Herijanto v Refugee Review Tribunal & Ors S97/1998 [2000] HCATrans 403 (27 June 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S97 of 1998

B e t w e e n -

HERIJANTO (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 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

For mention

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 27 JUNE 2000, AT 9.03 AM

(Continued from 29/5/00)

Copyright in the High Court of Australia

___________________

MR M.A. ROBINSON: I appear for the plaintiffs in those matters. (instructed by Adrian Joel & Co)

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

MR ROBINSON: Your Honour, I am pleased to say that the parties have moved somewhat closer together in relation to stating the facts - - -

HER HONOUR: Not quite as close as I had indicated should be the case on the last occasion.

MR ROBINSON: There has been, as your Honour foreshadowed on the last occasion, we say, not enough time to make that journey. We have gone a fair way down the track, your Honour, and I have a hard copy of that which I faxed to the Court late yesterday.

HER HONOUR: Yes, I have read that briefly, but not thoroughly.

MR ROBINSON: Thank you, your Honour. The short of it is this, in relation to the facts. We have set out a substantial draft of the plaintiff's facts in Herijanto, in that matter. We have not done so at all in relation to Muin and Lie, but in those two matters it might only be a question of four or five days to get those together. The hardest one, of course, is the first one. In relation to the Commonwealth's position, we expect that there will be some movement from this substantial draft towards another draft emanating from the Commonwealth, but I will not speak for my learned friend in that regard. But it may be that the parties can move closer together on the question of agreeing to more facts in the matter.

In addition to that issue, there is one other issue that the plaintiffs seek to agitate this morning and that is the question of the joinder of about 96 other named represented parties in respect of the Lie matter alone. I have filed and served an affidavit of Mr Adrian Phillip Joel, sworn on 22 June this year, on which I rely in that regard.

HER HONOUR: Yes, I have read that. Is there any objection to that affidavit, Mr Basten?

MR BASTEN: No, your Honour.

HER HONOUR: Thank you. You can take that as read, Mr Robinson.

MR ROBINSON: Thank you, your Honour. I would ask that the orders be made in the form of annexure A to that affidavit, granting leave to add the named parties. The word "statements" plural there should be "statement" singular, your Honour.

HER HONOUR: Thank you. I will amend that. Yes, Mr Basten.

MR BASTEN: Your Honour has dealt with this aspect of it before. We do not consent to the order, but we have nothing to say.

HER HONOUR: Very well. There will be an order in accordance with annexure A as amended by me to the affidavit of Adrian Phillip Joel, sworn 22 June 2000.

Now, what about progress, Mr Basten?

MR BASTEN: Your Honour, we put on an affidavit of Andrew Robinson Pearson of 23 June 2000 noting what we had done in response to your Honour's order. As Mr Robinson says, we have now received, in one of the matters, a return version of the statement of agreed facts. I can say that there are some additional paragraphs which we do not accept but the difficulty I foresee, your Honour, is that those paragraphs do not appear, to me, to be matters which would be dealt with by my friend by way of evidence. So that this may be what your Honour was referring to this morning. But we seem still to be missing a statement of those matters which my friends would seek to establish through cross-examination.

HER HONOUR: Perhaps I can ask it this way. Do the second and third defendants seek to establish anything through cross-examination?

MR BASTEN: No, your Honour.

HER HONOUR: So there is no need for any cross-examination of Mr Herijanto?

MR BASTEN: For example, no.

HER HONOUR: Perhaps, then, we had better ask - - -

MR BASTEN: Can I just say this? I do not have instructions on that point but that is my understanding, that we will not wish to cross-examine any of the named plaintiffs.

HER HONOUR: Perhaps you could confirm that in due course.

MR BASTEN: We tried to, and we will confirm it as soon as - I am told I can say we have those instructions.

HER HONOUR: Very well. Thank you. Mr Robinson, the ball seems to be in your court. Is there anything you seek to establish through cross-examination?

MR ROBINSON: Your Honour, some of the matters that the plaintiff seeks to establish through cross-examination are already set out in the plaintiff's draft proposed statement of facts. I can identify those paragraphs to my learned friend. But I cannot - - -

HER HONOUR: You need to discuss with him to see what is agreed and what is not agreed, do you?

MR ROBINSON: I certainly do need that time, yes, your Honour. I can identify to my learned friend those passages which I contend will come out in cross-examination, but I do not wish to lay out, your Honour, all the possible - - -

HER HONOUR: They may be admitted.

MR ROBINSON: They may be, indeed, your Honour, but I have gone as far as I can, in that regard, to the extent that I am willing to commit to paper at this stage, your Honour. There may be other things that I would hope to achieve in a cross-examination that I would not like to yet commit to paper. I just do not know.

HER HONOUR: Whom do you want to cross-examine?

MR ROBINSON: Your Honour, there are three affidavits of the defendants in each matter. Two of them are the same in each matter so, in all, there are five witnesses deposing affidavits for the defendant in each matter. I would wish to cross-examine all - - -

HER HONOUR: Five witnesses in each matter?

MR ROBINSON: No, no, in all three matters combined. Of the two who give evidence in each matter, whose evidence is common in each matter, their affidavits are substantially identical. So that, in reality, your Honour, there are five affidavits in all, in substance, emanating from the Commonwealth. I do not expect that I will be terribly long in cross-examination of them, but I certainly would envisage, in relation to their evidence, a day plus, your Honour; that part of it alone.

