Igbinoba v Commonwealth of Australia (No 5)
[2025] FedCFamC2G 1079
•11 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Igbinoba v Commonwealth of Australia (No 5) [2025] FedCFamC2G 1079
File number(s): SYG 2321 of 2020 Judgment of: JUDGE ZIPSER Date of judgment: 11 July 2025 Catchwords: PRACTICE AND PROCEDURE – application to vacate final hearing to permit proceeding to be consolidated or joined with proceeding not yet commenced – lengthy delay by applicant in relation to proceeding not yet commenced - whether applicant has provided satisfactory explanation concerning delay – consideration of principles concerning consolidation or joinder of proceedings – whether issues of fact and law common to both proceedings - whether real risk of inconsistent findings being made on contested questions of fact common to both proceedings – prejudice to respondent arising from deterioration in memory and recollection of witnesses if hearing vacated – consideration of efficient disposal of Court’s caseload - application dismissed Legislation: Australian Human Rights Commission Act1986 (Cth) ss 46P, 46PO
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190(2)(c)
Federal Court Rules 2011 (Cth) r 30.11
Cases cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175
Ghose v CX Reinsurance Company Ltd and Others [2010] NSWSC 110
Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699
Igbinoba v Commonwealth of Australia (No 4) [2025] FedCFamC2G 265
Walsh v Commissioner of Taxation [2018] FCA 1739
Yang v Wong [2024] FCA 1017
Division: Division 2 General Federal Law Number of paragraphs: 54 Date of hearing: 20 June 2025 Place: Parramatta Counsel for the Applicant: Mr M Felman KC, Ms A Poljak Solicitor for the Applicant: Levitt Robinson Solicitors Counsel for the Respondent: Mr A Hall 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 ZIPSER
DATE OF ORDER:
23 JUNE 2025
THE COURT ORDERS THAT:
1.The Application in a Proceeding lodged on 13 June 2025 is dismissed.
2.The applicant pay the respondent’s costs of and associated with the Application in a Proceeding filed 13 June 2025 as agreed or assessed.
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 ZIPSER
INTRODUCTION
On 13 June 2025, the applicant lodged an application to vacate the final hearing in this matter (Vacation Application) which was listed for a first day on 27 June 2025 and a further five days from 21 July 2025 (June/July 2025 Hearing).
On 20 June 2025, I heard the Vacation Application.
At a listing on 23 June 2025, I made orders dismissing the Vacation Application with costs. I gave an oral summary of my reasons for dismissing the Vacation Application and stated I would publish reasons after the first hearing day on 27 June 2025. This judgment contains my written reasons for dismissing the Vacation Application
LEGISLATION AND PRINCIPLES
In February 2025, the applicant applied to vacate the final hearing, then listed for five days commencing on 19 March 2025 (March 2025 Hearing). On 27 February 2025, I published a judgment recording my reasons for dismissing that application: see Igbinoba v Commonwealth of Australia (No 4) [2025] FedCFamC2G 265 (February 2025 Judgment). In paragraphs 3 to 6 of the February 2025 Judgment I set out relevant provisions of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) and principles applicable to an application to vacate a final hearing or which would cause or require a final hearing to be vacated, such as those discussed in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 (Aon).
The principal reason for the Vacation Application was so that the subject matter of the June/July Hearing could be heard with two additional claims the applicant wishes to make against the respondent. A summary of the subject matter of the June/July Hearing and the two additional claims is set out in paragraphs 23 to 28 below.
In circumstances where the applicant sought to vacate the June/July 2025 Hearing so that the subject matter of the June/July 2025 Hearing could be heard with two additional claims, court rules and case law which provide guidance on the circumstances in which a court will permit separate proceedings to be heard together are relevant. Since no rule of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (FCFCOA Rules) addresses this issue, through r 1.06(2) of the FCFCOA Rules, r 30.11 of the Federal Court Rules 2011 (Cth) (Federal Court Rules) may be applicable. Rule 30.11 of the Federal Court Rules states:
If several proceedings are pending in the Court and the proceedings:
(a) involve some common question of law or fact; or
(b) are the subject of claims arising out of the same transaction or series of transactions;
any party to any of the proceedings may apply to the Court for an order that the proceedings be:
(c) consolidated; or
(d) heard together; or
(e) heard immediately after one another; or
(f) stayed until after the determination of any of the other proceedings.
