Lie v RRT & Ors S89/1999 [2001] HCATrans 668 (19 December 2001)

IN THE HIGH COURT OF AUSTRALIA

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 WEDNESDAY, 19 DECEMBER 2001, AT 9.33 AM

Copyright in the High Court of Australia

___________________

MR M.A. ROBINSON: If the Court pleases, I appear for the plaintiffs in both matters. (instructed by Adrian Joel & Co)

MR J. BASTEN, QC: And for the second and third defendants, in each matter, your Honour. (instructed by the Australian Government Solicitor)

HER HONOUR: The Deputy Registrar certifies that she has been informed by the solicitor for the first defendant in each of these matters that the Tribunal does not wish to be represented at the hearing of this matter and will submit to the order of the Court save as to costs. Yes, Mr Robinson.

MR ROBINSON: Your Honour, there are six summonses that are returnable before the Court this morning seeking to join further named persons to the schedules of the statements of claim in both the Muin and Lie proceedings. In total there are about 260

primary applicants. Under each primary applicant are respective members of their family, so that the applications relate to in the order of about 400 or so people, but there are certainly, as I am instructed, 260 primary applicants in all six joinder applications.

Our application today is to seek an adjournment of those summonses in light of submissions filed two days ago by the defendants, the active defendants, of which we first became aware at 5.15 pm last Friday.

HER HONOUR: You had not watched the legislative progress?

MR ROBINSON: It is a bit more than that, your Honour. The legislative process has been watched. It is the additional arguments and the alternative arguments that cause some consternation amongst the plaintiffs and it is that primarily which we seek to consider. In any event, your Honour, bearing in mind the cacophony of points raised by the other side, we need to take stock and seek instructions from our clients. In support of the adjournment application, I had filed an affidavit of Mr Joel of 17 December. That had a number of technical errors in it. I seek leave to file in Court, your Honour, a resworn affidavit of Mr Joel of 19 December 2001.

HER HONOUR: Have you shown that to Mr Basten?

MR BASTEN: Yes. There is no objection, your Honour.

HER HONOUR: Very well. You can take it that the affidavit is read because I received your fax with the amendments and had read the affidavit before.

MR ROBINSON: Thank you, your Honour. In addition to that affidavit, I rely on written submissions filed on 18 December 2001 of the plaintiffs in support of the adjournment application. I do not have a lot to say in addition to those submissions, except if your Honour is minded to refuse the adjournment and dismiss the summonses, or go on to deal with the summonses, I would have something to say about final relief before that matter is dealt with by your Honour.

HER HONOUR: Yes. I will see what Mr Basten has to say to the adjournment application. I would have thought there is something of a problem about your other orders, but we can come back to that. We will see what is said on the adjournment.

MR BASTEN: Your Honour, the defendants oppose the adjournment.

HER HONOUR: You oppose it?

MR BASTEN: We oppose it and the basis on which we seek to oppose the joinder of further people really does no more than rely upon the changes in the legislative scheme which have taken place since we were last here doing this exercise.

HER HONOUR: Yes. There may be a question as to the validity of some of those, may there not?

MR BASTEN: There may be, your Honour, yes.

HER HONOUR: Which is foreshadowed in the submissions.

MR BASTEN: Yes, it seems to be, although it does not seem to be raised clearly and we do not quite understand the basis on which it is sought. I might say that in the written submissions that we filed, your Honour, at paragraph 3.2 I had submitted that the temporal limit on persons applying to the High Court appeared to have been, as it were, abolished by the later amendments to that section. On reflection, I withdraw that submission. I think that although the nature of the decision which is the subject of the time limit has now been reformulated, item 5 of the old Act, which said that the time limit did not apply to a decision made before 27 September of this year, must still operate. So that I withdraw that aspect of - - -

HER HONOUR: I am sorry, I am not following you.

MR BASTEN: Yes, I am putting it rather obliquely, I think.

