Igbinoba v Commonwealth of Australia
[2023] FedCFamC2G 279
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Igbinoba v Commonwealth of Australia [2023] FedCFamC2G 279
File number(s): SYG 2321 of 2020 Judgment of: JUDGE BAIRD Date of judgment: 18 April 2023 Catchwords: PRACTICE AND PROCEDURE – application for transfer of proceeding to Federal Court of Australia – application made after first court date – leave granted – relevant considerations – respondent submits matters of general importance under Racial Discrimination legislation and factual complexity – 32 events over 22 years – insufficient grounds for transfer – application dismissed –
application for determination of separate questions on assumed facts – facts to be determined – whether determination of separation questions would be just and convenient – whether circumstances warrant departure from usual course – application dismissedLegislation: Australian Human Rights Commission Act 1986 (Cth) s46PO
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 153, 154, 190, 191
Federal Circuit Court of Australia Act 1999 (Cth) s39
Federal Court of Australia Act 1976 (Cth) s 32AD
Racial Discrimination Act 1975 (Cth) ss9, 11, 18C
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 rr 8.02, 18.02, Schedule 2
Federal Court Rules 2011 Part 40
Cases cited: Baird v Queensland (2006) 156 FCR 451; [2006] FCAFC 162
Chambers v University of Western Australia [2023] FCA 332
City of Swan v Lehman Brothers Australia Limited [2009] FCA 784
Gibbs v Wanganeen (2001) 162 FLR 333; [2001] FMCA 14
Hu v Stansure Strata Pty Ltd and Ord [2014] FCCA 905
Kanapathy v In De Braekt (No 4) [2013] FCCA 1368
Kikoto v University of Sydney [2018] FCCA 699
Self Care Corporation Pty Ltd v Green Forest International Pty Ltd (No 3) [2021] FCCA 1277
Sidhu v Raptis [2012] FMCA 338
Sydney Local Health District v Macquarie International Health Clinic Pty Ltd (2020) 105 NSWLR 325; [2020] NSWCA 274, [187]
Tepko Pty Ltd v Water Board (2001) 206 CLR 1; [2001] HCA 19
Van den Berg v Monash Health [2022] FCA 796
Verge v Devere Holdings Pty Limited [2008] FMCA 1421
Division: Division 2 General Federal Law Number of paragraphs: 76 Date of hearing: 28 March 2023 Place: Sydney Counsel for the Applicant: Mr C Parkin with Mr J Brook Solicitor for the Applicant: Blackbay Lawyers Counsel for the Respondent: Ms V Bulut Solicitor for the Respondent: Australian Government Solicitor ORDERS
SYG 2321 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: OKUNGBOWA HUBERT IGBINOBA
Applicant
AND: COMMONWEALTH OF AUSTRALIA
Respondent
order made by:
JUDGE BAIRD
DATE OF ORDER:
28 March 2023
THE COURT:
1.DISMISSES the respondent’s application in a proceeding dated 17 November 2022 (the Application).
2.ORDERS that the respondent pay the applicant’s costs of the Application under Schedule 2, Part 1, Items 3 and 9(c) 10 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
3.STANDS OVER the proceeding for further case management at the Court in Sydney on 13 April 2023 at 12noon, or such other time as the Court advises administratively after consultation with the parties.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BAIRD
By application in a proceeding dated 17 November 2022 (AinP), the respondent, the Commonwealth of Australia, sought first, an order transferring the proceeding to the Federal Court of Australia, pursuant to r 8.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (GFL Rules); and, secondly, an order to decide questions separately, pursuant to r 18.02 of the GFL Rules. The respondent proposed 3 separate questions set out in [5] of the affidavit of Ms Christine Plevey dated 17 November 2022, filed in support of the Application (Plevey affidavit).
The separate questions proposed are (noting that certain terms are defined below):
(1)On the assumption that the facts pleaded by the Applicant are proven, did the actions of the Australian Border Force officers have the 'effect of nullifying or impairing the Applicant's enjoyment or exercise of any of his human rights and fundamental freedoms' for the purposes of s 9(1) of the Racial Discrimination Act 1975 (Cth) (RD Act)?
