Muin, Lie v RRT

[2003] HCATrans 718

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S36 of 1999

B e t w e e n -

DEVIRIA SURYADI (As the Representative of the Plaintiffs listed in the Schedule)

Plaintiff

and

REFUGEE REVIEW TRIBUNAL

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS

Third Defendant

Office of the Registry
  Sydney  No S89 of 1999

B e t w e e n -

SUGIANTO KOA (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

Summonses

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 23 MAY 2003, AT 9.43 AM

Copyright in the High Court of Australia

__________________

MR B.M. ZIPSER:   Your Honour, I appear for the applicants in both matters.  (instructed by Adrian Joel & Co)

MR R.T. BEECH-JONES:   I appear for the second and third defendants, your Honour.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Zipser.

MR ZIPSER:   There is a summons in each matter and a supporting affidavit in each matter which is identical with the exception that the orders made by Justice Gaudron at annexure A were slightly different in the two matters, but otherwise the two affidavits ‑ ‑ ‑

HIS HONOUR:   Just say that to me again.

MR ZIPSER:   Your Honour, there is a summons in each matter.

HIS HONOUR:   Yes, I have those.  I must say I did not pick up the distinction, but what is the distinction you say between the two?

MR ZIPSER:   If your Honour turns to the orders that were made by her Honour Justice Gaudron at annexure A, I think at page 2 of both affidavits.

HIS HONOUR:   Yes.

MR ZIPSER:   In the matter of Muin v The Tribunal there is an additional order No 2 which does not appear in the Lie matter.

HIS HONOUR:   Yes, I see that.  Does anything turn on that?

MR ZIPSER:   No, it does not, your Honour.

HIS HONOUR:   Yes.

MR ZIPSER:   There are two issues that need to be dealt with.  One is a procedural matter which her Honour Justice Gaudron referred to on 25 November in thinking ahead and that was that Mr Muin and Mrs Lie are no longer members of the class and her Honour directed that if any further application was to be made then two people who are ‑ ‑ ‑

HIS HONOUR:   Yes, the naming then.  I do not think there will be any problem about that.  The second issue is the extension of time, is it?

MR ZIPSER:   Yes.

HIS HONOUR:   Yes.  I have read the affidavits.  Mr Beech‑Jones, why should we not extend the time in this case?

MR BEECH-JONES:   Your Honour, can I just summarise it in three points.  First, your Honour, that given that it seems to have been accepted from the time of the directions hearing before her Honour Justice Gaudron last year that there were no common issues what, in effect, has occurred is that this class of litigants have been given a period of approximately five or six months in which to file orders nisi relating to their individual cases which we would submit is a significant period of time compared to other litigants who seek to bring similar proceedings.

Second, your Honour, what I might call the usual submission that the Commonwealth, like any other litigant, is entitled to some degree of certainty.  Third, that in a real sense we would submit that there would be no prejudice occasioned to any person who, in effect, files within 28 days of the expiry date on 30 May.  If I could just say something about that last point, your Honour.  As I understand it, this class of people have bridging visas and the terms of the bridging visas expire 28 days after the dismissal of the proceedings, or the termination of the proceedings.

HIS HONOUR:   Yes.

MR BEECH-JONES:   So the only prejudice that I could conceive of that would follow from a refusal of the extension would be upon any person who files on, say, 29^th or 30^th day whose bridging visa may expire, of course, subject to the application of any other.

HIS HONOUR:   Yes.

MR BEECH-JONES:   Your Honour, I, with respect, could not submit that there would be no other prejudice because the common issues have already been decided and the rest is all a matter of individual cases.

HIS HONOUR:   But that is a significant prejudice, is it not, because if their actions are terminated, if that is the proper word to use, then their bridging visas expire within 28 days.

MR BEECH-JONES:   Within 28 days subject to any other application that they might make, like any other litigant, upon the filing of any proceedings they choose to make.

HIS HONOUR:   Yes, I know.  I do not know whether Bailey v Marinoff – are you familiar with that?

