Prosecutor 1, 2, 3 and 4, Ex parte - Re MIMA & Ors S196/2001 [2001] HCATrans 566 (31 October 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S196 of 2001

In the matter of -

An application for Writs of Certiorari Mandamus, Prohibition and an Injunction against PHILIP RUDDOCK in his capacity as THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

First Respondent

The REFUGEE REVIEW TRIBUNAL as constituted by SUE ZELINKA

Second Respondent

PETER NYGH in his capacity as the Principal Member of the REFUGEE REVIEW TRIBUNAL

Third Respondent

Ex parte -

PROSECUTOR 1, 2, 3 and 4

Prosecutors/Applicants

GLEESON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYNEY ON WEDNESDAY, 31 OCTOBER 2001, AT 10.31 AM

Copyright in the High Court of Australia

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MR D.D. KNOLL: I appear for the prosecutors. (instructed by Ebsworth & Ebsworth)

MR D. JORDAN: May it please the Court, I appear for the first respondent. (instructed by the Blake Dawson Waldron)

HIS HONOUR: There is a certificate from the Deputy Registrar to the effect that she has been informed by the solicitors for the second and third respondents that the second and third respondents do not wish to be represented at the hearing of this matter and will submit to any order of the Court save as to costs.

Mr Knoll, I have read the papers in this matter. How long would you expect a full argument on the merits of the matter to take? By "the matter" I mean the application for final relief.

MR KNOLL: Your Honour, I think, given written submissions, no more than half a day.

HIS HONOUR: What do you say about that, Mr Jordan?

MR JORDAN: I am largely guided by what my friend says because he has the running of it.

HIS HONOUR: All right. Let me ask you both this. There are three possible courses that I could take after today's hearing. One would be to dismiss the application for an order nisi. The second would be to grant an order nisi, which would

mean that the matter would go to a Full Court for the hearing of an application to have the order nisi made absolute. The third alternative would be to refer to a Full Court the application for an order nisi to be argued as on a final hearing.

One of the courses that would be open in the event that I did the last of those three things would be to constitute a Full Court consisting of myself and two other members of the Court. Although I cannot give a firm date at the moment, I would expect that I would be in a position to do that at 2.15 on Tuesday, 27 November. What do counsel have to say about that course? It might have the advantage of bringing the matter to a head in the long run more quickly.

MR JORDAN: Your Honour, obviously I can understand the reasoning behind such a proposal. Clearly enough the first respondent's case is that there is not even a reasonably arguable case sufficient to warrant orders nisi and it is clear, but I will make it even clearer. That said, certainly there may in the end be the effective result of minimising some duplication in litigation. That is understood. In those circumstances, if your Honour was minded to take that course, equipped, as your Honour is, with the written submissions, then we would not be opposed to it.

That said, our position, the first's respondent's position, is that this is not a very good vehicle at all for a claim of a denial of procedural fairness as put and, in fact, in one result the course that your Honour has foreshadowed may be less efficient because those other two Justices will be involved. Of course, as your Honour says, it may bring things to a head and your Honour has not had the benefit of full argument. That is the first respondent's position.

HIS HONOUR: What is your position, Mr Knoll?

MR KNOLL: Your Honour, we are clearly content with the course. My only difficulty is that I am in the South Australian Supreme Court on that day, the 27th, in Adelaide.

HIS HONOUR: The reason I selected the 27th is that we are having a Justices' meeting in Sydney on the morning of the 27th and it would make it easier to constitute a Full Court in the afternoon. When will you be back from Adelaide?

MR KNOLL: That matter is set down for two days, your Honour.

HIS HONOUR: I will take that into consideration. What about Thursday, 29 November?

MR KNOLL: I am available, your Honour.

HIS HONOUR: Are you available on that day, Mr Knoll?

MR JORDAN: Your Honour, I am embarrassed to say I did not bring my diary.

HIS HONOUR: I only asked that question out of politeness anyway.

MR JORDAN: Yes, I know, your Honour.

HIS HONOUR: I think having regard to the history of the proceedings it is undesirable to force a change of counsel on the applicants but I do not have quite the same sensitivity about your client.

MR JORDAN: That is understood, your Honour.

HIS HONOUR: Then what I will do is refer this application for an order nisi to a Full Court. I will indicate to the parties, without giving a firm statement at this stage, that I would hope to be able to constitute a Court of three Justices consisting of myself and two other Justices during the week commencing 26 November, and probably at 10.15 on Thursday, 29 November, but I will ask the Deputy Registrar to contact both counsel after I have firmed up on those arrangements. Costs of today's proceedings will be costs in the application. I certify for the attendance of counsel in chambers.

MR KNOLL: Your Honour, may I attend to two housekeeping matters?

HIS HONOUR: Yes.

MR KNOLL: The first is an affidavit which I believe the Court has provided to my friend's solicitor which attaches two letters which were inadvertently omitted from my client's first affidavit and I seek leave to file that in Court.

