Muin & Ors S36-99 & Ors, Ex parte RRT & Anor (S36-99 & Ors) CHH

[2002] HCATrans 503

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S36 of 1999

B e t w e e n -

MUIN (As the Representative of the Plaintiffs listed in the Schedule)

Plaintiff

and

REFUGEE REVIEW TRIBUNAL

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS

Third Defendant

Office of the Registry
  Sydney  No S89 of 1999

B e t w e e n -

NANCY LIE (As the Representative of the Plaintiffs listed in the Schedule)

Plaintiff

and

REFUGEE REVIEW TRIBUNAL

First Defendant

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Defendant

COMMONWEALTH OF AUSTRALIA

Third Defendant

Office of the Registry  

Sydney  No S29 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S29/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S30 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S30/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S49 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S49/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S50 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S50/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S51 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S51/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S52 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S52/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S53 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S53/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S54 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S54/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S55 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANTS S55/2002

Applicants/Prosecutors

Office of the Registry  

Sydney  No S56 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S56/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S57 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANTS S57/2002

Applicants/Prosecutors

Office of the Registry  

Sydney  No S58 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S58/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S59 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S59/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S60 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S60/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S61 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANTS S61/2002

Applicants/Prosecutors

Office of the Registry  

Sydney  No S62 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANTS S62/2002

Applicants/Prosecutors

Office of the Registry  

Sydney  No S63 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S63/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S64 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S64/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S65 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANTS S65/2002

Applicants/Prosecutors

Office of the Registry  

Sydney  No S66 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S66/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S67 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S67/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S68 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S68/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S69 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S69/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S70 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANTS S70/2002

Applicants/Prosecutors

Office of the Registry  

Sydney  No S71 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S71/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S72 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S72/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S73 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S73/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S74 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S74/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S75 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S75/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S76 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANTS S76/2002

Applicants/Prosecutors

Office of the Registry  

Sydney  No S77 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S77/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S78 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANTS S78/2002

Applicants/Prosecutors

Office of the Registry  

Sydney  No S79 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S79/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S80 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S80/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S81 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANTS S81/2002

Applicants/Prosecutors

Office of the Registry  

Sydney  No S82 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S82/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S83 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S83/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S84 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S84/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S91 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S91/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S92 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S92/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S93 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S93/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S94 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S94/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S95 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANTS S95/2002

Applicants/Prosecutors

Office of the Registry  

Sydney  No S96 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S96/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S97 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANTS S97/2002

Applicants/Prosecutors

Office of the Registry  

Sydney  No S98 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S98/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S99 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S99/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S100 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANTS S100/2002

Applicants/Prosecutors

Office of the Registry  

Sydney  No S101 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANTS S101/2002

Applicants/Prosecutors

Office of the Registry  

Sydney  No S102 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S102/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S103 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S103/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S105 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S105/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S110 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S110/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S138 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S138/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S139 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S139/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S140 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S140/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S141 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S141/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S142 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S142/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S143 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S143/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S144 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S144/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S159 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S159/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S160 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S160/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S179 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S179/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S180 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S180/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S181 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S181/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S182 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S182/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S183 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S183/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S197 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S197/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S198 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S198/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S199 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S199/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S219 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S219/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S220 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S220/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S221 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S221/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S222 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S222/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S223 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANTS S223/2002

Applicants/Prosecutors

Office of the Registry  

Sydney  No S224 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANTS S224/2002

Applicants/Prosecutors

Office of the Registry  

Sydney  No S248 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S248/2002

Applicant/Prosecutor

Office of the Registry  

Sydney  No S254 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S254/2002

Applicant/Prosecutor

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 25 NOVEMBER 2002 AT 9.01 AM

Copyright in the High Court of Australia

__________________

MR B.M. ZIPSER:   I appear for the plaintiffs and applicants in the various matters, your Honour.  (instructed by Adrian Joel & Co)

MR J. BASTEN, QC:   I appear for the second and third respondents, your Honour.  (instructed by the Australian Government Solicitor)

HER HONOUR:   Now, you had a summons, Mr Zipser, but it seems to have been overtaken by a subsequent summons from the second and third respondents or the first and second defendants, depending on which matters you are looking at.

MR ZIPSER:   Yes, your Honour.

