FEDERAL COURT OF AUSTRALIA

DBE17 v Commonwealth of Australia (No 2) [2018] FCA 1793

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding be dismissed, for want of jurisdiction.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    On 27 August 2018 I delivered reasons for judgment on the Commonwealth’s interlocutory application, objecting to the jurisdiction of this Court in this proceeding, and (in the alternative) seeking to strike out certain core allegations in the applicant’s amended statement of claim filed on 20 October 2017: see DBE17 v Commonwealth of Australia [2018] FCA 1307.

2    I found this Court has no original jurisdiction to hear and determine the matters raised by the applicant, by reason of s 494AA(1)(c) of the Migration Act 1958 (Cth). I did not consider it appropriate to decide the Commonwealth’s alternative claim, as I explained in the reasons.

3    The parties were given an opportunity to attempt to agree on appropriate orders in light of the Court’s reasons for judgment. They were not able to do so. Therefore, the parties each filed written submissions about the orders they respectively contended the Court should make. Each contended the Court should do more than simply dismiss the proceeding.

4    The Court then received a request from the Commonwealth for leave to file further submissions in reply to the applicant’s submissions. Both parties were given an opportunity to comment on whether the Commonwealth’s further submissions should be received. The applicant submitted that the Court should not receive the further submissions because they were repetitive of the submissions already filed by the Commonwealth. He also stated that should leave be granted to the Commonwealth to file further submissions, he would also seek leave to make further submissions. The Commonwealth, while submitting it would be appropriate and beneficial for the Court to receive its further submissions by way of reply, conceded that there would be no especial prejudice to the Commonwealth and opposed the applicant being given leave to file a rejoinder.

5    Noting the Commonwealth’s concession, made properly, about the lack of any particular prejudice to the Commonwealth, and concerned that the post hearing activity had become disproportionate in terms of cost and delay to the way the matter had progressed to this point, I determined I would not grant leave for any further submissions to be filed. I have thus considered only the initial submissions filed by each party and refer to them below where necessary.

6    The parties were agreed on the proposition that the proceeding should be dismissed as a result of the conclusions the Court had reached. The differences between them related to two issues: whether orders for costs should be made in the Commonwealth’s favour, and whether the Court should embark on a notice process under s 33X(5) of Part IVA of the Federal Court of Australia Act 1976 (Cth).

7    The applicant submitted there should be no order as to costs, relying on what he contended to be the public interest nature of the proceeding. The Commonwealth submitted it should have its costs not only of the interlocutory application, but of the entire proceeding, given it put the applicant on notice of its objection to the Court’s jurisdiction from the outset of the proceeding.

8    The applicant submitted that a notice process pursuant to s 33X of the Federal Court Act should be undertaken, to notify group members of the Court’s decision on jurisdiction. The applicant relied on the general notice-giving power in s 33X(5) of the Act. The applicant submitted notice should be given because of s 33ZC(6) of the Act, which gives group members a right to appeal from a decision in a representative proceeding if the named applicant does not exercise a right of appeal. Section 33ZC(6) provides:

If the representative party or the sub-group representative party does not bring an appeal within the time provided for instituting appeals, another member of the group or sub-group may, within a further 21 days, bring an appeal as representing the group members or sub-group members, as the case may be.

9    The applicant contends that since, by agreement of the parties, no steps have been taken in the proceeding to notify potential group members of the existence of the proceeding, those who are group members will not be able to preserve the rights claimed on their behalf in the proceeding if they are not informed about the appeal processes, should the applicant decide not to file an appeal from the Court’s orders dismissing the proceeding. The particular relevance of group members being able to take these steps is said to arise because there may be some group members for whom there is a possibility that applicable limitation periods may expire while steps in relation to an appeal are being considered. To make the notice process for group members effective, the applicant further contends the Court should stay the order dismissing the proceeding “pending the expiry of 21 days within which group members can consider their position”.

10    The applicant’s submissions do not descend into the detail of how long the notice process might take (nor provide any proposed timetable) – that is, settling the form of the notice, arranging for publication, determining what kind of publication is appropriate and likely to reach this particular cohort of potential group members (bearing in mind the Court should not make orders for notices unless satisfied they are likely to reach the intended recipients), determining who should pay for the notices (the Commonwealth submitted the applicant should pay) and giving potential group members a reasonable opportunity to seek legal advice and to consider whether to appeal. It would, in my opinion, involve several months. The parties have agreed on very little so far in this proceeding, and the Commonwealth has indicated it does not accept the group definition. It is not difficult to foresee a contentious path ahead for any notice process. That in itself might not be a sufficient factor to refuse to make such orders, but it is relevant in considering whether it is in the interests of justice to grant a stay of orders both parties agree are appropriate, in the context of a proceeding in which this Court has found it has no jurisdiction.

