EBA v Commonwealth of Australia
[2021] ACTSC 186
•18 August 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | EBA v Commonwealth of Australia |
Citation: | [2021] ACTSC 186 |
Hearing Date: | 7 May 2021 |
DecisionDate: | 18 August 2021 |
Before: | McWilliam AsJ |
Decision: | See [75] |
Catchwords: | PRACTICE AND PROCEDURE – CROSS-VESTING LEGISLATION – Application to transfer proceeding to the Federal Court of Australia in accordance with the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) – where the proceeding raises similar issues to a cohort of proceedings pending in the Federal Court of Australia – where substantial steps are being taken towards efficient case management of the Federal Court cohort – where the matter requires interpretation of the Migration Act 1958 (Cth) – whether transfer is in the interests of justice |
Legislation Cited: | Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) s 5 Judiciary Act 1903 (Cth) ss 44, 79, 80 Court Procedures Act 2004 (ACT) s 5A Federal Court Rules 2011 (Cth) r 30.11 |
Cases Cited: | Bankinvest AG v Seabrook (1988) 14 NSWLR 711 Stone v Ebeid [2020] FCA 343 |
Parties: | EBA (Plaintiff) The Commonwealth of Australia (Defendant) |
Representation: | Counsel G Watson SC with D Crowe (Plaintiff) P Knowles with T Liu (Defendant) |
| Solicitors National Justice Project (Plaintiff) Australian Government Solicitors (Defendant) | |
File Number: | SC 3 of 2021 |
McWilliam AsJ:
This proceeding is one of 22 claims in this Court made by individuals who were taken to a “regional processing country” under s 198AD of the Migration Act 1958 (Cth) (Migration Act). The claims allege negligence for personal injury, caused through the immigration detention of the respective plaintiffs by the Commonwealth of Australia (the Commonwealth), who is a defendant in each proceeding.
By application in proceeding filed 8 April 2021, the Commonwealth seeks to transfer the proceeding in this Court to the Federal Court of Australia, so that all proceedings involving allegations of negligence by immigration detainees may be case managed together.
The application in this proceeding (SC 3 of 2021) was heard concurrently with 21 other applications seeking the same order for transfer. Given that the same orders were sought, the evidence relied upon by the parties in each of the other interlocutory applications was substantively the same, and the submissions of the parties were applicable to each application before the Court, the parties argued the present application on the basis that it would also determine the outcome of the other applications.
It is convenient to record here that in four of the other proceedings that will be affected by the outcome of this application (SC 454 of 2020, SC 455 of 2020, SC 1 of 2021 and SC 65 of 2021), there is also a second defendant, namely International Health and Medical Service Pty Ltd (IHMS). The second defendant in those proceedings neither consents to, nor opposes, the application to transfer. Notwithstanding that it is not a party to the present proceeding, the involvement of IHMS will be considered to the limited extent necessary for these reasons to apply to the other applications before the Court.
The Court’s power
The Court’s power to make an order transferring proceedings arises under s 5(1) of the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) (Cross-vesting Act).
The relevant part of the section on the facts of this application is s 5(1)(b)(iii) of the Cross-vesting Act, which permits proceedings pending in this Court to be transferred to the Federal Court if “it is otherwise in the interests of justice that the relevant proceeding be determined by the Federal Court”.
Applicable principles
It can be seen from the wording of the statutory provision creating the power that the question for the Court is, essentially, what the interests of justice require.
The principles to be applied in determining an application for transfer under the cross-vesting legislation were expounded by the High Court of Australia in BHP Billiton Ltd v Schultz [2004] HCA 61; 221 CLR 400 (BHP v Schultz).
They have been followed in this Court in cases such as Bateman and Another v Fairfax Media Publications Pty Ltd& Ors [2013] ACTSC 72; 8 ACTLR 13 (Bateman), where Refshauge J set out in detail the applicable principles at [68]-[70]. I respectfully adopt his Honour’s collection of the principles and have set out below those that I consider to be of material importance on the present application.
