Tram v Minister for Immigration, Citizenship and Multicultural Affairs

[2019] HCATrans 111

[2019] HCATrans 111

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M167 of 2018

B e t w e e n -

NHUT KHA TRAM (NGUYEN THI NGOC DUNG AS HIS LITIGATION GUARDIAN)

Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Defendant

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 22 MAY 2019, AT 9.29 AM

Copyright in the High Court of Australia

MS G.A. COSTELLO:   May it please the Court, I appear for the plaintiff.  (instructed by Da Gama Pereira & Associates)

MR C.J. TRAN:   If the Court pleases, I appear on behalf of the defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Ms Costello, it strikes me that given the nature of the facts in dispute as to the transmission of the email, particularly attachments to it, of 13 July 2018, and thus far the failure to provide, as it were, confirmatory evidence by way of metadata, something more needs to be done before we can sort this out.

MS COSTELLO:   Your Honour, do you mean something more needs to be done in terms of affidavit material or a trial?

HIS HONOUR:   I think we need to have a trial.  It seems to me it is a case of hard swearing – just going to have to work it out with some cross‑examination.  Before that occurred though – I think it can happen fairly quickly – I had in mind it would probably be desirable to order some form of discovery from both sides, limited, of course ‑ in your case, the case of the plaintiff, discovery of all documents, including electronic documents, relating to the missing email and the attachments.  That would include, of course, the metadata.

In the case of the Commonwealth, all the documents in its possession, custody or control relating to the missing email, so that both of you will have a clear perspective of what each side has and can then cross‑examine deponents accordingly.  I would hope that that could be done ‑ filed within the space of day and I am available, I think, to do that in the final week of June after the June sittings in Canberra.

MS COSTELLO:   Yes, your Honour.  I have instructions that the plaintiff does not intend to file any further affidavit material, but I am aware that the Minister may seek to file some further material.  I am not sure whether that would change the timing.

HIS HONOUR:   No, we will need to work quickly, but obviously both sides have had a long time to think about it and have done a lot of work already searching their documents and such like so I expect it could be done fairly quickly.

MS COSTELLO:   Yes, your Honour.  We would not need long to obtain discovery – to arrange discovery.  Your Honour, I have a proposed set of directions that address the matters that your Honour has not made observations about.

HIS HONOUR:   Yes.

MS COSTELLO:   Subject to your Honour’s observations regarding discovery, these are agreed between the parties.  The first, consistent with your Honour’s observations, is that it would be a matter listed for we estimated half a day but it may be one day, and if it was convenient to your Honour, if it could be in Melbourne that would be convenient to the lawyers for the parties.

HIS HONOUR:   Yes, certainly.

MS COSTELLO:   At paragraph 2, your Honour may recall – or would recall in the submissions a joint position that additional relief in the form of a writ of certiorari would be appropriate and so the plaintiff seeks to amend its application accordingly and you can see what is proposed there in order 2.

HIS HONOUR:   Yes.

MS COSTELLO:   The third order is that the evidence be by way of affidavit.  The fourth is that if the defendant wishes to file and serve any further affidavit it does so ‑ and your Honour might have a view as to the date.

HIS HONOUR:   It will have to come back a long way for it, yes.

MS COSTELLO:   Yes, your Honour.  The plaintiff would need to file it – may not need to file anything further but would like an opportunity to do so.  Then there is a suggestion of a court book.  So if your Honour had also contemplated discovery then we could fit that in there and adjust the dates according to your Honour’s view as to the date.

HIS HONOUR:   What I had in mind by way of discovery was that each party make discovery by 29 May and so far as you are concerned that would include providing to the Commonwealth an electronic copy of the missing email and attachments, including the metadata.

MS COSTELLO:   Your Honour, you have seen the affidavit material in that regard.

HIS HONOUR:   I have.  Yes, I have seen that, but it is some time ago since there was the difficulty with the Yahoo account.  I assume it has been sorted out by now.

MS COSTELLO:   I will have to seek some instructions about that, your Honour, but we will make the discovery that we can by the date.

HIS HONOUR:   Yes.  As to the filing of further affidavits, I had in mind that each party would file such further affidavits as they may seek to rely upon at trial by 31 May ‑ ‑ ‑

MS COSTELLO:   Yes, your Honour.

HIS HONOUR:   ‑ ‑ ‑ which would give you both a week plus from now and you would have the benefit of the discovery.  Then I thought it might be a good idea if we had a final directions hearing on 5 June just so that we can make sure that everything is in place and that, if it is necessary, notices of cross‑examination are given.

