Dbe17 (by his litigation guardian Marie Theresa Arthur) v Commonwealth of Australia (No 3)
[2021] FCA 1584
•15 December 2021
FEDERAL COURT OF AUSTRALIA
DBE17 (by his litigation guardian Marie Theresa Arthur) v Commonwealth of Australia (No 3) [2021] FCA 1584
File number: VID 1392 of 2019 Judgment of: MORTIMER J Date of judgment: 15 December 2021 Catchwords: PRACTICE AND PROCEDURE – application pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth) to discontinue a Part IVA proceeding – significant legal question determined in separate proceeding in High Court – where respondent supports proposed discontinuance – two formal objections by group members – leave to discontinue granted. Legislation: Federal Court of Australia Act 1976 (Cth), s 33V
Federal Court Rules 2011 (Cth)
Migration Act 1958 (Cth)
Cases cited: AJL20 v Commonwealth [2020] FCA 1305; 279 FCR 549
Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562
Clime Capital Ltd v Credit Corp Group Ltd (No 3) [2012] FCA 218
Commonwealth v AJL20 [2021] HCA 21; 95 ALJR 567
DBE17 (by his litigation guardian Marie Theresa Arthur) v Commonwealth [2020] FCA 958
DBE17 (by his litigation guardian Marie Theresa Arthur) v Commonwealth (No 2) [2021] FCA 556
Francis (Trustee) v Oculus Accounting Pty Ltd (No 2) [2021] FCA 1275
Hobbs Anderson Investments Pty Ltd v Oz Minerals Ltd [2011] FCA 801
Kelly v Willmott Forests Ltd (in liq) (No 4) [2016] FCA 323; 335 ALR 439
P Dawson Nominees Pty Ltd v Brookfield Multiplex Ltd (No 4) [2010] FCA 1029
Watson v Maximus Holdings (NSW) Pty Ltd [2021] FCA 87
Wotton v State of Queensland (No 10) [2018] FCA 915
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 44 Date of last submissions: 6 December 2021 Date of hearing: 30 November 2021 Counsel for the Applicant: Mr B F Quinn QC with Mr M W Guo Solicitor for the Applicant: Maurice Blackburn Counsel for the Respondent: Mr G Kennett SC and Mr A P Yuile Solicitor for the Respondent: Australian Government Solicitor ORDERS
VID 1392 of 2019 BETWEEN: DBE17 (BY HIS LITIGATION GUARDIAN MARIE THERESA ARTHUR)
Applicant
AND: COMMONWEALTH OF AUSTRALIA
Respondent
ORDER MADE BY:
MORTIMER J
DATE OF ORDER:
15 DECEMBER 2021
THE COURT ORDERS THAT:
1.Pursuant to s 33V(1) of the Federal Court of Australia Act 1976 (Cth) (the Act), the applicant have leave to file a notice of discontinuance in the proceeding.
2.Upon discontinuance of the proceeding, all costs orders in this proceeding be vacated and there be no further order in the proceeding as to costs.
3.Pursuant to s 37AF and s 37AG(1)(a) of the Act, on the ground that it is necessary to prevent prejudice to the proper administration of justice:
(a)In the affidavit of Jennifer Kanis affirmed 30 September 2021, paragraphs 10-14, after the words ‘Following AJL20’; and paragraph 16, after the words ‘…view about prospects’;
(b)Confidential Annexure ‘JK-8’, found at pages 13-24 to the affidavit of Jennifer Kanis affirmed 16 November 2021; and
(c)The whole of the affidavit of Jennifer Kanis affirmed 19 November 2021, including annexures JK-17 to JK-23;
remain confidential and their publication is prohibited until further order; are to be sealed on the Court file in envelopes marked “Confidential: Not to be opened except by direction of a Judge of the Court” and are not to be made available to any person, including the respondent and its legal representatives, with any electronic version to be treated in an analogous fashion.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MORTIMER J:
This proceeding, a class action under Part IVA of the Federal Court of Australia Act 1976 (Cth) brought on behalf of a cohort of people detained by the Commonwealth under the Migration Act 1958 (Cth), was commenced in a different form in this Court in late 2017. The history of it can be found in my previous decisions of: DBE17 (by his litigation guardian Marie Theresa Arthur) v Commonwealth [2020] FCA 958 (Strike Out reasons) and DBE17 (by his litigation guardian Marie Theresa Arthur) v Commonwealth (No 2) [2021] FCA 556 (Common Questions reasons).
