FEDERAL COURT OF AUSTRALIA

Plaintiff M83A/2019 v Morrison [2020] FCA 334

ORDERS

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 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.

REASONS FOR JUDGMENT

MORTIMER J:

Introduction

1    These reasons explain why I have concluded it is not appropriate to state any separate questions in the proceeding at this time.

2    This is a representative proceeding under Part IVA of the Federal Court of Australia Act 1976 (Cth) (FCA Act) brought by two individuals on behalf of themselves and every other person who was taken to Nauru and was the subject of a regional processing centre (RPC) visa applied for in her or his name by officers of the Commonwealth. The allegations are made in respect of three distinct time periods: a period before certain “Administrative Arrangements for Regional Processing and Settlement Arrangements in Nauru”, entered into by the governments of the Commonwealth and Nauru (Administrative Arrangements), came into effect; a period after the Administrative Arrangements came into effect but before s 198AHA of the Migration Act 1958 (Cth) came into effect; and a period after s 198AHA came into effect.

3    The grant of RPC visas by Nauru to each individual who was removed to Nauru was a key aspect of the arrangements between Australia and Nauru which implemented Australia’s offshore processing policy: see Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; 257 CLR 42 at [5], [9], [32], [80], [214]-[215], [295], [308]-[313]. This proceeding challenges the conduct of senior officers of the Commonwealth in that part of the offshore processing arrangements which saw each individual who was detained by Australia and removed to Nauru given a RPC visa by Nauru on the basis of applications not by the individual concerned, but by officials of the Australian government.

4    The claim is brought against the Hon Scott Morrison MP, the Hon Peter Dutton MP, the Hon Tony Burke MP, Martin Bowles, Michael Pezzullo and the Commonwealth. In summary, each respondent’s liability is alleged to be based on his role and responsibilities either as a Minister of the Crown in right of the Commonwealth responsible for the administration of Part 2, Division 8 of the Migration Act or as the Secretary to the Australian Department responsible for the administration of Part 2, Division 8 of the Migration Act.

5    The applicants seek a declaration that it was unlawful for any officer of the Commonwealth to apply for, or request an extension of, any RPC visa for them or any group member, and they claim damages against the respondents.

6    Their claim for damages is founded on the tort of misfeasance in public office. Unlawfulness of the exercise of public power is a core element of misfeasance: Northern Territory v Mengel [1995] HCA 65; 185 CLR 307 at 345-8; Obeid v Lockley [2018] NSWCA 71; 98 NSWLR 258 at [100]-[101]. Although the unlawful acts in question in this proceeding are identified as the applications by officers of the Commonwealth for the RPC visas, the misfeasance allegations are directed to those who, it is alleged, had the ultimate legal and political responsibility for the implementation of the offshore processing arrangements with Nauru, and are said to have caused and instructed the RPC visa applications to be made. The allegations are made against one or more of the individual respondents by reference to the periods of time the applicants contend they were responsible in a legal and political sense for the carriage of Australia’s offshore processing arrangements under the Migration Act; the “Memorandum of Understanding between the Republic of Nauru and the Commonwealth of Australia, relating to the transfer to and assessment of persons in Nauru, and related Issues”, signed on 3 August 2013 (MOU); and the Administrative Arrangements.

7    The pleadings have a number of complexities, but the gist of the allegations of misfeasance is that:

(a)    each of the individual respondents directed or authorised officers of the Commonwealth to act unlawfully in applying for RPC visas on behalf of the applicants and group members (or alternatively failed to prevent the unlawful conduct); and

(b)    did so with reckless disregard for the means of ascertaining the lawfulness (or unlawfulness) of the RPC visa applications; and

(c)    the Commonwealth is vicariously liable for the conduct of the individual respondents.

8    The alleged unlawfulness involved in the RPC visa applications is put on four principal bases. These are referred to in the Further Amended Statement of Claim (FASOC), and were referred to during the hearing, as MIPO #1, MIPO #2, MIPO #3 and MIPO #4.

9    The substance of MIPO #2 is that at all relevant times the officers of the Commonwealth who purported to apply for or request extensions of the RPC visas lacked any power to do so. The lack of power is alleged to stem from the absence of any statutory or executive power to apply for the RPC visas, and the alleged ineligibility of each of the applicants and group members under Nauruan law to be granted the RPC visas.