The decision of Ghose v CX Reinsurance Company Ltd and Others [2010] NSWSC 110 (Ghose), referred to in the applicant’s written submission, contains a detailed and helpful description of principles relevant to consolidation applications. A qualification is that, in Ghose, as well as in Federal Court decisions concerning consolidation applications referred to in footnote 9 of the respondent’s written submission (such as Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699 (Humphries) and Yang v Wong [2024] FCA 1017) and other decisions concerning consolidation applications which I have briefly reviewed, none involved a situation where, if the court agreed to a request to consolidate two proceedings, the hearing date for one proceeding would need to be vacated. Where an order for consolidation or joinder of two proceedings would require the hearing date for one proceeding to be vacated, principles relevant to consolidation applications must be considered together with principles relevant to applications to vacate a final hearing or which would cause or require a final hearing to be vacated, such as considered in Aon.
EVENTS LEADING UP TO HEARING OF VACATION APPLICATION
Paragraphs 7 to 17 of the February 2025 Judgment set out relevant events leading up to the hearing of the previous vacation application in February 2025.
Some additional events since the publication of the February 2025 Judgment are as follows.
On 5 March 2025, the applicant’s present solicitor filed a notice of address for service.
On 11 March 2025, the applicant filed an application in a proceeding to vacate the March 2025 Hearing and have the matter listed for hearing a few months later. The principal reason was to give the applicant’s new lawyers time to prepare for a final hearing. The respondent’s position was that, so long as the matter could be listed for hearing within a few months and on a date suitable to the respondent’s lawyers and witnesses, the respondent consented to the application. In circumstances where the respondent consented to the application and the applicant’s request appeared reasonable, on 17 March 2025, by consent, I made orders adjourning the March 2025 Hearing to 21 to 25 July 2025. I also listed the matter for a directions hearing on 31 March 2025 for case management purposes.
At the directions hearing on 31 March 2025, in a context where the respondent had 21 witnesses and some might not be available to give evidence during the hearing scheduled for 21 to 25 July 2025, a timetable was set:
(a)to identify whether there were witnesses required for cross-examination by the applicant who were unavailable between 21 and 25 July 2025; and
(b)if so, to work out a date for those witnesses to give evidence.
At a directions hearing on 6 June 2025, I ordered that “the matter is listed at 2 pm on 27 June 2025 to hear the evidence of the respondent’s witnesses unable to attend the hearing listed from 21-25 July 2025”.
HEARING OF VACATION APPLICATION ON 20 JUNE 2025 AND MAKING OF ORDERS ON 23 JUNE 2025
On 20 June 2025, I heard the Vacation Application from 2 pm to about 4:45 pm. Marc Felman KC and Adria Poljak of counsel appeared by video link for the applicant. Anthony Hall of counsel appeared by video link for the respondent.
Prior to the commencement of the hearing, I received and read a written submission for the applicant dated 20 June 2025 (AS) and a written submission for the respondent dated 20 June 2025 (RS).
During the hearing I read:
(a)an affidavit of Chrystalla Georgiou dated 13 June 2025 prepared on behalf of the applicant; and
(b)an affidavit of Paul Barker dated 20 June 2025 prepared on behalf of the respondent, and paragraphs 8 and 22-23 of Mr Barker’s earlier affidavit dated 21 February 2025.
Both counsel agreed that, in considering the Vacation Application, I could consider evidence filed by the parties for the substantive hearing.
Both counsel then made oral submissions.
I appreciated and was assisted by the parties’ helpful written and oral submissions.
