Maurice Blackburn Pty Ltd v Commonwealth of Australia
[2014] FCA 767
FEDERAL COURT OF AUSTRALIA
Maurice Blackburn Pty Ltd v Commonwealth of Australia [2014] FCA 767
Citation: Maurice Blackburn Pty Ltd v Commonwealth of Australia [2014] FCA 767 Parties: MAURICE BLACKBURN PTY LTD v COMMONWEALTH OF AUSTRALIA File number: VID 413 of 2014 Judge: BEACH J Date of judgment: 23 July 2014 Catchwords: MIGRATION – jurisdiction of the Federal Court – Migration Act 1958 (Cth) – application for interlocutory injunction permitting potential expert witness to meet with detainees on Christmas Island – privative clause decision – no jurisdiction Legislation: Judiciary Act 1903 (Cth) ss 39B(1), 39B(1A)
Migration Act 1958 (Cth) ss 256, 474, 476ADate of hearing: 23 July 2014 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 32 Counsel for the Applicant: Ms A Wong Solicitor for the Applicant: Maurice Blackburn Lawyers Counsel for the Respondent: The Respondent did not appear
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 413 of 2014
BETWEEN: MAURICE BLACKBURN PTY LTD
ApplicantAND: COMMONWEALTH OF AUSTRALIA
Respondent
JUDGE:
BEACH J
DATE OF ORDER:
23 JULY 2014
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. The interlocutory application be refused.
2. The originating application be dismissed.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 413 of 2014
BETWEEN: MAURICE BLACKBURN PTY LTD
ApplicantAND: COMMONWEALTH OF AUSTRALIA
Respondent
JUDGE:
BEACH J
DATE:
23 JULY 2014
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
Introduction
On 23 July 2014 the applicant Maurice Blackburn Pty Ltd filed an interlocutory application against the Commonwealth of Australia, seeking an urgent interlocutory injunction. The purported urgency of the request arose from the fact that the applicant’s clients, being 12 families currently detained on Christmas Island inside a construction camp immigration detention facility (the Camp) pursuant to the Migration Act1958 (Cth) (Migration Act), seek to meet with Dr Shanti Raman (Dr Raman) a paediatrician engaged as a potential expert witness by the applicant. The applicant is investigating on behalf of the 12 families the possibility of making a common law negligence claim against the Commonwealth of Australia in respect of their detention and medical treatment. The respondent has allegedly frustrated Dr Raman’s entry into the Camp in various respects. The applicant alleges that Dr Raman is due to depart Christmas Island tomorrow, being 24 July 2014, at 4:45 pm without delay. Accordingly, the applicant seeks orders in essence which permit Dr Raman to be able to meet with its clients before her departure.
The interlocutory application has been brought in a proceeding instituted by originating process, also filed on 23 July 2014, which is an application purporting to enliven alleged rights under s 256 of the Migration Act. In the originating application the applicant claims “the ability for Dr Shanti Raman, in possession of her stethoscope and otoscope, to meet with our clients in immigration detention in Construction Camp Alternative Place of Detention, Christmas Island in accordance with section 256 of the Migration Act 1958 (Cth)”. This is the only “basis” stated for this proceeding. Presumably, the applicant seeks an order or declaration to this effect, although this is not specified in the application.
The applicant also claims interlocutory relief by way of an injunction restraining the Commonwealth from preventing Dr Raman from meeting with its clients in the Camp with her stethoscope and otoscope for the purpose of conducting a medical assessment of those persons during the period 23 July to 24 July 2014 at least. In essence, the applicant is seeking mandatory orders permitting access to the Camp by Dr Raman with her equipment.
The interlocutory application, originating process, and affidavit of Jacob Isaac Noozhumurry Varghese affirmed on 23 July 2014 in support of the originating application were filed at approximately 1.45 pm today, 23 July 2014. The matter was listed for hearing at 2.15 pm today, and subsequently stood down so that counsel for the applicant could consider certain matters I put to her in terms of the Court’s jurisdiction to deal with this matter. The hearing resumed at approximately 3.00 pm today. I heard further argument and then dismissed the proceeding for want of jurisdiction. Given the purported urgency of the matter, I gave ex tempore reasons for this decision which I now publish.
The apparent facts
In his affidavit Mr Varghese, a principal solicitor at Maurice Blackburn, gave in summary the following untested evidence:
(a)Mr Varghese arranged for his colleague Mr Min Guo, a solicitor employed by the applicant, to attend the Camp with Dr Raman to meet with the 12 families in question (the applicant’s clients) between 22 July and 24 July 2014.