11    The applicant’s submissions do not address the possibility of similar proceedings being instituted in the High Court, nor do those submissions suggest proceedings have been instituted in the High Court, although the Commonwealth accepted during argument on the interlocutory application that the High Court has jurisdiction to deal with the claims made by the applicant, and has jurisdiction to do so by way of a class action.

Resolution

12    There is only one order I consider appropriate: namely, that the proceeding be dismissed, for want of jurisdiction. Therefore I have not accepted the submissions of either party in their entirety.

13    In its written submissions, one of the points the Commonwealth makes about the applicant’s suggested notice process under Pt IVA is that:

The Court has decided that it has no jurisdiction in the matter, which leads to a conclusion that the proceedings were never properly ‘commenced’ within the meaning of s 33X(1)(a). As such, there is a real question whether the Court has power to order that notice be given.

14    I consider there is force in this submission. The premise of Pt IVA of the Federal Court Act is that there is a proceeding in this Court, and it concerns a matter over which the Court has jurisdiction. Part IVA also includes some express limits on the kinds of representative proceedings which can be commenced, depending on what the Court’s source of jurisdiction might be: see for example s 33G, which prohibits the commencement of a representative proceeding “concerned only with claims in respect of which the Court has jurisdiction solely by virtue of the Jurisdiction of Courts (Cross-vesting) Act 1987 or a corresponding law of a State or Territory”. Further, the premise of provisions such as s 33N and s 33P, read together, is that the Court has underlying original jurisdiction in the representative proceeding.

15    For the Court to embark on what in any view would be a process involving a series of interlocutory steps, and likely the determination of disputes between the parties, where it has held it has no original jurisdiction, would be to purport to exercise powers which the Court does not, in the circumstances, have.

16    Accepting for the purposes of this analysis that Div 5 of Pt IVA applies to judgments and orders such as the one made on the Commonwealth’s interlocutory application about the Court’s jurisdiction, then I accept that if the applicant decides not to file an appeal from the Court’s orders, there is at least a theoretical possibility that one or more potential group members who might have wished to file an appeal if they had notice of the Court’s decision may not be able to do so. However, it is no more than a theoretical possibility: it is difficult to see in what circumstances the applicant, capably legally represented, might decide against an appeal and yet a group member may wish to pursue one. Especially when there is, as all parties agree, another avenue, not beset with any jurisdictional issues, by which a person can make her or his claims. If there is some prejudice by way of expiry of limitation periods (and there is no evidence of this), there are other ways group members could be protected – for example by issuing proceedings in the High Court.

17    However, the main point is that I do not consider the Court has power to embark on any process under Pt IVA, given the conclusion I have reached on jurisdiction. Even if it had power, the process proposed (including a proposed stay) would mean the Court’s orders would not take effect for a significant period of time, and in circumstances of some uncertainty about how long the notice period (and debates about the process) might take. Where the Court has found it has no jurisdiction even if contrary to my opinion it had power to make such orders under Pt IVA, I do not consider it would be appropriate to do so.

18    Finally, it is not as if the group members have no alternative relief. On any view, the Court’s orders could be subject to judicial review. The question determined was a question of law, so this would present, it would seem, an appropriate avenue if there were any doubts about rights of appeal.

19    My conclusion on power also affects, in my opinion, the Commonwealth’s application for a costs order. While it is true that s 43 of the Federal Court Act specifically includes within the scope of the power proceedings dismissed for want of jurisdiction, as a matter of discretion I do not consider it is appropriate to exercise the power in a case such as this. There are three reasons I have reached that conclusion.

20    First, the making of a costs order triggers a series of coercive steps under the Federal Court Act and under the Federal Court Rules 2011 (Cth), including enforcement of orders. If a debt by way of costs is proven, it can found bankruptcy proceedings. I proceed on the basis the Commonwealth, as a model litigant, has taken a conscious and considered decision that in the circumstances of this matter, it actually wishes to be compensated for the public funds it has expended on its legal costs, and does not wish the Court to make an empty gesture, by making an order the Commonwealth has no intention of enforcing. I do not consider that it is appropriate in respect of a claim such as this (which arises out of the circumstances of the executive detention of the applicant and group members) for those steps to be taken, and those powers exercised under the Federal Court Act and the Rules, in respect of a proceeding in which the Court has determined it has no jurisdiction. Such a process would be unjust, and inconsistent with the purpose of s 494AA(1)(c) of the Migration Act, if the Court’s processes could not be used by the applicant but could be used against him. Despite the power being available, I consider its exercise in such circumstances not to be consistent with the administration of justice.

