Federal Court of Australia

Fisher v Commonwealth of Australia (No 2) [2023] FCAFC 181

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding be dismissed.

2.    There be no order as to the costs of the proceeding.

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

REASONS FOR JUDGMENT

MORTIMER CJ, KATZMANN, CHARLESWORTH AND ABRAHAM JJ:

1    On 12 July 2023, the Full Court made orders on a special case stated in this proceeding, answering questions posed by the agreement of the parties concerning the operation and application of s 10 of the Racial Discrimination Act 1975 (Cth) to a set of agreed facts concerning the payability of the aged pension to the applicant and other Aboriginal men he represents in this proceeding. The applicant contended that s 10 of the Racial Discrimination Act operated on, and applied to, the definition of “pension age” in s 23(1) of the Social Security Act 1991 (Cth) to reduce the age at which the aged pension is payable, in light of what the applicant contended was the shorter life expectancy that Aboriginal men have, compared to other men in Australia. See Fisher v Commonwealth of Australia [2023] FCAFC 106.

2    The special case stated consisted of three questions, with a statement of agreed facts and documentary evidence annexed to it. The first question concerned the constitution of the proceeding under the Federal Court of Australia Act 1976 (Cth). Contrary to the Commonwealth’s submissions, the Court accepted that the applicant and each of the represented persons have the same interest in the proceeding within the meaning of r 9.21 of the Federal Court Rules 2011 (Cth), and therefore the proceeding could continue as a representative proceeding. It answered the first question in favour of the applicant. At [150] of its reasons, the Court noted that the stated question did not ask this Court to determine whether as a matter of discretion the proceeding should continue as a representative proceeding. The Court stated this “is clearly a matter for consideration by the docket judge”.

3    The second and third questions concerned the operation and application of the Racial Discrimination Act in light of the agreed facts and documentary evidence. The Court did not accept the applicant’s contentions and answered the second question against the applicant. The third question (about how s 10 of the Racial Discrimination Act operated if the answer to the second question favoured the applicant) did not arise, and the Full Court’s orders reflected this.

4    Aside from the orders answering the case stated, the Full Court made the following orders:

2.     Within 35 days, each party file and serve a short written submission on any further orders that they contend should be made by the Full Court.

3.     Subject to order 2, the proceeding otherwise be referred back to a docket judge for case management.

5    On 9 August 2023, the applicant filed an application for special leave to appeal to the High Court from the Full Court’s orders.

6    Before the expiry of the 35 day limit in order 2 of the 12 July orders, and before the filing of the special leave application, the applicant lodged an interlocutory application on 3 August 2023. By this stage, neither party had filed submissions in accordance with order 2.

7    The interlocutory application was supported by an affidavit of Mr Alexander Walters affirmed on 3 August 2023 and sought a direction by the Chief Justice under s 20(1A) of the FCA Act that the Court’s jurisdiction in this matter shall be exercised by a Full Court, and orders that the proceeding be dismissed with costs reserved. The intention of the additional orders sought was said to be to enable the applicant to seek special leave of an order dismissing the proceeding, so that the High Court, if it was so inclined, could deal with the whole of the matter between the parties itself, if the applicant were successful first on his special leave application and second on the appeal itself. The principal additional order sought was an order by the Full Court dismissing the proceeding.

8    The Chief Justice on behalf of the Full Court conducted a case management hearing about the interlocutory application. The Commonwealth indicated it opposed the application. There was discussion about whether order 2 could or should have been used instead of an interlocutory application. Senior counsel for the applicant indicated the applicant would make submissions pursuant to order 2, in addition to maintaining his interlocutory application. By each process, the applicant sought the same outcome in substance, namely an order dismissing the proceeding from which an application for special leave to appeal could also be made, so that the whole of the matter would be before the High Court if special leave to appeal were granted.

9    The Commonwealth sought to make submissions in response, both under order 2 and responsively to the interlocutory application. The applicant sought a reply. Orders facilitating that process were duly made.