At the end of the hearing, I permitted the parties to serve and provide to chambers further affidavit evidence concerning specified matters by the morning of 23 June 2025. On the morning of 23 June 2025, the applicant provided to chambers a further affidavit of Paul Barker dated 23 June 2025.
As discussed with the parties at the end of the hearing, in a context where the first day of the June/July 2025 Hearing was on 27 June 2025 and I was unavailable between 24 and 26 June 2025, I listed the matter at 12 pm on 23 June 2025 for the making of orders concerning the Vacation Application, with reasons to follow at a later time.
As stated in paragraph 3 above, at the listing on 23 June 2025 I made orders dismissing the Vacation Application with costs. I gave an oral summary of my reasons for dismissing the Vacation Application and stated I would publish written reasons after the first hearing day on 27 June 2025.
SUBJECT MATTER OF JUNE/JULY HEARING AND TWO ADDITIONAL CLAIMS
The subject matter of the June/July 2025 Hearing is as follows. The applicant is an Australian citizen of Nigerian ethnicity. Between 1998 and 2020 he entered Australia through Sydney International Airport on about 32 occasions. He claims that on each occasion he was temporarily detained and questioned by officers of the Australian Border Force (ABF). He claims that on most of these occasions he had his body and/or luggage searched. He claims that the ABF officers treated him differently by reason of his race, colour, nationality or ethnic origin, and the conduct of the ABF officers involved unlawful discrimination in contravention of provisions of the Racial Discrimination Act 1975 (Cth) (RD Act). I will refer to this claim as the “ABF Conduct Claim”. Thus, the ABF Conduct Claim is the subject matter of the June/July 2025 Hearing.
The subject matter of one of the two additional claims referred to in paragraph 5 above is as follows. The evidence of the respondent served in July 2023 in the present proceeding concerning the ABF Conduct Claim indicated that, in respect of a number of the applicant’s entries into Australia in respect of which the applicant alleges unlawful discrimination by ABF officers, the decision of the ABF officers to stop, question and occasionally search the applicant and/or his luggage was based on alerts concerning the applicant prepared by officers of the Australian Federal Police (AFP) (AFP Alerts) which were accessible to the ABF officers. In paragraph 49 of an amended defence filed on 14 September 2023, the respondent pleaded that in respect of 10 specified entries:
… the applicant was the subject of a Person of Interest Alert which had been raised by the Department of Home Affairs / Australian Border Force (or its predecessor agencies) or by the Australian Federal Police (AFP).
The applicant explained at AS [21]-[22]:
[21] The respondent’s evidence, and the respondent’s documents inspected by the applicant’s solicitors, demonstrates that the alerts were based on, in many cases, intelligence records or reports provided by the AFP which identified the applicant as being suspected of breaches of Commonwealth laws relevant to border control.
[22] By reason of this, the applicant filed a complaint with the AHRC on 3 June 2025, alleging, in summary, that by the cumulative nature of the conduct and acts of the AFP, by providing intelligence reports to the ABF and generating unfounded alerts against him, the AFP engaged in unlawful discrimination in contravention of section 9(1) of the RDA (the AFP Complaint).
(footnotes omitted)
I will refer to this new claim as the “AFP Alerts Claim”.
The subject matter of the other additional claim referred to in paragraph 5 above is explained at AS [14], [15] and [17] as follows:
[14] On 18 November 2021 (after the commencement of the current proceedings), the Australian Federal Police (AFP) obtained a search warrant for the search of the applicant’s residential address and vehicle on the suspicion that the applicant was involved in the importation of a border-controlled substance (Warrants).
[15] The search warrant was executed in the early hours of 19 November 2021 (Raid).
…
[17] On 7 March 2025, the applicant lodged a complaint with the AHRC alleging unlawful discrimination under s 9(1) of the RDA and victimisation pursuant to s 18AA(1) of the RDA in relation to the conduct by the AFP in obtaining the Warrants and for conducting the Raid (the Raid Complaint).
(footnotes omitted)
I will refer to this new claim as the “AFP Raid Claim”.