HER HONOUR:   Is it convenient to deal with the summons of the second and third defendants?

MR ZIPSER:   It is, your Honour.

HER HONOUR:   Do you oppose anything in that summons?

MR ZIPSER:   Yes, your Honour, we do. 

HER HONOUR:   Do you consent to any of it?

MR ZIPSER:   We acknowledge the interpretation of the Migration Act and the amendments made in late 2001 and we do not dispute the interpretation that if an individual application for an order nisi is filed in this Court and remitted to the Federal Court, then it is not a privative clause decision and also the Federal Court ‑ we do not dispute the Minister’s interpretation that the Federal Court can also grant relief in respect of a denial of natural justice, although at a later point in time I will be stating that in order to protect the plaintiff’s or applicant’s position, we would seek a declaration in respect of that matter to avoid the possibility ‑ ‑ ‑

HER HONOUR:   You have not filed a summons.  I am actually rapidly losing patience with the way this matter is going.

MR ZIPSER:   Yes, your Honour.

HER HONOUR:   And you have not answered my question.  Is there anything in the summons you do not object to, or you object to it all, do you?  The answer is brief or should be brief.

MR ZIPSER:   We object to the dismissal ‑ in particular, we object to the orders seeking a dismissal of the representative action in the Lie matter and the Muin matter by 1 June 2003.

HER HONOUR:   Is there anything else you object to?

MR ZIPSER:   Your Honour, in particular, we object to the orders seeking the dismissal of the representative proceedings by 1 June 2003.

HER HONOUR:   Yes, you have said that.

MR ZIPSER:   We also object to the proposal of the ‑ your Honour, at this stage there are no other matters we object to.

HER HONOUR:   All right.  Well now, let me just express some small degree of dissatisfaction.  What did I say when the matter was last before me?

MR ZIPSER:   Your Honour made a number of directions.  One of those directions was that within 14 days of the last occasion the plaintiff was to provide a list of names ‑ ‑ ‑

HER HONOUR:   And that was done?

MR ZIPSER:   My instructing solicitor immediately, following the last occasion, collected or went through the process of identifying a list of people and then wrote letters to that list of people seeking their instructions to file individual applications in the High Court to be remitted to the Federal Court.  My instructing solicitor now has a list of 23 names.  I acknowledge that that list of 23 names was not provided to the Court by the date as directed.

HER HONOUR:   I thought the directions went somewhat further than that.

MR ZIPSER:   Another direction that ‑ ‑ ‑

HER HONOUR:   What is the point of my giving directions in these matters if they are cheerfully ignored and you do not even put on an affidavit explaining why?  What is the point?  This Court has other things it can do.  There are plenty of things with which it can occupy its time other than making directions which are not pursued or the breaches of which are not explained. 

MR ZIPSER:   I acknowledge your Honour’s criticism.

HER HONOUR:   Yes.  These are matters that have to be processed for obvious reasons.  Now, what about the applicants Muin and Lie who are entitled to have orders absolute made?  What has happened to them?  Has there been so much as a draft order nisi filed?

MR ZIPSER:   In respect of Mr Muin, Ms Lie and also a group of about 47 additional persons that the Commonwealth identified on the last occasion, in respect of in particular the group of 47 persons, my instructing solicitor again very shortly after the last occasion wrote to those applicants to seek instructions to file individual orders nisi to have the matters remitted and it was appropriate that my instructing solicitor did that.  Since that time my instructing solicitor tells me that he has received 16 responses and, on that basis, we would be in a position to file 16 applications for orders nisi in a very short period of time.  Again, I acknowledge that that was not done within the timetable specified.  One reason is that instructions have been coming in from those applicants over a period of time.

HER HONOUR:   You need instructions to get orders in your clients’ favour?  I do not believe it, Mr Zipser.  We are talking about orders that would result in the relief that your clients sought by joining the class action.  I do not believe you need instructions for that.  Why do you need instructions?  To get orders giving them the precise relief that would vindicate the matters they put in issue.  I cannot believe it.

MR ZIPSER:   That is a matter between my instructing solicitor and his client and it would ‑ ‑ ‑

HER HONOUR:   Has there been some affidavit to explain your instructing solicitor’s default in relation to my directions?

MR ZIPSER:   There has not been an affidavit. 