10    MIPO #1, MIPO #3 and MIPO #4 appear to assume that, contrary to the claim advanced in MIPO #2, the officers did have the power to apply for and request extensions of the RPC visas. These remaining three bases contend that the RPC visa applications were unlawful for other reasons.

11    The substance of MIPO #1 is that the exercise of the relevant power miscarried because the officers failed afford procedural fairness to the applicants and group members before applying for the visas on their behalf.

12    The pleaded allegations in MIPO #3 and MIPO #4 are, with respect, rather more difficult to follow. The premise of both sets of allegations is cl 17 of the MOU which provides that each person in the position of the applicants and group members is, on transfer to Nauru and while on Nauru, to be treated “with dignity and respect and in accordance with relevant human rights standards”.

13    These standards are alleged to include a prohibition on cruel, inhuman or degrading treatment; a prohibition on arbitrary detention and/or deprivation of liberty except in accordance with such procedure as is established by law, and an obligation to treat those deprived of their liberty with humanity and with respect for the inherent dignity of the human person. For the second applicant, and other child group members, these standards are alleged to include the right of each child to only be detained as a measure of last resort; the right of each child, when deprived of liberty, to be treated in a manner which takes into account the needs of the child’s age; and the right of each child to education and/or access to education.

14    It is then alleged (for MIPO #3) that some of the core conditions on the RPC visas (described in the FASOC as the Residence Condition and the Tent Condition) contravened these human rights standards and also resulted in the unlawful detention of the applicants and group members. It is also alleged (for MIPO #4) that other core conditions of the RPC visas (described as the First Resort Detention, the Education Condition and the Education Prohibition) contravened the additional human rights standards relied on for the second applicant and other child group members.

15    The part of the pleadings which is particularly difficult to follow, with respect, is, first, what is alleged to be the unlawful exercise of power (as part of the RPC visa application) which each of the respondents is said to have caused or instructed to occur. Second, how is it alleged the individual respondents were reckless in their disregard for the lawfulness of that conduct.

16    With respect to the first issue, it appears to be alleged that the respondents acted unlawfully by causing or instructing Commonwealth officers to apply for Nauruan visas with conditions which contravened human rights standards implemented by the MOU, and which (at [59] of the FASOC) the applicants contend conditioned the lawful exercise of power by Australia and its officers under s 198AHA of the Migration Act.

17    With respect to the second issue, it appears to be alleged (see [113] and [114]) that each of the respondents recklessly disregarded whether the conditions on the RPC visas would contravene the human rights standards and be unlawful for that reason.

18    However, it also appears to be alleged (see [107] and [108] for example) that each of the respondents caused the unlawful detention of each of the applicants and group members, because of (it appears) the lack of authority to apply for the visas (MIPO #2) and the denial of procedural fairness (MIPO #1). It then appears to be alleged (see [114]) that each of the respondents recklessly disregarded whether the applicants’ detention was unlawful.

19    The pleadings in relation to MIPO #4 are, with respect, similarly difficult to disentangle.

20    Further, there are, separately, allegations about the extension, on a three-monthly basis, of the RPC visas for each of the applicants and the group members. In substance, similar allegations are made about the unlawfulness of the applications for each extension of the RPC visas, and insofar as the extension allegations are also brought into MIPO #3 and MIPO #4, they are, with respect, similarly challenging to follow.

21    I have not of course formed any views at all about the applicants’ allegations or causes of action, and I accept I may not have entirely captured their content in the descriptions above. However, I have attempted to explain my present understanding of the causes of action, and my difficulties in understanding aspects of them, because these matters have contributed to my conclusions about why it is not appropriate to state any separate questions at this point in the proceeding.

Case management

22    From the outset, the parties have expressed different views about how the proceeding should progress. After the pleadings had been filed, and in an attempt to crystallise the competing positions and address the respondents’ proposal that the Court should state a series of separate questions as the most appropriate method to progress the proceeding, the Court made orders on 18 December 2019 requiring a joint report to be filed early in 2020 setting out the parties’ proposals for the next steps in the proceeding.

23    On 21 February 2020, the parties filed a joint report with their respective positions and proposed orders reflecting those positions. The report made it clear that the parties disagreed about how the proceeding should be progressed. The respondents proposed that separate questions should be set down for hearing. The applicants proposed that the proceeding should be case managed to trial, including any strike-out application by the respondents (which had been foreshadowed during case management hearings). The Court sat on 5 and 6 March 2020 to hear the parties’ submissions on whether there should be a hearing of separate questions; if so, what the form of the separate questions should be; and other case management matters, including the timing of opt-out notices. The parties had been requested specifically to address the timing and proposals for the giving of opt-out notices.