First, the legislation does not confer a discretion on the Court. If satisfied that it is in the interests of justice that there be a transfer, this Court must order a transfer: BHP v Schultz at [63] per Gummow J.
Second, to the extent that the commencement of the proceedings in a particular forum is indicative of the plaintiff’s choice, that choice does not of itself require any specific emphasis or weight: Bateman at [68(d)], citing BHP v Schultz at [25], [77], [170] and [258]. Nevertheless, the reasons why the choice was made may be relevant and should be considered: BHP v Schultz at [15] per the plurality (Gleeson CJ, McHugh and Heydon JJ).
Third, it is not necessary that the first court (here the Supreme Court) is clearly an inappropriate forum. Rather, it is both necessary and sufficient that, in the interests of justice, the second court (being the Federal Court) is a more appropriate forum: Bateman at [68(e)], citing BHP v Schultz at [7]-[11], [77] and [161]-[168].
Fourth, in deciding what is more appropriate in the interests of justice, the approach the Court takes is a “nuts and bolts” case management decision: BHP v Schultz at [13] per the plurality, quoting Bankinvest AG v Seabrook (1988) 14 NSWLR 711, 713-714 per Street CJ. The Court looks to “what would be the best order to make to facilitate the trial of the litigation”: Hayward v Barratt [2000] NSWSC 708 at [2], quoted in Bateman at [70(k)].
Fifth, the interests of justice are not the same as the interests of the parties, although these should be considered and sometimes will coincide: BHP v Schultz at [15]. For example, containing costs and promoting efficiency are often common interests: Bateman at [68(f)].
Sixth, the Court “is not required, indeed probably should not, involve itself in a comparison of the respective legislative policies of the jurisdictions which are reflected in the relevant statutory enactments that make provision for the law or procedure involved in the proceedings”: Bateman at [70(j)] citing BHP v Schultz at [26].
Seventh, relevant connecting factors, particularly where the action is brought in tort, include the following non-exhaustive list (see Bateman at [70] and the authorities there-cited):
(a)The location of the commission of the tort alleged.
(b)The place where the parties live, or for corporations, where a corporation carries on business (which may not be its place of registration).
(c)The convenience of the parties and witnesses.
(d)The law governing the proceedings.
(e)The experience of either court and its capacity to provide an efficient and speedy trial, or whether it has special expertise in the type of proceedings, or particular evidentiary or other procedural rules that promote effective disposition of cases.
(f)The condition of the parties, including whether there is urgency arising.
(g)Whether the assessment of any questions arising in the proceedings is dependent upon a degree of local knowledge.
Of course each case will turn on its own facts, but given the present state of technology and arrangements for hearings in place in most Courts throughout Australia – including this Court and the Federal Court – absent some particular feature of a party or witness, the general convenience of the parties and witnesses by reference to where they reside or work may not have as much weight now as it had in the past. This is due to the greater mobility of witnesses at modest costs, but more significantly, the ability for evidence to be taken by audio-visual link: BHP v Schultz at [85], cited in Bateman at [70(o)].
The plaintiff’s claim
It is necessary to have some comprehension of the nature of the case that the plaintiff is pursuing, so as to properly understand the parties’ arguments about how to treat the different considerations set out in the authorities above.
The Statement of Claim in the present proceeding alleges that the plaintiff arrived at Christmas Island from Indonesia in December 2013. He was thereafter detained in different places on Christmas Island, Nauru, and Villawood Immigration Detention Centre, and he now presently resides in community detention in New South Wales.
The Statement of Claim pleads that the Commonwealth knew or ought to have known that persons arriving by boat and seeking asylum in Australia were vulnerable to physical and psychological injuries and other illnesses, and that such vulnerability was compounded if the person had previously been subjected to detention, torture, oppression or persecution in their homeland. An alternative pleading is that the Commonwealth knew or ought to have known that among the people arriving by boat and seeking asylum in Australia were people who were already suffering from such injuries and conditions.
