Lie v Refugee Review Tribunal & Ors S89/1999 [2000] HCATrans 670 (3 November 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

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 3 NOVEMBER 2000, AT 9.35 AM

(Continued from 1/11/00)

Copyright in the High Court of Australia

___________________

HER HONOUR: I take it the appearances are as before. That is sufficient to note that, is it? Yes, Mr Basten.

MR BASTEN: Your Honour, I have a set of questions referred in each matter which I can hand up to your Honour together with a statement of agreed facts in each matter.

HER HONOUR: And the statement is, in fact, agreed?

MR BASTEN: Yes, the statement is agreed. I am not sure if the precise form of the questions are agreed.

HER HONOUR: I think I indicated what the question should be.

MR BASTEN: Yes. We have attempted to follow what your Honour said on the last occasion so I hope they are in order.

HER HONOUR: Thank you.

MR BASTEN: And I apologise for the fact that the heading on the second two matters on the questions is handwritten. We will re-engross those and file them in the Court today if that is convenient. There was a typographical error.

HER HONOUR: It is sufficient if I look at - - -

MR BASTEN: Herijanto, I think.

HER HONOUR: Yes. Very well.

MR ROBINSON: Paragraph 12, your Honour, the words "if any" where they appear twice in the first line of paragraph 12 on page 4 and in subparagraph 4(b), I may not have heard your Honour say those words. I did not. My instructing solicitor did not.

It is a subtle emphasis matter which would indicate to the Full Court that your Honour is of the view that perhaps there are not any inferences at all that can be drawn from the facts.

HER HONOUR: Well, if I were of any different view, then perhaps, one way or the other there might be problems, do you not think?

MR ROBINSON: It is a matter for your Honour.

HER HONOUR: Yes. Well, I will refer questions to a Full Bench of the Court pursuant to section 18 of the Judiciary Act in accordance with the drafts handed to me today and marked respectively `A', `B' and `C', and I note the agreed statements of fact, which will be attached to each of those questions referred. Now, I think there were some final orders remaining from Wednesday. You had some draft minutes of order, Mr Basten.

MR BASTEN: Yes, I did, your Honour.

HER HONOUR: Have you got them?

MR BASTEN: I did, your Honour. They related to directions for the preparation and filing of books and for the preparation and filing of written submissions.

MR ROBINSON: I wish to be heard on that, your Honour.

HER HONOUR: Yes, very well. Yes, Mr Robinson.

MR ROBINSON: Your Honour, I have the draft short minutes of order of my learned friend in Herijanto in front of me.

HER HONOUR: Yes, that is what I have.

MR ROBINSON: Apart from the words "Draft Case Stated", of course, which are questions referred, in paragraph B1 and paragraph numbered 3, that is:

The plaintiff file and serve the court books not later than 10 weeks -

your Honour, as the Court is aware, it is a rather substantial exercise to put together these books and the primary issue that I would seek to agitate is it might be a matter that the parties can do jointly.

I say that because in these proceedings all of the parties who are joined and who are plaintiffs in all three are not permitted to work in Australia by the defendant. If they have gone through the appeal process they are entitled to a bridging visa E. They remain in Australia for the time being pending the final resolution by this Court of these proceedings but they are not permitted to work in Australia, on my instructions, your Honour, that is by operation of the Migration Regulations and I can take your Honour to the precise provisions that, in effect, set that out. But the reality is none of the 5,700-odd participants in these proceedings are permitted by the Commonwealth to work at all, either voluntary work or paid work. That puts a rather heavy burden on the plaintiffs here.

I am not seeking to shirk from what we have set in place, your Honour. There is no question that ordinarily a plaintiff would be required to put together the court books and that is something that we do not happily shirk from but, in this particular case, in these particular circumstances, we do ask your Honour to rule that either the defendants file and serve the court books or that it be done jointly.

Secondly, your Honour, in relation to paragraph numbered 4, we would ask that we file and serve written submissions not later than five weeks prior to the hearing. I might forget it all in seven weeks, your Honour. Secondly, we are happy for paragraph 5 to be adjusted accordingly to two weeks, otherwise we are content with the orders.

There is one other matter that I want to agitate. I only flag it now, your Honour, and that is a joinder mechanism question. I will come back to that after your Honour has considered these orders, if your Honour is content with that.

HER HONOUR: Yes. Mr Basten, is it possible for the parties to co-operate in this respect?

MR BASTEN: We were going to put together one book. That was the order 1. We have the documents. We will put them together. It is up to the plaintiff, we would say, to make the necessary arrangements to copy all of the material and provide it to the Court. My friend accepts that would be the ordinary order. He seeks to plead impecuniosity without any evidence. He says we have 5,700 people. If they paid $200 each to join this class we would have over $1 million. I have no idea whether they have any funds but there is no evidence of impecuniosity and we say no reason to depart from the ordinary order.

So far as the dates are concerned, my friend is not varying them proportionately. We suggested those dates because we think it is necessary, given the volume of material, that we have four weeks between receiving their submissions and filing ours and we also thought that it may be appropriate for them to have a right of reply and unless the Court is going to be burdened with lengthy submissions received on the eve of the hearing, paragraphs 4, 5 and 6 would probably need to be roughly in those terms.