HER HONOUR:   No.

MR ZIPSER:   There can be an affidavit.

HER HONOUR:   What am I to do?  Am I to report the matter to the responsible professional organisation or what?  I mean, I do not find this amusing.  I have listed these matters largely to suit your convenience and I find that things have not been done.  Perhaps you would like to take instructions as to why it was necessary to obtain instructions to have consent orders made securing orders which would perfect the relief that the clients in issue sought.

MR ZIPSER:   I will get those instructions now, your Honour.

HER HONOUR:   Yes, thank you.

MR ZIPSER:   My instructions are that my instructing solicitor considered that it was an appropriate action.  In the past issues have arisen - or, my instructing solicitor is concerned that in relation to each step that he takes in this matter he has appropriate instructions.  Perhaps it was over caution on his part.  His preference, however, was to obtain instructions.  That is what he did.  He sent out letters and he has received 16 responses.  It may be that on consideration of your Honour’s views and on reflection he decides that he is able to file the additional applications without instructions.  Your Honour, may I ‑ ‑ ‑

HER HONOUR:   I think you are wanted, yes.

MR ZIPSER:   Your Honour, the additional point that my instructing solicitor has reminded me of to indicate why, among other reasons, he took those steps is that it has been discovered since the last occasion that of the 47 names on the list provided by the Commonwealth on the last occasion, 17 of those people have left the country and, questionably, there would be no point in filing individual orders nisi in respect of people who have left the country.  However, it was only in the last week that the ‑ ‑ ‑

HER HONOUR:   All right.  I accept that you would need to get instructions from those who have left the country.  Now, my question to you now, Mr Zipser, is this:  you were briefed to appear in this matter.  If there were going to be difficulties about the orders I made last time or the directions given, you should have raised them.  You should have anticipated them and raised them.  Now, why did you not do that?  It has to be understood:  this is a busy Court with limited resources.  We cannot be wasting those times and resources in exercises in futility.  Once has to manage the disposition of these matters one way or another.  It is not an easy task.  Now, if there were going to be problems, why did you not alert me to them at the time?

MR ZIPSER:   On the last occasion I discussed a timetable with my instructing solicitor and we both believed that the timetable was reasonable.  On reflection, it would have been appropriate to have arranged for a filing of an affidavit from my instructing solicitor for today to explain why that timetable was not met.

HER HONOUR:   Very well.  Now, the only one of these orders you object to in the summons filed by the Australian Government Solicitor is that the class action stand dismissed on 1 June ‑ that is right ‑ to the extent to which people have not filed individual applications for relief under 75(v) of the Constitution?  Is that right?

MR ZIPSER:   At this stage that is correct, your Honour.

HER HONOUR:   No, no, do not tell me “At this stage”.  I want a yes or no answer.  I do not want to be under any misapprehension as to what you are telling me.

MR ZIPSER:   Your Honour, can I get instructions? 

HER HONOUR:   It is actually 30 May.

MR ZIPSER:   Order 5 is the only order that we object to, your Honour; order 5 in the summons in respect of Lie and order 6 in the summons in the matter of Muin.

HER HONOUR:   It seems to me you have two choices, have you not?  You can have the second and third defendants move to have it dismissed instanter on the basis that there is no longer any common issue in the proceedings or you can take the benefit of what has been put forward.  I presume you are aware of that and your solicitor is aware of that.  It seems to me if this affidavit is correct from Mr Markus ‑ I think it is Mr Markus’ affidavit ‑ the remaining matters are matters in which – the matters which were common to the proceedings has been found against them.

MR ZIPSER:   Your Honour, is this the affidavit of Mr Markus?

HER HONOUR:   I think I might have ‑ looking at it, if that is correct, those are the people ‑ no, I am sorry, it is the submissions which are based on the numbers.  It is the submissions ‑ ‑ ‑

MR BASTEN:   Paragraph 7.

HER HONOUR:   Paragraph 7.

MR ZIPSER:   Should I indicate our position in response to that submission?

HER HONOUR:   Yes.

MR ZIPSER:   Our position is as follows:  in our submission, the High Court has a discretion as to whether ‑ ‑ ‑

HER HONOUR:   Well, I may have.  It is not to say I would be minded to exercise it in your favour or that anybody else would be.