(2)On the assumption that the facts pleaded by the Applicant are proven, did the actions of the Australian Border Force officers involve acts which amounted to a refusal to allow the Applicant access to publicly accessible areas outside of Sydney Airport except on terms or conditions that were less favourable than those enjoyed by persons without the Applicant's racial attributes for the purposes of s 11 of the RD Act?
(3)On the assumption that the facts pleaded by the Applicant are proven, did the actions of the Australian Border Force officers take place in a 'public place' for the purposes of s 18C of the RD Act?
I heard the AinP on 28 March 2023 at the Court in Sydney, with the benefit of written and oral submissions from counsel for both parties and robust exchanges between counsel and the Court. At the conclusion of the hearing, I formed the view that neither of the orders sought should be granted. I dismissed the AinP, with costs, and advised that my reasons would follow shortly. These are my reasons.
Procedural background
The applicant, Mr Okungbowa Hubert Igbinoba, is a black man of Nigerian descent. He has been stopped or detained, questioned and searched by agents of the Australian Border Force or its predecessors (ABF officers) upon his return to Australia on 32 occasions in the period 1998 to 2020, on the occasion of nearly every international flight on which he has returned to Australia in those 22 years. He sues the Commonwealth for breaches of the RD Act.
Mr Igbinoba commenced the proceeding in this Court by originating application filed 7 October 2020 alleging unlawful discrimination under s 46PO of the Australian Human Rights Commission Act 1986 (Cth). It is not in dispute that the proceeding has progressed slowly. It suffices to state that Mr Igbinoba relies on an Amended Statement of Claim dated 11 July 2022, and that the Commonwealth relies on an Amended Defence to Statement of Claim dated 24 August 2022. Whilst certain particulars have been provided, and Mr Igbinoba’s solicitor has proposed categories of discovery, no application for discovery has been made or consent orders sought, and no timetable for evidence has been set.
In short compass, by the Claim Mr Igbinoba alleges that:
(a)over the course of between 2 and 4 hours on each of 32 identified occasions between February 1998 and January 2020 at Kingsford Smith Sydney International Airport (the Entries), ABF officers variously detained him, questioned and interrogated him, emptied, searched and inspected his luggage, and confiscated, inspected and searched his laptop and mobile phone, and body searched him (Actions);
(b)ABF officers took the Actions by reason of, or for reasons that included, Mr Igbinoba’s race, colour, nationality or ethnic origin (prohibited reason).
Mr Igbinoba alleges that the Commonwealth has contravened each of ss 9, 11 and 18C of the RD Act.
The Commonwealth denies some of the factual allegations of events between 1998 and 2020, and admits some others, and denies the ABF officers took the Actions by reason of, or for reasons that included, a prohibited reason. It denies the contraventions alleged.
Mr Igbinoba sought further and better particulars of the Defence and proposed draft categories for discovery by letter dated 26 August 2022. The Commonwealth responded by letter dated 12 October 2022, providing some particulars and declining to answer requests in respect of two paragraphs of the Claim, stating that it declined to answer ‘on the ground of public interest immunity as to do would be contrary to the public interest’. It did not respond on the matter of discovery (and has not done so to the date of hearing of the AinP). Mr Igbinoba pressed the balance of the request for particulars.
By orders made 16 December 2022, I ordered the Commonwealth to respond in a fulsome manner to the request set out in Mr Igbinoba’s solicitors’ letter dated 14 December 2022, which pressed for particulars of the two paragraphs of the Defence. By letter dated 27 February 2023, the Commonwealth has provided some particulars, first stating that it makes general reference ‘to the particulars which arise from documents or information which is considered to be immune from disclosure.’ and ‘This letter does not constitute a PII [public interest immunity] claim. The Commonwealth considers it most efficient to make that claim at a time when the need for production of the underlying documents or information arises, such as when discovery is sought or at the time of filing the Commonwealth’s evidence.’
In the Claim, Mr Igbinoba defines the places at which the Actions took place on each of the Entries as ABF Customs Control, and ABF Search Area. Whilst the Commonwealth’s reference in submissions to the customs area may not map exactly on to the places defined in the Claim, it is convenient in these reasons to refer to the areas encompassed by the Claim and the Commonwealth’s submissions generically as the customs area.