HER HONOUR: No, I am - - -

MR BASTEN: I do not know whether I am helping avoid any issue, but it was my written submission - - -

HER HONOUR: Three point - - -?

MR BASTEN: Paragraph 3.2. Perhaps I should go back one stage. Your Honour is conscious, no doubt, of the fact that there is now a 35-day limit applicable to applications to review in this Court.

HER HONOUR: Yes.

MR BASTEN: And that was introduced by Act No 129, which commenced before the privative clause amendments and it applied to decisions as they were then described under section 475 of the Migration Act. When the privative clause amendments were introduced, the reference in 486A to decisions covered by sections 475(1), (2) and (4) was changed to privative clause decisions and, of course, a privative clause decision includes any decision for which review is sought after the commencement of the later legislation on 2 October.

What I sought to say in 3.2 was that that change in terminology appeared to override the express terms of Act No 129 which said that the 35-day limitation period only applied to decisions made after its commencement, which was 27 September. On reflection, that is the submission I seek to withdraw. So that we accept that there is no 35-day limitation on applications to this Court in relation to decisions made prior to 27 September 2001.

HER HONOUR: I see. Well, do we know - I suppose we do not - - -

MR BASTEN: I think that would cover the bulk of the decisions but there are still, of course, other arguments why they should not be joined, including the argument that - well, the two primary arguments are the lack of a common interest now because of the different form of review which is now permissible and the fact that they are being added to representative proceedings, which is no longer permissible.

HER HONOUR: Yes.

MR BASTEN: Otherwise the arguments remain the same.

HER HONOUR: Now, Mr Basten, what do you say about the need to consult with the people concerned? I mean, it is one thing to say you can make the arguments.

MR BASTEN: Yes, of course.

HER HONOUR: I just thought you had some strong ground there but - - -

MR BASTEN: Your Honour, it may be at the next stage. If these people cannot be added to a class action, there is then an issue which I apprehend would be raised as to the nature of the applications now before your Honour and as to whether they can be, in effect, converted into individual applications, because it is really at that stage, I think, that instructions would be needed and no doubt my friend's suggestion that his solicitor would need to talk to the clients individually would be right. I do not understand that it would have any consequence in relation to the class action aspect of the proceeding.

HER HONOUR: Yes. What do you say, Mr Robinson, in reply?

MR ROBINSON: Your Honour, my learned friend has not raised any argument in opposition to the adjournment application.

HER HONOUR: That was the opposition to the adjournment application.

MR ROBINSON: Well, your Honour, in my submission - - -

HER HONOUR: That was, as I understand it. He said you have known about these legislative amendments since they came into force or since they were enacted.

MR ROBINSON: Your Honour, the legislative amendments - - -

HER HONOUR: I mean, I would be surprised - - -

MR ROBINSON: They are not a surprise, that is correct, your Honour. What is a surprise is that they would argue that there is no common interest, and that is at paragraph 2 of the defendant's written submission and it is in respect of that that we would need to seek instructions.

HER HONOUR: Why do you need to seek instructions - I just do not understand that - on the question of whether there is a common interest?

MR ROBINSON: Your Honour, we need to seek instructions on the whole of it. The submissions that they have raised for the first time, for example, delay in the commencement of proceedings, is something that we would most certainly need to seek further instructions on. The reason is we have done in the order of 20 or so of these joinder applications with the Commonwealth having nothing to say.

HER HONOUR: Yes, but one would have known instinctively, once these amendments went through, that there would be something to be said and one would have known, I should have thought, that once the questions reserved were argued there would be something to say. For my own part, I have some great difficulty in the notion that once the matter has been referred to the Full Court on questions reserved and the matter fully argued that you can still keep adding people. I mean, I just find that odd.

I do not know what the answer to it is, but I would have thought once the argument was put, and obviously what was put before the Full Court is going to resolve one way or another the issues in the proceedings - I do not know what the law is, but I would have thought once the argument was made, that ought to be taken to be the end of the matter, although no formal order has been made - I realise that. But it does seem to me odd that after the argument has been made we are seeking to join people who really were not represented at the hearing. That is difficulty I have. There was not anybody who could stand up in front of the Full Court and say, "I represent all these people."

