Sivabalan, Ex parte - Re Ruddock

[1999] HCATrans 336

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M69 of 1998

In the matter of –

An application for Writs of Prohibition, Certiorari and Mandamus and an Injunction and a Declaration against THE HONOURABLE MR PHILIP RUDDOCK, HER MAJESTY’S MINISTER OF STATE FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

DR RORY HUDSON, sitting as the REFUGEE REVIEW TRIBUNAL

Second Respondent

DR PETER NYGH, in his capacity as principal member of the REFUGEE REVIEW TRIBUNAL

Third Respondent

Ex parte –

SUTHASWARY SIVABALAN

Prosecutor

Office of the Registry
  Melbourne  No M70 of 1998

In the matter of –

An application for Writs of Prohibition, Certiorari and Mandamus and an Injunction and a Declaration against THE HONOURABLE PHILIP RUDDOCK, HER MAJESTY’S MINISTER OF STATE FOR IMMIGRATION AND MULTICULTURAL AFFAIRS of the COMMONWEALTH OF AUSTRALIA

First Respondent

DR RORY HUDSON, sitting as the REFUGEE REVIEW TRIBUNAL

Second Respondent

DR PETER NYGH, in his capacity as principal member of the REFUGEE REVIEW TRIBUNAL

Third Respondent

Ex parte –

SUJATHA SIVABALAN

Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 11 OCTOBER 1999, AT 10.18 AM

Copyright in the High Court of Australia

MR A.F.L. KROHN:   I appear for the prosecutrix in this matter and in the next matter, M69 and M70.  Suthaswary Sivabalan is M69 or 1998 and Sujatha is M70.  (instructed by K.P Aravindan)

MR C.L. RAWSON:   If it please the Court, I appear for the first respondent in each of those matters.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   What is the position with these matters, gentlemen?

MR KROHN:   Your Honour, the two cases relate to two sisters.  They are applications for relief arising from decisions of the Refugee Review Tribunal and, in my submission, because the grounds include – some grounds - a reasonable apprehension of bias, and also a taking of irrelevant matters into account, I would submit they are not appropriate to be remitted.  I am able to tell the Court on my instructions that they are ready to be listed for hearing.  There are 11 grounds of review sought in each case and but for one factual matter, those grounds are identical and the decisions of the Tribunal are almost in identical terms.  So it would be appropriate for them to be heard together, your Honour.

HIS HONOUR:   Now, this question of appearance of bias is one that has been raised in other proceedings – in proceedings I have had some connection with, and I think may be a ground that has been referred into a Full Court, may it not? 

Do you know anything of that, Mr Rawson?  There is, I think, a reasonable bias case – an actual bias case, is there not, involving Dr Hudson ‑ ‑ ‑

MR RAWSON:   I am not aware of an actual bias case, your Honour.  There were two apprehended bias cases involving Dr Hudson.

HIS HONOUR:   Is it apprehended bias then?  I do apologise, I am mistaken.  What is the state of play with those?

MR RAWSON:   I do not believe either of those remain on foot any longer, your Honour.

HIS HONOUR:   They have disappeared, have they?

MR RAWSON:   Yes, your Honour.

HIS HONOUR:   Then what do you say I should do with these two?

MR RAWSON:   I, myself, am in agreement with my learned friend, your Honour.  Perhaps if I could just correct one matter that is raised in the affidavits of the two prosecutors by handing up a short affidavit of my own which goes – I hand up two, one for each proceeding, but it is the same affidavit, your Honour.  Your Honour will note on the first page of each of the prosecutor’s affidavits, I think it is paragraph 8, each deposes to not having sought review of the RRT decision that is the subject of this application from the Federal Court.  In fact that is not correct.  Each applicant did seek review of that decision and I have enclosed a short affidavit enclosing both the application to the Federal Court and the consent orders dismissing that application.

HIS HONOUR:   How long would the trial of these applications take, do you think?

MR RAWSON:   As an application for an order nisi?

HIS HONOUR:   Yes.

MR RAWSON:   Less than half a day, your Honour, hopefully.

HIS HONOUR:   Do you have any submission about how applications of this kind ought best to be dealt with, assuming for the purposes of debate that they are to remain in this Court?  Should I, for example, with a view to the better harbouring of scarce judicial time, simply remit them into a Full Court at once where they would be disposed of in the ordinary list of cases, I cannot say how many would constitute the Full Court, but deal with them by a Full Court which would, of course, obviate any future appeal from a decision of a single Justice?