It is further alleged (in essence) that the Commonwealth knew or ought to have known that:
(a)Persons with existing physical and psychological injuries, or those with vulnerabilities to those injuries, required assessment and monitoring;
(b)Detention in prison-like facilities may cause or aggravate physical and psychological injuries;
(c)The places where the plaintiff was sent and the conditions of those places (including lack of access to appropriate forms of treatment for medical conditions) were known to cause and aggravate injuries of the type pleaded;
(d)Failure to treat persons vulnerable to, or suffering from, psychological or physical conditions could worsen or aggravate the conditions and/or make the conditions permanent.
The Statement of Claim then pleads the Commonwealth’s particular knowledge of the medical problems of the individual plaintiff, the duty the Commonwealth had to act, and the breach of that duty by the Commonwealth. Among other things, the alleged breaches are a failure to take precautions to promote the plaintiff’s safety and well-being, a failure to provide appropriate medical treatment, and a failure to remove the plaintiff from detention in circumstances where the Commonwealth knew it was dangerous to the plaintiff’s health to continue in such detention.
In broad compass, the 21 other proceedings contain allegations against the Commonwealth similar to those set out above.
Do the interests of justice favour transfer in the circumstances of this case?
Ultimately, and admittedly on fine balance, the circumstances of this case mean that it is in the interests of justice that the Federal Court hear the proceedings.
The arguments of the parties as to the various factors deserving consideration have been incorporated in the reasons that follow.
Neutral factors
There are a number of considerations, discussed in the parties’ detailed and helpful submissions and supplemented orally, which do not strongly favour any particular court having jurisdiction.
First is the location of parties and witnesses. The plaintiff does not live in the Territory. (In respect of the other proceedings, the plaintiffs are also living in different parts of Australia. They include Queensland, Victoria, New South Wales and Tasmania.) Senior Counsel for the plaintiff submitted that the plaintiff is liable to be moved at any time, due to his immigration detention status.
As for the location of the defendant, it need hardly be said that the Commonwealth has its seat of government in Canberra, and many of the critical decisions will have physically occurred in Canberra. (In the four other proceedings with a second defendant, IHMS is a company with its registered office in the Territory.)
The location of the defendant is certainly a factor that connects the proceedings to the ACT. However, the Commonwealth relied on the decision of Bell J on 22 February 2021, remitting a case that had been commenced in the original jurisdiction of the High Court to the ACT registry of the Federal Court, and not the ACT Supreme Court: see Plaintiff S164/2020 v The Commonwealth of Australia and Anor [2021] HCATrans 32 (Plaintiff S164). As part of the oral reasons given by Bell J, her Honour referred to the fact that the seat of the Commonwealth is in the ACT and further, to the fact that IHMS has its registered office in the ACT. Her Honour considered that such factors could be accommodated on transfer by remitting the matter to the ACT Registry of the Federal Court.
Plaintiff S164 was a decision concerning remittal of a matter from the High Court and the test and discretion involved is somewhat different, being a balance of convenience: Plaintiff S164 at [6], lines 102-105 (citing Scott v Bowden [2002] HCA 60; 194 ALR 593). However, the reasoning of Bell J as to why the location of parties is a neutral factor (at [7], lines 107-110) applies equally to the present application because it is open to the parties to seek that the ACT Registry also manage the proceedings if they are transferred to the Federal Court. The Commonwealth has no objection to that course.
As to any potential witnesses, the proceedings are not at the stage where the Court could take any view about other witnesses likely to be required and where they are located (such as medical professionals or relevant officers of the defendant). There is also no suggestion that any local knowledge of the ACT is relevant.
The second neutral factor concerns procedural matters in the two courts. Both courts have procedures designed to progress cases in a just and efficient manner, with a view to minimising legal costs wherever possible: see s 5A of the Court Procedures Act 2004 (ACT) and ss 37M and 37N of the Federal Court Act 1976 (Cth) (FCA Act).
The proceeding in this Court is also at a very preliminary stage – no defence has been filed. (The same is true for the other 21 proceedings.) That means any consideration as to availability of court time, or more particularly, the timing of any final hearing, is presently a neutral factor. The Commonwealth further submitted that there was no issue of any limitation on the Federal Court’s resources slowing the progress of matters in that forum. I accept that submission as there was no evidence to suggest otherwise.
