Thomas Brown by his Litigation Guardian Emma Brown v St Leonard's College

[2021] FCCA 1877

FEDERAL CIRCUIT COURT OF AUSTRALIA

Thomas Brown by his Litigation Guardian Emma Brown v St Leonard’s College [2021] FCCA 1877

File number(s):

MLG 673 of 2021

Judgment of:

HER HONOUR JUDGE C.E. KIRTON QC

Date of judgment:

27 July 2021

Catchwords:

HUMAN RIGHTS – ACTION – application to transfer proceeding to the Federal Court of Australia – transfer application dismissed – appointment of litigation guardian – procedural orders – costs of transfer application reserved – costs of today’s Directions to be costs in the cause

Legislation:

Australian Human Rights Commission Act 1986 (Cth), s.46PH

Federal Circuit Court of Australia Act 1999 (Cth), ss 3, 42

Federal Circuit Court Rules 2001 (Cth), rr 1.03, 2.05, 4.03, 8.02, 11.11, 15A.02 and 41.04

Number of paragraphs:

9

Date of last submission/s:

27 July 2021

Date of hearing:

27 July 2021

Place:

Melbourne

Counsel for the Applicant:

Mr Aleksov

Solicitor for the Applicant:

Snowton Saje

Counsel for the Respondent:

Mr Harrington

Solicitor for the Respondent:

Gilchrist Connell

ORDERS

MLG 673 of 2021

BETWEEN:

THOMAS BROWN BY HIS LITIGATION GUARDIAN  EMMA BROWN

Applicant

AND:

ST LEONARD'S COLLEGE

Respondent

ORDER MADE BY:	HER HONOUR JUDGE C.E. KIRTON QC
DATE OF ORDER:	27 JULY 2021

THE COURT ORDERS THAT:

1.The matter be adjourned to the Federal Circuit Court of Australia on 12 November 2021 at 9:30 am for further Directions.

2.Pursuant to r.11.11 of the Federal Circuit Court Rules 2001 (Cth) (Rules), Emma Brown be appointed as litigation guardian for the Applicant.

3.The Respondent’s Application in a Case filed on 28 June 2021 to transfer this proceeding to the Federal Court of Australia (Federal Court Transfer Application) be dismissed.

4.On or before 6 August 2021, the Respondent file and serve a Response in accordance with rr.4.03 and 41.04 of the Rules.

5.On or before 3 September 2021, the Applicant file and serve a Statement of Claim.

6.On or before 1 October 2021, the Respondent file and serve a Defence.

7.On or before 15 October 2021, the Applicant file and serve any reply.

8.Costs of the Federal Court Transfer Application be reserved.

9.Costs of today’s Directions be costs in the cause.

EX TEMPORE REASONS FOR JUDGMENT
Revised from Transcript

HER HONOR JUDGE C.E. KIRTON QC:

1. This is the first return date of this proceeding, which has been listed before me today for Directions. Before the Court, is an Application in a Case filed on 28 June 2021 by the Respondent to transfer this proceeding to the Federal Court of Australia (Federal Court Transfer Application). The Federal Court Transfer Application is supported by an Affidavit of Joel Meyer Zyngier, (Respondent's Solicitor), also filed on 28 June 2021 (Zyngier Affidavit). The Federal Court Transfer Application is opposed by the Applicant.

2. This proceeding commenced on 9 April 2021 by the filing of: an Application – Human Rights; an Affidavit of Consent deposed to by Emma Brown, the mother of the minor, Thomas Brown; the Australian Human Rights Commission Complaint; the Notice of Termination issued under s.46PH(2) of the Australian Human Rights Commission Act 1986 (Cth); and Points of Claim, which have been settled by Counsel.

3. Other documents before the Court today are submissions for the Applicant regarding the Federal Court Transfer Application filed on 23 July 2021 and an Affidavit of Michael Watson Jones, the Applicant's solicitor. It is noted that these documents were filed at 6:42 pm on Friday, 23 July 2021. Therefore, pursuant to r.2.05(3)(b) of the Federal Circuit Court Rules 2001 (Cth) (Rules), these documents are deemed to have been filed on Monday, 26 July 2021. I have read these documents and I have concluded that, the Federal Court Transfer Application concerning this proceeding has been made prematurely, if the Federal Court Transfer Application is appropriate at all. 

4. In making this determination, however, I expressly note the provisions of r.8.02(2) of the Rules, which provides: ‘Unless the Court otherwise orders, a request for transfer must be made on or before the first court date for the proceeding’.

5. I also note that the Court has power to transfer a matter to the Federal Court of Australia (Federal Court) at any point in a proceeding, at the request of a party or on its own motion pursuant to r.8.02(1) of the Rules.

6. The Zyngier Affidavit put forward a number of contentions in support of the transfer of this proceeding to the Federal Court as follows:

   (a)That pursuant to r.8.02(4)(a) of the Rules, the Applicant's claim is ‘likely to involve questions of general importance’ (paragraphs 21 to 23 of the Zyngier Affidavit).