10    The Commonwealth persisted in its opposition to any additional or further orders of the kind sought by the applicant. In other words, and somewhat counterintuitively, despite the Commonwealth enjoying complete success in opposing the contentions made by the applicant about the Racial Discrimination Act and the aged pension, it was the Commonwealth who resisted the making of an order dismissing the proceeding.

Consideration

11    We have considered the parties’ submissions and are of the opinion that an order dismissing the proceeding should be made by the Full Court.

Jurisdiction

12    Contrary to the Commonwealth’s submissions, the Full Court has jurisdiction to make such an order.

13    It is necessary to set out the relevant aspects of the legislative scheme of the FCA Act to explain why the Commonwealth’s submissions are incorrect.

14    The Commonwealth’s submissions centred on the terms of s 25(6) of the FCA Act. As a whole, s 25 is principally concerned with the conferral of appellate jurisdiction on the Federal Court, being a jurisdiction exercisable by a “Full Court”: see s 25(1).

15    Subsections (1AA)-(5) concern the circumstances in which a single judge, rather than a Full Court, can exercise the appellate jurisdiction of the Court, or powers connected to the exercise of appellate jurisdiction, and matters concerning the constitution of a Full Court in certain matters.

16    Subsection (6) then provides:

(6)     The Court constituted by a single Judge may state any case or reserve any question concerning a matter (whether or not an appeal would lie from a judgment of the Judge to a Full Court of the Court on the matter) for the consideration of a Full Court and the Full Court has jurisdiction to hear and determine the case or question.

17    Although the context of this subsection, at least in terms of its placement in the legislative scheme, might suggest it deals with appellate jurisdiction, the text of the provision makes it clear the Full Court is given a distinct kind of jurisdiction by this provision, which does not concern an appeal.

18    The term “Full Court” is defined in s 4 of the FCA Act to mean:

a Full Court in a Division of the Court constituted in accordance with section 14.

19    Section 14 provides for the Court to be constituted for the exercise of its jurisdiction by either a single Judge or a Full Court. Section 14(2) provides:

(2)     A Full Court consists of 3 or more Judges sitting together or, to the extent permitted by subsection (3), of 2 Judges sitting together.

20    The exceptions to the need for three “or more” Judges, as provided in s 14(3)-(5), are not presently relevant.

21    Section 14 has effect more widely than just in the Court’s exercise of appellate jurisdiction. Aside from s 25(6), it has effect in determinations made by the Chief Justice under s 20(1A), which provides:

(1A)     If the Chief Justice considers that a matter coming before the Court in the original jurisdiction of the Court is of sufficient importance to justify the giving of a direction under this subsection, the Chief Justice may direct that the jurisdiction of the Court in that matter, or a specified part of that matter, shall be exercised by a Full Court.

22    See also s 20(2) for a further example where the legislative scheme contemplates the Court’s original jurisdiction will be exercised by a Full Court, an example being an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of a judicial member of the Administrative Appeals Tribunal.

23    Thus, the jurisdiction conferred by s 25(6) is more akin to the jurisdiction conferred by a direction made under s 20(1A). In each case, the hearing and determination of a matter in the Court’s original jurisdiction is taken from a single Judge and given to a Full Court, in accordance with the purposes for which each power is conferred. The Full Court is not determining the correctness of orders made either by a single Judge of this Court, or by another Court or Tribunal from which an appeal to this Court lies, that function being the essential function of the exercise of appellate jurisdiction: see, eg, AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26; 97 ALJR 674 at [107]-[108] per Gleeson J; Ruhani v Director of Police [2005] HCA 42; 222 CLR 489 at [38], citing Eastman v The Queen [2000] HCA 29; 203 CLR 1 at [104] per McHugh J, quoting Attorney-General v Sillem (1864) 10 HL Cas 704 at 724.

24    Contrary to the submissions of the Commonwealth, the use of the term “jurisdiction” in s 25(6) should not properly be understood as involving words of limitation. It is no more than a clarification that, on the stating of a special case or referring of questions to a Full Court, the jurisdiction in a proceeding that has, to that point, been exercised by a single Judge is then vested in a Full Court.