HIS HONOUR: Any objection to that, Mr Knoll?

MR JORDAN: There is no objection, your Honour.

HIS HONOUR: Yes, you have that leave.

MR KNOLL: And the amended draft orders nisi are also annexed.

HIS HONOUR: Thank you. Can I ask counsel now in relation to what I hope will be a hearing on a final basis during the week commencing 26 November is it clear that all the evidence on which both sides wish to rely is now in?

MR KNOLL: From my side, I understand that to be the case, your Honour.

HIS HONOUR: Mr Knoll?

MR JORDAN: Yes, your Honour.

HIS HONOUR: Could you just indicate to me what you understand to be the areas, if any, of factual dispute.

MR KNOLL: Your Honour, I should submit that there are two potential areas of factual dispute that I am aware of, the first of which relates to a letter which the Refugee Review Tribunal indicates it dispatched on 5 March to the prosecutors and the prosecutors say they did not receive it. I am not sure that an awful lot turns on the receipt of that letter in the present application but it is an area where the parties have some difference. The second area is the nature and extent of the mental health of the prosecutors and we have sought through my instructing solicitors to document that as fully as possible to inform the Court by means of affidavit and annexures. I do not know whether that is a matter in dispute, but it is a potential matter in dispute.

HIS HONOUR: I will ask Mr Knoll about that. I understand the position in relation to the letter, which I think was the letter of 5 March. What is the position about the evidence concerning the mental state of the applicants?

MR JORDAN: If I could just, firstly, with respect, let your Honour know that I am Mr Jordan and the prosecutor is Mr Knoll.

HIS HONOUR: I am sorry.

MR JORDAN: In relation to the mental evidence, there is in the first affidavit filed by the second prosecutor a large number of paragraphs relating to what is said to be the mental state of the prosecutor No 1. The first respondent's position is that that material is really not relevant to the question of a determination here because the point that is being made by the prosecutors is an allegation that the Tribunal did not accord procedural fairness.

HIS HONOUR: I understand that, but if and to the extent to which it is relevant, what is your position in relation to the facts?

MR JORDAN: We are not in a position to contradict that material. We say it is not relevant.

HIS HONOUR: Right. So the only area of dispute about that material concerns its relevance?

MR JORDAN: Yes.

HIS HONOUR: Good.

MR JORDAN: As to the 5 March letter and its receipt, that is the subject of a finding of fact by the Tribunal and it would be upon that finding of fact that the first respondent would rely.

HIS HONOUR: In any event, Mr Knoll does not seem to suggest that much importance attaches to that matter.

MR JORDAN: No, and I think he is right to do so, with respect.

HIS HONOUR: I wonder if I could encourage counsel to do this. In your outline, Mr Jordan, I notice there is a very useful recital of the facts. I wonder if it is possible for counsel to produce an agreed statement of facts. That will, of course, not include the letter of 5 March and it will not include the assertions made about the mental condition of the first and second applicants because, even though you are not contradicting them, you deny their relevance and I do not understand you to agree with them.

MR JORDAN: It is simply that we are not in a position to contradict that material.

HIS HONOUR: Quite. So I do not suggest that the statement of agreed facts should include that matter. But subject to the letter of 5 March and subject to the matter concerning the mental condition of the first and second prosecutors, there is no reason, is there, why the parties should not between themselves agree upon a statement of all the relevant facts?

MR JORDAN: Your Honour, I think that is eminently possible because, as you will have seen from my written outline, at least, it really does turn upon a course of correspondence, all of which speaks for itself.

HIS HONOUR: I will not make any formal direction about that, Mr Jordan, but I will just indicate to you and Mr Knoll that I would expect that you would be able to do that and that should shorten the matter when it comes on for hearing in November.

MR JORDAN: Yes, if it please the Court.

HIS HONOUR: Is there anything else I need to deal with?

MR KNOLL: Yes, your Honour. There is one other matter and I do not wish to delay the Court in any sense. I have given my friend a draft, on which I believe he has some comments, seeking to implement by consent a suppression order which, as your Honour will appreciate, is no longer unusual in these cases and has now, in fact, been implemented in section 91X of the Migration Act. My clients have some concern that their identity be suppressed in all reasonable ways and I am wondering if we might have the leave of the Court to approach your associate once we have agreed a form of consent orders in that regard.

HIS HONOUR: I could just make that order in chambers. Is that the idea?

MR KNOLL: That would be my proposal, if my friend would agree to it. We seek to do it by consent.

HIS HONOUR: Yes. I do not think there will be any difficulty about that, Mr Knoll, but I just want to ask Mr Jordan this. I presume that any suppression order that I will be asked to make will be in an order that is required by legislation.

MR JORDAN: Your Honour, I am not sure that my friend is seeking an order on precisely that basis. I am unaware at this stage as to whether there is a specific legislative basis for the orders that my friend seeks and I had understood him to be seeking them - and I might be wrong about this, I must say - simply within the Court's inherent jurisdiction to control its own processes.