MR ROBINSON: All that we seek is that they take the benefit of that decision.

HER HONOUR: I know that is what you seek but I, for my part - I do not know if you wish to think about it and I do not know what the relevant principles are - there was nobody there standing before the Full Court on behalf of these people you wish to join and that seems to me to be a distinctly odd matter that that being so you can say, "Well, we want to take the benefit of it." You may be able to take the benefit of it by separate applications. I just tell you, Mr Robinson, that is the difficulty I have over and above anything that has been put by Mr Basten.

MR ROBINSON: That difficulty arises from the nature of these proceedings having been constituted as representative proceedings.

HER HONOUR: Exactly.

MR ROBINSON: Your Honour, in ordinary circumstances, for example, in the Federal Court, parties can choose whether to opt in or opt out and, in any event, the determination of the court would then apply to them without them ever having put up their hand or having been heard.

HER HONOUR: That may be so, but these are High Court proceedings, they are not a class action, and for my part I just have some difficulty with what you now seek on that ground. I do not know whether there is any decision or anything on that, but that, I should tell you, is my difficulty.

MR ROBINSON: Going back to your Honour's earlier query, the other aspect that has been raised in the submissions goes to the questions of the Baldry v Jackson point. We did not anticipate that the defendant would seek to reargue a point that was decided against them by your Honour on 28 April 2000. That is paragraph 5 of my learned friend's written submissions. We did not anticipate that he would seek to reargue what, we say, has been determined and that alone would cause us to take stock and seek instructions, which is impossible in two working days.

HER HONOUR: I just do not understand why you need to seek instructions.

MR ROBINSON: Because the fight that we would have otherwise anticipated we might have has broadened significantly, your Honour. We were prepared to advise our clients that it might be resisted to a certain point, if that is what we did, your Honour, but in terms of what is presented in these submissions, it opens up a whole raft of issues that have either not been raised before or have been decided against the defendants - - -

HER HONOUR: Well, there is this further issue that I raise.

MR ROBINSON: And that is the issue your Honour raised at the hearing as to whether the joinder - - -

HER HONOUR: For my part, it just does not seem to me right that people can come in after the substantive issues have been argued in the Full Court.

MR ROBINSON: The matter will come back to your Honour at some point, even if it is only for formal orders.

HER HONOUR: I know that.

MR ROBINSON: In the context of a class of 6,700 people, of which I am instructed there are at the present, apart from the issues that my learned friend has raised as a result of the - - -

HER HONOUR: The difficulty is this: it seems to me that ultimately the difficulty is a natural justice difficulty and it seems to me it is probably a Chapter III problem that I am talking about. I just do not see how I can join people on whose behalf no argument was put and with respect to whom no argument in opposition was put. I am sorry to say this to you but I do have a real difficulty about it. Now, it may be that there are different provisions in the case of class actions. Of course, the provisions in respect of class actions are the subject of constitutional challenge anyway and will be before this Court, but I do have this problem, I am sorry.

If you can assist me out of it, I would be grateful. If you want a day to consider what I am saying, or two days, but at this stage it just seems to me that it is more insurmountable than anything that Mr Basten has put. At this stage because I have a feeling it is a real difficulty I would not be prepared to adjourn for anything like the time you have in mind.

MR ROBINSON: I cannot say much more than what I have already said, your Honour.

HER HONOUR: Yes.

MR ROBINSON: We need time to speak to our clients. I certainly, having heard what your Honour said, would be grateful to take a day to consider the legal position, which is complex.