Pursuant to s 46PO of the Australian Human Rights Commission Act1986 (Cth), an aggrieved person who alleges unlawful discrimination against a respondent in contravention of the RD Act cannot commence court proceedings against the respondent until the aggrieved person has lodged a complaint with the Australian Human Rights Commission (AHRC) under s 46P and the complaint has been terminated by the AHRC. This explains why the applicant has lodged complaints with the AHRC in respect of the AFP Alerts Claim and the AFP Raid Claim, but not yet commenced court proceedings.
CONSIDERATION
For the following reasons, after considering the evidence and the parties’ written and oral submissions, I decided to dismiss the Vacation Application.
First, the applicant sought an order which would cause a vacation of the June/July Hearing. As acknowledged at AS [8]-[10], principles in Aon are applicable. As stated in the February 2025 Judgment at [46], in Aon at [103], [106] and [108] the High Court stated that “where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for”, “there is no doubt that an explanation was required in this case”, “it was incumbent on ANU [which was the party seeking an order which would cause the vacation of a trial date] to tender an explanation as to why the matter had been allowed to proceed to trial in its existing form”, and “the absence of an explanation suggests the possibility that none which favoured ANU could be offered”. The February 2025 Judgment at [47]-[48] was critical of the applicant’s deficient explanation. Despite those paragraphs of the February 2025 Judgment, in this matter:
(a)In respect of the AFP Alerts Claim, the respondent’s evidence served in July 2023 clearly indicated that, in respect of a number of the applicant’s entries into Australia, ABF officers acted on alerts concerning the applicant prepared by AFP officers. Some of the alerts were part of the evidence served. For example, an alert annexed to the affidavit of Bret Munro dated 13 July 2023, which recorded on its face that it was prepared by the AFP, stated in part:
… Igbinoba is subject of target development by AFP Sydney Intelligence, for association with organised drug importation. Please conduct inwards bag exam …
The applicant has not explained why he did not take steps between July 2023 (time of receipt of respondent’s evidence) and February 2025 to lodge with the AHRC a complaint against the AFP in respect of unlawful discrimination which, as explained in paragraph 25 above, he lodged in June 2025. Further, Ms Georgiou stated in her affidavit at [21]-[23] that on 13 and 14 March 2025 she inspected some documents discovered by the respondent and, upon inspecting the documents, she formed the view that “a significant portion of the material present in the discovered documents were titled “Alerts” and …”AFP Alerts”, “the intelligence underpinning the Alerts appeared to be, based on my reading of the documents, to have been procured by or predominantly sourced by the AFP”, and shortly afterwards she received instructions from the applicant “to prepare a new AHRC complaint against the AFP in relation to the intelligence that led to the Alerts being generated”. But, based on Ms Georgiou’s affidavit, there was nothing new in the discovered documents that was not apparent from the evidence served by the respondent in July 2023. This point highlights the absence of evidence from the applicant to explain why he did not, between July 2023 and February 2025, lodge the complaint against the AFP which was lodged in June 2025.
(b)In respect of the AFP Raid Claim, as I put to Mr Felman during the hearing on 20 June 2025, I considered that, in relation to the period from the date of the raid by the AFP in November 2021 to February 2025, the applicant’s explanation for why he did not lodge with the AHRC a complaint in this period (which partial explanation appears at page 31 of Ms Georgiou’s affidavit) was significantly deficient. Mr Felman did not disagree.
I appreciate that Ms Georgiou provided a comprehensive explanation in her affidavit concerning the passing of time since the applicant retained her law firm on 5 March 2025. However, this did not excuse the above gaps in the applicant’s explanation concerning the far longer periods of time before the applicant retained Ms Georgiou’s firm.
Where the applicant sought to vacate a multi-day hearing a short time before the commencement of the hearing, it concerned me, and weighed against the application, that the applicant provided no explanation (in respect of the AFP Alerts Claim) and a significantly deficient explanation (in respect of the AFP Raid Claim) as to why he did not lodge complaints with the AHRC (which was a necessary step before commencing court proceedings) in the long periods of time before retaining his current lawyer on about 5 March 2025.