A. Transfer of proceeding
It is appropriate to first address the Commonwealth’s application for transfer of the proceeding to the Federal Court and my reasons for refusing that application, before turning to the Commonwealth’s application for the determination of the separate questions.
Relevant statutory framework
The Court may transfer a proceeding before it to the Federal Court pursuant to s 153(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act). Section 153 provides as follows:
(1) If:
(a) a proceeding is pending in the Federal Circuit and Family Court of Australia (Division 2); and
(b) the proceeding is not a family law or child support proceeding;
the Court may, by order, transfer the proceeding from the Court to the Federal Court.
(2) The Federal Circuit and Family Court of Australia (Division 2) may transfer a proceeding:
(a) on the application of a party to the proceeding; or
(b) on its own initiative.
(3) In deciding whether to transfer a proceeding to the Federal Court, the Federal Circuit and Family Court of Australia (Division 2) must have regard to:
(a) any Rules of Court made for the purposes of subsection 154(2); and
(b) whether proceedings in respect of an associated matter are pending in the Federal Court; and
(c) whether the resources of the Federal Circuit and Family Court of Australia (Division 2) are sufficient to hear and determine the proceeding; and (d) the interests of the administration of justice.
Relevantly, s 154(2) provides:
(2)In particular, the Rules of Court may set out factors that are to be taken into account by the Federal Circuit and Family Court of Australia (Division 2) in deciding whether to transfer a proceeding to the Federal Court under subsection 153(1).
The relevant Rule of Court is rule 8.02 of the GFL Rules, which as at the date of the hearing of the AinP [1] provides:
[1]As at 7 October 2020, the filing of the originating application, the Federal Circuit Court Rules 2001 (Cth) r 8.02 (repealed) applied; from 1 September 2021, r 8.02 of the GFL Rules applied; and from 4 January 2023, the present form of r 8.02 has applied.
(1) Unless the Court otherwise orders, an application under paragraph 153(2)(a) of the Act to transfer a proceeding from the Court to the Federal Court must:
(a) be made on or before the first court date for the proceeding; and
(b) be included in an application or a response in accordance with the approved form; and
(c) be supported by an affidavit.
(4) In addition to the factors to which the Court must have regard under subsection 153(3) of the Act in deciding whether to transfer a proceeding to the Federal Court, the Court must take the following factors into account:
(a) whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court on one or more of the points in issue;
(b) whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding were not transferred;
(c) whether the proceeding will be heard earlier in the Court;
(d) the availability of particular procedures appropriate for the class of proceeding;
(e) the wishes of the parties.
(5) Before the Court makes an order under subsection 153(1) of the Act transferring a proceeding from the Court to the Federal Court:
(a) the Court must consult the Chief Judge of the Court in relation to the proposed transfer; and
(b) the Chief Judge of the Court must consult the Chief Justice of the Federal Court, or a delegate of the Chief Justice of the Federal Court, in relation to the proposed transfer.
(6) A failure to comply with this rule in relation to a proposed transfer of a proceeding under subsection 153(1) of the Act does not affect the validity of an order made under that subsection transferring the proceeding.
As can be seen from the above statutory framework, both s 153(3) of the FCFCOA Act and r 8.02(4) GFL Rules mandate that certain matters must be taken into account by the Court in considering whether a proceeding should be transferred. Any order for transfer, however, cannot take effect until confirmed by the Federal Court under s 32AD of the Federal Court of Australia Act 1976 (Cth).
Preliminary issue – grant of leave
The Commonwealth did not bring its application for transfer on or before the first court date for the proceeding, back in 2020. Thus, it requires leave.
In exercising the Court’s discretion to allow a party to request a transfer application after the first return date, the Court must apply the overarching purpose of facilitating the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: ss 190 and 191 of the FCFCOA Act. The overarching purpose engages substantially similar matters as some of the matters mandated under s 153(3) and r 8.02.
In her written submissions, Ms Bulut, counsel for the Commonwealth, acknowledged the necessity for leave, and explained that the interlocutory steps in the proceeding had progressed slowly, with significant work yet to be done before any final hearing. In the AinP, however, the Commonwealth did not expressly seek leave. Notwithstanding that lacuna, and the lack of real explanation for the delay, I considered that it was appropriate to grant leave to bring the AinP, and I informed the parties accordingly.