MR BEECH-JONES:   No.  I am familiar with the name but no other aspect of it at all, your Honour, that I could ‑ ‑ ‑

HIS HONOUR:   Well, I have not read it for 30 years but ‑ ‑ ‑

MR BEECH-JONES:   It is on extensions of prejudice?

HIS HONOUR:   ‑ ‑ ‑ it holds, I think, that the Court having made an order, the order that Justice Gaudron has made, once it is terminated, you cannot resurrect it.  I know our Rules are in very wide terms and it may be Bailey v Marinoff has nothing to do with it.

MR BEECH-JONES:   There were the FAI Cases that your Honour sat on the Court of Appeal about changing orders after time that I remember in the 1980s but I think, if I might say, your Honour, that the initial starting point would be the effect of the dismissal given what has happened, that there has only been a determination of those common questions which were resolved against these individuals.

HIS HONOUR:   Yes.

MR BEECH-JONES:   I mean, to the extent there was any other determination, it was in favour of Muin and Lie on their individual circumstances.

HIS HONOUR:   But the practical matter is – and I hope I am not being unfair to the solicitor for the plaintiffs – that it may well be that his office is just not large enough to cope with such a huge number of plaintiffs.  In fact, few firms would be, one would think.

MR BEECH-JONES:   Indeed, your Honour.  Could I just say two points further about that?  If that is the real basis, the affidavit, at least to my reading, does not clearly state that.

HIS HONOUR:   Of course it does not, but he says that there were 150 people or so that he still wanted to see and it would take a number of weeks to see them.  Well, no doubt there will be communication problems, but one would think that if Allen Allen & Hemsley or Mallesons had the case then they would have the staff that would be sufficient to look at them but ‑ ‑ ‑

MR BEECH-JONES:   Yes.  Can I just make one other point, your Honour?  If it is really a case of resources in that sense, then, your Honour – and we obviously do not consent to this – there may be some force in the extension being applicable to the named individuals that he can notify by 30 May.  If it is simply a case of Mr Joel is not in a position to put the material, because what the affidavit leaves open is further people coming in.

HIS HONOUR:   Well, he may not only have this problem but I think it is highly likely that there will be other legal practitioners dealing with some of these people and there may even be litigants in person.  I do not think this is the universe.  It is my understanding that there is another solicitor who has a large number of – I think these applicants ‑ ‑ ‑

MR BEECH-JONES:   Your Honour, that may be right but, as I understand it, I do not understand that the solicitor is saying, “I don’t know who are the people that I want – I am not in doubt as to who I want to file for.  I just want to clear up and meet with them and settle the application.”

HIS HONOUR:   Now, since these affidavits were filed, have further actions been filed in this Court?

MR BEECH-JONES:   My understanding – and I am sure my friend agrees with me – is none have yet been filed – you mean within the orders, the framework of her Honour’s orders?

HIS HONOUR:   Yes.

MR BEECH-JONES:   I do not think any orders nisi have yet been filed.  As I understand it, your Honour, none have been filed by Mr Joel’s firm but others have been filed by other solicitors and individuals taking advantage of what was perceived to be the case as it is.

HIS HONOUR:   Yes.

MR BEECH-JONES:   One further point, your Honour, in paragraph 14 Mr Joel says, in his last sentence:

If the date of dismissal of the proceedings in this Court is extended by six weeks . . . I intend to continue to refuse to accept instructions from these people unless they provide a sound explanation for why they did not contact my office at an earlier time.

Now, it is no matter of my brief as to whether the solicitor has engaged in that task but in one sense it is a bit of an inversion of to whom the satisfactory explanation needs to be given and it also contemplates that there may be in Mr Joel’s office – and if there are orders, then presumably he is required to do it – whether other individuals who may come into the class and, at least from our perspective, we would like, even if the applications are not filed, the names so that we can draw the wagons, as it were.  Your Honour, those are the matters I wanted to ‑ ‑ ‑

HIS HONOUR:   Yes, thank you.  Now, Mr Zipser, what about these clients that, according to paragraph 13 of the affidavit, Mr Joel is in a position to file their process?

