McHugh v Commonwealth of Australia
[2025] VSC 11
•29 January 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S ECI 2023 05653
| EDWARD McHUGH | Plaintiff |
| v | |
| COMMONWEALTH OF AUSTRALIA | Defendant |
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JUDGE: | K Judd J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 09 December 2024 |
DATE OF JUDGMENT: | 29 January 2025 |
CASE MAY BE CITED AS: | McHugh v Commonwealth of Australia |
MEDIUM NEUTRAL CITATION: | [2025] VSC 11 |
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COMMON LAW – Damages claim for unlawful imprisonment – Cross-vesting legislation – Application for proceeding to be transferred to the Federal Court of Australia – Interests of justice – Migration Act 1958 (Cth) s 189 – BHP Billiton Ltd v Schultz (2004) 221 CLR 400 – Ewins v BHP Billiton Ltd [2005] VSC 4.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | W Harris KC | Percy Kakulas Gleeson |
| For the Defendant | S Lloyd SC with C O’Neil | Australian Government Solicitor |
TABLE OF CONTENTS
Overview.............................................................................................................................................. 1
Evidence............................................................................................................................................... 3
Legal Principles.................................................................................................................................. 3
Submissions of parties...................................................................................................................... 5
Consideration...................................................................................................................................... 7
HER HONOUR:
Overview
The plaintiff was born in 1968 in the Cook Islands, which by operation of New Zealand law, made him a citizen of New Zealand. The plaintiff never knew his biological father and was abandoned by his biological mother shortly after birth. The plaintiff arrived in Australia in 1975 at age seven and, in 1976, was adopted by Kevin and Maryanne McHugh. The plaintiff learned that he had been adopted by, rather than born to, his adoptive parents in 2013.
The plaintiff self-identifies as being an Aboriginal Australian. He lived in the Ardyaloon Community in Western Australia from about 1990 until 2001 and subsequently in Derby, Western Australia, and the Mulan Aboriginal community in the East Kimberly region of Western Australia. In 2015 and 2016 he met and travelled with a Gidja woman, painting and selling traditional Aboriginal paintings.
From 1 September 1994, the plaintiff was deemed to have an absorbed person’s visa.[1] On 23 April 2018, the plaintiff’s absorbed person’s visa was cancelled while he was in criminal custody in Darwin. At the end of his sentence, on 11 May 2018, he was taken into immigration detention and detained in various locations, including in the Northern Territory, Western Australia, Christmas Island, Queensland, New South Wales and Victoria.
[1]Migration Act 1958 (Cth) (‘Migration Act’) s 34.
During periods prior to his visa cancellation, the plaintiff believed he was an Australian citizen. He had been issued with a passport and been enrolled to vote.
The plaintiff commenced a habeas corpus claim in the Federal Court in February 2020. He was brought from Western Australia to Victoria for the hearing of that proceeding.
The Federal Court has made four decisions in relation to the plaintiff:
(a) McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs;[2]
[2][2020] FCA 416 (Anderson J).
(b) McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2);[3]
(c) McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (First Full Court Decision);[4] and
(d) McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2).[5]
[3][2020] FCA 843 (Anderson J).
[4](2020) 283 FCR 283 FCR 602 (Allsop CJ, Besanko and Mortimer JJ).
[5](2021) 287 FCR 364 (Allsop CJ, Besanko and Mortimer JJ).
On 11 February 2020, the High Court delivered its decision in Love v Commonwealth,[6] holding that Aboriginal Australians within the meaning of the tripartite test in Mabo v Queensland (No 2)[7] were not capable of being treated as aliens within s 51(xix) of the Constitution.
[6](2020) 270 CLR 152 (‘Love’).
[7](1992) 175 CLR 1, 70.
On 11 December 2020, in the First Full Court Decision, the Full Court issued a writ of habeas corpus on the basis that the Minister had not shown that an officer reasonably suspected that the plaintiff was not an Aboriginal Australian within the meaning of the tripartite test at the relevant time.[8] The plaintiff was released from immigration detention that day and he remains in the community.
[8]First Full Court Decision [2] (Allsop CJ), [76] – [77] (Besanko J), [340] (Mortimer J).
In this proceeding, the plaintiff claims damages for unlawful imprisonment between 18 May 2018 and 11 December 2020.[9] The plaintiff also seeks damages for loss caused as a result of the defendant departing from representations that it had made regarding the plaintiff’s Australian citizenship.[10]
[9]Amended Statement of Claim [20].
[10]Amended Statement of Claim [34].
By summons dated 26 August 2024, the defendant seeks orders:
(a) that the proceeding be transferred to the Federal Court of Australia pursuant to s 5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (Commonwealth Cross-vesting Act) and/or Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) (Victorian Cross-vesting Act); alternatively
(b) that the trial of the proceeding be heard without a jury in accordance with rule 47.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).
The plaintiff consents to the trial of his matter being heard by judge alone. Accordingly, this judgment is confined to whether it appears to the Court that it is more appropriate that the proceeding be determined by the Federal Court.
Evidence
The defendant relies on an affidavit affirmed by Zoe Maxwell on 26 August 2024. The plaintiff relies on an affidavit sworn by Phillip Gleeson on 22 November 2024.