MR RAWSON:   I am sorry, was your Honour proposing a Full Court of the High Court or Full Court ‑ ‑ ‑

HIS HONOUR:   Yes, Full Court of the High Court.  Now, whether it is a Bench of three, five or seven, I say nothing.  That would be a matter for the Chief Justice and the Justices to determine.  But put it into a Full Court straight off.  There is one less step in the process then.  Do you have any submission about that kind of approach?

MR RAWSON:   I do not know that I am in a position to make a submission as to what should happen in every case, your Honour.  I think in the circumstances of this case we would seek an opportunity to appear before your Honour in chambers on an order nisi to argue that an order nisi should not go in this matter.

HIS HONOUR:   Assume I were to say, no, it should not, which I assume is what your side would be contending, what then happens?  There is an appeal, is there not, or there is application for leave?

MR RAWSON:   Such an order has been made in a number of cases, your Honour, and whilst I cannot undertake to be sure of this, your Honour, I am not familiar with a case where an appeal has subsequently progressed.

HIS HONOUR:   My concern is, as I say, the harbouring of our resources.  I doubt greatly that I could give you a time this side of next year to hear a full blown application.  The sitting list at the moment is looking pretty solid. 

What I am minded to do is to give the parties a timetable for filing submissions, outlines of argument and like, including any submissions either would seek to make about my referring it into a Full Court though, of course, ultimately that remains at my disposition, and simply adjourn it over to a date to be notified to the parties.  What do you say, Mr Rawson, about my adopting that kind of approach to the problem?

MR RAWSON:   Yes, I think the first respondent would be agreeable to that course, your Honour.

HIS HONOUR:   What sort of timetable do you suggest I should put on; sort of 21, plus 21, plus 14 or 28, 28 and 14; do you have any views on that?

MR RAWSON:   I think 21 plus 21 plus 14 would be acceptable to the respondent, your Honour.

HIS HONOUR:   That, as a matter of practical reality, in effect concludes the submission process or the outline process by the end of the year.  That timetable would run out at about 10 or 13 December.  I think there may be advantage in getting the parties to focus on their positions in this way, otherwise they do tend to drift on a bit, but that would be a timetable which would run:  applicants by 1 November; respondents by 22 November; reply by 6 December.  Now, that gives us a week fudge in there that we could drift it out to 13 December, but if I went 1 November, 22 November, 6 December, what do you say, Mr Rawson?

MR RAWSON:   The respondent would be happy with that timetable, your Honour.

HIS HONOUR:   Now, Mr Krohn, what do you say about, firstly, my directing submissions in the way I have described and then fixing a timetable of the kind I have identified?

MR KROHN:   That seems to me an appropriate thing, your Honour.  May I just clarify that that is submissions relating to all of the arguments and matters between the parties.  This was not simply confined to your question of referral ‑ ‑ ‑

HIS HONOUR:   This is the lot.

MR KROHN:   Yes, I understand that, your Honour.  That seems entirely appropriate, your Honour.

HIS HONOUR:   In each of matters M69 and M70 of 1998 there will be directions as follows:

1.  Direct that on or before 1 November 1999 applicant file and serve outline of argument and list of authorities in support of application for order nisi;

2.  Direct that on or before 22 November 1999 respondent file and serve outline of argument and list of authorities in opposition to application for order nisi;

3.  Direct that on or before 6 December 1999 applicant file and service outline of argument in reply to respondent’s submissions ‑ ‑ ‑

MR KROHN:   Your Honour, I apologise for interrupting.  I wonder whether your Honour would be prepared to make that last date the 13th.  It is only because of some – I do not know but if it is I who is requested to do that reply, I may have some difficulty about complying by the 6th.

HIS HONOUR:   Can I make it Friday, the 10th?

MR KROHN:   Yes, indeed.  I am very much indebted to your Honour. 

HIS HONOUR:   You have no difficulty with that, do you, Mr Rawson?  I do not think it will lead to any practical loss of time to you.

MR RAWSON:   No, your Honour.

HIS HONOUR:   Minute 3 will be:

3.  Direct that on or before 10 December 1999 applicant file and serve outline of argument in reply to respondent’s submissions;

4.  Reserve costs;

5.  Certify for counsel.

Do I need to do anything else, gentlemen?

MR KROHN:   No, your Honour.

MR RAWSON:   If your Honour please.

HIS HONOUR:   Thank you.  As I say, I would be grateful if the parties gave some thought in those submissions to whether I should deal with the order nisi or I should refer the matter into a Full Court.

Call the matter of Epeabaka.

AT 10.30 AM THE MATTER WAS CONCLUDED