A different procedural consideration was raised by the plaintiff, namely that each claim in negligence seeks the remedy of damages. The plaintiff submitted that in the event liability was established, there was greater facility in this Court to refer the matter for a report on the assessment of damages. That position is said to arise from complications in undertaking the same process in the Federal Court, due to it being a court established under Chapter III of the Australian Constitution. As I understood the concern, it related to the exercise of the judicial power of the Commonwealth and the extent to which issues for trial could be outsourced to a referee (who is not a judicial officer).
However, the Commonwealth relied upon s 54A of the FCA Act, which expressly permits the Federal Court to refer a proceeding in that Court, or one or more questions arising in a proceeding in that Court, to a referee for inquiry and report. The Court then has the power to adopt the report in whole or in part, vary the report, reject the report or make such orders as it thinks fit. The power was considered in detail in cases such as CPB Contractors Pty Limited v Celsus Pty Limited (formerly known as SA Health Partnership Nominees Pty Ltd) (No 2) [2018] FCA 2112; 268 FCR 590. Commencing at [36] (and see in particular [58]-[60]). In this case, Lee J considered that the nature of the power being exercised by a referee was not judicial. His Honour went on to refer at [67] to the principles applying to the exercise of the Court’s discretion once a report had been produced. Similar principles have been applied more recently by Thawley J in Stone v Ebeid [2020] FCA 343 (see [5]-[9] and the cases there-cited).
Having considered those authorities, I am not persuaded that on existing authority there would be any procedural difficulties for the plaintiff if the matter was transferred to the Federal Court and he chose to pursue a referral process on the question of damages. I therefore accept that the procedures in each jurisdiction are a neutral factor.
The third factor which I consider to be neutral is convenience and expense. In that regard, attention must be given to the legal representation for the parties, and in particular, for this plaintiff and the other plaintiffs, who are represented by the National Justice Project (NJP).
The NJP is a not-for-profit charity. The NJP is funding the necessary disbursements. There is a clear public interest consideration in the Court not making procedural decisions that detrimentally impact upon an individual’s access to justice, or that make it harder for those who attempt to assist individuals who cannot afford to fund litigation themselves. The issue of legal representatives, potentially appearing on a pro bono basis, and their particular relationships with ACT practitioners that might be affected if the matter were transferred is, to my mind at least, a matter worthy of consideration and I have given that issue weight.
However, the existence of technological resources in the Federal Court, a matter about which I take judicial notice, renders the consideration neutral. Current arrangements in courts throughout the country permit representation by audio-visual link, so that no practitioner would need to travel, and relationships with practitioners in the ACT can be maintained without extra expense.
In any event, if the proceeding were to be transferred to the ACT Registry of the Federal Court, any risk of a disadvantage in that regard would be non-existent. In light of this, there does not appear to be any material impediment to the quality of the legal representation or services to be provided to the plaintiffs if the proceedings were transferred to the Federal Court.
Fourth, following BHP v Schultz, the fact the plaintiff wishes his case to be heard in this Court – submitted by the plaintiff to be a critical factual consideration – is also a neutral factor (see [11] above of these reasons). That said, while the plaintiff’s choice is not significant in itself, the reasoning behind the choice may well be. The decision to commence in this Court was explained in detail in the affidavit of Ms Anna Talbot, affirmed 13 April 2021. I have incorporated consideration of the reasoning behind that choice in the other factors discussed above and below.
Experience and expertise
The plaintiff submitted that to the extent the case involved a common law negligence claim for damages, this Court was in a superior position through the regularity with which it deals with such claims. The Commonwealth submitted that the Federal Court’s experience and expertise in the application of the Migration Act favoured transfer. It relied on Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483; 243 FCR 17 (Plaintiff S99) and the comments of Bell J in Plaintiff S164 at [9], lines 151-154, to the effect that the construction and application of the Migration Act may be expected to be prominent in the determination of the common law claim. Her Honour considered this favoured remittal to the Federal Court.