Application for transfer –submissions and consideration
The Commonwealth raises 3 reasons for transfer. In short:
(a)the proceeding raise several issues of general importance;
(b)the proceeding may be dealt with at least as efficiently by the Federal Court, and possibly more so, because (i) it has not been listed for hearing, and on being ready to be listed, either Court would ordinarily assign the matter the first available dates; and (ii) given the case involves factual allegations over 22 years, the final hearing will likely take at least several days, which the Federal Court may have better capacity to hear and determine; and
(c)no other factors are so influential as to outweigh these factors for transfer.
Mr Igbinoba submits that none of the matters raised by the Commonwealth are sufficient, separately or taken together, to satisfy the Court that it is in the interests of justice that the matter be transferred to the Federal Court.
r 8.02(4)(a) General importance
As counsel for Mr Igbinoba emphasises, it is insufficient that there is a likelihood that the case will involve matters of ‘general importance’; the rule requires that there be matters of ‘general importance, such that it would be desirable for there to be a decision of the Federal Court on one or more of the points in issue’.
The Commonwealth submits that the matters of general importance raised in the proceeding are those raised by the separate questions (see above at [2]). It says that there is little or limited judicial guidance on the meaning and scope of certain terms it points to in each of ss 9, 11 and 18C of the RD Act, and it is desirable that the Federal Court provide that guidance.
As to separate question 1
The Commonwealth submits that separate question 1 will require determination of whether the ABF officers’ alleged conduct – the Actions - which included ‘detaining’ Mr Igbinoba for about 2‑4 hours at a time in what the Commonwealth describes as ‘the customs area of [Sydney] airport’ (that is, what I refer to in these reasons as the customs area)– had ‘the effect of nullifying or impairing Mr Igbinoba’s enjoyment or exercise of any of his human rights and fundamental freedoms’ within the meaning of s 9(1) of the RD Act. It submits this will require consideration of:
(a)the meaning of ‘human rights and fundamental freedoms’; and particularly
(b)the scope of those rights particularised in the Claim, including ‘the right to … return to one’s country’ and ‘freedom of movement’: per the Committee on the Elimination of Racial Discrimination (CERD), Articles 5(d)(i) and (ii).
As to the right of return, the Commonwealth says that it will argue that the above identified delays in clearing customs do not restrict the right to return to one’s country. As to the right of freedom of movement, the Commonwealth observes that it is not an absolute right and may be subject to lawful restrictions. It will argue that the ABF officers’ assumed Actions, which were done in connection with their employment, did not nullify or impair Mr Igbinoba’s enjoyment of the right to freedom of movement.
The Commonwealth submits that nonetheless, these are matters on which there is little Australian judicial guidance, and the court may benefit from consideration of international jurisprudence. Consideration of the breadth of these rights and freedoms will also be of general importance.
As to separate question 2
The Commonwealth says it will argue that there was no refusal to allow Mr Igbinoba access to the publicly accessible areas outside Sydney Airport because he was allowed access after a delay, and that the terms on which he was allowed that access were the same as a member of the public without his attributes – namely after he had cleared customs and border security.
The Commonwealth submits that nonetheless, the issue will require consideration of when a person is ‘refused’ access to an area, and what is meant by the ‘terms’. It submits that there is limited judicial guidance on these issues, and consideration of the meaning of these terms would be of general importance. It accepts that this Court has decided cases on when something is a publicly accessible place (see e.g., Hu v Stansure Strata Pty Ltd and Ord [2014] FCCA 905 at [42]; Kikoto v University of Sydney [2018] FCCA 699), but submits that they do not provide guidance on the issues.
As to separate question 3
The Commonwealth submits that this question will require the Court to consider whether the ABF Officers’ Actions occurred within a ‘public place’ under s 18C of the RD Act, noting the non‑exhaustive definition in s 18C(3). It accepts that there has been some judicial consideration of the term, but submits that each decision turned on its particular facts: e.g., Gibbs v Wanganeen (2001) 162 FLR 333; [2001] FMCA 14 (prisons); Kanapathy v In De Braekt (No 4) [2013] FCCA 1368 at [36] (foyer of a court building); and Sidhu v Raptis [2012] FMCA 338 at [19] (a shop).