25    Of course, in a purposive sense, there is a particular objective sought to be achieved by an order under s 25(6). As in this case, the issues truly in dispute between parties may be susceptible to clear statement in the form of questions, and the answers to those questions may be dispositive of the substance of the proceeding. But the existence of that purpose, being one consistent with the objects and purposes of the legislative scheme, and the efficient and effective disposition of proceedings as expressly contemplated by s 37M of the FCA Act, should not obscure the proposition that the original jurisdiction exercised by a Full Court is not constrained in the narrow and technical way for which the Commonwealth contends.

26    We give an obvious example. The Commonwealth’s argument would mean that, once seized of jurisdiction through a reference by a single Judge, a Full Court could not amend the case stated, by adding or modifying questions to be answered. On the Commonwealth’s contentions, the Full Court’s limited jurisdiction would not allow that. The Commonwealth submits:

The case stated is limited to certain agreed facts and documents, and three questions of law.

27    To bring the example closer to the current proceeding, had the applicant’s counsel sought, during the hearing of the case stated, to have the Full Court amend the case stated to add a question saying “If the answer to Question 2 is “no”, should the proceeding be dismissed?”, on the Commonwealth’s argument the Full Court could not have amended the case stated, for that would be (on the Commonwealth’s argument) giving itself jurisdiction that it did not receive through the referral from a single Judge. Its jurisdiction would be limited to what was referred to it by a single Judge.

28    This would be an irrational and unworkable construction of the function to be performed by the Full Court under s 25(6), and would lead to the bifurcation of a proceeding in an inappropriate way.

29    The Commonwealth’s construction and approach also undermines one of the purposes of s 25(6), which is to provide an efficient and streamlined process for dispositive issues to be finally determined in this Court at the level which brings finality to the parties’ dispute, subject only to the grant of special leave by the High Court. That objective is consistent and compatible with the objectives of s 37M of the FCA Act, which are also undermined and frustrated by the Commonwealth’s construction and approach.

30    Whether responsively to an interlocutory application, or pursuant to an order in the nature of order 2 of the 12 July 2023 orders, a Full Court has jurisdiction to dismiss a proceeding referred to it under s 25(6). Whether an order is appropriate to be made in a given proceeding will be a matter for the Full Court to consider in each case.

Power

31    The Full Court also has power to make such an order. The Commonwealth did not contend to the contrary.

32    The powers in ss 22 and 23 of the FCA Act are conferred on “the Court”, which is defined in s 4 to mean “the Federal Court of Australia established by this Act”. By s 5 the Federal Court of Australia consists of “a Chief Justice, and such other Judges as from time to time hold office in accordance with this Act”. These provisions do not distinguish between the exercise of original or appellate jurisdiction, nor between whether jurisdiction is exercised by a single Judge or a Full Court in the Court’s original or appellate jurisdiction. The powers in s 22 and 23 are conferred on all Judges of this Court, however those Judges are constituted to hear and determine a proceeding.

33    It is well established that the purposes of these powers are to enable the Court to resolve the entire controversy between the parties, in a way the Court considers appropriate in the circumstances of a particular case: see Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7; 148 CLR 457 at 489-490; Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48; 148 CLR 150 at 161; Ho v Grigor [2006] FCAFC 72; 151 FCR 236 at [54]; Australian Rail, Tram and Bus Industry Union v Metro Trains Melbourne Pty Ltd [2020] FCAFC 81; 276 FCR 172 at [6]; Clarence City Council v Commonwealth of Australia [2020] FCAFC 134; 280 FCR 265 at [66]; McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCAFC 152; 287 FCR 364 at [85].

34    Powers of this nature are not to be construed in an unduly constrained way, as the possible circumstances which might call for their exercise from time to time cannot be foreseen. Modern litigation practices, the ingenuity of parties and their legal representatives, the increasing and relentless strain on the resources of the Court, the increasing costs and pressures on all litigants – all these matters may call for orders that might not have been in contemplation many decades earlier. The touchstone remains what orders are appropriate in a particular case, and are in the interests of the administration of justice. The foresight of the Parliament in casting ss 22 and 23 with the breadth it did signifies a consciousness of the realities of the exercise of judicial power over changing times, and the need for judicial power to deal with what is really in controversy between parties in a world where very little remains static and unchanging.