HIS HONOUR: Yes. That is a different matter.

MR JORDAN: Yes.

HIS HONOUR: Insofar as legislation requires suppression, of course, there will be no hesitation in making any order that conforms to the requirements of the legislation. Insofar as suppression is sought on any basis that goes beyond the requirements of the legislation, that is a different matter. Is it a matter that can await resolution when a Full Court is constitute?

MR JORDAN: I certainly think it can and it would allow the parties an opportunity to at least resolve practical difficulties as to the wording of the order, which can take up valuable time.

HIS HONOUR: What do you say about that, Mr Knoll?

MR KNOLL: Might I have a moment to seek instructions?

HIS HONOUR: Yes.

MR KNOLL: Thank you. Your Honour, my instructions are that thus far with the co-operation of the Registry there has only been an innominate in relation to the names of the prosecutors. If that could simply be continued, it would be helpful. The second instruction I have is to ask the Court if, in the meantime, access to the file might be subject to notification to the parties' respective legal representatives. My clients' particular concern is that persons who have nothing to do with the proceedings but may be the object of their particular fear might have access to the file.

HIS HONOUR: Are you content with that, Mr Knoll?

MR JORDAN: Mr Jordan.

HIS HONOUR: I am sorry, Mr Jordan. Are you content with that?

MR JORDAN: Yes, your Honour.

HIS HONOUR: What exactly did you want to do, Mr Knoll?

MR KNOLL: Your Honour, if the Court might simply direct that if a person who is not party to the proceedings seeks access to the file, the parties' respective solicitors be notified and such access be by consent of both parties' respective solicitors until such time as the Court orders otherwise. That would easily deal with the matter.

HIS HONOUR: No. I am prepared to do some like that but different.

MR KNOLL: I understand, your Honour.

HIS HONOUR: I am prepared to say that if access to the file is sought by anybody other than the parties, the parties' solicitors are to be notified and such access is not to be granted without further order of the Court, the parties' solicitors being given an opportunity to make submissions as to what that order ought to be.

MR KNOLL: If it please the Court.

HIS HONOUR: So far as the present innominate status of the prosecutors are concerned, as Mr Jordan has pointed out, that can simply be continued pending the November hearing. Is there anything else I need to attend to?

MR KNOLL: Not on our side, your Honour.

HIS HONOUR: Mr Jordan?

MR JORDAN: Your Honour, I might just foreshadow a matter which at this stage I am not entirely clear how my friend was going to proceed, but the ground B in the draft order nisi relates to what I have called a third party letter and related documents.

HIS HONOUR: Just a moment. There is an amended draft, I think, is there not, come up with this affidavit? Yes, I have not looked at that yet. Just give me a moment. Ground B?

MR JORDAN: Ground B.

HIS HONOUR: Yes, I have read that.

MR JORDAN: Your Honour will see that at paragraph 13 of that draft order particular folios have been identified. It is those documents which ultimately were denied to the prosecutors under their FOI requests on the basis that it would result in an unreasonable disclosure of personal information.

HIS HONOUR: There was litigation about that, was there not?

MR JORDAN: There was. There was an order for discovery in the Federal Court, as a result of which all of the documents within the possession of the first respondent was produced and, on an undertaking by my friend, the confidential documents were provided to him. I just thought I should note that certainly as far as the first respondent is concerned there is scope for an appropriate balance between retaining the confidentiality of those documents and obviously equipping the Court properly to determine the matter.

What I am saying, your Honour, is that if it is necessary, there is certainly no objection on the part of the first respondent to the Court being provided with copies of those documents on the basis - and this would need to be worked out in practical terms - that they remain confidential as far as the prosecutors themselves are concerned.

HIS HONOUR: Do you mean by that that counsel for the prosecutors already knows what is in those documents?

MR JORDAN: Yes, your Honour.

HIS HONOUR: But has been given that information on terms that he does not communicate that to his clients?

MR JORDAN: Correct.

HIS HONOUR: I will note that that is what has happened in the past and you are proposing that that is what should happen in the future and I make no comment about it. It will be a matter for the Court that deals with it. I will only say this: when I was a barrister I did not like having information that I was not permitted to disclose to my clients.

MR JORDAN: No, I understand that, your Honour.

MR KNOLL: Your Honour, I might indicate there were some specific terms. They are not of great relevance to the High Court proceedings of that undertaking. If it would be possible, since I returned the document after inspecting it - I have not kept a copy; I was simply shown it - if my friend and I might agree a course - - -

HIS HONOUR: I will leave that to the two of you.

MR KNOLL: - - - then that will be more than sufficient, I would have thought, for both parties.

HIS HONOUR: I will leave that to the two of you. Does that cover everything? Very well. I will adjourn the matter and the Deputy Registrar will be in touch with you, Mr Knoll, and you, Mr Jordan, about a hearing date. I will adjourn now.

AT 10.54 AM THE MATTER WAS ADJOURNED