Suryadi, Koa v RRT & Ors

[2003] HCATrans 737

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 MONDAY, 16 JUNE 2003, AT 9.48 AM

(Continued from 23/5/03)

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:   I have read Mr Joel’s affidavit.  Maybe an outstanding matter seems to be a question of costs and there may be some technical problem with the orders I made on the last occasion.  Is there some date to be changed on those orders, or are they sufficient from your point of view, Mr Zipser?

MR ZIPSER:   Your Honour, there is a technical issue.  It is not a matter that my clients press.  So my clients do not make an application to change the orders.

HIS HONOUR:   Yes.

MR ZIPSER:   However, if your Honour is concerned about the technical issue, your Honour may decide to change one of two dates so that the two dates – at the moment I understand that the application or the class action becomes dismissed a day before leave has been granted to file further applications and it would appear to make more sense that there be a single date by which applications are to be filed and also on which the class action proceedings are to be dismissed.

HIS HONOUR:   Yes.  Would it be sufficient if the orders are amended to 20 June, both orders?  Is that sufficient?

MR ZIPSER:   That is sufficient.

HIS HONOUR:   Just remind me again.  Are orders 3 and 6 the same in both?  It was 2 and 5 in Koa, I think.

MR ZIPSER:   Your Honour, my understanding is that in the matter of Koa the relevant orders are 2 and 5.

HIS HONOUR:   Yes, 2 and 5.

MR ZIPSER:   In the matter of Suryadi  ‑ ‑ ‑

HIS HONOUR:   Orders 3 and 6, I think.

MR ZIPSER:   Yes, your Honour.

HIS HONOUR:   Yes.  The only other matter is the matter of costs.  I appreciate Mr Joel says that each party should pay its own costs.  What do you say about costs, Mr Beech-Jones?

MR BEECH-JONES:   Your Honour, I submit that the plaintiffs should pay my client’s costs of the summons in each proceedings.  The plaintiffs came to the Court seeking indulgence ‑ ‑ ‑

HIS HONOUR:   I will hear what – Mr Zipser, how can you possibly avoid an order for costs?

MR ZIPSER:   Your Honour, I accept that the normal ‑ ‑ ‑

HIS HONOUR:   You come along and ask for the extension of time and you bring the defendants along.  In those circumstances, why is it not only proper that you should pay the costs occasioned by you seeking the Court’s indulgence?

MR ZIPSER:   Your Honour, I accept that the normal position is that where a party seeks the indulgence of the Court for an extension of time, then often that party is required to pay costs of the application for an extension.  However, my submission is that, to one extent, the respondent was also responsible for the need for the plaintiffs to make an application for the extension of time, and there are two points which I wish to make, which appear from the affidavit material.  If your Honour can turn to the recent affidavit of Mr Joel of 12 June.

HIS HONOUR:   Yes.

MR ZIPSER:   In paragraphs 5 to 7, Mr Joel sets out the further work that he has done or is doing in light of the extension that has been granted.  In paragraph 5(a) there is a reference back to paragraph 7 of Mr Joel’s affidavit sworn on 7 May 2003.  It is appropriate to read paragraph 7 in its context from paragraphs 2 through to 7.  What Mr Joel says is that in November 2002 he received a letter from the Australian Government Solicitor that set out a schedule of people in the schedule to the class actions who, according to the records of the Department, had left Australia.

In reliance upon that letter, Mr Joel took the files of those people and took them to a storage facility in Gladesville.  He then subsequently and slowly became aware that that schedule was not accurate.  He decided, in order to be a responsible solicitor, to bring back the files from Gladesville, which was a degree of extra work on his part, and eventually on 11 February 2003, which is stated in paragraph 6, he eventually sent letters to that further group of about 1,908 people.  He deposes in paragraph 7 that there have been responses to that letter and he then deposes in his current affidavit of 12 June that part of the applications or a number of the applications that he has been filing in recent weeks, or that he is about to file, deal with that group of people.

Mr Joel’s position is that Justice Gaudron gave the plaintiffs six months to file their application, but for this group of 1,908 people, because of a misleading letter from the Australian Government Solicitor – innocently misleading – that group of people have only had three and a half months rather than six months, but that is the first reason.  The second reason is as follows.