Second, in cases involving applications to join or consolidate two separate court proceedings, a relevant consideration is whether there are issues of fact and law common to each proceeding. In Walsh v Commissioner of Taxation [2018] FCA 1739, a case in a footnote to RS [11], Greenwood J stated at [20]:
A fundamentally important consideration in an application of this kind is whether there is a real risk of inconsistent findings being made on contested questions of fact common to both proceedings if each proceeding is not heard together.
In relation to the AFP Alerts Claim, this appeared to be the applicant’s main point (see for example AS [36], [38]-[42] and [46]-[47]) in support of his application to vacate the June/July 2025 Hearing.
AS [41] usefully lists what the applicant contended were “factual overlaps” between the present proceeding and the AFP Alerts Claim as follows:
(a) whether the applicant was selected, stopped, questioned, detained and/or searched during the Entries;
(b) the basis for the ABF officers engaging in the conduct of selecting, stopping, detaining and searching the applicant during the Entries;
(c) the extent and duration of the incidents during which the applicant was stopped, questioned, detained and/or searched during the Entries;
(d) the proper legal characterisation of those processes undertaken by the ABF in stopping, questioning and searching the applicant during the Entries; and
(e) the extent of compensable loss suffered by the applicant as a result of the applicant being repeatedly selected, stopped, questioned, detained and/or searched during the Entries.
As I explained to Mr Felman at the hearing on 20 June 2025, I did not understand how the matters in (b) and (d) could lead to a risk of inconsistent findings being made on contested questions of fact common to both proceedings.
In relation to the remaining matters in (a), (c) and (e), two questions are:
(a)the extent, if any, to which there was a real risk of inconsistent findings being made on contested questions of fact common to both proceedings; and
(b)if there was a real risk, how this weighed in the balance.
Some observations relevant to whether there was a real risk of inconsistent findings being made on contested questions of fact common to the present proceeding concerning the ABF Conduct Claim and the prospective proceeding concerning the AFP Alerts Claim are as follows.
First, the applicant pleads in the Amended Statement of Claim filed on 13 July 2022 (ASC) in the present proceeding concerning the ABF Conduct Claim that acts of ABF officers on the applicant’s entries into Australia between 1998 and 2020 constituted unlawful discrimination in contravention of ss 9, 11 and 18C of the RD Act (paragraphs 53 to 53E) and, as a result, the applicant seeks “compensation” “in respect of the contraventions of the RD Act” (paragraph 63(c)). The ASC does not particularise how the “compensation” should be calculated.
Presumably the applicant would plead in a statement of claim in respect of the AFP Alerts Claim that AFP officers, in preparing the alerts, engaged in unlawful discrimination in contravention of the RD Act and, as a result, the applicant is entitled to compensation.
I accept that, in respect of the AFP Alerts Claim, the conduct of ABF officers who relied on the AFP Alerts to stop, question and search the applicant (ABF Officer Reliance Evidence) is relevant to establishing a causal link between the alleged contraventions by AFP officers and the impact on the applicant. However, it was not evident to me, based on the materials available to me at the hearing of the Vacation Application, that, in respect of the AFP Alerts Claim, the ABF Officer Reliance Evidence is relevant to the calculation or quantum of compensation. The relevance of this point is that, while I accept that the applicant would give evidence at a court hearing concerning the AFP Alerts Claim of each entry into Australia where he was stopped by an ABF officer who relied on an AFP Alert, if the applicant’s evidence does not affect the amount of compensation to which he might be entitled if a contravention by an AFP officer was established, the respondent may not contest the applicant’s evidence concerning these matters. Whether the ABF Officer Reliance Evidence is relevant to the calculation or quantum of compensation in a court proceeding concerning the AFP Alerts Claim might be made clear from a statement of claim in respect of the AFP Alerts Claim. But no statement of claim exists. The absence of a statement of claim makes it difficult to assess whether, or the extent to which, there is a real risk of inconsistent findings being made on contested questions of fact common to both proceedings. As in Ghose at [73], “it is too early to tell … how much of the common factual matrix will be really in issue”.