While on the authorities set out above, the experience and expertise of a particular court is a relevant factor, I am not persuaded that it carries much weight in this case. Judges appointed to courts may have a diversity of expertise behind them and it does not necessarily follow that a judge of this Court would be ill-equipped to deal with complex questions of construction or application of the Migration Act. Nor can it be assumed that there are no judges appointed to the Federal Court who would have considerable expertise in dealing with common law claims in negligence, notwithstanding that such claims are more frequently litigated in the state and territory Supreme Courts. The parties are competently represented here and can assist with any potential or perceived shortcomings in knowledge or expertise in either forum.
Case specific factors
There are case-specific factors that the Commonwealth submitted provide some basis for favouring the Federal Court as the more appropriate forum. Across the proceedings commenced in this Court, the Commonwealth has identified family relationships with plaintiffs whose claims are being litigated in the Federal Court.
In my view, the fact that a family member is litigating in a different court does not of itself weigh in favour of transferring a matter. The position may be different if the particular facts giving rise to the allegations of negligence in the two proceedings being litigated in different courts were inter-related, so that there was a risk of conflicting factual findings. However, that is a different issue, and the submission did not rise to that level on the evidence before the Court on this application. The Commonwealth accepted that factors specific to individual cases did not outweigh the significance of other factors.
Law governing the proceedings
The question of what law governs liability and damages is likely to be in issue. For the present proceedings, it is not yet clear whether the law of Nauru applies or whether the law of the ACT applies, due to the Territory being “the place where many of the critical decisions were made by the relevant Ministers and bureaucrats”, to use the language of Ms Talbot in her affidavit. Although in Plaintiff S99, Bromberg J found at [182] that the applicable law was that of Australia, it has not yet been established that the circumstances in each of the present proceedings would lead to the same finding.
If foreign law applies, expert evidence may be required as to the foreign law applicable (in addition to the availability of s 174 of either the Evidence Act 1995 (Cth) or the Evidence Act 2011 (ACT)). If domestic law applies, the Civil Law (Wrongs) Act 2002 (ACT) will likely have a role to play. The plaintiff submitted that this favoured retaining the proceeding in the ACT as the forum.
There is some force in that submission. That there are uncertainties arising in relation to the law governing the proceedings was not disputed. Support for the plaintiff’s position might be derived from Robinson v Shirley (1982) 149 CLR 132 (Robinson) at 136-7 per Brennan J (as his Honour then was). There, it was considered that two actions arising out of a similar factual matrix ought to be determined according to Queensland law and therefore by a Queensland Court. In that case, substantive rights were affected by the forum of remittal, as there were questions about the damages that would be able to be awarded if the case proceeded in a Queensland court as opposed to a New South Wales court.
The plaintiff also drew attention to ss 79 and 80 of the Judiciary Act 1903 (Cth) (Judiciary Act). Under s 79, the body of law to be applied is “the law of the place in which the court exercises its jurisdiction”: Robinson at 136. Section 80 of the Judiciary Act relates to the common law. It provides (emphasis added):
So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters.
The plaintiff submitted that if, in the alternative, foreign law applies, and there are gaps or the evidence as to the applicable law is insufficient in some way, these sections will operate and there may also be a presumption arising that the law of the place governing the tort is the same as the law of the forum: Plaintiff S99 at [184]-[188] and the cases there-cited. That means it may make a difference whether the case is litigated in the ACT or a different state. The plaintiff submitted that having the entirety of the 22 cases governed by a single set of local laws was the more convenient course.
The Commonwealth submitted that the governing law factor should really be characterised as neutral. First, the Federal Court is equally able to apply whatever is found to be the proper law of the tort, whether that be the law of Nauru or the ACT, or some other body of law.
Second, while the Commonwealth accepted that ACT procedural and evidentiary rules would apply if the proceedings were litigated in the ACT as opposed to somewhere else in Australia by virtue of s 79 of the Judiciary Act, it argued that because it is being sued in every proceeding, federal jurisdiction is being exercised regardless of whether the case proceeds in this Court or the Federal Court: s 75(iii) of the Australian Constitution.