MR ZIPSER:   If the High Court has a discretion, then the issue is how that discretion should be exercised.

HER HONOUR:   Yes.  Well now, Mr Basten says there is no discretion.  He says that on ordinary principles the matter should stand dismissed except insofar as the persons identified in the class are concerned.

MR ZIPSER:   My submission to the contrary is that ‑ ‑ ‑

HER HONOUR:   But he is not talking about a discretion.

MR ZIPSER:   My submission to the contrary is that the High Court does have a discretion ‑ ‑ ‑

HER HONOUR:   Well, shall we determine that matter? Shall we list the matter for full argument? If the matter is not going to proceed by consent in the way that is outlined, the legal representatives for the plaintiffs not really having come up with any satisfactory means of resolving the issues - or the represented plaintiffs not having come up with any satisfactory means of resolving them, not having followed the directions that I have given, not having filed an affidavit to explain why they have not followed the directions, I am confronted here today with a summons from the Department which looks to me like a very large concession on its part from the position it has previously adopted and looks to me like a concession that they would not have to make or looks like setting up procedures that would not be open to the plaintiffs if they were right in their contention that as a matter of law there is now no common matter and therefore, as I understand what is implicit in the submissions, not that there is a discretion but that as a matter of law what is now there offends Chapter III of the Constitution.

Now, that is as I understand what is involved.  Now, we can take steps to have that determined if you wish.

MR ZIPSER:   My instructions which are clear on one point is that it would be very difficult for the plaintiff to file ‑ ‑ ‑

HER HONOUR:   For the solicitor.

MR ZIPSER:   For the plaintiff’s solicitor to file individual applications or individual orders nisi in each matter by 30 May.  One matter on which I  would like to get instructions is if there is an alternative date that the plaintiffs can propose, as a way of negotiating.  If there is not an alternative date, then the proper step would be to list this particular issue for argument as to whether ‑ ‑ ‑

HER HONOUR:   If the second and third defendants are right, there will be no time thereafter for you to take steps.  If they are right, the proceedings will stand dismissed save in relation to those persons who have matters in common with the basis on which the two individual cases were decided.  There will be no time thereafter, if they are right.

MR ZIPSER:   Your Honour, can I get instructions ‑ ‑ ‑

HER HONOUR:   And that will mean, if they are right, that all these people would then be out of court subject to, perhaps, is it 476A - subject to the argument in respect of 476A in Plaintiff S134.  Have I the numbers right?  My numerical ability is not good.

MR BASTEN:   No, your Honour, because we do not suggest they could not now ‑ the time limit in 486A does not apply.  That is the S157 issue but I do not think that is a problem.

HER HONOUR:   Is it S157 or 134, I do not know?

MR BASTEN:   It is 157, as I recall.

HER HONOUR:   Well, you may say that but if the matters stand dismissed, if you are right and the Court has not jurisdiction to entertain the matters to the extent that there is no longer a common issue, to that extent the matter will stand dismissed and then they are out of court.

MR BASTEN:   Yes.

HER HONOUR:   Am I not right about that?

MR BASTEN:   That might have different consequences, yes, I agree, your Honour.  In the meantime, there is no problem until it stands dismissed.

HER HONOUR:   Well, we need to see where we are going.

MR BASTEN:   Yes.

HER HONOUR:   Is there some other date that ‑ ‑ ‑

MR ZIPSER:   Your Honour, may I get instructions from my solicitor?

HER HONOUR:   Well, why do I not adjourn for 15 minutes and you can see what you can do.  I suppose Mr Basten might also consider whether there could be liberty to apply prior to 30 May, if that is the date that is still fixed upon, upon affidavit showing cause why something else should happen in an individual case.  That might be one way around it.  I will adjourn for 15 minutes and perhaps you can talk about it.

AT 9.29 AM SHORT ADJOURNMENT

UPON RESUMING AT 9.49 AM:

HER HONOUR:   Yes.

MR ZIPSER:   Your Honour, my instructions are that we consent to the date proposed in paragraphs 5 and 6 of the two summonses of 30 May 2003.  My instructing solicitor indicates that it is possible or even likely that the plaintiff’s solicitor will be making an application for an extension of that date pursuant to the last two orders in the summonses at a time between now and 30 May 2003 and it would then be for the Court to decide whether that date should be extended.