Despite the passage of considerable time, and the fact the matter was listed for a trial to have commenced in November this year which was vacated by orders made on 13 September 2021, the applicant now seeks leave to discontinue pursuant to s 33V(1) of the Federal Court Act. Leave is sought by interlocutory application filed on 5 October 2021. This turn of events comes about because of the High Court’s decision in Commonwealth v AJL20 [2021] HCA 21; 95 ALJR 567, handed down on 23 June 2021.
Both parties filed submissions in support of the application. The applicant relied upon four affidavits of Ms Jennifer Kanis, dated 30 September 2021, 16 November 2021, 19 November 2021 and 30 November 2021. Confidentiality orders were sought, and have been made in a limited form, over parts of those affidavits. The Commonwealth did not file any responsive affidavit material.
The applicant’s legal representatives sought, and were granted, some time to consider the effects of the decision in AJL20 on this proceeding. Properly, the Commonwealth did not oppose such time being granted. In her 30 September 2021 affidavit (which is now subject to an ongoing suppression order), Ms Kanis deposes to the views she formed on the matter.
Subsequently the lawyers for the applicant received instructions to seek leave to discontinue. A confidential opinion on proposed discontinuance was provided by counsel briefed on behalf of the applicant in this proceeding, and adduced as an annexure to Ms Kanis’s 16 November affidavit. An interim confidentiality order has been in place in relation to this evidence.
For the reasons that follow, it is appropriate to grant leave to the applicant to discontinue the proceeding.
Proposed leave to discontinue
Section 33V provides:
33V Settlement and discontinuance—representative proceeding
(1)A representative proceeding may not be settled or discontinued without the approval of the Court.
(2)If the Court gives such an approval, it may make such orders as are just with respect to the distribution of any money paid under a settlement or paid into the Court.
Rule 26.12 of the Federal Court Rules 2011 (Cth) provides:
26.12 Discontinuance
(1)A party claiming relief may discontinue a proceeding in whole or in part by filing a notice of discontinuance, in accordance with Form 48.
(2)The party may file the notice of discontinuance:
(a)without the leave of the Court or the other party’s consent:
(i)at any time before the return date fixed in the originating application; or
(ii)if the proceeding is continuing on pleadings—at any time before the pleadings have closed; or
(b)with the opposing party’s consent—before judgment has been entered in the proceeding; or
(c)with the leave of the Court—at any time.
Note 1: For when pleadings close, see rule 16.12.
Note 2:The Court may give leave subject to conditions including costs—see rule 1.33.
(3) The notice of discontinuance must:
(a)state the extent of the discontinuance; and
(b)if the discontinuance is by consent—be signed by each consenting party.
(4)However, a litigation representative or a representative party must not discontinue a party’s claim without first obtaining the leave of the Court.
(5)An application for a winding up order under section 459P or 461(1)(a) of the Corporations Act 2001 may be discontinued only with the leave of the Court.
(6)A notice of discontinuance filed by one party does not affect any other party to the proceeding.
(7)Unless the terms of a consent or an order of the Court provide otherwise, a party who files a notice of discontinuance under subrule (2) is liable to pay the costs of each other party to the proceeding in relation to the claim, or part of the claim, that is discontinued.
Pursuant to s 33X(5) of the Federal Court Act, on 6 October 2021 the Court made orders that the group members be notified of the application for approval of the proposed discontinuance. The orders required that the Notice of Proposed Discontinuance be translated into several languages spoken by group members, that it be sent to any registered group members and displayed online on the website and Facebook page of the applicant’s solicitors, Maurice Blackburn.