(b)The purpose of the applicant engaging Dr Raman was to obtain independent expert evidence to assist it in providing legal advice to its clients, who have engaged the applicant to advise on a potential breach of duty of care by the Commonwealth with respect to the adequacy of the medical and other health services being provided to its clients, in particular child clients. Mr Varghese affirms that Dr Raman is not engaged to provide any form of medical treatment to the applicant’s clients, but will undertake “medical assessments”.
(c)On 18 July 2014, Mr Guo wrote to the Department of Immigration and Border Protection (the Department) and requested approval for he and Dr Raman to meet with a number of clients at the Camp, the purpose of the visit being to provide legal advice and undertake medical assessments. In writing, Mr Guo requested access to the medical clinic at Christmas Island and advised that, inter alia, medical equipment would be taken into the Camp. On the same day, Mr Wayne Hollingshead, Case Management Support Officer of the Department advised by email that the Department approved the request.
(d)Mr Varghese was subsequently informed by Mr Guo that:
(i)On 22 July 2014, Mr Guo and Dr Raman flew from Perth to Christmas Island.
(ii)On the same day, Mr Guo and Dr Raman presented at the Camp and were advised by Andrew Durston, Regional Manager, Christmas Island, of the Department, that he and Dr Raman were not permitted to access the medical clinic and were not permitted to take medical equipment into the Camp. Mr Guo requested a reason for the refusal and Mr Durston did not provide reasons at that time. Mr Guo requested that reasons for refusal be provided to the applicant in writing.
(iii)Mr Guo was later told by Mr Durston that Dr Raman was not permitted to enter the Camp pending further advice, as the Commonwealth was unsure whether “non-contracted doctors should be permitted to provide medical services at the Camp” and was seeking advice regarding the same.
(e)This morning, Mr Varghese spoke with Dr Raman who said that she would be better able to make medical observations of the applicant’s clients if she were permitted to take a stethoscope and otoscope into the Camp..
(f)At 9.45 am, Mr Varghese called the Department and spoke with an employee of the Department. Mr Varghese left a message with that employee for Fiona Andrew, Assistant Secretary, Detention Operation Branch, urgently requesting that Dr Raman be permitted to bring her stethoscope and otoscope to the meetings. Mr Varghese affirms that he advised the employee that the matter was urgent and that if no return telephone call was received, the applicant would issue proceedings without further notice. At the time of affirming his affidavit, apparently the Department had not returned Mr Varghese’s phone call.
In summary, the applicant claims that the purpose of Dr Raman’s attendance at the Camp is to conduct medical assessments on the applicant’s clients to provide an expert report intended to assist those persons in making a claim in negligence against the Commonwealth, and that Dr Raman requires a stethoscope and otoscope to make such assessments. The applicant has encountered some resistance from the respondent in either allowing certain medical equipment to be accessed or brought into the Camp by Dr Raman or in allowing entry by Dr Raman into the Camp more generally.
The applicant seeks an interlocutory injunction restraining the Commonwealth from preventing Dr Raman meeting with its clients and bringing and using her stethoscope and otoscope inside the Camp, and more substantively claims that the Commonwealth is obliged to do so to afford the applicant’s clients “all reasonable facilities” for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention in accordance with s 256 of the Migration Act. For the reasons that follow, I do not think that the Court has jurisdiction to adjudicate on this matter.
Applicant’s submissions
As I have said, the matter was called on for hearing as a matter of urgency within half an hour of the relevant documents being filed with the Registry. When it was called on at 2.15 pm, I indicated to counsel for the applicant, Ms Wong, that I was not certain that the Court had jurisdiction to deal with the proceeding. The matter was briefly stood down until 3.00 pm for the applicant to consider that issue.
I note that there was no appearance for the respondent. Upon enquiry, Ms Wong advised that notice of the application had been given to the respondent by way of a telephone call, presumably the telephone call referred to in Mr Varghese’s affidavit.
The matter was called back on at 3.00 pm. At that time, counsel for the applicant submitted that s 39B(1) of the Judiciary Act 1903 (Cth) (Judiciary Act) enlivened the Court’s original jurisdiction where injunctions are sought against officers of the Commonwealth. Counsel for the applicant accordingly sought leave to amend the respondent named from the Commonwealth of Australia to the Secretary of the Department of Immigration and Border Protection as first respondent and Andrew Durston as second respondent.
I put to counsel that, even if I were to grant such leave, s 476A of the Migration Act still appeared to curtail the Court’s jurisdiction to hear such a matter.