   It is difficult to form any concluded view on this matter in circumstances where a response has not been filed. I am therefore not attracted to relying upon the Respondent's Solicitor's assertion that the matter is of ‘general importance’. Consequently, where the issues in dispute between the parties have not been identified on the pleadings, in these circumstances, I am unable to conclude that the matter is of ‘general importance’. I also note that this Court is the intermediate Court of the Commonwealth of Australia and routinely deals with proceedings of importance. The judges of this Court must exercise significant discretion in what is determined to be a matter of ‘general importance’ within the context of r.8.02(4)(a) of the Rules.

   (b)That pursuant to r.8.02(4)(b) of the Rules, a transfer would be likely to be cost neutral (save in respect of the hearing fees levied in the Federal Circuit Court of Australia), and the transfer would be subject to more convenient case management procedures in the Federal Court (paragraph 24 of the Zyngier Affidavit)

   I reject the submission that the transfer would be ‘cost neutral’. To commence with, the costs of today's directions hearing would have been thrown away. Furthermore, the costs of the Federal Court are at a higher scale than in this Court. Further, there is no evidence whatsoever concerning ‘convenient case measures’. The Respondent's Solicitor refers to case management procedures that facilitate ‘the early distillation of issues’. This is what competent solicitors and Counsel should be doing regardless of which court the matter proceeds in.

   (c)That pursuant to r.8.02(4)(c) of the Rules, the proceeding is ‘likely to be heard earlier in the Federal Court, having regard to the complexity of the proceeding and likely length of the trial’ (paragraphs 25 to 28 of the Zyngier Affidavit).

   In circumstances where there is no response filed, I am not persuaded by any of the matters in paragraphs 26 to 28 of the  Zyngier Affidavit, nor am I persuaded by the submissions by Counsel today that the matter is to take six to eight days or the number of witnesses said to be required.

   (d)That pursuant to r.8.02(4)(d) of the Rules, particular procedures appropriate for this class of proceedings are only available in the Federal Court (paragraphs 29 to 32 of the Zyngier Affidavit). In particular, the Respondent's Solicitor makes complaint:

   (i)In relation to paragraph 30 of the Zyngier Affidavit pertaining to the availability of pleadings. The Applicant has already filed points of claim settled by experienced Counsel. No complaint in the Zyngier Affidavit has been made about the sufficiency of the pleading, although I note today Counsel for the Respondent has made a complaint about the sufficiency of the pleading. Nevertheless, this Court often makes orders for pleadings and I have indicated today that I intend to make directions for the filing of a Defence and a Reply;

   (ii)In relation to paragraph 31 of the Zyngier Affidavit, he makes complaint about the availability of discovery. This case clearly requires discovery in accordance with the interests of justice and I intend to make directions accordingly; and

   (iii)In paragraph 32 of the Zyngier Affidavit, he makes complaint that, pursuant to r.15A.05(1) of the Rules, there is a limit of five subpoenas unless the Court otherwise directs. If and when the time comes that the Respondent's Solicitor actually requires more than five subpoenas, he can make an application. Judges of this Court routinely deal with these applications. At present, it is not clear to the Court that such an application will ever be required.

   (e)That pursuant to r.8.02(4)(e) of the Rules, the Respondent wishes to have the matter heard in the Federal Court.

   In response, I take into account the following:

   (i)The Applicant's opposition to the proceeding being transferred to the Federal Court;

   (ii)The matters referred to above in sub-paragraphs (d)(i), (ii), (iii) above;

   (iii)The fact that the Applicant is an individual and the Respondent is a large institution which has significantly more financial capacity to fund this proceeding;

   (iv)The objects of the Federal Circuit Court of Australia Act 1999 (Cth) (Act) which are set out in s.3 of the Act and, in particular, the objects in s.3(2)(a), which specify that the other objects of the Act are ‘to enable the Federal Circuit Court of Australia to operate as informally as possible in the exercise of judicial power’;

   (v)Section 42 of the Act, which says: ‘In proceedings before it, the Federal Circuit Court of Australia must proceed without undue formality and must endeavour to ensure that proceedings are not protracted’; and

   (vi)The objects of the Rules, which are set out in r.1.03 as follows:

   Rule 1.03 – Objects

   (1)The objects of these Rules is to assist the just, efficient and economical resolution of these proceedings.

   (2)In accordance with the objects of the Act, the Rules aim to help the Court:

   ·to operate as informally as possible

   ·to use streamline processes

   ·to encourage the use of appropriate dispute resolution.

   (3)The Court will apply the Rules in accordance with their objects.

   (4)To assist the Court, the parties must:

   ·avoid undue delay, expense and technicality

   ·consider options for primary dispute resolution as early as possible.

7. I therefore determine that the Federal Court Transfer Application be dismissed.

8. In relation to costs, as I have foreshadowed to Counsel for the Respondent, I determine that r.8.02(2) of the Rules provides that unless the Court orders otherwise, a request for transfer must be made on the first court date of the proceeding. It was therefore not inappropriate for the Respondent to bring the application today.

9. Directions will be made today. Therefore, the costs of today have not been entirely thrown away; however the costs of the Applicant and the Respondent of and incidental to the Federal Court Transfer Application will be reserved.   

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C.E. Kirton QC.

Associate:

Dated:       20 August 2021