Second, as I put to counsel for both parties at the hearing on 20 June 2025, if the June/July 2025 Hearing proceeds and a judgment is given, it appears that for each entry of the applicant into Australia where an ABF officer relied on an AFP Alert to stop and question the applicant, the Court must find whether or not the conduct of the ABF officer involved unlawful discrimination and a breach of the RD Act. Next:
(a)For entries where the applicant wins on breach, the Court will assess, and the applicant will obtain, compensation. The applicant is then unlikely to relitigate that entry in a court proceeding concerning the AFP Alerts Claim since he is not entitled to double compensation. For these reasons, for these entries there will not be inconsistent findings concerning the matters in paragraph 36 (a), (c) and (e) above.
(b)Conversely, for entries where the applicant loses on breach, the Court will not assess compensation for the applicant arising from that entry. The applicant will then relitigate that entry in the court proceeding concerning the AFP Alerts Claim and, if he proves breach by AFP officers relating to that entry, the Court will calculate the compensation to which he is entitled. But, since compensation arising from that entry was not calculated in the present proceeding, there will be no inconsistent findings concerning the extent of compensable loss.
For the reasons in this paragraph, the risk of inconsistent findings being made on contested questions of fact common to both proceedings is significantly reduced.
Mr Hall agreed with this point. Mr Felman disagreed, and maintained the position that there would be factual overlaps between the present proceeding concerning the ABF Conduct Claim and a court proceeding concerning the AFP Alerts Claim in relation to “the extent of compensable loss” (see paragraph 36(e) above). But this highlights the point that the applicant has not identified in pleadings or elsewhere how “compensable loss” should be calculated.
Third, if the June/July 2025 Hearing proceeds and a judgment is given, there will be findings of fact concerning interactions between the applicant and ABF officers on each entry into Australia. While it may be open to a dissatisfied party (subject to considering whether an issue estoppel applies) to relitigate these factual findings during a court hearing in respect of the AFP Alerts Claim, in circumstances where the parties’ evidence is likely to be identical (and it was stated at AS [42] that “the evidence of the applicant in the current proceeding and in relation to the AFP Complaint will be identical in respect of the Entries”), it is not evident that the dissatisfied party will do so. Whether the dissatisfied party will relitigate the factual findings is speculative. Again, as in Ghose at [73], “it is too early to tell … how much of the common factual matrix will be really in issue”.
For the above reasons, after considering the evidence available to me at the hearing of the Vacation Application and the parties’ submissions, I was not persuaded that there is a real risk of inconsistent findings being made on contested questions of fact common to the present proceeding concerning the ABF Conduct Claim and the foreshadowed proceeding concerning the AFP Alerts Claim. Alternatively, to the extent there may be a real risk, the risk was small, involved a degree of speculation, and concerned findings on matters not core or central to both proceedings.
Fourth, in Ghose at [29] Austin J referred to a list of nine matters formulated in Humphries at [11]. The applicant quoted the matters at AS [35]. One of the matters is:
Is one proceeding further advanced in terms of preparation for trial than the others?
On the day I heard the Vacation Application on 20 June 2025, the final hearing in respect of the ABF Conduct Claim commenced a week later (on 27 June 2025) while, in respect of the AFP Alerts Claim, a court proceeding had not commenced and no pleading had been prepared. That the ABF Conduct Claim and the AFP Alerts Claim are so far apart in terms of preparation for trial counted against the two claims being heard together, even if there was a real risk of inconsistent findings being made on contested questions of fact common to both proceedings. Although the point is not determinative, r 30.11 of the Federal Court Rules refers to “proceedings … pending in the Court”. As explained above, there is not yet a proceeding in respect of the AFP Alerts Claim pending in the Court.