HIS HONOUR:   Yes.

MR ZIPSER:   If your Honour can consider paragraph 8(a) of Mr Joel’s affidavit sworn on 7 May 2003 ‑ ‑ ‑

HIS HONOUR:   Yes.

MR ZIPSER:   ‑ ‑ ‑Mr Joel says that he wanted to, prior to exposing his clients to fees and costs, fully advise them on their prospects of success, and that is an issue that was raised before Justice Gaudron on 25 November last year.  Mr Joel in paragraph 9 of his affidavit of 7 May then sets out the extensive and, in my submission, conscientious attempts he made in order to obtain what is called the country information documents for each applicant so that he could properly advise the applicants on their prospects of success. 

It was only by around mid-March of this year that he realised that he was not going to obtain those documents.  Since then he has taken steps to provide the best advice that he can to his clients on the basis of the information that he has.  It has turned out that he has needed two or three weeks beyond 30 May 2003 and Mr Joel’s recent affidavit of 12 June 2003 in paragraphs 5 to 7 set out how he has used the extra two or three weeks to provide proper advice to the applicants or the best advice that he can.  My submission is that if the respondents had been able to provide ‑ ‑ ‑

HIS HONOUR:   All those letters that were written to Mr Markus and Ms Walton, they were all concerned with FOI requests, were they not, or just about ‑ ‑ ‑

MR ZIPSER:   Mr Joel attempted to obtain the country information documents in two ways.  One way was through an FOI request and the second way was through what one might call informal production or informal discovery.

HIS HONOUR:   Yes, thank you, Mr Zipser.  Yes, Mr Beech-Jones, what do you say to that?

MR BEECH-JONES:   Two matters.  Firstly, your Honour, just dealing with the first one about the movement records.  Firstly, your Honour, the application of extension was not confined to those persons; in fact that was not the principal basis on which the extension was sought. 

The second is the Department’s records.  All that the plaintiff was advised, or his solicitor was advised, was that the Department records indicate these persons have left Australia.  The reason why those records might indicate a person has left Australia but they may not have depends upon the way they came in the first place.  They might have come as a member of a family unit and the records record that the relevant parent may have come and then left, and so the records would suggest that the person had left but they may still be here.  But, your Honour, we would submit it is ultimately incumbent on the plaintiffs and the plaintiffs’ solicitor to maintain contact between themselves, not upon the defendants to a proceedings to maintain that contact for them.

HIS HONOUR:   No, but you get a letter saying that 1,908 people listed in this schedule have departed Australia, so naturally the solicitor thinks that they are gone, so he sends his files out to a storage depot at Gladesville and then people start coming in and contacting him.

MR BEECH‑JONES:   Precisely, your Honour.  Mr Joel accepted instructions from these people.

HIS HONOUR:   Yes.

MR BEECH‑JONES:   Now, a basic database would record name, address and contact details.  The responsibility for maintaining contact throughout the whole conduct of the proceedings, no matter how onerous that may be – that is what a person chooses to do when they take on a…..class action – was on Mr Joel and on Mr Joel and his client and all Mr Joel got was our records – what our records indicate.

HIS HONOUR:   I know.  No doubt it is an innocent mistake on your part, but a solicitor is certainly not acting unreasonably if he decides to accept that they have left the country and does nothing further and thinks the matter has ended.

MR BEECH‑JONES:   I accept that, your Honour, but the focus of this debate seems to be did Mr Joel act reasonably or unreasonably.  It is not about whether Mr Joel ‑ I am sure he did act reasonably throughout it all ‑ it is whether the plaintiffs as the clients in seeking the extension.  It is not about Mr Joel personally having acted reasonably or unreasonably.

HIS HONOUR:   Yes.

MR BEECH‑JONES:   It is the litigants, ultimately.  The second matter concerning the documents, your Honour, Mr Joel, in effect, sought pre‑trial discovery from my clients and my clients, as they were entitled to do, said no.  In my submission, that really does not go much length to determining whether at the end of May they should not have to pay the costs of seeking an indulgence of six months that was granted to them by Justice Gaudron, bearing in mind that the usual time for the filing of these applications is in the order of 28 days after the making of the relevant decision.  Those are the matters that ‑ ‑ ‑

HIS HONOUR:   Yes.  How many people do you say were in this subset?