The Commonwealth says it will argue that the non‑exhaustive definition in s 18C(3) of the RD Act does not apply because the customs area is not an area the public have access to by right or invitation, but is an area they are granted access to leave or return to Australia, and to which access and egress is strictly regulated. It says consideration whether this form of area is a ‘public place’ will be of general importance as it will reflect the breadth of the operation of s 18C of the RD Act.
Allied with the above matters as giving rise to issues of general importance, the Commonwealth submits that by reason of the ‘factual complexity’ of the matter, involving as it does ABF officers’ Actions on 32 Entries over more than 22 years, and most likely involving PII claims, it is appropriate to transfer the proceeding to the Federal Court.
Consideration
It does not follow that where, or because, there is an absence or paucity of authority on an issue, that a question of general importance as required by r 8.02(4)(a) thereby arises. It may be simply that the issue is not one that is regularly litigated because it is uncontroversial, of limited application, is obscure or it seldom arises. It does not follow that a paucity of authority, or indeed, that a new provision or statute is enacted thereby raises a matter of general importance so as to benefit from a decision by the Federal Court, rather than this Court at first instance. Whilst Federal Court authority is binding on it, it does not follow that this Court cannot and does not hear and determine matters involving issues on which there is no such binding authority. This Court routinely hears and determines matters of, or involving issues of, statutory construction across the breadth of its Federal jurisdiction.
As I observed in Self Care Corporation Pty Ltd v Green Forest International Pty Ltd (No 3) [2021] FCCA 1277 at [70], [72] as a Commonwealth trial court, it is and can be useful for hearings to be undertaken in this Court concerning legislation and jurisdiction conferred on this Court. It can also be useful for an appeal court to have the benefit of the consideration of a trial judge of the relevant statutory provisions and their application to the particular facts before the Court - whether this Court or the Federal Court sitting at first instance. See also, Verge v Devere Holdings Pty Limited [2008] FMCA 1421 at [98] (Lucev J), cited in Self Care (No 3) at [37].
Further, it appears to me that this case is one that will turn on facts that are peculiar to it. I consider that this is so, notwithstanding that the factual circumstances alleged of each of the 32 Entries may have some common features: possibly the ABF officers’ conduct, the duration of the Actions on various of the Entries, what constitutes the ‘customs area’ (although the physical delineation of that area may have changed over time), as well as the features and characteristics of his race, ethnicity, and skin colour which Mr Igbinoba identifies. It does not follow from such commonalities that the issues that are to be determined – both legal and factual – are likely to have any more general application, or satisfy the requirements of sub‑paragraph (a).
Also, as counsel for Mr Igbinoba points out, the Commonwealth does not identify any cohort of similar pending, or imminent cases raising issues or facts identified in any of the separate questions, or which bear on significant policy decisions affecting a considerable number of people, and where it might be posited that there may be a benefit of a determination by the Federal Court at first instance. Nor does the Commonwealth identify any conflict in Federal Court decisions or decisions in this Court requiring to be resolved.
Factual complexity
As I have said above, the Commonwealth submits that the ‘factual complexity’ of the proceeding also supports transfer. It seems to me that whilst alleged ‘factual complexity’ is a factor to be considered, it does not, in this proceeding, raise issues of general importance. The factors which the Commonwealth relies on (see [31] above) may be relevant to cost and convenience, or arguably as to questions of resourcing. In any event, it is convenient to address the submission at this point.
First, volume of causes of action, or volume of events, is not of itself sufficient to amount to complexity. Volume may simply go to matters of case and time management of the evidence, as I describe below.
Secondly, while the substantive allegations span more than a 22 year period, and involve 32 Entries, as Mr Parkin, leading counsel for Mr Igbinoba, submits, and as is apparent from the pleadings and particulars, the factual issues involved will centre on what happened, and why it happened. To the extent that the state of mind of a witness will be relevant, it will arise in those circumstances. There may be disputed witness evidence that the Court will need to resolve; such disputes are resolved regularly by courts at first instance. Contested witness evidence does not render a matter factually complex. Nor would technical or expert evidence necessarily introduce complexity; noting that none is foreshadowed in the substantive case.