MS COSTELLO:   My instructing solicitor and I will be in Canberra on 5 June.  I know convenience of counsel and solicitors is not paramount ‑ ‑ ‑

HIS HONOUR:   No problem, we can do that by video link, I am sure.

MS COSTELLO:   May it please the Court.

HIS HONOUR:   Mr Tran, what do you have to say about it?

MR TRAN:   Nothing to say against that, your Honour.  I think it sounds convenient.

HIS HONOUR:   What I will do, lady and gentleman, is make the following orders:

1.The application be listed for final hearing before me at Melbourne on Monday, 24 June 2019 on an estimate of half a day.

2.On or before 29 May 2019, the plaintiff shall file an amended application seeking the following orders in addition to those stated in paragraph 1 of the filed application: 

“2. A writ of certiorari quashing the decision of the defendant’s delegate dated 27 February 2018.

3.The defendant pay the plaintiff’s costs of this application.”

3.On or before 4.00 pm on Wednesday, 29 May 2019 each party shall give discovery by filing and serving an affidavit of documents in Form 29B in the Supreme Court (General Civil Procedure) Rules 2005 (Vic) of all documents, including electronic documents, which are or have been in the possession, custody or control of that party relating to the email dated 30 July 2018 of which an image is presented as exhibit LH‑4 to the affidavit of Lan Hoang, affirmed 10 April 2019, the missing email and the attachments thereto.

4.Without limiting or being limited by Order 3, on or before 4.00 pm on Wednesday, 29 May 2019 the plaintiff shall provide to the defendant by email transmission or other agreed procedure an electronic copy of the missing email and the attachments thereto, and all metadata relating to the missing email and the attachments thereto.

5.        Evidence at trial shall be by way of affidavit.

6.On or before 4.00 pm on Friday, 31 May 2019 each party shall file and serve such further affidavit or affidavits upon which it may seek to rely at trial.

7.The further hearing of this directions hearing be adjourned to 9.30 am on Wednesday, 5 June 2019.

I assume the costs will be reserved, are they, counsel?

MS COSTELLO:   Yes, your Honour.

HIS HONOUR:   I make an order that each party’s costs of this day’s directions hearing be reserved.

MS COSTELLO:   Yes, your Honour.  Just one matter - your Honour, if I have heard correctly, has ordered that the plaintiff provide an electronic copy of the email and metadata.

HIS HONOUR:   Yes, and the attachments to it.

MS COSTELLO:   Yes, your Honour.  To date I am instructed that that is not able to be done and so before departing the Court with such an order being made I submit that if it is not done then there would be a breach of that order.

HIS HONOUR:   Yes.

MS COSTELLO:   I suppose that could be a matter dealt with at the further directions hearing.

HIS HONOUR:   Directions hearing.  Normally, …..affidavit evidence it is not complied with.  I appreciate there may be good reasons but it strikes me as unusually strange that it cannot be obtained.

MS COSTELLO:   Yes, your Honour.  So could the order be that failing which an affidavit of explanation be provided?

HIS HONOUR:   I will hear Mr Tran on that.  What do you say, Mr Tran?

MR TRAN:   In my submission, an amendment to the effect that Ms Costello identified would be appropriate so as to avoid the circumstance that her client might be in breach of a Court order.

HIS HONOUR:   All right.  Then I shall add to Order 4 the following words:  “or failing that, an affidavit as to the reasons why the electronic copy of the missing email and attachments and metadata cannot be so provided”.

MR TRAN:   If the Court pleases.  If I may alert your Honour, I think I heard your Honour refer to the 2005 version of the Supreme Court Rules.  They have been updated to the 2015 version but I have not, sitting here, been able to check that the rule that your Honour referred to still remains in place.  If I may just alert your Honour and perhaps your Honour’s associate.

HIS HONOUR:   Thank you.  I started with that because of the form.

MR TRAN:   Okay.  Thank you, your Honour.

HIS HONOUR:   Ms Costello, is there anything further for your side?

MS COSTELLO:   No, your Honour.

HIS HONOUR:   Thank you, counsel, I am grateful for your assistance.  You will have to make an arrangement with the Registrar for the video from Canberra for 5 June if you are there.

MS COSTELLO:   Yes, your Honour, I will see if we can rearrange our affairs and, if not, I will do so.  Thank you.

AT 9.41 AM THE MATTER WAS ADJOURNED