Group members were given an opportunity to object to the proposed discontinuance, and Ms Kanis deposes in her affidavits of 16 and 30 November 2021 to the process followed. I am satisfied the process was adequate and appropriate. It extended to notification through legal and community groups, which went beyond the strict terms of the orders but was appropriate in the circumstances of this case. The evidence about responses from group members indicates the notifications have reached at least a reasonable number of group members.
Reactions and objections to the proposed discontinuance
The presence and number of objections is a matter to which the Court will have regard in assessing whether to approve an application for discontinuance under s 33V: Hobbs Anderson Investments Pty Ltd v Oz Minerals Ltd [2011] FCA 801 at [4], cited in Kelly v Willmott Forests Ltd (in liq) (No 4) [2016] FCA 323; 335 ALR 439 at [67]. In that decision, in relation to the role of objections to a proposed settlement of a Part IVA class action, Murphy J said:
The objectors’ reasons for opposing settlement approval are another useful point of reference by which to determine the fairness and reasonableness of the settlement … .
A lack of objections is also a factor that may be considered in assessing fairness and reasonableness of a proposed discontinuance, although it should not be determinative: Clime Capital Ltd v Credit Corp Group Ltd (No 3) [2012] FCA 218 at [23]; Wotton v State of Queensland (No 10) [2018] FCA 915 at [40] citing P Dawson Nominees Pty Ltd v Brookfield Multiplex Ltd (No 4) [2010] FCA 1029 at [23].
The Court was informed at the hearing that there are 4627 people registered with Maurice Blackburn as group members. The size of the class is however estimated to be many times larger than that: see Common Questions reasons at [57].
Only one formal notice of objection was received by the Court. As I explain below, another group member has retained legal representation and his counsel appeared at the hearing with leave, and with no opposition from the applicant and the Commonwealth.
In her 16 November 2021 affidavit, Ms Kanis deposed to the views of several lay witnesses, who were also group members, in the proceeding about the discontinuance:
I am informed by Ms Lees, Ms Murphy, Mr Shami, Isablella Relva, Paralegal and Nikki Thomson, Paralegal, being the Maurice Blackburn staff who contacted the various lay witnesses, that several of the lay witnesses expressed dissatisfaction as to the proposal to discontinue, but that all lay witnesses understood the reasons for the decision. In particular, four lay witnesses indicated that they wished to either oppose the discontinuance or continue to pursue their own individual claim. Any lay witness who indicated they wished to explore an opposition to the discontinuance or pursue other action was informed they should carefully read the Notice of Proposed Discontinuance, and directed to seek independent legal advice.
I am informed by Mr Shami that an additional four lay witnesses contacted Maurice Blackburn following delivery of the Notice of Proposed Discontinuance expressing disatisfication regarding the proposal to discontinue. Three of these lay witness indicated they wished to oppose the discontinuance or puruse an individual claim. They were all informed of the information in the Notice of Discontinuance and directed to seek independent legal advice.
(Typographical errors original.)
And at [51], Ms Kanis summarises the responses received from group members by phone and email:
Of these responses:
(a)19 individuals expressed a general level of disappointment or dissatisfaction with the decision to make the application to discontinue the proceeding but did not have a query or indicate they wished to oppose the discontinuance;
(b)181 individuals were spoken to on the telephone or had follow up emails from Maurice Blackburn staff regarding queries relating to the Notice of Proposed Discontinuance. Where relevant, they were advised to seek independent legal advice to either oppose the discontinuance or investigate an individual claim against the Commonwealth, and advised of the 9 November 2021 deadline. Where relevant and possible, they were directed to a community legal centre or their relevant Law Society to seek a referral to a solicitor; and
(c)18 individuals indicated that they intended to oppose the application or that they wished to be heard at the hearing. All of these individuals were sent an email explaining the steps required to oppose the discontinuance, the 9 November 2021 deadline, the 30 November 2021 hearing date, and directed to contact their relevant Law Society to seek a referral to a solicitor. A copy of one of these emails, with the group member’s name and email redacted, is annexed and marked ‘JK-14’.
From [53] onwards, Ms Kanis explains the communication process with these people and the communications to those expressing opposition about what they should do to notify the Court of their views.