Thirdly, as to PII claims, the making of such claims and their consideration and determination is within the jurisdiction of this Court, and well able to be determined by a judge of this Court, whether by me or another of my colleagues. Although foreshadowed in general terms, there is no PII claim presently made.
For the above reasons, I was not persuaded that the present case is likely to involve questions of general importance such that it would be desirable for there to be a decision of the Federal Court on one or more of the points in issue.
rr 8.02(4)(b) and (c) Relative cost and convenience, timing
The Commonwealth posits that the Federal Court could deal with the proceeding no less efficiently and actually more quickly than this Court, given the high volume nature of this Court, and that the hearing is likely to occupy several days.
In submissions, the Commonwealth accepted that the Federal Court has higher fees (setting down and hearing fees), but did not otherwise consider that there was any reason to believe that the cost of the proceeding would increase on transfer to the Federal Court. As I pointed out to counsel however, unless this Court otherwise orders, the default position is that a party entitled to costs in a general federal law proceeding in this Court is entitled to costs in accordance with Schedule 2 of the GFL Rules, and disbursements properly incurred. Schedule 2 is an event based schedule of fixed amounts for particular itemised events. In the Federal Court, no such fixed amount schedule applies, rather, the general position is that the entitled party is awarded costs on a party and party basis, taxed under Part 40 to the Federal Court Rules 2011 (FC Rules), unless agreed.
At the hearing of the AinP the Commonwealth was not in a position to provide clear estimates of the number of its witnesses or the likely duration of the final hearing, however Ms Bulut anticipates that given that there are 32 Entries, there will be at least 10 witnesses, and a documentary case. In addition, as I have adverted to above, the Commonwealth will make PII claims. Ms Bulut suggests that these will add significant complexity and thus time to the hearing of the case, and to its interlocutory steps. Mr Parkin informed me that his client will have one, maybe two witnesses, and gave an initial estimate of 5 days for the substantive hearing. Ms Bulut did not demur.
Consideration
The Federal Court has higher setting down and hearing fees, and as I have said, in the Federal Court the usual order is party and party costs, taxed under Part 40, FC Rules unless agreed whilst this Court has a fixed events based costs regime, unless otherwise ordered, in accordance with Schedule 2, GFL Rules. Given these factors, I consider that it is likely that the proceeding would be heard and determined at more cost in the Federal Court, rather than less cost, or no less cost.
As to convenience, it is true that this Court is a high volume court, however it can be assumed with some confidence that judges in both Courts operate under listing and writing pressures. The speed with which the Federal Court may be in a position to hear the matter may be more apparent than real, noting that the Commonwealth did not point to any particular need for urgency which would facilitate the matter being fast tracked if transferred to the Federal Court, and given that (as at the hearing of the AinP) there is no timetable for evidence, and there will likely be PII claims, and discovery, it does not appear that it will be ready to be set down for some time. In the Federal Court a docket judge fixing a matter for hearing may need to take into account the periods each quarter reserved for Full Court sittings.
Both Courts operate a docket system, with some flexibility, and matters have the benefit of judicial case management. As I suggested to the parties in the course of hearing the AinP case, case management tools such as reversal of the order of evidence, addressing discovery after the service of the Commonwealth’s evidence rather than before evidence, and the use of statements of agreed facts, summaries, and bundles and the like, may all be employed to streamline the matter for hearing. Parties in both Courts have the benefit of referral to a registrar to assist in these steps, with the Courts’ registrars holding dual positions enabling them to provide their services to both Courts.
Given the above factors, it cannot be assumed, nor is there anything to indicate, that this proceeding would be heard and determined at less cost and more convenience to the parties if it were transferred. I am not persuaded that it would be so heard and determined.
Whilst it is likely that the hearing will take some time, and may involve at least 11 witnesses, (although some witnesses’ evidence may be of short compass), length of hearing time is not of itself a sufficient basis for transferral: see Van den Berg v Monash Health [2022] FCA 796 at [16], [17]. There is no rule of thumb that longer hearings should be heard by the Federal Court. See also Chambers v University of Western Australia [2023] FCA 332 (Banks‑Smith J) delivered since I heard the AinP, and made orders dismissing it. I was not persuaded that the possible length of the hearing of the proceeding is sufficient reason to transfer it, either as a factor by itself, or together with the other factors raised.
r 8.02(4)(d) availability of particular procedures appropriate for the class of proceeding; s 153 (3)(c) sufficiency of the resources of the Court
The Commonwealth properly accepts that both Courts have available to them appropriate procedures for this class of proceeding. I have referred to the case management tools available to judges in both Courts. It follows that the Federal Court has no particular procedures in proceedings of this kind that make it a better forum than this Court.