HER HONOUR:   Yes.  I am not happy, however, with the last of the orders.  I do not know that I can - I mean, if you wanted to pursue ‑ I really think, Mr Basten, that something like this should be done but not precisely.

MR BASTEN:   Yes.

HER HONOUR:   What I think is you should have leave to approach a single Judge to state a case for the Full Court not as to whether or not a matter should continue but as to whether or not the proceedings should be dismissed ‑ ‑ ‑

MR BASTEN:   Dismissed, that is right, yes.

HER HONOUR:   ‑ ‑ ‑ in accordance with your argument in paragraph 8.

MR BASTEN:   Yes.

HER HONOUR:   And what I think is there should also be leave to the plaintiffs prior to 30 May to apply in individual cases for an extension in the event that it is shown that it has been impracticable for that individual plaintiff to apply earlier, do you think, and otherwise 7 can stay.  We will leave “to apply on behalf of individual plaintiffs”.  I suppose it really is “on the grounds that instructions have not then been able to be obtained.”  That would really be the only matter, I think, would it not, Mr Zipser?  That would really be the only matter that would be of concern to you by 30 May, would it, that you have not been able to obtain instructions?

MR ZIPSER:   Yes.

HER HONOUR:   That is the only matter of practicality, I should have thought, is it?

MR ZIPSER:   My instructing solicitor would want to seek instructions on the basis of having worked out ‑ looked at the materials in relation to that particular person’s case.

HER HONOUR:   No, what I am suggesting is that if you look to order 6, what I am proposing is that there should be leave to you to apply prior to 30 May in respect of individual represented plaintiffs from whom it has not then been possible to obtain instructions.

MR ZIPSER:   Your Honour, I would prefer to get instructions on that particular amendment because that is an issue that I had not specifically discussed with my solicitor.

HER HONOUR:   Yes.  Well, what one needs to know is whether there is going to be any other difficulty other than the inability to obtain instructions or difficulty in obtaining instructions that might need to be taken into account at that time.

MR ZIPSER:   Yes, your Honour.  Your Honour, there is another situation which can arise where my instructing solicitor ‑ which is as follows:  in relation to each particular person, my instructing solicitor would like to be able to look at the entire what is called “Part B documents” which were considered by the Department and also to consider the current situation in the particular country in order to provide advice to that applicant in relation to their prospects of success and then get instructions following that advice.  So there may be a case where my instructing solicitor can get in contact with the client in the very near future but because the solicitor does not yet have the entire Part B documents, it would be difficult to ‑ ‑ ‑

HER HONOUR:   But why would that stop you simply filing a draft order nisi to be remitted to the Federal Court?

MR ZIPSER:   A concern is that if, in light of the test set by the High Court or by the Full Bench in the Muin and Lie Case, and in light of all the Part B documents for a particular applicant and possibly the current country situation in the particular country, if my instructing solicitor was to form the view that the particular individual does not have strong prospects of success on an individual application in light of developments that have occurred since the High Court’s decision, then it would be appropriate for my instructing solicitor to provide that advice to the client before exposing the client ‑ ‑ ‑

HER HONOUR:   Before exposing the client to what?  Costs?

MR ZIPSER:   To a risk of an individual costs order, and that is an event which occurs on the filing of individual applications. 

HER HONOUR:   Would not what I have just said, inability to get instructions, mean inability to get instructions with advice?

MR ZIPSER:   That would respond to the plaintiffs ‑ ‑ ‑

HER HONOUR:   But you would still have to apply before 30 May?

MR ZIPSER:   Yes, your Honour.

HER HONOUR:   Yes.  Well, do you object to that, Mr Basten?

MR BASTEN:   No, your Honour.

HER HONOUR:   Sorry, you had something else?

MR BASTEN:   Not on these cases, your Honour, no.

HER HONOUR:   No.  Well, let me just run through what is proposed by reference to the Muin matter.  It would be that 6 would stand, but 7 would read, really:  “Liberty to apply to any person whose name appears in the Schedule . . . to extend the period of time referred to in paragraph 6 on the ground that it has not been possible to obtain proper instructions with respect to the continuation of the matter” and then continue as the paragraph is.  Paragraph 8:  “Liberty to the second and third defendants to apply” ‑ I should think it would be at any time after 30 May or it might need to be before, would it not?