I accept there may be a difference as to the procedural rules depending upon the forum. However, as set out above, the procedures in the ACT do not appear to me to be in any way advantageous or disadvantageous to either party when compared to those of the Federal Court.
In Robinson, Brennan J stated at 136 that the exercise of the discretion on remittal was “intended to facilitate the course of the litigation, rather than to enhance or diminish a plaintiff’s rights or correspondingly alter a defendant’s obligations”. Again, the overriding consideration for the High Court on a remitter application is the balance of convenience, however, the authorities guiding the present question of what is in the interests of justice similarly emphasise that the decision is a practical one, made to facilitate the progress of the litigation.
If there were evidence on the application of a genuine likelihood that a party’s substantive rights would be altered by a change in forum, then this factor may have been treated differently in the balancing of considerations. However, the concern is presently at a hypothetical level, in that the issues as to the governing law and its consequences have yet to crystallise. If ACT law applies, it will apply regardless of whether the case is heard in this Court or in the Federal Court.
Any risk that having the cases based in a different state would consequently alter substantive rights is perhaps also a matter that could be accommodated by the 22 cases being allocated to the ACT Registry of the Federal Court. That would also satisfy the plaintiffs’ desires, from a case management perspective, that a single set of local laws be applied.
Case management
Case management of all proceedings of the type brought by the present plaintiff is the key motive driving the Commonwealth’s application for transfer. The Commonwealth submitted that the 22 cases in this Court raised issues of the same kind as the 61 cases currently being case managed together in the Federal Court. The Commonwealth’s key concern, as I understood it, was to case manage all the cases in the most efficient way. The Commonwealth is attempting to avoid the parties having to progress the matters in two (or more) different courts.
Ms Buchanan, solicitor with conduct of each of the proceedings on behalf of the Commonwealth, deposes to the fact that the various proceedings already in the Federal Court also involve allegations of a breach of duty of care said to be owed to the plaintiffs in those matters and personal injury arising from the breach.
The core similarity between the matters in this Court and those in the Federal Court is said to be that they all involve claims in negligence against the Commonwealth for personal injury suffered by persons who had been taken under s 198AD of the Migration Act to a country designated a “regional processing country” by the Minister, pursuant to s 198AB of that Act.
In a number of the proceedings in the Federal Court, the Commonwealth has pleaded a defence relying on statutory duty in s 198AD(2) of the Migration Act. As no defences have yet been filed in the 22 cases proceeding in this Court, it is unknown whether the same issue will arise.
The plaintiff, and the solicitors representing the plaintiffs in the cases proceeding in this Court, are also not in a position to know the true extent of the similarities or differences between these cases and those progressing in the Federal Court, as they do not represent many of the plaintiffs in those proceedings. In light of this limitation, and the complaints against the Commonwealth that have been disclosed, I have accepted that there will be a cross-over of at least some of the legal issues.
In addition, the proceedings travelling in the Federal Court were said to be more advanced, with a manageable number of cases being selected to progress to hearing first and for the making of orders in all cases for common discovery. The rationale for selecting different categories of test cases was submitted as the most efficient means of progressing the litigation of the entirety of the cases.
By way of example, in the proceedings travelling in the Federal Court, a question of law has already been decided. That question concerned the effect of s 494AB of the Migration Act and whether that provision limited the jurisdiction of the Federal Court to determine the applicants’ claims for damages in those proceedings: see Minister for Home Affairs v DMA18 [2020] HCA 43; 95 ALJR 14.
The plaintiff disputed whether the cases in the Federal Court were travelling expeditiously. It was submitted that, to the extent of the involvement of the legal representatives for the plaintiffs in the cases travelling through the Federal Court, the time taken to receive responses (even on timetables), and the creation of procedural regimes were not in fact timely at all.
I have some sympathy for a plaintiff who, after careful consideration of what will best progress their own case to completion, commences an individual proceeding in a particular court, only to then be siphoned by the court into much larger litigation elsewhere with all the potential additional issues and delay associated with mass litigation. However, the fact is that the 22 cases proceeding in this Court are not the full extent of the cases being litigated across Australia involving the Commonwealth as a party with similar legal issues.