The Commonwealth also accepts the resources of this Court are sufficient to hear and determine the proceeding. Whilst it pointed to the possible length of hearing as possibly presenting some difficulties, as I have said, that is not considered a reason for transfer.
I consider that the above factors point against transfer.
r 8.02(4)(e) – the wishes of the parties
The Commonwealth wishes transfer, Mr Igbinoba objects to transfer. This is a neutral factor.
s 153(3)(b) – no pending proceeding in respect of an associated matter
There are no proceedings pending in the Federal Court in respect of an associated matter. This is a neutral factor, or a consideration tending against transfer.
s 153(3)(d) the interests of the administration of justice
The Commonwealth contends that the administration of justice would be best served by having the matters it submits are of general importance determined by the Federal Court, if it determined to confirm transfer.
No additional considerations are raised under this paragraph. It suffices to note my discussion in Self Care (No 3) at [91]-[96] of the equivalent provision under the Federal Circuit Court of Australia Act 1999 (Cth), s 39(3)(d).
Outcome of application for transfer
Accordingly, for the above reasons, I determined that it was not appropriate to order the proceeding be transferred to the Federal Court, for that Court to decide whether to confirm the transfer.
B. Determination of separate questions
The separate questions are set out at [2] above.
Rule 18.02 of the GFL Rules permits the Court to make an order for the decision by the Court on a ‘question separately from another question’. The FC Rules contain a similar provision.
The parties agree on the general principles that should guide the Court’s discretion whether to grant the order sought. The Commonwealth draws attention to Rares J’s summary of the principles in City of Swan v Lehman Brothers Australia Limited [2009] FCA 784 at [27], including:
(1) As a general rule the starting point is that all issues of fact and law should be determined at the one time.
(2) A party seeking the determination of separate questions must satisfy the Court that it is “just and convenient” for the order to be made. The order must be made on concrete facts, either established or agreed, for the purpose of quelling a controversy between the parties so as to produce a conclusive or final judicial decision on the issue, which is of a real, not hypothetical, importance to the determination of the controversy.
(3) There are special problems where the separate issue involves a mixed question of fact and law, although it may still be able to be decided as a separate issue. However, care must be taken in precisely formulating the question and specifying the facts upon which it is to be decided.
(4) The Court must have all relevant matters before it as a precondition of it being asked to exercise its discretion if the separate question involves the grant or refusal of declaratory relief
(5)…
(emphasis given by the Commonwealth).
It is for the Commonwealth to demonstrate that it is just and convenient to depart from the general rule that all issues of fact and law arising for determination in a matter before a court should be determined at the same time. The Commonwealth submits that it would be ‘just and convenient’, and in accordance with the overarching purpose for the Court to address the separate questions: see s 190 of the FCFCOA Act. Mr Igbinoba opposes such order, and submits that the Commonwealth has failed to demonstrate that in the circumstances of this case it is ‘just and convenient’ to depart from the general rule.
The Commonwealth submits that if all questions are answered in the negative, Mr Igbinoba’s case must be dismissed, because no breach of any of ss 9, 11 or 18C of the RD Act would be made out. Even if only some of the matters are determined, this would be of ‘real … importance to the determination of the controversy’, because it would limit the issues in dispute.
Whilst the Commonwealth submits that there is little scope for additional relevant facts apart from those pleaded in the Claim at [6] to [38A], it also accepts that a statement of agreed facts could assist the Court. It identifies such matters got agreement as (i) the nature of ABF officers’ legal authority and functions, and (ii) the nature of the customs area. Alternatively, each party could provide evidence on those issues, which the commonwealth is unlikely to give rise to any dispute over the facts.
For the following reasons, I was not persuaded that any order for the hearing and determination of the separate questions was just and convenient, and should be made.