Counsel submitted that the application does not involve a “migration decision”, but rather a decision made by the respondent to restrict access to a doctor, which is not a decision under the Migration Act. I have difficulty with that submission as explained below.
Further, counsel submitted that no “decision” had in fact been made by the respondent under s 256, and that that provision only imposes a duty on the respondent. Counsel further submitted that the principle of reasonable access to clients for the purposes of legal proceedings exists beyond the Migration Act, and it is within the Court’s power to prevent such access being frustrated by the respondent. Counsel also referred to the Court’s inherent jurisdiction to govern its processes.
Counsel proposed that, should this Court’s jurisdiction be found wanting, the matter might be remitted to the Federal Circuit Court.
Reasons
I have determined that I do not have original jurisdiction to deal with this proceeding.
It is appropriate to set out s 39B(1) and (1A) of the Judiciary Act:
39B Original jurisdiction of Federal Court of Australia
Scope of original jurisdiction
(1)Subject to subsections (1B), (1C) and (1EA), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.
(1A)The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:
(a)in which the Commonwealth is seeking an injunction or a declaration; or
(b)arising under the Constitution, or involving its interpretation; or
(c)arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter…
First, although this Court has original jurisdiction under s 39B(1) of the Judiciary Act in respect of proceedings involving the constitutional writs, this proceeding is against the Commonwealth. In any event, if the proceedings were to be reconstituted, there would be the further restraint now provided by s 476A of the Migration Act. Second, this Court does not have original jurisdiction under s 39B(1A)(a) in respect of claims against the Commonwealth, by reason of that fact alone (cf s 75(iii) of the Constitution in relation to the High Court’s original jurisdiction).
Third, this Court does have original jurisdiction under s 39B(1A)(c) of the Judiciary Act in relation to any matter arising under any laws made by the Commonwealth Parliament. But again, this is now severely circumscribed by s 476A of the Migration Act.
It seems to me that the applicant’s challenge seeks to enliven its rights under s 256 of the Migration Act. It is said that the prevention of Dr Raman using her instruments to examine the clients for the purpose of giving an expert opinion somehow curtails rights provided under s 256. Putting it another way, it is said that the Commonwealth or its officers are not affording the applicant’s clients “reasonable facilities” as required thereunder. Section 256 of the Migration Act relevantly provides:
256 Person in immigration detention may have access to certain advice, facilities etc.
Where a person is in immigration detention under this Act, the person responsible for his or her immigration detention shall, at the request of the person in immigration detention, give to him or her application forms for a visa or afford to him or her all reasonable facilities for making a statutory declaration for the purposes of this Act or for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention.
It seems to me that what is embraced by the challenge is a matter invoking s 256 involving a “decision of an administrative character made, proposed to be made or required to be made, as the case may be, under this Act” within the meaning of a “privative clause decision” under s 474(2) and therefore a “migration decision” of the type referred to in s 476A. Further, I note that “decision” has been given an extended meaning by s 474(3). Subsections 474(1)-(3) provide:
474 Decisions under Act are final
(1)A privative clause decision:
(a)is final and conclusive; and
(b)must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
(2)In this section:
privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).
(3)A reference in this section to a decision includes a reference to the following:
(a)granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination;
(b)granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);
(c)granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;
(d)imposing, or refusing to remove, a condition or restriction;
(e)making or revoking, or refusing to make or revoke, a declaration, demand or requirement;
(f)retaining, or refusing to deliver up, an article;
(g)doing or refusing to do any other act or thing;
(h)conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;
(i)a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act;
(j)a failure or refusal to make a decision…
In s 5 of the Migration Act, “migration decision” is defined to mean:
(a)a privative clause decision; or
(b)a purported privative clause decision; or
(c)a non‑privative clause decision.
Section 476A(1) of the Migration Act provides:
476A Limited jurisdiction of the Federal Court
(1)Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if:
(a)the Federal Circuit Court transfers a proceeding pending in that court in relation to the decision to the Federal Court under section 39 of the Federal Circuit Court of Australia Act 1999; or
(b)the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; or
(c)the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C; or
(d)the Federal Court has jurisdiction in relation to the decision under subsection 44(3) or 45(2) of the Administrative Appeals Tribunal Act 1975…
When I raised the difficulty with s 476A and whether what was involved in this challenge was a “privative clause decision” and therefore a “migration decision”, the applicant’s counsel submitted that what was involved was not such a decision. I disagree.