MR ZIPSER:   My instructions are that, firstly, I agree that none of those applications have yet been filed.  They are being prepared and are almost prepared.  For example, one of the requirements of the High Court Registry is that each application has attached to it a copy of the decision of the Refugee Review Tribunal and the Department, and that photocopying process has been taking place over the last two weeks.  It is expected that the applications will be filed before 30 May, probably early next week.

HIS HONOUR:   What about these 150 people?  What is the situation in respect to them?

MR ZIPSER:   The situation with respect to those is as follows.  I am instructed to add the following further piece of information.  Mr Joel divided clients into categories of cases and for those 150 people he had concerns about the merits of the application.  On the one hand, there was a possible argument, a possibility that the application could succeed.  At the same time he had serious concerns about the matters and he wished to bring the clients into his office to give them an express and clear warning and advice on prospects of success and perhaps to dissuade them from proceeding with the matter.

Your Honour will note from some of the correspondence from Mr Joel to the FOI officer in the Department and to Mr Markus at the Australian Government Solicitor that Mr Joel has concerns or does not wish to use the Court as a, in his terms, dumping ground for applications where the merit is not great.  That is the reason that Mr Joel wishes to have more time to, among other things, speak with all of these 150 clients and give them express warnings about their situation and position.

Your Honour, although I believe that it appears from the affidavit, there are two further reasons that Mr Joel seeks the extra period of time.  One reason appears from paragraph 7 of the affidavit.  In paragraph 7 the concern that Mr Joel expresses is that as a result of, from his perspective, being misled by a letter from the Australian Government Solicitor or from records that were provided from the Department indicating that a number of his clients had already left Australia when, in fact, a small number of them had not, he did not contact that subset of 1,908 clients until 11 February.

Mr Joel considers that Justice Gaudron on 25 November last year gave Mr Joel and his clients six months to file applications.  This group of 1,908 people, which is a – that part of the 1,908 people who are still in Australia have had significantly less time because of inaccurate records of the Department of Immigration that were sent to Mr Joel and Mr Joel relied upon.  Mr Joel instructs me that since he swore his affidavit there have still been more people from that subset of 1,908 people who have come to his office who have said words to the effect, “I have recently received your letter”, and who have sought to instruct him.

HIS HONOUR:   Yes.  Well, I mean, six months to file these documents is a very lengthy period of time.  I am not going to extend the time for these people who are ready to go.  I am going to put the matter in again for mention on Monday and I want an affidavit from your instructing solicitor identifying the 150‑odd people to whom he refers in paragraph 12 of his affidavit and which of those he has seen and those of which he has not seen

and when he expects to see them.  If that is too short a period, I am prepared to adjourn it until the following day but ‑ ‑ ‑

MR ZIPSER:   Your Honour, my instructions are as follows.  Mr Joel and the resources of his office are currently fully focused on preparing and finalising the preparation of and filing the 900 applications from the clients that have instructed him.  It would be very difficult for him to find time to prepare an affidavit in relation to these 150 people.  He would prefer to lose this application for an extension of time rather than take the time to prepare the affidavit and risk the possibility of not finishing the preparation and filing of the 900 matters.

HIS HONOUR:   Well, I am not sure, given his responsibilities to those people, that is the sort of choice he can make.  This application is brought because it is in the interests of those individuals that they should bring their applications.  It is a very difficult situation.  Yes, Mr Zipser, you have something further?

MR ZIPSER:   Your Honour, my instructions remain that my instructing solicitor would prefer to lose this application rather than have to spend time ‑ ‑ ‑

HIS HONOUR:   Yes, I understand.

MR ZIPSER:   One possibility that I am discussing with him but would still need to get instructions on is if the Court wants an affidavit from him in relation to 150 people then if the time in relation to dismissal of the proceeding, which is currently 30 May, if that was extended for, say, a period of a week, then – your Honour, I do not have instructions to suggest that.

HIS HONOUR:   No.  Well, Mr Beech‑Jones, I am concerned about the interests of these clients of Mr Joel’s.  I am also concerned that if I do not give some extension of time we might find a whole flood of applications coming by individuals before the Court as well.  What I think I will do is I will extend the filing time until 20 June and put this matter in for mention on the 16^th and, if necessary, a further application can be made to me on that day for some further extension, but I would want a detailed affidavit setting out the grounds why there should be any further extension after that.