HER HONOUR: Yes, I am sorry to raise it. It just seems to me that there is at bottom a real difficulty about that and I may not even be articulating it properly myself and you may be able to talk me out of it. I mean, from your point of view, hopefully you would be able to, but I - - -

MR ROBINSON: In seeking to talk your Honour out of it I would say that the position is not dissimilar to the bulk of the 6,700 people who have already been joined, many as recently as just immediately before the hearing in the Full Court in October this year and whose positions have never yet been considered and, indeed, up until very recently the Commonwealth was prepared to let the bulk of the 6,700 class participants, as it were, or represented parties, sit there in a kind of limbo until the Court determined these questions.

HER HONOUR: Yes, I understand that.

MR ROBINSON: So there is no prejudice, as it were, to the Commonwealth - - -

HER HONOUR: No, it is not a question of prejudice. It is a question, it seems to me, of the nature of the action and the nature of judicial power probably.

MR ROBINSON: The only difference between the position of the current joinder applicants and the bulk of the class is these new Acts of Parliament, the anti-class action Act, as I call it, and the Judicial Review Act.

HER HONOUR: No, I do not think that is right. I do not think that is the only difference.

MR ROBINSON: Now, in my submission, as I foreshadowed in the application, we say if they are to be raised as a bar to these proceedings they are invalid but - - -

HER HONOUR: What I am presently thinking is - again, I am prepared to hear argument - I will stand it over for legal argument in the first week of January. I really do not see that the matter should go - are people available then?

MR ROBINSON: Yes, your Honour.

MR BASTEN: I am not, your Honour.

HER HONOUR: When do you cease to be available?

MR BASTEN: Last Friday, your Honour. I will be out of Sydney. I will be in Perth in January.

HER HONOUR: You will be in Perth?

MR BASTEN: Yes.

HER HONOUR: Well, we can have you on television.

MR BASTEN: On video - I thought your Honour would say that. I will not actually be in Perth, but - yes. Well, my client would have to take a view about how to deal with it, if your Honour were to set it down in the first week of January. But I do not wish to oppose that, for this reason, your Honour, that if there is to be legal argument, then it should be earlier rather than later because my friend's is resistant to filing individual applications for these people and at the moment they are in a sort of limbo, so it is a difficult - - -

HER HONOUR: Yes.

MR BASTEN: Can I simply inquire whether your Honour envisaged that one at least of the parties would file 78B notices before the argument takes place?

HER HONOUR: Well, I think that probably should take place. Do you challenge the validity?

MR ROBINSON: Yes, we do, your Honour.

HER HONOUR: And the issue I raise I think is a constitutional one as well - I think.

MR BASTEN: Yes. I understand.

HER HONOUR: I know it is not a point you take or - - -

MR BASTEN: No, although it is one stage beyond our paragraph 5 where we suggest you cannot raise things after the commencement of the proceeding, but I take your Honour's point. It is a separate issue and the way your Honour puts it - - -

HER HONOUR: Yes. I found against you on that one but - - -

MR BASTEN: Yes. I would have thought to be properly argued the constitutional issue would come up.

HER HONOUR: Yes. Well, you are available in - - -

MR ROBINSON: Your Honour, I have just received instructions that my instructing solicitor will be overseas in January.

HER HONOUR: I know he will be. He said that in his affidavit.

MR ROBINSON: That is right, your Honour.

HER HONOUR: I am sure there is somebody in his office who will be - you see the problem is this: should I find against you, you have very little time within which - have you not?

MR ROBINSON: Your Honour, if your Honour did find against us, I would be making an application to preserve the position of those who are affected by the 35-day rule, if that is valid itself.

HER HONOUR: Well, I do not know whether I can.

MR ROBINSON: Well, there are, on my instructions, 19 applicants of the 260 - primary applicants of the 260 who commenced proceedings within the 35 days of the - - -

HER HONOUR: They brought an application for joinder?

MR ROBINSON: Yes, they did, your Honour.

HER HONOUR: You see, again, this is all very - - -

MR ROBINSON: How their position can be preserved, your Honour?

HER HONOUR: Yes. I mean, there are very large issues in this.