Despite the communications to Maurice Blackburn, only a single letter of objection was sent directly to the Court. The contents of that letter do not raise any matters which affect the conclusions I have reached.
On 29 November 2021, the day before the hearing of the application to discontinue, the legal representative of an individual group member contacted the Court seeking to appear at the hearing to oppose the application. Counsel informed the Court he had been briefed the morning before the hearing, and he sought an adjournment of the hearing, which was refused with oral reasons given at the time. However counsel was given leave to appear, and listen to the submissions on behalf of the applicant and the Commonwealth, and was given access to the affidavit material filed in the same form as provided to the Commonwealth. He was given leave to file short submissions on behalf of his client after the hearing, if he was instructed to do so having explained the matters raised at the hearing to his client.
On 6 December 2021, Mr J filed an affidavit and submissions, the affidavit annexing the submissions made by counsel on his behalf. The submissions recount Mr J’s personal history and hardships suffered in the course of his detention by the Commonwealth, since his arrival in Australia in 2013 as a minor seeking asylum. Mr J alleges that the Commonwealth owed a duty of care to him as a minor in detention, that the duty was breached, and that he suffered significant physical and psychological harm as a result of that breach.
At [20]-[21], the submissions acknowledge Mr J’s allegations relate to the Commonwealth’s treatment of him in detention, not the validity of his detention. If this proceeding continued, Mr J’s complaints would not be ventilated because they do not form part of the case brought on behalf of the group members, being a claim concerned with false imprisonment. Mr J submits that in the event the proceeding is discontinued, he may seek to bring a separate claim and seeks orders preserving his right to do so. There is no need for any such orders, as I explain later in these reasons. Since the proceeding is to be discontinued, not settled or otherwise determined, there is no outcome binding on the group members. Mr J’s right to file a separate proceeding is not affected. For these reasons, I do not consider that Mr J’s objection presents any obstacle to that the conclusion that the proposed discontinuance is fair and reasonable, and in the interests of the group members.
Confidentiality orders sought
The applicant sought confidentiality orders pursuant to s 37AG(1)(a), on the basis that it is necessary to prevent prejudice to the proper administration of justice, over the following portions of the affidavits filed in support of the application to discontinue:
(1)affidavit of 30 September 2021:
(a)paragraphs 10-14, after the words ‘Following AJL20’;
(b)paragraph 16, after the words ‘…view about prospects,’.
(2)affidavit of 16 November 2021: confidential annexure ‘JK-8’, found at pages 13-24 of the affidavit, being the Confidential Opinion of Counsel.
(3)the entirety of the affidavit made on 19 November 2021, as the affidavit was made for the purposes of annexing relevant without prejudice correspondence between the parties.
These portions of evidence wholly concerned the opinions of solicitors and counsel about the prospects of the allegations in the proceeding after the High Court’s decision in AJL20. It is important the Court have the benefit of the frank expression of opinion by those representing an applicant for relief under s 33Z, and it is in the interests of the administration of justice to encourage full disclosures which will assist the Court in performing its supervisory role under that provision. The proposed orders were narrowed considerably by the time of the hearing, and now extend only to those parts I am satisfied it is necessary to suppress.
Applicable principles in considering an application to discontinue
Both the applicant and the Commonwealth submitted that the position on this application was that it was a “unilateral” application by the applicant for discontinuance, and it was not an application to approve a settlement between the parties. I agree that is the correct characterisation. The Commonwealth supports the application, but there is no settlement agreement in existence.
In oral submissions, senior counsel for the applicant drew the Court’s attention to two authorities which explain a divergence in approaches to the exercise of the approval power under s 33V where what is in issue was a discontinuance rather than a settlement agreement. In Watson v Maximus Holdings (NSW) Pty Ltd [2021] FCA 87, and more recently in Francis (Trustee) v Oculus Accounting Pty Ltd (No 2) [2021] FCA 1275, two Judges of this Court have discussed the divergence in approaches arising from the authorities: see generally Watson at [43]-[49] and Francis at [30]-[33], and the authorities referred to in those decisions. The difference between the two approaches is that one aligns more closely with the function of the Court in approving a settlement, by asking – positively – whether the proposed discontinuance would be fair and reasonable not only in the interests of the immediate parties but of the group members as a whole; and the other asks – negatively – whether the discontinuance would be unfair or unreasonable or adverse to the interests of group members.