MR BASTEN:   I am not sure whether we would need it, your Honour, really.  It would probably only arise in response to an application under paragraph 7 anyway and I do not know whether we need leave to do anything further.

HER HONOUR:   I do not think you do, do you?

MR BASTEN:   No.

HER HONOUR:   No, I do not think you do, either.

MR BASTEN:   We are happy with that,  your Honour.

HER HONOUR:   Well then, it will be orders 1 to 7 as modified by me in Muin.  Now, in that matter I should certify for the attendance of counsel.  But what is to happen about the costs of all these interlocutory applications that we have had since the conclusion?  It will not be determined on an individual basis.  It does not seem to me appropriate that there is really any order as to costs.

MR BASTEN:   No, that may be right, your Honour. 

HER HONOUR:   Mr Zipser, what do you say?  I think it is not appropriate to make any order as to the costs of the proceedings subsequent to the decisions in relation to the general procedures to be adopted.

MR ZIPSER:   Your Honour, as far as I am aware, there was a directions hearing on 6 November and a directions hearing today.  In respect of those two matters, we would agree with your Honour’s proposal.

HER HONOUR:   Yes, that there be no order as to the costs of this summons or the summons earlier filed by you subsequent to the Full Bench hearings of the matters but otherwise the costs, in individual cases, to be determined by the Federal Court or to be determined in each individual case  upon its final disposition.

I should just say, and so order in the matter of Muin.  Do we need different orders in Lie?

MR BASTEN:   No, your Honour, only the numbers are different because there was no follow‑on group of concessions.

HER HONOUR:   Yes.  Well then, order 6 will be adapted in the same way.  Order 7 will be deleted.  I will certify for the attendance of counsel and indicate again that there will be no order as to the costs of the two summonses filed in the matter but in each individual case the costs of the matter to await the final disposition thereof.

I just had a thought but I have lost it.  Yes.  Mr Zipser, would it be possible for you or for Mr Joel to file one additional copy of any documents filed in any of these individual matters?

MR ZIPSER:   Yes, your Honour.

HER HONOUR:   That will make the task of this Court much easier.  Thank you very much.  Is there anything else in these two matters that you can think of?

MR BASTEN:   Not in those two, your Honour, no.

HER HONOUR:   Well, let us just think in case we have forgotten anything.  Well, there is:  should we not ‑ and I do not want to be difficult about this, but it seems to me that in both matters it is something of an embarrassment to have a Full Bench hold that the two main plaintiffs are entitled to relief and for no relief to have been granted.  Do you follow what I mean by that?

MR ZIPSER:   Sorry, could your Honour please repeat it?

HER HONOUR:   In both these matters a Full Bench has held that Mr Muin and Ms Lie are entitled to relief.

MR ZIPSER:   Yes, your Honour.

HER HONOUR:   But no relief has been granted.

MR ZIPSER:   Yes, your Honour.

HER HONOUR:   Could I ask you, at least in those cases, that draft orders nisi be filed?

MR ZIPSER:   Your Honour, is that not dealt with in paragraph 1?

HER HONOUR:   Yes, it is but what I am saying is it is all very well to grant leave but they have not the relief that the Full Bench has said they are entitled to have and they will not get it unless you file the draft orders nisi.

MR ZIPSER:   I have instructions that ‑ your Honour, we go back to an issue which we discussed at the start.  My instructing solicitor has instructions to file in the very near future ‑ it can be done within a week ‑ 16 ‑ ‑ ‑

HER HONOUR:   Yes, but do they include Mr Muin and Ms Lie?

MR ZIPSER:   They will include Mr Muin and Ms Lie.  For Mr Muin and for Ms Lie and for all other persons in a schedule annexed to Mr Markus’ affidavit from whom my instructing solicitor has instructions, draft orders nisi can be filed within one week.

HER HONOUR:   Very well.  I have just reread this more carefully.  You are proposing that the orders absolute be made in the Federal Court by these orders, Mr Basten?  I am just wondering.

MR BASTEN:   I had not intended to.  We were going to consent to orders in this Court.

HER HONOUR:   I am just thinking, if I look at order 3 ‑ ‑ ‑

MR BASTEN:   No, it is order 3 which are the other people.

HER HONOUR:   I see, very well.