Legal Principles
Relevantly, s 5(1) of the Victorian Cross-vesting Act provides that that the Supreme Court shall transfer a proceeding to the Federal Court where it appears to the Supreme Court that it is more appropriate that the relevant proceeding be determined by the Federal Court, having regard to the interests of justice.[11]
[11]Victorian Cross-vesting Act s 5(1)(b)(C); the relevant part of s 5 of the Commonwealth Cross-vesting Act is in the same terms.
In an application to transfer a proceeding, there is no onus of proof on either party.[12] Further, the power to transfer is not a discretionary power:
In the context of the Cross-vesting Act, one is not concerned with the problem of a court, with a prima facie duty to exercise a jurisdiction that has been regularly invoked, asking whether it is justified in refusing to perform that duty. Rather, the court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice. An application for transfer under s 5 of the Cross-vesting Act is brought upon the hypothesis that the jurisdiction of the court to which the application is made has been regularly invoked. If it appears to that court that it is in the interests of justice that the proceedings be determined by another designated court, then the first court ‘‘shall transfer’’ the proceedings to that other court. There is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interests of justice that it should be exercised. It is not necessary that it should appear that the first court is a ‘‘clearly inappropriate’’ forum. It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate.[13]
[12]Hamex Corporation Pty Ltd v Latrobe Street Ventures Pty Ltd [No 2] [2020] FCA 199 [12] (Anderson J); Valceski v Valceski (2007) 70 NSWLR 36 [70] (Brereton J).
[13]BHP Billiton Ltd v Schultz (‘BHP v Schultz’) (2004) 221 CLR 400 [14] (Gleeson CJ, McHugh and Heydon JJ).
The judicial determination as to whether to transfer or not, has at times been described as a ‘nuts and bolts’ management decision.[14] A wide range of considerations or ‘connecting factors’ may be taken into account so as to identify ‘the most appropriate, or natural, forum’.[15]
[14]BHP v Schultz [13] citing Street CJ in Bankinvest AG v Seabrook (1988) 14 NSWLR 711, 714.
[15]BHP v Schultz [19].
The connecting factors include the interests of the parties. However, as the interests of justice are wider than the interests of the parties, the interests of the parties will not necessarily be determinative.[16]
[16]BHP v Schultz [19]; Irwin v State of Queensland [2011] VSC 291 [14](d) (Robson J).
Relevant connecting factors might include:
(i) In a tort case, the place where the wrong occurred.
(ii)Residence of the parties and where it is an individual, the place where he or she resides, and in the case of a corporation where it carries on business. The latter is not necessarily its place of registration, although of course the latter is important to ensure jurisdiction.
(iii)The convenience to the parties and witnesses. However in this day and age this factor may not carry substantial weight, because of the ability to move witnesses around Australia at small expense and little inconvenience, and also because of the provision of evidence by audio visual link.
(iv)The law governing the proceeding.
(v)The experience of a particular Court and its ability to provide an efficient and speedy trial, for example a Court with particular evidentiary and procedural rules for hearing particular types of cases.
(vi)The condition of a party, for example, in a personal injury case where the life expectancy of the plaintiff is limited requiring a speedy outcome.[17]
[17]Ewins v BHP Billiton Limited [2005] VSC 4 [29].
As noted by Gillard J in Ewins v BHP Billiton Limited:
… it is right to attach importance to the procedural and evidentiary advantages offered to all parties in a particular court. It is relevant to have regard to a particular court’s specialisation and experience in a particular field.[18]
[18]Ewins v BHP Billiton Limited [2005] VSC 4 [31].
Submissions of parties
The defendant advanced three main factors in support of the submission that the Federal Court was a more appropriate forum for this matter than the Supreme Court:
(a) the specialisation of the Federal Court in respect of Migration Act matters;
(b) constitutional law issues; and
(c) centrality of previous Federal Court decisions.
As to the first factor, the defendant submitted that one of the key issues in the proceeding was the interpretation and application of s 189 of the Migration Act. In that regard, the defendant says that the plaintiff was lawfully detained under the Migration Act because, at all times during his period of detention, officers had a reasonable suspicion that he was an unlawful non-citizen.
The defendant relied on MB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[19] in which Dixon J took judicial notice of the fact that the Federal Court was undoubtedly a specialist court with respect to migration law[20] and that the Migration Act ought be construed and administered by the Federal Court.[21]
[19][2021] VSC 68 (‘MB’).
[20]Ibid [56].
[21]Ibid [57].
As to the second factor, the defendant submitted that the proceeding involved two migration-related developing areas of constitutional law, which the Federal Court has experience in considering, and which this Court does not:
(a) the application of the tripartite test articulated in Love; and
(b) NZYQ v Minister for Immigration Citizenship and Multicultural Affairs (2023) 415 ALR 254 in respect of people who cannot be removed from Australia.
As to the third factor, the defendant submitted that it will be necessary for the court hearing the proceeding to make determinations about the effect of the four Federal Court judgments made in respect of the plaintiff. Specifically, the court will need to determine whether the defendant is estopped from making certain claims in this proceeding or whether instead the defendant is bound by and estopped from denying the facts and issues identified in paragraph 17 of the Amended Statement of Claim.