In the authorities there are multiple judicial observations to the effect that there may be little difference in application between the two approaches. Whether there is any material difference or not, the negatively-framed test (which senior counsel for the applicant described as the “more lenient” one) does raise for consideration a particular feature of this proceeding.
The group members in this proceeding may have no secure visa status in Australia, and it can be inferred from the pleadings that it is likely most speak English as a second language if they speak English at all. It can also be inferred that there are varying levels of education and familiarity with the Australian governmental and legal systems, and that there are group members living with psychiatric conditions. It would be unsurprising if some group members were concerned they would not have the resources to commence and continue their own litigation about what they allege happened to them on Nauru. Thus, the proposition that a discontinuance has a “benign effect” on the rights of group members (see Francis at [33]) is correct of course in a legal sense, but the right to commence and continue a proceeding is an empty one for a litigant with no access to resources to do so.
In contrast, at the moment, group members have the benefit of an experienced and well-resourced law firm conducting the litigation on their behalf. The loss of this support might be an understandable concern of group members. So too, without more, would be the prospect that the grievances of group members about their treatment on Nauru might go unexamined because as individuals they are unlikely to have the capacity to bring their own proceedings.
The dissatisfaction expressed to Maurice Blackburn is no doubt occurring in the context of the public dissemination of the purpose of the class action, and what it was intended that the Court would examine as part of determining the allegations made. It should be recalled the opt-out notices distributed bore the heading “Unlawful detention of people seeking asylum class action”. Some group members might feel their grievances about their immigration detention are being abandoned without a trial.
The position of those objecting, and those dissatisfied with the prospect of a discontinuance and no trial of the allegations made, is understandable. Unsurprisingly, the two objections actually before the Court do not grapple with the significant legal impediment to the allegations in the class action which arises from AJL20. Nor, on the evidence, did the dissatisfaction expressed to Maurice Blackburn. As I explain below, whichever of the two approaches described at [25] above is adopted, the significance of AJL20 to the allegations in this proceeding means it is appropriate for the Court to grant leave to discontinue.
AJL20
The factual situation in AJL20 was considerably different to the facts alleged in the pleadings in this case. AJL20 was in its factual context more akin to Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562, as I explained in the Strike Out reasons at [49]:
Indeed, of the recent High Court authorities which featured prominently in the Commonwealth’s arguments (not including Lim) only Al-Kateb involved a central allegation of unlawful detention, and the arguments in the High Court in that case rested on a factual finding at trial that it was not reasonably practicable to remove Mr Al-Kateb, at a point at which he had exhausted his options for seeking to be granted a visa in Australia and had requested removal from Australia. The applicant’s case is quite different, and it concerns a circumstance which was a feature of the administration of the Migration Act for a considerable period of time: the executive detention of individuals without the bar to a visa application in s 46A being lifted, without them being taken to a regional processing country, and without removal. That is not to say, of course, that facts control the construction of the legislative scheme. Rather, facts throw up for consideration how it is that the legislative scheme is designed or intended to apply to those facts. That is the applicant’s point, and I am not prepared to find at a summary judgment stage that it has no reasonable prospects of success.
However, the core point of the decision in AJL20 at first instance, and the point on which the Commonwealth Attorney-General then had removed to the High Court, was the same point which underlies the pleadings in this proceeding. Namely, whether the lawfulness of detention under s 196 of the Migration Act is affected by a failure to pursue, as soon as reasonably practicable, the “the legitimate non-punitive purposes for which detention is authorised and required by the Act”: see AJL20 at [48]).
A majority of the Court (Kiefel CJ, Gageler, Keane and Steward JJ) found it was not. The majority held the duration of the detention required and authorised by s 196 of the Migration Act is fixed by reference to the 4 events listed in s 196(1), and (at [34]):
Detention must continue ‘until’ one of those events occurs.
