EBA v Commonwealth of Australia - [2021] ACTSC 186

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 Migration Act 1985 (Cth) ss 198AD, 494AB Judiciary Act 1903 (Cth) ss 44, 79, 80 Court Procedures Act 2004 (ACT) s 5A Federal Court Act 1976 (Cth) ss 37M, 37N, 54A Australian Constitution s 75(iii) Evidence Act 1995 (Cth) s 174 Evidence Act 2011 (ACT) s 174 Federal Court Rules 2011 (Cth) r 30.11
Cases Cited:	Bankinvest AG v Seabrook (1988) 14 NSWLR 711 Bateman and Another v Fairfax Media Publications Pty Ltd & Ors [2013] ACTSC 72; 8 ACTLR 13 BHP Billiton Ltd v Schultz [2004] HCA 61; 221 CLR 400 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 Hayward v Barratt [2000] NSWSC 708 McCauley v Hamilton Island Enterprises Pty Ltd (1986) 61 ALJR 235 Minister for Home Affairs v DMA18 as Litigation Guardian for DLZ18 [2020] HCA 43; 95 ALJR 14 Plaintiff S164/2020 v Commonwealth of Australia [2021] HCATrans 32 Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483; 243 FCR 17 Robinson v Shirley (1982) 149 CLR 132 Scott v Bowden [2002] HCA 60; 194 ALR 593 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] ACTSC 186
Decision Date: 18 August 2021

CaseChat Overview and Summary

The matter before the Court was an application by the Commonwealth of Australia for the transfer of a proceeding in the Supreme Court of the Australian Capital Territory to the Federal Court of Australia. The proceeding, which was one of 22 claims in the Supreme Court, was brought by an individual who was taken to a “regional processing country” under section 198AD of the Migration Act 1958 (Cth). The plaintiff alleged negligence for personal injury caused by the Commonwealth. The Commonwealth sought to transfer the proceeding to the Federal Court to facilitate efficient case management of a cohort of similar proceedings.

The legal issue before the Court was whether the transfer of the proceeding was in the interests of justice. The Court was required to consider the principles set out in BHP Billiton Ltd v Schultz [2004] HCA 61; 221 CLR 400 (BHP v Schultz), as well as the relevant statutory provisions in the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT). The Court needed to determine whether the transfer would promote the interests of justice by facilitating efficient case management, particularly given the similarity of the claims and the steps being taken towards managing the cohort of proceedings in the Federal Court.

The Court found that the transfer was in the interests of justice. It noted that the proceeding in question was one of 22 claims in the Supreme Court that raised similar issues to the cohort of proceedings in the Federal Court. The Court also considered that substantial steps were being taken towards efficient case management of the cohort in the Federal Court. Additionally, the proceeding required interpretation of the Migration Act, which was a matter within the expertise of the Federal Court. The Court concluded that the transfer would promote the interests of justice by facilitating efficient case management and ensuring that the proceeding was determined by a court with the necessary expertise.

ORDERS:
The Court made an order transferring the proceeding to the Federal Court of Australia, with the application being heard concurrently with 21 other applications seeking the same order for transfer.

Orders

Orders of the court

See [75]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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 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”. 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.