MR BASTEN:   Order 2 merely provides that their names be deleted from the list but there is no provision as to what will happen to those applications but we have indicated that they will be consented to in the same terms as the earlier ones were.

HER HONOUR:   Yes.  So, they will come back before me, will they?

MR BASTEN:   Mr Markus has had to go.  My recollection was that they might have been dealt with in chambers on the last ‑ I am sorry, not in Court at all on the last occasion by consent.  I do not remember any orders being made in open Court.

HER HONOUR:   Yes.  Well, I was simply going to indicate that in respect of the matters then the subject of order 1 in each matter that it is unnecessary for counsel or the plaintiffs’ legal representatives to be present, and the matters will be dealt with on the basis of a letter to be submitted to the Registry so there is a record of the consent to the names.  If you would be good enough to provide the Registry with a letter as to all those to whom you consent the making of orders in.

MR BASTEN:   Yes.

HER HONOUR:   And then that can be placed on each file as and when an order is made.  Is that satisfactory?

MR ZIPSER:   That is.  If I can clarify one point for the plaintiff.  On my instructions, it is clear that of a total of about 32 people, there will be at least 16 filed in the next week.  I and my instructing solicitor will discuss the comments that your Honour made at the start.  It may be that all 30 or so are filed in the next week.  If, however, my instructing solicitor considers that he does need instructions, then I envisage that the draft orders nisi will be filed as instructions come in.

HER HONOUR:   Yes, very well.  Thank you.  Well then, we can go to the other 70‑odd matters, can we?  Do I take it you consent to these matters being remitted to the Federal Court?

MR ZIPSER:   No, your Honour.

HER HONOUR:   Well, do you think I am going to determine them?

MR ZIPSER:   If I can explain the plaintiffs’ position.  The matters are quite usefully categorised in the submissions in support of the summons by the defendants in paragraphs 21 to 24.  If I can start with matters where there is consent.  In relation to paragraph 22, which refers to proceeding S180 of 2002, my instructing solicitor will file a notice of discontinuance.  In relation to paragraph 23, the plaintiff would consent to an order which is proposed in paragraph 23.  In relation to the bulk ‑ ‑ ‑

HER HONOUR:   Wait a minute.  I would have thought that in relation to 23, that matter should stand over, should it not?  Just simply stand over until the decision is ‑ ‑ ‑

MR BASTEN:   We would be content with that, your Honour.  It will either be dismissed or there will be an argument about an extension of time.  It will either be dismissed as incompetent or there will be an issue about an extension which this Court could, no doubt, deal with.  There is a question about whether both those matters could be dealt with in the Federal Court but we do not have a view about it, one way or the other.

HER HONOUR:  It needs an extension in accordance with the Rules, does it?

MR BASTEN:   Well, it depends what happens to 486A.  If 486A stands, it is incompetent and there is no power to extend.  If 486A(2) goes so that there is a time limit but there is a right of extension, then that issue would arise.

HER HONOUR:   Have I missed something?  Section 486A(2) ‑ ‑ ‑

MR BASTEN:   It may be briefer just to let it stand, your Honour.  I just thought there were ‑ ‑ ‑

HER HONOUR:   Section 486A says:

The High Court must not make an order allowing –

So there is no possibility - either 486A goes in toto or it stays in toto, does it not?

MR BASTEN:   Well, that is one view.

HER HONOUR:   Does it not?

MR BASTEN:   Well, I thought there was that possibility that (1) could stand but there is an implicit power to extend time if (2) went.  It does not make terribly much difference.  If your Honour is asking about Order 55 time, then, no, there is no issue about that.

HER HONOUR:   No.  Well, it might just as well be to stand that one over until ‑ I can even give you a ‑ ‑ ‑

MR BASTEN:   S157 is delivered.

HER HONOUR:   We know approximately when that will be decided.

MR BASTEN:   Yes.

HER HONOUR:   And it will stand over until 7 February 2003, subject to – it is reasonable to assume it will be decided by then.

MR BASTEN:   If the Court pleases.

MR ZIPSER:   Your Honour, in relation to the bulk of the matters which are referred to in paragraphs 21 and 24, the position of my instructing solicitor is that in those matters which were filed prior to the Full Bench’s decision in the Muin and Lie Case, my instructing solicitor’s authority to act extended to the time of the determination of Muin and Lie.  For each of those matters my instructing solicitor would need to get instructions and can take steps to do that before it could consent to remittal of the matters.

