FEDERAL COURT OF AUSTRALIA
CVV20 v Commonwealth [2025] FCA 1214
File number(s): VID 942 of 2023 Judgment of: HORAN J Date of judgment: 2 October 2025 Catchwords: PRACTICE AND PROCEDURE – application for an order to transfer the proceeding to the Supreme Court of Victoria under s 5(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) – proceedings involving common law claims against the Commonwealth – jurisdiction to hear transfer application under s 39B(1A) of the Judiciary Act 1903 (Cth) – consent to transfer – proceeding transferred Legislation: Constitution s 75(iii)
Federal Court of Australia Act 1976 (Cth) s 32
Judiciary Act 1903 (Cth) s 39B
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) ss 5(4), 12
Migration Act 1958 (Cth) ss 252, 273
Cases cited: Abebe v Commonwealth (1999) 197 CLR 510
Amalia Investments Ltd v Virgtel Global Networks NV (No 2) (2011) 198 FCR 248
Bell Group Ltd v Westpac Banking Corp (2000) 104 FCR 305
BZX23 v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 299 FCR 312
Johnson Tiles Pty Ltd v Esso Australia Ltd (No 4) (2001) 113 FCR 42
McIntosh v National Australia Bank Ltd (1988) 17 FCR 482
Prasad v Google LLC [2020] FCA 67
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 19 Date of hearing: Determined on the papers Counsel for the Applicant: Mr N Muniz Saavedra Solicitor for the Respondents: Australian Government Solicitor ORDERS
VID 942 of 2023 BETWEEN: CVV20
Applicant
AND: COMMONWEALTH OF AUSTRALIA
First Respondent
SECRETARY TO THE DEPARTMENT OF HOME AFFAIRS
Second Respondent
ORDER MADE BY:
HORAN J
DATE OF ORDER:
2 OCTOBER 2025
THE COURT ORDERS THAT:
1.This proceeding is transferred to the Supreme Court of Victoria pursuant to s 5(4)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth).
2.The costs of the proceeding up to the date of transfer be costs in the cause.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
HORAN J
This proceeding arises from incidents that are alleged to have occurred while the applicant was being held in immigration detention at the Melbourne Immigration Detention Centre (MIDC) under the Migration Act 1958 (Cth).
The applicant alleges that employees of Serco Australia Pty Ltd, who were engaged by the Commonwealth to provide services at MIDC, forcibly removed him from his room, following which they carried out a search of his room and confiscated property belonging to him. When the applicant lodged a complaint about the missing property, he alleges that Serco responded that the property could not be located, and denied any liability with respect to the applicant’s personal property.
The applicant seeks an order for the proceeding to be transferred to the Supreme Court of Victoria under the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth). The respondents have consented to such an order. For the reasons set out below, I am satisfied that it…
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- AGLC
- CVV20 v Commonwealth [2025] FCA 1214
- Case
- [2025] FCA 1214
- Decision Date
CaseChat Overview and Summary
The court first considered its jurisdiction to hear the transfer application. It concluded that an order to transfer a proceeding involves an exercise of jurisdiction in respect of the proceeding and found that it had the power to make such an order under s 5(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth). The court noted that while there may be uncertainty about its jurisdiction, this alone was not a sufficient basis to conclude that a transfer was in the interests of justice. However, the court found that the proceeding was within federal jurisdiction and, as such, it had the authority to transfer the proceeding to the Supreme Court of Victoria.
The court then considered whether the transfer was in the interests of justice. It noted that the applicant and the Commonwealth had both agreed that the transfer was appropriate for the management of the case. The court found that the transfer was in the interests of justice, and thus ordered the proceeding to be transferred to the Supreme Court of Victoria. The court also ordered that the costs of the proceeding up to the date of transfer be costs in the cause.
The orders of the court were that the proceeding be transferred to the Supreme Court of Victoria and that the costs of the proceeding up to the date of transfer be costs in the cause.
Orders
Orders of the court
1. This proceeding is transferred to the Supreme Court of Victoria pursuant to s 5(4)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth).
2. The costs of the proceeding up to the date of transfer be costs in the cause.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
On 16 May 2025, the respondents’ solicitors had informed the Court that the Commonwealth considered that an application to transfer the proceeding was necessary in the circumstances, and that they understood that the applicant agreed with this course and was considering a timetable for the transfer application. In his affidavit sworn on 24 June 2025, the applicant referred to this correspondence and stated:I understand and agree with the Commonwealth that a transfer to the Supreme Court of Victoria will allow for the appropriate management of this case.CONSIDERATION Section 5(4)(b)(iii) of the Cross-vesting Act provides:Where:(a)a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Federal Court or the Federal Circuit and Family Court of Australia (Division 1) (in this subsection referred to as the first court); and(b) it appears to the first court that:…(iii)it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of a State or Territory;the first court shall transfer the relevant proceeding to that Supreme Court. Notwithstanding that the Commonwealth has raised a question concerning this Court’s jurisdiction to hear and determine the proceeding, I am satisfied that I have power to make an order to transfer the proceeding under s 5(4) of the Cross-vesting Act. It can be accepted that an order to transfer a proceeding involves an exercise of jurisdiction in respect of the proceeding: McIntosh v National Australia Bank Ltd (1988) 17 FCR 482 at 483–484 (Gummow J). Accordingly, uncertainty as to the existence of jurisdiction might not of itself be a sufficient basis on which to conclude that a transfer of the proceeding is in the interests of justice for the purposes of s 5(4) of the Cross-vesting Act, although doubts about jurisdiction can arguably be taken into account as a relevant factor in the exercise of discretion: cf. Bell Group Ltd v Westpac Banking Corp (2000) 104 FCR 305 at [209]–[211] (Carr J); Johnson Tiles Pty Ltd v Esso Australia Ltd (No 4) (2001) 113 FCR 42 at [15(3)] (Merkel J). If it is clear that a pending proceeding is not within the jurisdiction conferred on this Court, including accrued jurisdiction and jurisdiction in associated matters under s 32 of the Federal Court of Australia Act 1976 (Cth) (FCA Act), the appropriate course may be to dismiss the proceeding for want of jurisdiction rather than make an order for its transfer to another court, at least if the matter is not one within federal jurisdiction: see e.g.Amalia Investments Ltd v Virgtel Global Networks NV (No 2) (2011) 198 FCR 248 at [11]–[12], [19]–[20], [33], [35] (Greenwood J); cf. BZX23 v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 299 FCR 312 at [19]–[20] (Rares J), in relation to the power conferred by s 32AB of the FCA Act to transfer a pending proceeding from this Court to the Federal Circuit and Family Court of Australia. In order to engage the jurisdiction of this Court, it is sufficient that there is a non-colourable, bona fide allegation that attracts such jurisdiction: see Prasad v Google LLC [2020] FCA 67 at [18] (Wheelahan J), referring to Abebe v Commonwealth (1999) 197 CLR 510 at [32] (Gleeson CJ and McHugh J). The matter will then remain within federal jurisdiction regardless of how the federal issues are ultimately resolved: Rana v Google Inc (2017) 254 FCR 1 at [21]–[22] (Allsop CJ, Besanko and White JJ).