MR BEECH-JONES:   If your Honour pleases.

HIS HONOUR:   Have you anything to say about that, Mr Beech‑Jones?

MR BEECH-JONES:   I am sorry, your Honour, was your Honour inviting me to make submissions on it?

HIS HONOUR:   Yes.

MR BEECH-JONES:   I know there has been a bit of bargaining, so I am reluctant to keep going.  The only other matter is one possibility in terms of closing the class is simply a letter from Mr Joel telling us who the names are.  I just raise that as a possibility.

HIS HONOUR:   Well, as I suspected, his resources are stretched.

MR BEECH-JONES:   He is stretched.  Other than that, your Honour ‑ ‑ ‑

HIS HONOUR:   It probably means looking at files and sorting out who falls into which category.

MR BEECH-JONES:   Yes, your Honour, I think that is the only intervening possibility.  I do not know whether ‑ ‑ ‑

HIS HONOUR:   Well, I want to keep the pressure on the applicants.  After all, they have a very large benefit from Justice Gaudron, six months to file their applications, and they are now going to get another three weeks.  So what I propose ‑ ‑ ‑

MR BEECH-JONES:   I have said what I have to say about your Honour’s orders, unless there is anything further.

HIS HONOUR:   Yes.  Having read the affidavits of Mr Joel in each of these matters, I propose to extend the time referred to in orders 2 and 5 made by this Court on 25 November 2002 be extended from 1 June 2003 and 30 May 2003 to 20 June 2003.  I will put the matter in for mention at 9.30 am on 16 June.  I expect that by 16 June most of the applications will be filed.  If there are other applications which Mr Joel considers may need to be filed, an application can be made in respect of those persons for a further extension of time but I would want a detailed affidavit giving names and setting out the precise reasons for any such application.  Anything further?

MR ZIPSER:   Your Honour, there is one thing and that is if your Honour looks at the two summonses ‑ ‑ ‑

HIS HONOUR:   Yes, sorry.

MR ZIPSER:   ‑ ‑ ‑ that there are two points.  The first point, if your Honour looks at order No 2 in both of the two summonses, your Honour will note that because of the additional order made by Justice Gaudron in one matter ‑ ‑ ‑

HIS HONOUR:   Yes.

MR ZIPSER:   The second thing is order No 1.

HIS HONOUR:   Yes.

MR BEECH-JONES:   Your Honour, the only other point I make is the way it works, as I understood the orders, was there needs to be two dates.  The first order is when they have leave until to file their application and the other date, which is the day before, is that if they have not filed it by then, on the midnight of the night before, the proceedings stand dismissed.  So if I take my friend’s summons in Lie, as I understand it, your Honour is making order 2 except the date 1 June 2003 should go to 20 June and the 30 May date should go to 19 June.

HIS HONOUR:   Yes.

MR BEECH-JONES:   But these are just mechanical matters and Ms Carlsund, who is looking at me puzzled, will no doubt take these up with me.

HIS HONOUR:   In matter No S89 of 1999 I order that the name of the plaintiff in these proceedings be changed to Sugianto Koa, being a person whose name remains upon the schedule to the statement of claim.  I also order that orders 2 and 5 made by this Court on 25 November 2002 be extended from 1 June 2003 and 30 May 2003 respectively to 20 June 2003 and 19 June 2003.

In matter No S36 of 1999 I order that the name of the plaintiff in these proceedings be changed to Deviria Suryadi being a person whose name remains upon the schedule to the statement of claim.  I also order that the periods of time referred to in orders 3 and 6 made by this Court on 25 November 2002 be extended from 1 June 2003 and 30 May 2003 respectively to 20 June 2003 and 19 June 2003 respectively.  I will reserve the question of costs in these matters until 16 June.

Anything further?  Very well.  Adjourn the Court.

AT 10.13 AM THE MATTERS WERE ADJOURNED
UNTIL MONDAY, 16 JUNE 2003