HER HONOUR:   Yes, but I could order remittal without consent.

MR ZIPSER:   You can, your Honour.  I just wanted to explain the plaintiffs’ position.

HER HONOUR:   Now, there is only one problem, is there not?  As matters presently stand, the Full Federal Court says it has no jurisdiction in these matters, is that not correct?  The Full Federal Court says ‑ ‑ ‑

MR BASTEN:   The privative clause matters?

HER HONOUR:   Yes.

MR BASTEN:   No, it does not say it has not jurisdiction, your Honour.  In NAAV it accepted that it had jurisdiction but limited to the Hickman grounds.  I do not think anyone is taking a point about whether the grounds have been carefully pleaded or not.  The Court is not dismissing applications on the grounds that the pleadings do not conform to Hickman, so they would deal ‑ ‑ ‑

HER HONOUR:   So, if these matters were now remitted, they would simply stand in the Federal Court list until the two decisions, S134 and S157 are handed down?

MR BASTEN:   In practice, yes, but in principle, no, they would be listed for hearing in due course.  In practice, they will not be heard before next February, one would think but, in principle, the court is not staying its hand.

HER HONOUR:   Well then, perhaps they should stay here until 7 February.

MR BASTEN:   Well, they can do that, your Honour, if that is ‑ yes, that would be the first group.

HER HONOUR:   That is all but S72 ‑ well, S72 is staying until 7 February too, at least ‑ all but S180, is it not?

MR BASTEN:   Paragraph 24 refers to a group which are not privative clause decisions because they are in the same category as any fresh application made to this Court in relation to which there had already been an application.  I think there are only seven in that category, your Honour.

HER HONOUR:   Do you know which ones they are?

MR BASTEN:   I have a letter but I do not have it with me, I am afraid.  I cannot answer that.  Yes, I do, sorry.  Does your Honour want me to identify them?  They are S53, S61, S83, S140, S142, S159 and S181, all of 2002.

HER HONOUR:   Now, let me just be clear about this.  They are all with respect to decisions made prior to the coming into force of the privative clause provisions but in respect of which there is no problem, no jurisdictional problem for the Federal Court because of the provisions which give the Federal Court the same jurisdiction as we have?

MR BASTEN:   Yes.  They are all applications which had been the subject of earlier judicial review applications in the Federal Court and, for that reason, are not within privative clause in the same way that a fresh application in any of the Muin and Lie matters would be outside both the privative clause restrictions and the earlier 476 restrictions.  They are identical.

HER HONOUR:   Now, do you want to check that out?

MR ZIPSER:   My instructions are that we agree with the Minister that those decisions are not privative clause decisions.  My submission earlier on then stands, that we cannot consent.

HER HONOUR:   You cannot consent, no, but an application really has been made to me viva voce, to remit them, and you cannot really resist that.  There is no prejudice to you in that course, is there?

MR ZIPSER:   I cannot resist that, your Honour.

HER HONOUR:   No. 

MR ZIPSER:   Your Honour, my instructing solicitor has explained to me that he was not given, or it appears that he was not given proper instructions by those applicants.  It may be that on obtaining proper instructions from them it turns out that some of those matters should ‑ there would be no point in remitting the matters and it is not appropriate to proceed with the applications.  Again, it is a reason for getting instructions ‑ ‑ ‑

HER HONOUR:   That can be dealt with in the Federal Court.

MR ZIPSER:   Yes, your Honour.

HER HONOUR:   Just as easily as it can here.

I think what I should do is I should order the remitter of S53, S61, S83, S140, S142, S159 and S181 to the Federal Court on terms that all steps that have been taken in this Court be treated as steps taken in that court;  otherwise, upon the usual terms and, in those matters, I should certify for the attendance of counsel but make no order as to the costs of today’s remitter proceedings.  In those matters I so order.

The other matters in today’s list then will stand over until 7 February 2003 and, again, I will certify for the attendance of counsel and make no order for costs of today’s proceedings.

I do not think we need to do anything else, do we, other than get the paperwork in order?  Very well, thank you, gentlemen.  The Court will now adjourn.

AT 10.26 AM THE MATTERS WERE CONCLUDED