HER HONOUR: Mr Joel has sworn to some difficulties.

MR ROBINSON: He is in England at the moment, your Honour. Mr Cruice is instructing me today.

HER HONOUR: He will be back on the 15th? Do I read that correctly?

MR ROBINSON: That is correct, your Honour.

HER HONOUR: With jet lag.

MR ROBINSON: With jet lag and also, he would like the opportunity to review the material and prepare for the case so that he can assist me. That means if it is the third week, your Honour, if it could be perhaps the Wednesday, Thursday and Friday. I think three days would be appropriate to set the matter down for hearing. Your Honour, there are a lot of documents in the case. We have not put the 4,000-odd pages that have been discovered in the case into evidence. We have pared that back to a rather large A4 sized folder but there is a lot of material in the case.

There is one other piece of evidence that we are yet to examine and we are in the process of examining it in detail. That is the CISNET database that has been discovered a few weeks ago by the Commonwealth to us. It carries with it the software necessary to access the data and we are working out how to use it now, your Honour. But it is something that it might be appropriate to set up a small computer and terminal to have the witness - one of the witnesses demonstrate to the Court - or at least explain to the Court how this database is accessed.

HER HONOUR: You do not expect me to do that, I trust, Mr Robinson.

MR ROBINSON: No, I certainly do not, your Honour, but it is not easy and the folio views - - -

HER HONOUR: Who has a computer that - - -

MR ROBINSON: Your Honour, the interface is not very easy. It is certainly not intuitive.

HER HONOUR: No, but do you expect the Court to set up a computer here?

MR ROBINSON: I do not raise it to the level of a formal request yet, your Honour. It is something that I am grappling with at the moment. I am attempting to work through how to use it and it is certainly not an easy matter, your Honour.

HER HONOUR: See, I do not think we have any cabling in this court room.

MR ROBINSON: It might be that one terminal might be enough, but if I could think about that for one more week, your Honour, and perhaps take it up with the Deputy Registrar, I would be grateful.

HER HONOUR: Yes, very well. Now, I cannot give you the 19th, 20th and 21st entirely, but I can give you the 19th, 20th and until lunch time on the 21st. That should be ample time, should it not?

MR ROBINSON: Until lunch time on the 21st, was it, your Honour?

HER HONOUR: Of July, yes.

MR ROBINSON: Your Honour, we would be grateful for that.

HER HONOUR: Is that suitable, Mr Basten?

MR BASTEN: We are just checking one witness. We think those dates are suitable. I have a problem on the 21st. I am meant to be in Cairns but I may be able to change that.

HER HONOUR: Two days - - -

MR BASTEN: I would have thought two days would have been ample.

HER HONOUR: I would have thought two days was very close, would you not?

MR BASTEN: More than enough for me, your Honour.

HER HONOUR: Perhaps we could sit slightly extended hours on the Wednesday and Thursday. Is that possible?

MR ROBINSON: We would be content with that, your Honour, yes.

HER HONOUR: How long will it take you to ascertain the availability of that witness?

MR BASTEN: We are trying to make inquiries now, your Honour. We were just told that late July/August was a problem for one witness and we did not have a precise date. But it should be all right.

HER HONOUR: Can the parties have further discussions about the statement of facts that are agreed?

MR ROBINSON: Yes, your Honour.

HER HONOUR: Could an attempt be made to formulate the questions for the Full Bench to answer?

MR ROBINSON: It might be preferable to do that immediately after the hearing, your Honour. I am certainly content for the parties to have a go at it before the hearing but, in light of the fact that the Court has an issues statement by the respondents, which we largely agree with, and I can speak with them about that, and a factual document, I think it will come together shortly after the hearing and it may be, if the matter be stood down for a week or two, then a draft stated case can emerge, your Honour.

HER HONOUR: I can tell you it must all be done, it must be finalised not later than the week commencing 21 August. That should be possible, I think, should it not?

MR ROBINSON: We can do it in that time, your Honour.

HER HONOUR: Very well. Is it sufficient if, at this stage, I assume that that witness will be available and list the matter for mention again in one week to see that these documents are ready and to see what is agreed?

MR BASTEN: Yes.

HER HONOUR: Otherwise I will set aside 19, 20 and the morning of 21 July for cross-examination of the witnesses.

MR BASTEN: Your Honour, would a little more than a week be convenient. We are just thinking that a week might be a little tight?

HER HONOUR: Yes, certainly; a fortnight?

MR BASTEN: A fortnight would certainly be fine.

HER HONOUR: Do you agree, Mr Robinson?

MR ROBINSON: Yes, your Honour. It Monday, the 10th, convenient?

HER HONOUR: Yes, Monday, 10 July. Or Tuesday, 11th?

MR ROBINSON: I am sitting as a tribunal on that day, your Honour.

HER HONOUR: Monday, 10 July will be fine, at 9 o'clock.

At this stage, we will adjourn until Monday, 10 July, at 9 am.

I will certify for the attendance of counsel and otherwise say that costs are costs in the cause.

MR BASTEN: If the Court pleases.

MR ROBINSON: If the Court pleases.

HER HONOUR: Thank you. We will adjourn now.

AT 9.19 AM THE MATTER WAS ADJOURNED

UNTIL MONDAY, 10 JULY 2000