Appropriateness

35    The Commonwealth contended that, if the Court had jurisdiction (and it appeared to concede, therefore power under ss 22 and/or 23 of the FCA Act), it was not appropriate for an order to be made dismissing the proceeding. We disagree.

36    The main points made by the Commonwealth appear to be the following. First, the applicant seeks to expand the right he has to apply for special leave to appeal, from an application directed at the Full Court’s answers to the case stated, to an application that includes a challenge to the dismissal of the proceeding. This characterisation of the applicant’s application is not accurate. The applicant seeks that this Court make the inevitable orders for final relief compelled by the answers it has given to the case stated. There is nothing inappropriate about this Court making a final order that reflects its substantive answers to the case stated.

37    Next the Commonwealth identifies what was said in the Full Court’s reasons about the complexity surrounding any relief to which the applicant might have been entitled, had he succeeded. The Commonwealth complains that the question of relief is quite separate, and that it has not been heard on this issue. As the Full Court’s reasons make clear, the question of possible relief was addressed only in the context of what light it might throw on the construction and application of s 10 of the RDA to the agreed facts in light of the applicant’s arguments. It is true the applicant has now foreshadowed that if two steps fall his way – the grant of special leave to appeal, and the upholding of the appeal – he will submit to the High Court that it should determine relief rather than remit the matter. This is entirely a matter for the High Court, if and when that point is reached. At an appropriate time, the Commonwealth will be heard in the High Court, if that point is reached. Nothing in this presently hypothetical scenario is capable of affecting whether it is appropriate for this Court to dismiss a proceeding in circumstances where the applicant has been unsuccessful in his substantive case.

38    For completeness, it could not be suggested that, aside from relief, any substantive issues have been held back from the Full Court and not referred to it. Contrary to the Commonwealth’s submissions, there remain no “merits-based” issues. The complexities that might surround relief on the applicant’s case would only be an issue if the applicant had been successful, which he was not. It was not, and could not be, suggested by the Commonwealth that if the applicant was unsuccessful (as he has been) there was any other appropriate relief apart from dismissal. In any event, the point of giving the Commonwealth an opportunity to be heard under order 2 was to understand if it contended any other final orders were appropriate. It has made no such submission. Instead it has contended, for reasons we find difficult to understand, that the obvious order flowing from its success on the case stated should not be made and the proceeding should not be finalised. We repeat that whether or not the High Court – if this point is reached – decides to accept the applicant’s invitation to determine the matter completely is not a matter on which we can or should base our assessment of what orders are appropriate at this stage.

39    The Commonwealth further contends that its:

consent to the case stated was premised on the questions to be determined by the Full Court, which did not include relief, or whether as a matter of discretion the proceeding should continue as a representative proceeding. It was always contemplated that, after the Full Court answered the questions in the case stated, the proceeding would return to the docket judge for further case management.

40    This, too, is a difficult submission to understand. The proceeding presently cannot continue because the applicant’s substantive case has failed. Any discretion is moot. No further case management is required for the same reason. There is nothing of substance left.

41    We disagree with the Commonwealth that there is a “real risk that any efficiency gained by making the orders sought by the applicant will compromise the just determination of issues beyond those within the scope of the special case in this proceeding”. On the Full Court’s findings, there are no further substantive issues. To the contrary, the most effective and efficient course is for the Full Court to make an order that recognises the substantive outcome of the case stated, and resolves the proceeding finally. What occurs from there on is not a matter for this Court.

Costs

42    The Commonwealth seeks to have the costs of steps taken after the delivery of orders and judgment on 12 July 2023 reserved. It submits the question of costs incurred after that date should be determined after the special leave application and any appeal in the High Court is determined. We assume that is because the Commonwealth opposed the course taken by the applicant and considers that course has caused the Commonwealth to incur legal costs that would not otherwise have been incurred.