In relation to the AFP Raid Claim, although AS [18] asserted a “commonality in substratum of facts” between the AFP Raid Claim and the ABF Conduct Claim and AS [37] asserted “a significant common substratum of facts and overlapping legal issues”, the commonality and overlap was not evident to me or Mr Hall. I understood that Mr Felman accepted at the hearing on 20 June 2025 that there were no contested questions of fact common to both proceedings.
Fourth, I considered the respondent would be prejudiced by the vacation of the June/July 2025 Hearing. I considered there were three forms of prejudice as follows:
(a)First, the recollection of witnesses is likely to diminish over time. Because of the applicant’s decision to commence a court proceeding in 2020 concerning his entries into Australia extending back to 1998, the 16 witnesses for the respondent required by the applicant for cross-examination already face the challenge of giving evidence at the June/July 2025 Hearing concerning events many years earlier. If the June/July 2025 Hearing was vacated, at least a further year, and probably more time, would pass before the proceeding was again listed for hearing. Mr Felman stated that the time until a further hearing which included the two additional claims was of “uncertain duration”. Mr Hall estimated that the delay until a further hearing could be many years. Any deterioration in the memory of the respondent’s witnesses is a prejudice to the respondent. As stated by Mr Barker in paragraph 8.3 of his affidavit dated 21 February 2025:
The longer time goes on, the greater chance there is that witnesses will have difficulty recalling the events described in their affidavits. This may prejudice the respondent’s ability to substantiate its defence.
(b)Second, the affidavits of Mr Barker dated 21 February 2025 and 20 June 2025 set out additional prejudice the respondent would suffer. Mr Barker, after noting in his February 2025 affidavit that the respondent has 21 witnesses, stated at [8] that, based on his experience as a litigator, an adjournment of the hearing is likely to cause prejudice to the respondent including in the following ways:
(i)The work undertaken to prepare witness availability for the hearing will need to be done again, meaning the respondent’s time and resources directed to this in the last few months have been wasted.
(ii)Costs will be incurred in having to re-prepare and re-read into the matter at a later date.
(c)Third, the respondent’s many witnesses required for cross-examination, having prepared to give evidence at the June/July 2025 Hearing, would need to wait a further period of time, perhaps a few years, before a new hearing date. This disruption to their lives is a form of prejudice to the respondent, although not as direct or significant as the prejudices in subparagraphs (a) and (b) above.
Fifth, as stated in the February 2025 Judgment at [52], this proceeding was commenced in October 2020 and concerns events stretching back to 1999. There is considerable public interest in the proceeding being heard and determined expeditiously. If the June/July 2025 Hearing was vacated, there would be a further delay to the hearing date of one or more years.
Sixth, as stated in the February 2025 Judgment at [53], s 190(2)(c) of the FCFCOA Act requires the Court to consider “the efficient disposal of the Court’s overall caseload” in making procedural decisions to facilitate the just resolution of disputes. The Court has a busy case load, including a significant backlog of judicial review applications in respect of decisions made under the Migration Act 1958 (Cth) awaiting hearing dates. If the June/July 2025 Hearing was vacated and eventually relisted for a five day trial on a later occasion, this would have a negative impact on the efficient disposal of the Court’s overall caseload. Mr Felman suggested in oral submissions that if the June/July 2025 Hearing was vacated, my docket would be filled by other matters. I principally hear the judicial review applications referred to above. Because of timeframes involved in notifying parties of final hearing dates, if the June/July 2025 Hearing was vacated, it is unlikely my docket would be filled by other matters.
COSTS
Mr Hall sought an order that the applicant pay the respondent’s costs of and associated with the Vacation Application. Mr Felman proposed that costs be in the cause or the respondent’s costs be in the cause.
I considered it appropriate that there be a costs order which reflected the fact that the applicant failed in respect of the Vacation Application. I also considered that, because the Vacation Application was discrete from the substantive proceeding, in contrast to an interlocutory dispute which is a step towards preparing a substantive proceeding for hearing, it was appropriate that the applicant pay the respondent’s costs of and associated with the Vacation Application as agreed or assessed.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 11 July 2025
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