MR BEECH‑JONES:   I think Mr Joel identifies it about 50, but my friend will correct me.

HIS HONOUR:   Yes.

MR BEECH‑JONES:   Of those, I do not know how many have been filed.  I am sorry, he says that as at 7 June he identifies 30 people.

HIS HONOUR:   Yes, anything further?  Yes, what do you say in reply Mr Zipser?

MR ZIPSER:   I have no further submissions, your Honour.

HIS HONOUR:   In these two matters it is necessary to amend the orders made by Justice Gaudron.  The time referred to in two of those orders was extended by me on 23 May 2003, but it appears that there is a technical deficiency in those orders and it will be necessary to bring the dates in all orders to the same date.

Accordingly, in the matter of Koa, I extend the time referred to in orders 2 and 5 of the Court made on 25 November 2002 until 20 June 2003.  In respect of the matter of Suryadi, I extend the time referred to in orders 3 and 6 of the Court made on 25 November to 20 June 2003.

That leaves outstanding the question of costs.  In each application, the applicants seek an indulgence of the Court to extend the time for filing process in this Court.  Ordinarily, the applicant in such circumstances is required to pay the costs of the application.  Mr Zipser, for the applicants, concedes that is so but points to two matters in support of his submission that the proper order in this case is for each party to pay its own costs.

The first is that in November 2002, Mr Joel, the solicitor for the applicants, received a letter to which was attached a schedule which indicated that 1,908 people who had been involved in the class action had left Australia.  Accordingly, the following month Mr Joel and his staff spent some nine days locating, packing and transporting the files for these 1,908 people to a storage facility in Gladesville.  However, during January and February some of the people listed in the schedule to the letter from the Australian Government Solicitor of 21 November 2002 approached his office and inquired as to why they had not received the information package which had been sent to other members of what were then known as the Muin and Lie class actions.

Accordingly, in February 2003 Mr Joel and his staff retrieved the contact details of the people listed in that schedule.  On 11 February 2003 he forwarded a copy of the information package to these people.  A number of people contacted him in response to this letter.  As a result, it is fair to say, I think, that as a result of the letter from the Department on 21 November some two and a half months of time granted to file process in this Court has fallen away. 

It was obviously the intention of Justice Gaudron that the applicants should have six months in which to file process.  The numbers of people involved are very large.  It is conceded by Mr Beech‑Jones for the respondents that there has been nothing unreasonable in the conduct of the action by Mr Joel, the applicants’ solicitor, but Mr Beech‑Jones says that the obligation is on him and his clients to remain in contact.  However, having regard to the innocent mistake of the Australian Government Solicitor in contending that these 1,908 people had left Australia when a number of them had not left Australia, it seems to me that the applicants have been deprived of an appreciable time period in which to act. 

In the circumstances, I think in all fairness the proper order is that the parties should pay their own costs.  Accordingly, I make the orders extending the time in the various orders to 20 June.  I order that each party pay his or her or its own costs.  Otherwise, summons dismissed.  Is there anything further? 

MR BEECH‑JONES:   Well, I do not know, in light of the order your Honour has made, whether certifying for counsel makes any difference or not.  I assume it will not make any difference to whether my client pays my fees, but if your Honour could just do that for an abundance of caution and for the last occasion.  The second matter is – and I do not in any way want to cavil with what your Honour’s judgment just said – your Honour referred to the “innocent mistake” of the AGS in contending that 1,908 people left Australia.  I am mainly concerned whether that might be misconstrued in saying that they had mistakenly said all 1,908. 

HIS HONOUR:   Yes, I will correct that. 

MR BEECH‑JONES:   Thank you, your Honour. 

HIS HONOUR:   Thank you.  Insofar as it has any relevance, I certify for the attendance of counsel today and on 23 May 2003.  Adjourn the Court. 

AT 10.13 AM THE MATTERS WERE CONCLUDED