43    We do not see what additional facts or circumstances could relevantly be added by the outcome of the special leave application, or any appeal if special leave is granted, to the question of what is the appropriate costs order for legal costs incurred between 12 July 2023 and the date of these orders, in respect of the proceeding before the Full Court. The only relevant facts and circumstances to the exercise of the costs discretion already exist, and – the Commonwealth having taken the point – costs should be determined on ordinary principles. What the High Court decides to do with the proceeding on special leave or thereafter, if special leave is granted, is a matter for that Court.

44    In light of the Commonwealth’s position on costs of the case stated, we see no basis to impose a costs order on the applicant for legal costs incurred between 12 July 2023 and the date of these orders. The Court’s 12 July 2023 orders expressly contemplated further legal work might be required, including written submissions. In adopting the ‘no costs’ position, the Commonwealth did not contend that any submissions pursuant to order 2 of the 12 July 2023 orders should be excluded or treated differently. In the end, the legal work which has been undertaken has extended slightly beyond submissions contemplated by order 2, but not very much. It is conceivable that a case management hearing may have been necessary in any event. There might have been an additional small amount of costs incurred by reason of the interlocutory application, but the amounts must pale next to the costs of the special case. We consider it would not be in the interests of the administration of justice for the Court separately to impose on the applicant, an individual seeking redress on behalf of a group of Aboriginal men on a human rights basis, a costs burden for what was the smallest part of this proceeding so far.

45    There should be no order as to the costs of the proceeding. An order in that form incorporates the express position on costs of the Commonwealth on the special case, and extends that position to the date of these orders.

Conclusion

46    We consider that order 2 of the 12 July 2023 orders provides ample basis to permit the submissions made by the applicant. We agree with those submissions. There will be orders dismissing the proceeding, with no order as to costs.

Associate:

Dated:    22 November 2023

REASONS FOR JUDGMENT

KENNETT J:

47    I agree with the orders proposed by the majority but would express my reasoning slightly differently.

48    The jurisdiction being exercised by the Court in this proceeding is original and not appellate. The task undertaken by the Full Court did not involve determination of the correctness of any orders made by a single judge of the Court or by another Court or Tribunal: cf, eg, Ruhani v Director of Police [2005] HCA 42; 222 CLR 489 at [38] (McHugh J). Rather, the Full Court decided questions reserved for its consideration by Mortimer J (as her Honour then was). That consideration, which is contemplated by s 25(6) of the FCA Act, involves the exercise of original jurisdiction. The heading “Exercise of appellate jurisdiction” above s 25 is therefore somewhat confusing but does not gainsay this obvious point. Nor, clearly, is any exercise of appellate jurisdiction involved in determining whether to make the orders now sought by the applicant.

49    Pursuant to s 19 of the FCA Act, “the Court” (defined as “the Federal Court of Australia established by this Act”: s 4) has such original jurisdiction as is vested in it by laws made by the Parliament. The present proceeding involves a matter “arising under … laws made by the Parliament” and the applicant seeks, inter alia, “an injunction against … officers of the Commonwealth”. The relevant sources of jurisdiction are therefore s 39B(1) and 39B(1A)(c) of the Judiciary Act 1903 (Cth). In general, the original jurisdiction of the Court is to be exercised by a single judge (s 20(1) of the FCA Act); however, s 20(1A), (2) and (3)(e), as well as s 25(6), identify circumstances in which the original jurisdiction can be exercised by a Full Court.

50    Meanwhile, appellate jurisdiction is vested in “the Court” by s 24 of the FCA Act in specified classes of appeal, including from a judgment of a single judge of the Court or from the Federal Circuit and Family Court (Division 2) (FCFCOA). Section 25 (leaving aside the anomalously located subsection (6)) deals with how the appellate jurisdiction is to be exercised, including in particular how the Court is to be constituted for the exercise of that jurisdiction: appellate jurisdiction is to be exercised by a Full Court (s 25(1)), other than in appeals from the FCFCOA (s 25(1AA)) and applications of the kinds listed in s 25(2).