First, the only basis set out in the originating application for the claim was described in the terms set out in paragraph 2 of these reasons. Second, Mr Varghese’s affidavit referred to a decision on 18 July 2014 being made to permit access under s 256 of the Migration Act. Third, Mr Varghese’s affidavit then referred to a decision not to permit access and/or a decision to permit access, but without the stethoscope and otoscope. Fourth, the injunction sought, essentially was to overcome the latter two decisions. Fifth, the applicant at one stage sought to convert the proceedings into one seeking constitutional writs against officers of the Commonwealth; necessarily that would have tied the challenge to one or more administrative decisions and their lawfulness under s 256.
When properly analysed, it seemed to me that what the applicant was seeking to do was challenge decisions to deny access or to allow it but only on terms which were unacceptable to the applicant or its clients. The source for such decisions was only said to be s 256. The only unlawfulness was said to have been a failure to “afford him or her all reasonable facilities … for obtaining legal advice or taking legal proceedings…” within the meaning of s 256. Accordingly, I do not accept the applicant’s contention.
The applicant’s proceeding involves a “privative clause decision” concerning s 256 and thereby a “migration decision”. In my view, by reason of s 476A, this Court has no jurisdiction. Moreover, even if the proceedings were to be converted to claims involving constitutional writs sought against officers of the Commonwealth, that would only exacerbate the problem. There is also the further problem with s 474(1). Further, s 476A not only constrains the Court’s original jurisdiction under s 39B(1) of the Judiciary Act, but also constrains its original jurisdiction under s 39B(1A)(c) of the Judiciary Act. I had thought of the possibility that what was being raised as a matter under s 256 could be formulated in a way which would take it outside the “migration decision” constraint and thereby avoid s 476A entirely, leaving it free for the Court to exercise original jurisdiction under s 39B(1A)(c). But to my mind that would have been an artificial exercise, and in any event, the applicant did not proffer any such realistic solution. Further, the words “in relation to” in s 476A(1) effectively operate to expand the limit on this Court’s jurisdiction and therefore limit any scope for such a possibility.
As I have said, the applicant sought to reconstitute the proceeding to enliven the Court’s original jurisdiction, but that did not ameliorate or avoid the problem raised by s 476A. I did not so reconstitute it.
The applicant in oral argument sought to assert a separate source of jurisdiction, outside the s 256 context, by asserting that the relief sought was in aid of a right to bring relevant common law proceedings. I raised with the applicant the issue of where such proceedings would be brought but neither she nor Mr Varghese who was instructing her could tell me. Prima facie, it would appear that this Court would not have original jurisdiction in respect of a common law claim in negligence against the Commonwealth, not otherwise relying upon s 39B(1A)(b) or (c) of the Judiciary Act. If I thought that there was a strong argument that this Court would have had original jurisdiction to deal with these common law claims, then granting an injunction in aid of future proceedings in this Court may have been a possibility. But no plausible argument was sought to be advanced along these lines by the applicant.
A defamation case with an anticipated defence relying upon the extended category of qualified privilege described in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 571-575 would be a clear case within s 39B(1A)(b). A common law negligence claim where the alleged duty of care was founded upon a relationship arising by operation of Commonwealth legislation or founded upon the ability to exercise certain statutory powers thereunder or any statutory ability to control the relevant risk, although not sufficient conditions to establish a duty of care, would likely be a case falling within s 39B(1A)(c). So too, if the breach of duty was founded upon the exercise or failure to exercise such statutory powers, even if such acts or omissions were not sufficient conditions to establish breach. So too, if any actual or anticipated defence raised a question of statutory authority, statutory limitation or statutory immunity provided by Commonwealth legislation. But none of these matters were argued by the applicant. In any event, the link would be too ephemeral or remote for me to be confident in saying that I should exercise my inherent jurisdiction now to protect future processes that might conceivably involve this Court, as distinct from a State court. As I say, I asked the applicant’s counsel where proceedings were likely to be brought but received no substantive response.
In summary, the Court does not have jurisdiction to entertain the claim or grant the relief sought.
For the sake of completeness I should say that I did consider remitting this matter to the Federal Circuit Court, which I consider that I could have done even if I thought that I lacked the jurisdiction to deal with the substantive claim. But I was not satisfied that that Court had jurisdiction to adequately deal with the matter either, notwithstanding s 476. Therefore, I declined to remit it.
For all these reasons, the injunction is refused and the originating application dismissed for want of jurisdiction.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beach. Associate:
Dated: 24 July 2014
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