HER HONOUR: The plaintiffs are happy to have two weeks and one week for a reply so it is really only a question of whether you need three weeks or four weeks to prepare your submissions.

MR BASTEN: I am in your Honour's hands.

HER HONOUR: Yes, I mean, that is really the only question, three weeks or four weeks.

MR BASTEN: Well, if my friend says that he wants, though, his written submissions five weeks prior to the hearing date then he is not going to get a chance for a reply if he reduces everything by two weeks so he is reducing us by one and he still loses his reply a week before. We have to go back.

HER HONOUR: Is that right? If he files within five weeks - - -

MR BASTEN: And we file within two he has only a week for his reply, I suppose. That is one possibility, if we leave 6 as it is.

HER HONOUR: Yes, I think that is right. It has to be 6, does it not? Yes. I think that is right, Mr Robinson.

MR ROBINSON: I have nothing further to say.

HER HONOUR: Yes. Look, I think at this stage, we will take out the "by consent" in this document. I will make orders in accordance with orders 1, 2, 3. Order 4 will be varied so that it is "not later than six weeks". The defendants to "file and serve not later than 2 weeks" and otherwise make orders in accordance with orders 6, 7, 8 and 9 in the short minutes of order. Further, certify for the attendance of counsel but leave to the plaintiff to file an affidavit if there is any specific problem about the preparation of court books and the matter can then be further considered. It is difficult to see that the burden can be put on the defendant.

MR ROBINSON: Your Honour, my friend did not contest that we are not entitled to work in this country. My clients are not entitled to work in this country and that is the position.

HER HONOUR: I do not know that that deals with the matter totally, Mr Robinson.

MR ROBINSON: Your Honour, in relation to the other matter, is it a convenient time to raise it?

HER HONOUR: Yes.

MR ROBINSON: In relation to the joinder issue - I have been calling it joinder, your Honour. On one view - your Honour is aware that there are many people who are specifically named as parties in the representative proceedings part of it. They are there out of an abundance of caution, in my submission, because if they are not specifically named in a document that is filed in this Court, then they are liable, as a practical matter, to be ejected from the country by operation of the Migration Act without any Executive decision or discretion being invoked.

So, as a practical matter, in order to avoid being ejected we have been moving this Court from time to time to seek to add persons to these proceedings. Now, we have been doing it out of an abundance of caution in a formal way, seeking formal orders of your Honour joining these people as named parties. That may not be necessary but, in any event, the last seven or eight applications have not been actively opposed by the Commonwealth. Before the final hearing of this matter, which I expect would be some time early next year - - -

HER HONOUR: It may not be so early next year.

MR ROBINSON: Your Honour, if it is late this year we are - - -

HER HONOUR: No, I am sorry. It will not be late this year and given the Court lists it may not be all that early in the new year. I think there are a number of big matters already listed for February and March, is it not? Yes, the February/March sittings have not been settled but it would be unlikely that you would make those sittings.

MR ROBINSON: Your Honour, my short point is there will be some people, particularly in the Lie matter, who are the subject of decisions who will make their way to my instructing solicitor in the interim, who, upon examination - your Honour will recall from earlier joinder applications, we do not let everyone in by any means, otherwise there would be something like 15,000 people in these proceedings. Upon examination, if it appears that they fulfil the relevant criteria for being joined in this class, we seek a mechanism of your Honour, an administrative mechanism that would allow these people to be joined without troubling your Honour in open court and without troubling the other side.

HER HONOUR: I do not think there is any such mechanism, is there, and in the absence of consent, the matter has to be dealt with in the ordinary way.

MR ROBINSON: Your Honour, I am simply seeking to establish a way. In my submission, the filing of an affidavit with appropriate notice to the other side, the schedule to the pleadings - and that is all we are seeking really, an amendment to the schedule to the pleadings, rather than a substantive pleading change - can be dealt with by your Honour in the absence of the parties, in my respectful submission. The defendants have had nothing to say about the last seven or eight joinders. I do not expect they would have anything to say about the next several joinder applications that will be made, in my submission, from time to time. In order to save the trouble of bringing everyone back before the Court if, perhaps, we could make the application by filing an affidavit from time to time in writing and seeking your Honour's orders ex parte in chambers.

HER HONOUR: I do not think that can really be done, Mr Robinson, but I would be prepared to excuse the parties from attendance if they were to agree in that respect on each occasion.

MR ROBINSON: Thank you, your Honour.

HER HONOUR: Well, I can excuse the parties, in advance, from attendance and it is up to the parties to determine whether or not they do.

MR ROBINSON: We are content with that course, your Honour.

HER HONOUR: And I think that is all that could be done. Do you have any problem with that, Mr Basten?

MR BASTEN: No, your Honour. We do not wish to be difficult but we had understood this process would stop now and our understanding is obviously wrong and I do not have any instructions to take the matter any further.

HER HONOUR: Yes. I will just indicate now that it is a matter for the parties whether or not they attend if any further applications are made.

AT 9.53 AM THE MATTER WAS CONCLUDED