51    This brief summary indicates that jurisdiction of two kinds is vested in “the Court” and provision is then made as to how the Court is to be constituted for the exercise of that jurisdiction: by a single judge or by a Full Court. Section 14(1) makes this clear: it provides that “for the purpose of the exercise of the jurisdiction of the Court”, the Court is to be “constituted” in one or other of these ways. A “Full Court” (ie three or more judges of the Court: s 14(2)) is not a distinct juristic entity invested with jurisdiction of its own; it is a manifestation of “the Court”, constituted in a particular way for the purpose of exercising the Court’s jurisdiction in a particular proceeding or part of a proceeding.

52    This points to another aspect of the drafting of s 25(6) that is less than perfect. In the light of the legislative structure outlined above, it makes no sense to identify “the Full Court” as a repository of jurisdiction in its own right. The words “the Full Court has jurisdiction to hear and determine the case or question” must therefore be understood to mean that that aspect of the jurisdiction of the Court is to be exercised by the Full Court. Clearly, also, what s 25(6) does not purport to do is to limit the jurisdiction that can be exercised by a Full Court.

53    For these reasons, in my view, the Commonwealth’s reliance on s 25(6) is misplaced. Further, the Commonwealth’s central proposition — that the Full Court “does not have jurisdiction, and therefore does not have power, to make an order dismissing the proceeding” — misses the point. The relevant “jurisdiction” is that of the Court. The question is whether, in the circumstances that have arisen, the FCA Act permits the proceeding to be dismissed in the exercise of that jurisdiction by the Court as presently constituted.

54    No provision of the FCA Act expressly allows this to be done. However, s 25(6) should be understood, by implication, to allow the Full Court as constituted for the consideration of a stated case or reserved question to make orders ancillary to that consideration or consequent upon its result. Three important considerations point in this direction.

(a)    As Brennan CJ, Gaudron and McHugh JJ said in PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 313, “a provision conferring a power to be exercised judicially should be construed as liberally as its terms and context permit” (see also Owners of Ship Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404 at 421 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ)). Section 25(6) is a facultative provision, intended to provide for the efficient management of the Court’s business, and should not be read narrowly.

(b)    To require re-listing before the docket judge in order to deal with any issue other than the answers to the questions reserved would be productive of inefficiency and inconsistent with the overarching purpose referred to in s 37M of the FCA Act. The example posed by the majority is telling. If one of the parties in the present case had proposed that the stated case be amended to include a further question asking “If the answer to Question 2 is ‘no’, should the proceeding be dismissed?”, the Commonwealth’s approach would have prevented that being done (even by consent) in the Full Court.

(c)    While there will often be virtue in the docket judge retaining overall responsibility for a proceeding, including control over which issues are or are not referred to a Full Court, this is an aspect of the efficient disposition of proceedings rather than a reflection of any deeper issue of institutional interests or integrity. That is because the docket judge and the Full Court are not separate bodies with distinct interests, obligations or agendas; they are different manifestations of the same entity — the Court — which is invested with jurisdiction and subject to the duty to exercise that jurisdiction. There is therefore no incongruity if a Full Court, having determined questions reserved to it in a proceeding, concludes that its answers require the proceeding to be dismissed (or, conversely, some specific relief to be granted) and makes final orders accordingly, so long as the parties have had an opportunity to be heard on that point.

55    What I have said above is limited to consideration of the making of orders which arise out of either the hearing by a Full Court of reserved questions or its answers to such questions. No doubt, a point may be reached where the determination of issues by a Full Court cannot be supported by s 25(6) or reconciled with the regime put in place by s 20.

56    It is not necessary in the present case to seek to identify exactly where that boundary lies. The order that the applicant now seeks reflects what the parties agree is the consequence of the answer given by the Court to question 2 in the stated case, and the order is sought for no other reason than that that answer has been given. This is apparent from the fact that the applicant now seeks the dismissal of his own proceeding. No useful purpose would be served by requiring the Court to be reconstituted, by the Chief Justice in her capacity as the docket judge, for that order to be made.

Associate:

Dated:    22 November 2023