I do not want to go into it – I have a solicitor who is in Perth ‑ ‑ ‑

HER HONOUR:   You have a lot of work to do in this matter too.

MR BEECH-JONES:   If I told you all my problems we would be here all day.  But the immediate problem is whether to move – I know it was going to be 9.30, so I will start at 11, or if it is going to be late in the afternoon, 10 o’clock will be fine.

HER HONOUR:   We might be able to – if you just wait.  I will adjourn now.  We will leave it at 9.30, or such other time as the Registrar shall inform you, on Friday.  You can go and talk to her now and see what you can best arrange.  Do you have problems on Friday?

MR ROBINSON:   This Friday, no, your Honour.

HER HONOUR:   That is good.

MR BEECH-JONES:   The other thing was, your Honour, I had prepared a bundle of authorities because I understand your Honour just has ‑ ‑ ‑

HER HONOUR:   For the interrogatories?

MR BEECH-JONES:   For the interrogatories question.  I may as well hand those up now, if that ‑ ‑ ‑

HER HONOUR:   You do not want to incorporate references to them in your written submissions?

MR BEECH-JONES:   That may be a better course, yes.  I will send them up with the written submissions.

HER HONOUR:   Yes, thank you.  The Registrar might be able to tell us now.  Do you know what the position is on Friday?  We could list it at 9 if we can find – we could deal with it in the taxation room.  It will be mainly in written submissions so we do not need transcription, do we?

MR BEECH-JONES:   I would not have thought so, your Honour.

MR ROBINSON:   No.  Not unless it moves to another stage, but no, your Honour.

HER HONOUR:   You are an optimist, are you not?  If we say 9 o’clock, does that suit you?

MR BEECH-JONES:   Yes, your Honour.  I do not think oral argument will take longer than an hour.

HER HONOUR:   Yes, and you can organise your other problems accordingly.

MR BEECH-JONES:   Thank you, your Honour.

HER HONOUR:   Very well.  We will adjourn now until 9 o’clock on Friday and the exact location will be informed later.

AT 11.20 AM THE MATTER WAS ADJOURNED
UNTIL FRIDAY, 17 MARCH 2000