The attraction of trials of separate questions is ‘often more chimerical than real’, and ‘savings in time and expense are often illusory’. Further, ‘there is an additional potential for further appeals to which the course of the trial on separate issues may give rise. … Single‑issue trials should … only be embarked upon when their utility, economy and fairness to the parties are beyond question’: Tepko Pty Ltd v Water Board (2001) 206 CLR 1; [2001] HCA 19, [168], [170] (Kirby and Callinan KK dissenting, with whom Gaudron J relevantly agreed, at [52]).
The trial of separate questions thus requires caution and the clearance of a ‘high hurdle’: Sydney Local Health District v Macquarie International Health Clinic Pty Ltd (2020) 105 NSWLR 325; [2020] NSWCA 274, [187].
In the course of argument it became clear that it is extremely unlikely that there can be a single set of facts assumed for each of the 3 proposed separate questions. Rather, there are likely to be a considerable number of scenarios the Court will have to consider for each of the questions; at a minimum, each of the 32 Entries may entail a different factual scenario, even if some commonalities can be agreed, and further the relevant assumed facts for those 32 Entries may differ for each question.
As to any set of assumed facts, no draft has been prepared to date, and it is unclear what its likely content would be, or when such a draft could be circulated. Given the progress of the matter as at the hearing of the AinP, I could not speculate whether or when the parties would reach agreement on even a subset of facts, or that it could be achieved quickly and inexpensively. It is fair to say that preparing such a document may be highly controversial, even with the goodwill of the parties.
As to the utility of assuming facts for the purposes of the proposed separate questions, I accept that inherently factual considerations arise in at least the first and third question, as identified non-exhaustively by counsel for Mr Igbinoba:
(1)in respect of question 1, what effect ABF officers’ actions had on Mr Igbinoba’s rights and fundamental freedoms is an inherently factual question, on which the Court should have the benefit of evidence, including from Mr Igbinoba;
(3)in respect of question 3, evidence about at least the persons present or typically present, the identity and characteristics of persons generally present in the area, and the extent of controls in fact imposed upon access to the area on each of the Entries, are all matters on which evidence will be relevant to the Court’s determination of whether Actions occurred in a public place.
It became apparent during the course of argument that there would likely be written and oral evidence adduced on the hearing of the proposed separate questions. This raises in my mind a real possibility that witnesses would be cross‑examined in that hearing, and again, should there be a final hearing (if any separate question, or scenario, be determined adversely to the Commonwealth). This is undesirable.
Further, the Court must be wary of the vice of inappropriately dissecting sections into disembodied elements, as appears envisaged by question 1. Section 9(1) is ‘one whole section and not a sum of finite elements’, as Allsop J (as his Honour then was) cautioned in Baird v Queensland (2006) 156 FCR 451; [2006] FCAFC 162 at [37].
It is only if all 3 separate questions, on each of the factual scenarios relevant to that question, are determined in favour of the Commonwealth that it could be said that some efficiencies would be achieved (subject to appeal). It is inappropriate on the present application for this Court to consider the Commonwealth’s prospects of success, and given the lack of clarity as to what the assumed facts would be for each scenario, it would be an unreal task.
However, if the Commonwealth was unsuccessful on all or any one of the 3 separate questions, on any of the factual scenarios, then the matter has to proceed to final hearing. At final hearing the assumptions would not hold. Even a mixed result would be unlikely to achieve any demonstrable narrowing of issues, and would raise a risk of appeal by either or both parties, and lead to increased costs and more delay.
The prospect of efficiency in the separate questions is chimerical, at best, whilst the risks of wasted costs, delay, and satellite appeals are real. Further, to the extent that savings in time and expense can be made by narrowing issues, and the agreement of certain facts, these are matters that are able to be achieved in the context of the further case management of the proceeding as it is presently constituted – on an all issues basis.
In these circumstances, it seemed to me that to proceed by way of separate questions would not bring any assured or real efficiencies, nor any likely savings of costs and time, and so is not, in the present case, a just and convenient course to order.
Outcome
Accordingly, I concluded that I should not make an order for deciding the 3 proposed questions separately.
Disposition
For the above reasons, on 28 March 2023, I determined to dismiss the application in a proceeding dated 17 November 2022, with costs, and I made orders accordingly.
77 I certify that the preceding seventy six (76) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Baird.
Associate:
Dated: 18 April 2023
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