Plaintiff M83A/2019 v Morrison

Case [2020] FCA 334

FEDERAL COURT OF AUSTRALIA

Plaintiff M83A/2019 v Morrison [2020] FCA 334

File number: VID 816 of 2019
Judge: MORTIMER J
Date of judgment: 13 March 2020
Catchwords: PRACTICE AND PROCEDURE – application for stating of separate questions – representative proceeding under Part IVA of the Federal Court of Australia Act 1976 (Cth) – whether pleadings and agreed facts provide a sufficient foundation for determination of separate questions – application refused
Legislation:

Federal Court of Australia Act 1976 (Cth) ss 33X, 37M

Migration Act 1958 (Cth) s 198AHA

Federal Court Rules 2011 (Cth) r 30.01
Cases cited:

AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68; 241 FCR 30

Australian Energy Regulator v Snowy Hydro Limited [2014] FCA 1013

CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514

Evans v Davantage Group Pty Ltd [2019] FCA 884

Murphy v Nationwide News Pty Limited (No 2) [2017] FCA 781

Murphy v State of Victoria [2014] VSCA 238; 45 VR 119

Northern Territory v Mengel [1995] HCA 65; 185 CLR 307

Obeid v Lockley [2018] NSWCA 71; 98 NSWLR 258

Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; 257 CLR 42

Plaintiff S195/2016 v Minister for Immigration and Border Protection [2017] HCA 31; 261 CLR 622

Spencer v Commonwealth [2010] HCA 28; 241 CLR 118

Tepko Pty Ltd v Water Board [2001] HCA 19; 206 CLR 1
Date of hearing: 5 - 6 March 2020
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 59
Counsel for the Applicants: Mr B Quinn QC with Mr M Albert and Ms E Levine
Solicitor for the Applicants: Phi Finney McDonald
Counsel for the Respondent: Mr T Howe QC with Ms J Watson
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

VID 816 of 2019
BETWEEN:

PLAINTIFF M83A/2019

First Applicant

PLAINTIFF M83B/2019 (BY HIS LITIGATION REPRESENTATIVE, PLAINTIFF M83C/2019)

Second Applicant
AND: SCOTT MORRISON& ORS
Respondents

JUDGE:

MORTIMER J

DATE OF ORDER:

13 MARCH 2020

THE COURT ORDERS THAT:

1.The respondents’ application for the stating of separate questions pursuant to r 30.01 of the Federal Court Rules be refused.

2.The costs of and incidental to the hearing on 5 and 6 March 2020 be costs in the cause.

3.On or before 4 pm on 27 March 2020 the respondents file and serve any interlocutory applications they wish to make in relation to the applicants’ Originating Application and, or alternatively, Further Amended Statement of Claim.

4.If any interlocutory application or applications are filed pursuant to order 3, the parties confer on and seek to agree proposed orders to prepare for the hearing of those applications in the week commencing 11 May 2020.

5.The parties confer on and engage in the exchange of discoverable documents in accordance with Part 10 of the Central Practice Note: National Court Framework and Case Management (CPN-1), and be in a position…

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AGLC
Plaintiff M83A/2019 v Morrison [2020] FCA 334
Case
[2020] FCA 334
Decision Date

CaseChat Overview and Summary

The parties involved in Plaintiff M83A/2019 v Morrison were the applicants, who filed an application for a stating of separate questions, and the respondents who opposed the application. The dispute centred on the applicants' request to have certain questions of law determined separately from the main proceedings, a process permitted under Part IVA of the Federal Court of Australia Act 1976. The applicants argued that determining these separate questions would resolve or substantially narrow the issues to be tried, while the respondents opposed the application on grounds that the pleadings and agreed facts did not sufficiently support the determination of these separate questions.

The primary legal issue the court needed to decide was whether the pleadings and agreed facts provided a sufficient foundation for the determination of the proposed separate questions. The court had to consider the balance between the potential benefits of determining these questions separately and the need to maintain the integrity of the judicial process, including the adversarial process of trying all issues in a proceeding.

In reaching its decision, the court noted that while the mechanism of stating separate questions could provide a just and convenient method for resolving or narrowing the issues in a proceeding, its use was an exception to the ordinary trial processes. The court emphasised the importance of exercising caution when constricting these processes, referencing relevant authorities on the use of summary dismissal and striking out pleadings. The court held that the mechanism should only be used when its utility, economy, and fairness to the parties were beyond question. Given the nature of the proceeding and the limited facts provided, the court found that the respondents' application for stating separate questions should be refused.

The court's orders included the refusal of the respondents' application for the stating of separate questions, the allocation of costs of and incidental to the hearing, and various procedural orders to manage the discovery process, case management, and the giving of notice to potential parties. The court also scheduled a case management hearing to further manage the proceedings.

Orders

Orders of the court

1. The respondents’ application for the stating of separate questions pursuant to r 30.01 of the Federal Court Rules be refused.

2. The costs of and incidental to the hearing on 5 and 6 March 2020 be costs in the cause.

3. On or before 4 pm on 27 March 2020 the respondents file and serve any interlocutory applications they wish to make in relation to the applicants’ Originating Application and, or alternatively, Further Amended Statement of Claim.

4. If any interlocutory application or applications are filed pursuant to order 3, the parties confer on and seek to agree proposed orders to prepare for the hearing of those applications in the week commencing 11 May 2020.

5. The parties confer on and engage in the exchange of discoverable documents in accordance with Part 10 of the Central Practice Note: National Court Framework and Case Management (CPN-1), and be in a position to file a report with the Court on the progress of discovery on or before 4 pm on 7 May 2020, so that further progress of discovery can be addressed by the Court during hearings in the week commencing 11 May 2020.