In addition to those three factors, the defendant submitted that there is no apparent advantage for the plaintiff in remaining in the Supreme Court. The proceeding remains at an early stage and a transfer to the Federal Court is unlikely to occasion delay. The Federal Court operates a Victorian Registry, which extinguishes any inconvenience associated with locality. The provisions in the Civil Procedure Act 2010 (Vic) are not substantially different to the procedures which exist in the Federal Court and it cannot be suggested that the Federal Court is incapable of giving a fair trial in this kind of case. In any event, the defendant is bound by its model litigant guidelines.
The defendant also submitted that there are limited connecting factors between the plaintiff’s claim and the State of Victoria, noting that the alleged tort of false imprisonment was committed in a number of states and the plaintiff is not currently based in Victoria.
The plaintiff submitted that the Supreme Court of Victoria is the principal common law trial court in this State, and as such is the most appropriate or natural forum for the determination of the plaintiff’s allegations of tortious false imprisonment and common law estoppel causing loss, including the assessment of damages.
In contrast the Federal Court does not possess a common law division, nor does it have the obligations imposed on litigants in this Court by the Civil Procedure Act, which is said to be particularly important here in respect of disclosure obligations.
The plaintiff further submitted that the issues are largely factual. Insofar as s 189 of the Migration Act is concerned, the Full Court of the Federal Court has already determined the test that needs to be applied. The central question in this proceeding, for the purposes of determining whether certain Commonwealth officials held a reasonable suspicion that the plaintiff was an unlawful citizen, is whether any officer had turned their mind to whether the plaintiff was an Aboriginal Australian and therefore not an alien.
Similarly, the constitutional law issues have already been determined by the High Court and justices of this Court routinely apply the High Court’s reasoning on constitutional issues. What is left for determination is largely factual and this Court is equally capable of determining issues such as:
(a) whether the plaintiff held the sort of travel document that he would have been required to hold in order for there to be a real prospect of his removal becoming practicable in the reasonable future; and
(b) whether the plaintiff is an Aboriginal Australian within the meaning of the tripartite test.[22]
[22]See similar although not identical examples in Re Terei (No 3) [2024] VSC 423 and Gardiner v Attorney-General [2020] VSC 224.
The estoppel point is essentially a question of the ordinary law of issue estoppel as articulated by the High Court in cases such as Blair v Curran[23] and justices of this Court are just as able to give close consideration of previous Federal Court decisions as are justices of the Federal Court.
[23](1939) 62 CLR 464.
There is a connecting factor with Victoria in that the plaintiff is dependent on counsel who are based in Melbourne and who have agreed to act on a conditional basis. Although the Federal Court has a Victorian registry, there is no guarantee that the proceeding will be heard in Victoria.
Consideration
A significant issue in this proceeding is whether Commonwealth officials had a particular state of mind, namely whether or not a detaining officer at all points in time held the reasonable suspicion that the plaintiff was an unlawful non-citizen, including that he was not an Aboriginal Australian. Although arising in the context of migration law, any determination on that issue is essentially a question of fact and can be contrasted with, for example, proceedings involving a writ of habeus corpus in relation to a person detained under the Migration Act[24] or a ‘direct judicial review’[25] of a migration decision.
[24]See MB.
[25]Ibid [57].
A judge of the Supreme Court of Victoria is well placed to determine whether an officer knew or held the requisite reasonable suspicion.
Consideration will need to be given to the Migration Act and previous Federal Court and High Court decisions on constitutional and related issues.
However, a single judge of this Court, in line with ordinary rules of comity, will follow the decision of the Full Federal Court in relation to the interpretation of s 189 of the Migration Act.
The High Court has already determined the constitutional issues and, in the event that the s 189 claim fails and the Court needs to determine the claim that ‘there was no real prospect of the removal of the plaintiff being practicable’,[26] again the Supreme Court is well placed to determine the largely factual issues that will ultimately determine that claim.
[26]Amended Statement of Claim [18F].
In respect of the estoppel claim, judges of this Court are just as able as their Federal counterparts to give close consideration of previous Federal Court decisions, so as to determine that claim.
Although not of itself determinative, I am of the view that there is an advantage for the plaintiff in the proceeding remaining in the Supreme Court of Victoria. It leads to certainty in the proceeding being conducted in Victoria by experienced counsel who are based in Melbourne and have agreed to act on a conditional basis.
I am not persuaded that the absence of a Civil Procedure Act in the Federal Court has any bearing on the outcome of this application. I accept that the Federal Court has fair and appropriate procedures which (especially when combined with the defendant’s model litigant obligations) will not lead to a materially different outcome in respect of matters such as discovery. I accept that a transfer to the Federal Court will not occasion any delay.
Balancing all of the relevant considerations, I conclude that the most appropriate or natural forum is the Supreme Court of Victoria. At the heart of this litigation is a tortious claim necessitating findings on the facts and, depending on those factual determinations, an assessment of damages.
Accordingly, the application for transfer of the proceeding to the Federal Court, must be dismissed.
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