MR ROBINSON: There are, your Honour. We thought one way might be to ask your Honour for leave to amend the existing applications under Order 64 rule 1(2) so as to allow them to file the correct, as it were, process; or, alternatively, to ask your Honour to relieve those 19 primary applicants from the consequences of their non-compliance under Order 64 rule 2.

HER HONOUR: Well, I do not know if I can.

MR ROBINSON: That would be my application if your Honour were to dismiss the summonses, just to preserve those 35 who have had very recent decisions.

HER HONOUR: Yes. Where is my power in light of the privative clause provisions? That is my problem, it seems to me. Look, I have not looked at - - -

MR ROBINSON: We say that is not a problem because it is invalid.

HER HONOUR: Well, if it is invalid, that is all right, but it is a very strange proposition to seek something which I would have thought is as important as this for your clients on a basis which says, "If and when the constitutional argument is presented, I will win." Are there any people within the 35 days as of today now?

MR ROBINSON: Yes, your Honour.

HER HONOUR: Within the 35?

MR ROBINSON: There are 19 applicants who are within 35 days, 19 of the 260.

HER HONOUR: Still within it?

MR ROBINSON: Yes, your Honour - I see what your Honour is saying.

HER HONOUR: I do not mean who were within the 35 days when they filed applications for joinder.

MR ROBINSON: They are still within it. On my instructions, there are some, yes, certainly in the order of 10. From the filing that occurred on 14 December there at least 10. But your Honour sees the difficulty we have is that we need to speak to our people again, if only to take instructions and to advise them as to the scope and complexity of the dispute.

HER HONOUR: Yes, I realise that but nonetheless I do not think these issues can linger on. I would still be proposing that the legal argument, if you wish to proceed with it, should take place in the first week in January.

MR ROBINSON: Would your Honour stand the matter down for a few moments so that I can take instructions?

HER HONOUR: Certainly, yes.

MR ROBINSON: It would be a serious matter for me to hear the matter without my instructing solicitor and I am also instructed that his staff is away until 6 January, so I would not even have the benefit of the other solicitor that works in my instructing solicitor's firm.

HER HONOUR: Very well. Well, I suppose 7 January is as good as any.

MR ROBINSON: If the matter could be stood down, your Honour.

HER HONOUR: Yes, I will stand it down for a moment.

MR BASTEN: Should I be making any inquiries of - I do not know that any of the Solicitors-General will be interested - but the Commonwealth? It is a very short period in a sense but if your Honour is satisfied that it is reasonable notice, then I will not trouble. I do not have anything to say about it really.

HER HONOUR: No. Well, it is either that or today.

MR BASTEN: We should deal with it promptly, I accept, yes.

HER HONOUR: Yes. Well, I will let you take your own course. I will adjourn - 15 minutes?

MR ROBINSON: Would half an hour be suitable, your Honour?

HER HONOUR: Half an hour would be fine, yes.

AT 10.02 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.35 AM:

HER HONOUR: Yes, Mr Robinson.

MR ROBINSON: Your Honour, having considered your Honour's comments regarding the joinder applications this morning, I am instructed not to pursue the joinder applications or the adjournment application any further. I appreciate, your Honour, that the plaintiffs concede that they could not resist a costs order if the application was made by the other side.

HER HONOUR: Yes, thank you. You do not pursue costs, do you?

MR BASTEN: I am instructed to ask for costs, your Honour.

HER HONOUR: The Christmas spirit?

MR BASTEN: Despite the fact that Perth is now more attractive than it was half an hour ago, your Honour.

HER HONOUR: Yes, thank you, Mr Robinson.

The applications will be dismissed, I take it, and with costs and I should certify for the attendance of counsel.

MR BASTEN: If the Court please.

HER HONOUR: And they are the only orders that need be made, are they not?

MR ROBINSON: Yes, your Honour.

HER HONOUR: Yes, thank you. The Court will now adjourn.

AT 10.36 AM THE MATTER WAS CONCLUDED