The individual case management of a proceeding versus the collective case management of a number of proceedings are matters that would no doubt be given careful consideration by the legal representatives for the parties. Rule 30.11 of the Federal Court Rules 2011 (Cth) allows for flexibility in the Federal Court’s discretion in order to balance the individual interests of each party with the greater efficiencies that might be achieved through determination of preliminary points, or a test case, or consolidation. Cases such as Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699, which dealt with the predecessor to that rule, O 29 r 5 of the Federal Court Rules 1979 (Cth), demonstrate that where a party does not agree to abide by the outcome of common questions of fact and law, and the procedural difficulties if trials are run together outweigh the benefits, an order for concurrent hearings or for a hearing in a particular sequence may not be made.
In my view, the interests of justice here are broader than the interests of the individual plaintiffs. The case management of the matters collectively is likely to reduce the overall costs and workload of the matters being litigated on the whole. There will be efficiencies in correspondence, procedural steps and sharing of information that may work to the advantage of individual plaintiffs, particularly where they are represented by different lawyers. As the affidavit evidence disclosed, admirable cooperation between legal representatives for the plaintiffs in the two courts is already occurring. The adage “many hands make light work” may indeed apply for each plaintiff. Even if it transpires that many hands make more work, the load overall may still be lighter.
There will also come a point when mediation of the dispute in each proceeding will be contemplated or attempted, if not ordered. It the proceedings are transferred and have been case managed effectively, that is likely to result in the parties having similar collective knowledge, and each proceeding being at a similar procedural stage in the litigation. In those circumstances, it is likely mediation will be more productive of fruitful discussions about compromise than if each case is proceeding at a different pace in different courts.
The natural and appropriate forum
The common legal issues and statutory interpretation questions that are likely to arise concern a federal statute (being the Migration Act), but more importantly, that statute governs conduct that is external to the territorial boundaries of Australia. The Federal Court is the “natural and appropriate forum for the litigation of causes of action arising from occurrences” external to Australia’s boundaries, and governed by a Commonwealth law: McCauley v Hamilton Island Enterprises Pty Ltd (1986) 61 ALJR 235 at 238 per Mason J (as his Honour then was).
Other connecting factors that might bear on the “natural forum”, such as the location of the seat of Government and of the registered office of IHMS, have already been considered separately above, and can otherwise be accommodated.
No particular prejudice
Insofar as the ability to effectively participate and give instructions in the proceedings is concerned, or as to the impact of a change in forum on an individual plaintiff’s present injuries or disabilities, the evidence does not suggest that any individual plaintiff will suffer particular personal disadvantage if this proceeding, or any of the other 21 proceedings, is transferred to the Federal Court.
Conclusion and Orders
Where many factors are either neutral or not determinative (being accommodated through a choice of registry), the case management considerations, the reasoning as to what constitutes the natural and appropriate forum, and the lack of any particular prejudice to the plaintiff combine to tip the balance in favour of a conclusion that the Federal Court is the more appropriate court and it is in the interests of justice that the proceeding be transferred.
I am mindful that the Court’s power only extends to transferring a proceeding to the Federal Court, and not to a particular registry of that Court. While the allocation to a particular registry is of course a matter for the Registry of the Federal Court, given the reasoning behind the order for transfer, and the agreement of the Commonwealth that the ACT Registry would be appropriate, it is to be hoped that common sense would prevail in that regard.
The Commonwealth’s application seeks that costs be reserved. The consequence of such an order will be that the costs of the application will ultimately form part of the overall costs of the proceedings if the parties do not revisit the question in the meantime. That order appears appropriate. The same order will be made mutatis mutandis in the other proceedings affected.
Accordingly, the orders of the Court are as follows:
(1)Pursuant to s 5(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT), the proceeding is transferred to the Federal Court of Australia.
(2)The costs of the application in proceeding filed 8 April 2021 are reserved.
| I certify that the preceding seventy-five [75] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam Associate: Zoe Saunders Date: 18 August 2021 |
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