In this context the word “until” meant, the majority held at [49], “up to the time” and in conjunction with the word “kept” used in s 196(1), refers to an
ongoing or continuous state of affairs that is to be maintained up to the time that the event (relevantly, the grant of a visa or removal) actually occurs.
(Original emphasis.)
At [48], the majority held:
A failure by the Executive diligently to perform the duties that give effect to the legitimate non-punitive purposes for which detention is authorised and required by the Act erases neither those duties nor the statutory purposes which those duties support.
The Commonwealth submitted:
The claim made by the applicant in the present case turns on the alleged purposes of detention. The detention of the applicant is said to be unlawful because the purposes of that detention were not one of four lawful purposes, and/or that the lawful purposes of the detention were not carried into effect sufficiently quickly (or were impossible to carry into effect): Amended Statement of Claim at [20], [21], [22], [24], [25], [26] and [29].
However, the majority in AJL20 rejected purpose as the touchstone for the legality of detention. Further, the majority, at [52], made plain if a statutory duty has not been performed quickly enough, the remedy to seek is mandamus. It follows from this holding that if the applicant is correct in his allegations about the Commonwealth’s failure to pursue relevant purposes, the remedy for him and the group members to seek was mandamus. Habeas corpus (at the time of the failure) and unlawful imprisonment (after the fact) are not available.
That submission accurately captures the fundamental problem now facing the applicant, and group members, in this proceeding.
CONCLUSION ON THE APPLICATION
I am satisfied, whichever approach is taken to the Court’s supervisory role under s 33V in circumstances where leave to discontinue is sought, that it is appropriate to grant leave to the applicant to discontinue the proceeding.
As I have explained above, the objections and disagreements expressed by group members to Maurice Blackburn, and in material filed with the Court, are understandable in the context of this proceeding. However, those objections, and the disappointments inherent in them do not provide a basis to refuse to grant leave to discontinue. The proceeding faces a significant legal impediment after the decision in AJL20 and it is difficult to see how that impediment could be overcome. The foundation of the claim has been fundamentally affected by the majority decision.
The position reached between the parties that there should be no orders as to costs and any existing costs orders should be vacated means that, contrary to the default position under the Rules (r 26.12(7)), the applicant (or rather his litigation guardian) incurs no costs liability through a discontinuance. The Commonwealth accepts, and I agree, that there was a reasonable basis to commence the proceeding, and that the Court’s decision on the summary dismissal and strike out application reflected this. It should also be added that Bromberg J’s decision in AJL20 v Commonwealth [2020] FCA 1305; 279 FCR 549 came after the summary dismissal judgment, and confirmed that the “purpose” arguments were capable of judicial acceptance. The three dissenting judgments in AJL20 in the High Court also indicate that there is more than one judicial opinion, at a final level, in favour of the “purpose” arguments. The majority opinion represents the law to be applied, but the fact that AJL20 was a four-three decision adds weight to the proposition that the position taken by the Commonwealth on costs is a proper one.
There is no settling of the controversy between the parties if the proceeding is discontinued, and no res judicata or issue estoppel arises: see Watson at [45] and the cases cited therein. Group members are highly unlikely to be exposed to any Anshun estoppel arguments if they commence their own proceeding, since they had no control over the way the proceeding was conceived.
There were possible limitation period issues in this proceeding, but in general terms by reason of s 33ZE of the Federal Court Act, any limitation period on a group member’s claims was suspended upon the commencement of the proceeding. As senior counsel for the applicant explained, this beneficial effect flowed also from the first proceeding, although there may have been a short period in between the two proceedings when the limitation period may have run again. I do not consider these issues are of such consequence as to tend against granting leave to discontinue, especially given that senior counsel for the applicant indicated in in oral argument that there had been some beneficial discussions with the Commonwealth on this point.
However, as I have noted above, the capacity of individual group members to bring their own claim may be limited. Nevertheless, that is no reason to force the applicant to run the proceeding, after the decision in AJL20. In the circumstances, the application to discontinue is both responsible, and reasonable.
There will be orders substantially in the form sought.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mortimer. Associate:
Dated: 15 December 2021
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