6. There be a referral to a Judicial Registrar to assist the parties with the discovery process, including mediating any matters concerning discovery which the parties consider may be appropriate for mediation.

7. The parties confer and file on or before 4 pm on 27 March 2020 joint proposed orders for the giving of notice in accordance with s 33X of the Federal Court of Australia Act 1976 (Cth), which have the opt-out period closing no later than 31 July 2020.

8. The matter be listed for a case management hearing in the week commencing 30 March 2020.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Finally, the respondents emphasised the serious nature of the allegations made against them, and submitted this weighed in favour of the separate question process, not only in terms of cost and resources, but in terms of the respondents’ reputational position. PROPOSED AGREED FACTS The agreed facts, which were proposed by the respondents, largely address at a high level the existence of various institutional and legal arrangements relevant to the operation of regional processing centres on Nauru. For example, the agreed facts relate to:(a)the designation of Nauru as a regional processing country under the Migration Act;(b)the entry by the Commonwealth and Nauru into the MOU;(c)the regulations applicable to regional processing centres and RPC visas under Nauruan law; and(d)the existence and source of the human rights standards referred to above. The agreed facts also contain limited facts about the applicants. However, they contain substantially fewer facts than were stated in the special case in Plaintiff M68, including fewer facts about the RPC visa applications lodged on behalf of the named applicants. Senior counsel for the respondents made it clear during the hearing that the respondents were willing to consider agreeing to a wider range of facts to support the separate questions, if the Court determined that was necessary.MY CONCLUSIONS ON THE PARTIES’ POSITIONS I accept that the mechanism of stating separate questions in a proceeding, especially questions of law, is capable of providing a just and convenient method for either resolving a proceeding entirely or substantially narrowing what is to be tried. I accept that such a process is capable of advancing the objectives set out in s 37M of the FCA Act. Whether the Court can be sufficiently satisfied that it will do so in an individual proceeding will depend on a range of factors particular to the proceeding itself, rather than any acknowledgment of such potential. While r 30.01 of the Federal Court Rules 2011 (Cth) (Rules) confers a broad discretion on the Court to make an order for the determination of a separate question or questions in a proceeding, it remains the case that the use of the power conferred by that rule is an exception to the ordinary processes for trial and determination of all issues in a proceeding for which the Rules, and the FCA Act, otherwise provide. Judicial power at trial level in this Court is ordinarily exercised after a contested adversarial process, on fact and law, of all the allegations made by the parties. It is this process which is assumed by the FCA Act and the Rules to be the appropriate mechanism for quelling the controversy between the parties, and for providing the basis for any exercise of appellate jurisdiction. The caution which attends any constriction of those processes is apparent not only in the authorities dealing with r 30.01 and its equivalents in other jurisdictions but also in the authorities concerning summary dismissal: see Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 at [24], [60]; AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68; 241 FCR 30 at [44]. The same caution is apparent in the exercise of power to strike out pleadings: see Murphy v Nationwide News Pty Limited (No 2) [2017] FCA 781 at [20], [31].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Senior counsel for the respondents made it clear during the hearing that the respondents were willing to consider agreeing to a wider range of facts to support the separate questions, if the Court determined that was necessary.MY CONCLUSIONS ON THE PARTIES’ POSITIONS I accept that the mechanism of stating separate questions in a proceeding, especially questions of law, is capable of providing a just and convenient method for either resolving a proceeding entirely or substantially narrowing what is to be tried. I accept that such a process is capable of advancing the objectives set out in s 37M of the FCA Act. Whether the Court can be sufficiently satisfied that it will do so in an individual proceeding will depend on a range of factors particular to the proceeding itself, rather than any acknowledgment of such potential. While r 30.01 of the Federal Court Rules 2011 (Cth) (Rules) confers a broad discretion on the Court to make an order for the determination of a separate question or questions in a proceeding, it remains the case that the use of the power conferred by that rule is an exception to the ordinary processes for trial and determination of all issues in a proceeding for which the Rules, and the FCA Act, otherwise provide. Judicial power at trial level in this Court is ordinarily exercised after a contested adversarial process, on fact and law, of all the allegations made by the parties. It is this process which is assumed by the FCA Act and the Rules to be the appropriate mechanism for quelling the controversy between the parties, and for providing the basis for any exercise of appellate jurisdiction. The caution which attends any constriction of those processes is apparent not only in the authorities dealing with r 30.01 and its equivalents in other jurisdictions but also in the authorities concerning summary dismissal: see Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 at [24], [60]; AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68; 241 FCR 30 at [44]. The same caution is apparent in the exercise of power to strike out pleadings: see Murphy v Nationwide News Pty Limited (No 2) [2017] FCA 781 at [20], [31]. While I accept the respondents’ submission that the use of such powers must be understood and applied in light of the objectives in s 37M of the FCA Act, the premise of s 37M remains what is in the interests of the administration of justice. While s 37M requires the powers conferred by the FCA Act and the Rules to be exercised conformably with the proposition that disputes in the Court should be resolved as “quickly, inexpensively and efficiently as possible”, that is only insofar as to do so “facilitate[s] the just resolution of disputes”. Despite the respondents’ submissions encouraging me to discount the dicta in Tepko at [168]-[170] (Kirby and Callinan JJ), their Honours’ proposition that trials of separate questions should “only be embarked upon when their utility, economy and fairness to the parties are beyond question” remains apposite and is regularly invoked. It is especially apposite in a proceeding which has the features that this proceeding has.

Ratio Decidendi

Legal Principle Established

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