KDSP v Secretary of the Department of Home Affairs
[2022] FedCFamC2G 804
•4 October 2022
Federal Circuit and Family Court of Australia
(DIVISION 2)
KDSP v Secretary of the Department of Home Affairs [2022]FedCFamC2G 804
File number(s): MLG 1875 of 2022 Reasons of: JUDGE KENDALL Date: 4 October 2022 Catchwords: PRACTICE AND PROCEDURE – where the applicant sought an interlocutory order for the proceeding to be transferred to the Federal Court of Australia – where a related proceeding had been filed in the Federal Court of Australia – whether the current proceeding should also be transferred to the Federal Court of Australia – reasons for discretionary transfer of proceeding – proceeding transferred. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth), ss 153 & 154
Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (Cth), r 8.02
Division: Division 2 General Federal Law Number of paragraphs: 16 Place: Perth ORDERS
MLG 1875 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KDSP
Applicant
AND: SECRETARY OF THE DEPARTMENT OF HOME AFFAIRS
First Respondent
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
16 AuGUST 2022
THE COURT ORDERS THAT:
1.The proceeding be transferred to the Federal Court of Australia pursuant to s 153 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary reasons provided 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 ORDER
JUDGE KENDALL:
Introduction
On 16 August 2022, the Court made the following order:
1.The proceeding be transferred to the Federal Court of Australia pursuant to s 153 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
On 30 September 2022, the applicant’s representative requested written reasons for the making of that order.
These reasons explain why the Court made the above order.
Background
The applicant filed an application in this Court on 10 August 2022. As part of that application, the applicant sought an interlocutory order in the following terms:
An order transferring the proceeding to the Federal Court of Australia pursuant to section 153 of the Federal Circuit and Family Court Act 2021, to be heard with the Applicant’s Originating Application for Relief Under Section 39B Judiciary Act 1903 – Form 69 – Rule 31.11(1) filed in the Federal Court on 10 August 2022 (Lodgment ID: 1120997), subject to further order of that Court.
In an accompanying affidavit filed with the application on 10 August 2022, the applicant provided the following reasons in support of the matter being transferred from the Federal Circuit and Family Court of Australia (Division 2) (the “Court”) to the Federal Court of Australia (the “Federal Court”):
4.On 10 August 2022, the Applicant filed an associated originating application in the Federal Court of Australia pursuant to section 39B of the Judiciary Act 1903 (Cth) (Associated Application) (Lodgment ID: 1120997). The Associated Application seeks relief in respect of non-statutory exercises of executive power preliminary to the exercise of the Minister’s personal non-compellable power in section 195A of the Migration Act 1958 (the Act).
…
6.The proceedings in this Court are directly related to the Associated Application proceedings. The Applicant seeks relief to bring an end to his protracted and indefinite detention, either by causing his request for the exercise of the Minister’s s 195A discretion to be referred to the Minister (the relief sought in the Associated Application), or alternatively, to grant a writ of mandamus compelling the Minister to remove the Applicant from Australia (the relief sought in the present proceeding).
7.The two proceedings are therefore inextricably linked, but must be commenced in different Courts due to the jurisdictional limits imposed on the respective Courts by the Act.
8.It is in the interests of justice that this proceeding be transferred to be heard together with the Associated Application proceeding in the Federal Court. The Applicant has been held in immigration detention since December 2015. Determining the matters together will be quicker and less costly than pursuing two separate applications. Further, no prejudice would be suffered by the Respondents.
9.Having regard to the respective caseloads of the Federal Circuit and Family Court and the Federal Court, it is likely that the matter will be heard earlier if the matter is transferred to the Federal Court.
10.The Federal Court has procedures appropriate for the case management and determination of the entire matter if this proceeding is transferred to the Federal Court and the two proceedings heard together.
Relevant legislation
Before considering whether it was appropriate to transfer this proceeding to the Federal Court, the Court took note of a number of legislative provisions.
Relevantly, section 153 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (the “Act”) provides as follows in relation to the transfer of proceedings from this Court to the Federal Court:
153 Discretionary transfer of proceedings
(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.
(4)If an order is made under subsection (1), the order takes effect on the day that the order is confirmed by the Federal Court under section 32AD of the Federal Court of Australia Act 1976.
(5)The Federal Circuit and Family Court of Australia (Division 2) may make such orders as it considers necessary pending the order transferring the proceeding being confirmed by the Federal Court.
(6)An appeal does not lie from a decision of the Federal Circuit and Family Court of Australia (Division 2) in relation to the transfer of a proceeding under this section.
(7)This section does not apply to proceedings of a kind specified in the regulations.
154 Rules of Court
(1)The Rules of Court may make provision in relation to transfers of proceedings to the Federal Court under subsection 153(1), including in relation to the scale of costs that applies to any order made in respect of proceedings that are transferred.
(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).
(3)Before Rules of Court are made for the purposes of this section, the Chief Judge of the Federal Circuit and Family Court of Australia (Division 2) must consult the Chief Justice of the Federal Court.
Rule 8.02 of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (the “Rules”) also relates to the transfer of proceedings to the Federal Court and relevantly provides:
8.02 Transfer to Federal Court
(1)The Court may, at the request of a party or on its own initiative, transfer a proceeding to the Federal Court.
(2)Unless the Court otherwise orders, a request for transfer must be made on or before the first court date for the proceeding.
(3)Unless the Court otherwise orders, the request must be included in a response or made by application 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.
THE COURT’s Reasons for transfer
As outlined above, the applicant requested the transfer of this proceeding from this Court to the Federal Court.
It is noted that under r 8.02(1), the Court may, at the request of a party, transfer a proceeding to the Federal Court.
The applicant’s application to transfer the proceeding was made as part of the applicant’s originating application (before the first court date for the proceeding) and was supported by an affidavit. This satisfied the requirements set out in rr 8.02(2) and (3) of the Rules.
This Court determined that the following factors, as raised by the applicant, weighed in favour of the matter being transferred to the Federal Court:
(a)proceedings in respect of an associated matter were pending in the Federal Court;
(b)having regard to the respective caseloads of the Court and the Federal Court, it was likely that the matter would be heard earlier if the matter was transferred to the Federal Court;
(c)noting that the applicant had been held in immigration detention since December 2015, it was in the interests of the administration of justice that this proceeding be transferred and be heard together with the associated application pending in the Federal Court;
(d)determining the matters together would be quicker, more efficient and less costly than pursuing two separate applications in two separate courts; and
(e)the Federal Court had procedures appropriate for the case management and determination of the entire matter if the matter were transferred to the Federal Court and the two proceedings were heard together.
Having regard to the considerations outlined in s 153 of the Act and rule 8.02(4) of the Rules, the Court was satisfied that this proceeding was suitable for transfer to the Federal Court.
It is contemplated under the Rules that there will be dialogue between the Courts to determine whether a matter is appropriate for transfer.
The Court notes that the Chief Justice of the Federal Court and the Chief Judge of this Court conferred prior to the making of the above order.
In the circumstances, the Court determined that, on the basis of that conferral and having been so advised, it was appropriate for the matter to be transferred to the to the Federal Court pursuant to s 153 of the Act. Accordingly, the Court ordered that the matter be transferred to the Federal Court.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Order of Judge Kendall. Associate:
Dated: 4 October 2022
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