21    Second, and independently from the first reason, I accept the submissions of the applicant about the nature of the matters raised in the proceeding.

22    There are now a large number of authorities concerning the circumstances in which a court might exercise its discretion as to costs and to make no order as to costs, because of the nature of the proceeding, in the sense that it raises a matter of public importance, or a matter of public interest. Without being exhaustive, a recitation of those authorities usually commences with the High Court’s decision in Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 and from there I also include in the list a number of decisions of this Court, such as Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8; 165 FCR 211; Wilderness Society Inc v Turnbull, Minister for Environment and Water Resources [2007] FCA 1863; Save the Ridge Inc v Commonwealth [2006] FCAFC 51; 230 ALR 411; Ruddock v Vadarlis (No 2) [2001] FCA 1865; 115 FCR 229; Animals Angels’ eV v Secretary, Department of Agriculture [2014] FCAFC 173; 228 FCR 35; Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (No 2) [2011] FCAFC 84; 280 ALR 91; Minister for Immigration and Border Protection v CQZ15 (No 2) [2018] FCAFC 19 and B9/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCAFC 27.

23    Out of all these authorities come a number of considerations which may be taken into account in determining how the Court’s power to order costs should be exercised. I consider the factors of present relevance to be as follows:

(a)    The subject matter of the proceeding was the executive detention of the applicant, and of group members, by the Commonwealth. The legality of that detention was challenged, through a challenge about whether its purpose was lawful. That is not only subject matter concerning one of the foundational rights recognised by the common law – of liberty – but it is a subject matter about the lawful scope of executive detention, as authorised by statute, in Australia. That is plainly also a matter of considerable public importance.

(b)    To put it another way, the subject matter of the proceeding concerned the exercise of public power, so as to deprive individuals of their liberty. Awards of costs are capable of having a chilling effect. There should be no chilling effect on responsibly conducted and arguable proceedings with such subject matter.

(c)    I accept that one of the key forms of relief sought was the payment of damages, and therefore it is appropriate to describe what was being sought by the applicant, on his own behalf and on behalf of group members, as relief from which he and they would benefit financially if successful. However, that benefit would only arise if the Court was able to find that public power had been unlawfully exercised and individuals’ liberty had been unlawfully infringed. In those circumstances, it is not a feature of sufficient weight to govern the manner in which the costs power should be exercised.

(d)    Further, the individuals in Ruddock v Vadarlis were also seeking relief which would benefit them individually, and this did not prevent the Full Court from deciding not to award costs in that proceeding.

(e)    The fact that the matter is a representative proceeding, and the nature of the proposed class has some relevance. The group members are all migrants, from non-English speaking backgrounds, many of whom came to Australia in dire circumstances, some of whom are not yet in Australia but remain on Manus Island in Papua New Guinea or on Nauru, who may not have the resources for, or access to, legal representation so as to bring their own claims. It is clear from the way the class is defined that it is a class whose members have experienced significant disadvantage. In that sense, the bringing of a representative proceeding, so as to enable all group members to benefit from common questions that are decided, if the applicant’s claim was to be successful, is a matter which should be recognised as taking this proceeding outside the realm of one which is brought solely for personal gain or benefit.

24    In those circumstances I consider the more appropriate order, and the one which best serves the overall interests of the administration of justice, is that there should be no order as to the costs of the proceeding, including the interlocutory application.

25    Third, there has been no disposition of the merits of the applicant’s claim. While s 43 of the Federal Court Act recognises that such a disposition is not necessary in order for the costs power to be exercised, I consider that is a matter of some, but small weight, in this case. The applicant put a serious, well-reasoned argument about the construction of s 494AA(1)(c). It was rejected, but it was not spurious or fanciful, and was entitled to (and given) serious consideration by the Court. The applicant co-operated in having the matter determined as soon as practicable, and the interlocutory application was conducted effectively and efficiently.

26    Having maintained and adhered to the legislative policy which I found to be evident in s 494AA, of removing the jurisdiction of the principal federal trial court in this country, the Commonwealth can reasonably expect to have the scope of that legislative scheme tested, because this Court is the obvious, cost efficient, effective, trial court for a matter such as this. Where the matter was one of jurisdiction, I see no basis in those circumstances for the Commonwealth to be compensated for its costs.

27    In the course of the correspondence referred to above at [4]-[5], the applicant sought to make further submissions in relation to the recent decision of Lee J in Turner v MyBudget Pty Limited (No 2) [2018] FCA 1509, and the Commonwealth sought to make submissions as to why that authority was not relevant. In light of the conclusions that I have reached, I do not consider that authority takes the matter any further.

Conclusion

28    Accordingly, the only order that will be made is an order dismissing the proceeding.

Associate:

Dated:    19 November 2018