The parties’ positions

24    Although the applicants’ principal position was that no separate questions should be stated, they did engage with what questions should be stated, if the Court was minded to do so.

The proposed separate questions

25    The parties set out alternative sets of separate questions in the joint report. During the hearing, the respondents referred to a document they had prepared which included versions of two of the questions that had been revised to accommodate changes suggested by the applicants. The respondents’ proposed separate questions, incorporating those changes, were as follows:

1A.    Did Commonwealth officials (referred to in the FASOC as Applying Commonwealth Officers and Requesting Commonweal Officers) have lawful authority under the Migration Act 1958 to (i) apply for any RPC visa; (ii) request any further RPC visa; and (iii) request any extension of an RPC visa, respectively, in respect of the First Applicant, the Second Applicant, and/or Group Members during any of the following time periods:

(a)    from 3 August 2013 to 10 April 2014;

(b)    from 11 April 2014 to 29 June 2015; and

(c)    from 30 June 2015 onwards (with (a) and (b), the relevant period)?

1B.    If the answer to Question 1[A] is no, did Commonwealth officials have lawful authority under s 61 of the Constitution to (i) apply for any RPC visa; (ii) request a further RPC visa; and (iii) request any extension of an RPC visa, respectively, in respect of the First Applicant, the Second Applicant, and/or Group Members in any of the time periods forming part of the relevant period?

2.    If Commonwealth officials had lawful authority to apply for, and/or request extensions of, RPC visas, was the exercise of that authority subject, as a matter of the law applicable to the proceeding, to:

   (a)    an obligation to accord procedural fairness as alleged in the FASOC?

(b)    the eligibility of any putative visa holder under Nauruan law to be granted a visa, or an extension of their visa, by Nauru?

3.    If Commonwealth officials had lawful authority to apply for, and/or request extensions of, RPC visas, was the exercise of that authority subject, as a matter of the law applicable to the proceeding, to compliance by Australia with an alleged legal obligation said to arise under Clause 17, 18, and/or 19 of the MOU to treat the First Applicant, the Second Applicant and each Group Member in accordance with the following human rights standard:

(a)    the prohibition alleged and particularised in paragraph 106(a) of the FASOC (concerning cruel, inhuman or degrading treatment)?

(b)    the prohibition alleged and particularised in paragraph 106(b) of the FASOC (concerning arbitrary detention and/or deprivation of liberty except in accordance with such procedure as is established by law)?

(c)    the obligation alleged and particularised in paragraph 106(c) of the FASOC (concerning treatment of persons deprived of their liberty)?

4.    If Commonwealth officials had lawful authority to apply for, and/or request extensions of, RPC visas in respect of the Second Applicant and Child Group Members, was the exercise of that authority subject, as a matter of the law applicable to the proceeding, to compliance by Australia with the following alleged right said to arise under Clause 17, 18, and/or 19 of the MOU:

(a)    the right alleged in paragraph 119(a) of the FASOC (detention of a child as a measure of last resort)?

(b)    the right alleged and particularised in paragraph 119(b) of the FASOC (concerning manner of treatment of children deprived of liberty)?

(c)    the right alleged and particularised in paragraph 119(c) of the FASOC (concerning education and/or access to education)?

Definitions

In these separate questions:

•    Applying Commonwealth Officers means those officers of the Commonwealth who completed visa applications in respect of the First Applicant, the Second Applicant and/or one or more group member(s).

•    Child Group Members means Group Member in respect of whom an RPC Visa was granted in or including his or her name prior to his or her 18th birthday.

•    FASOC means the Further Amended Statement of Claim herein, dated 8 November 2019.

•    Group Members means persons on behalf of whom the applicants bring the proceeding as defined in paragraph 3 of the FASOC.

•    MOU means the ‘Memorandum of Understanding between the Republic of Nauru and the Commonwealth of Australia, relating to the transfer to and assessment of persons in Nauru, and related issues’ entered into by Nauru and Australia on 3 August 2013, as described at paragraph 56 of the FASOC.

•    Requesting Commonwealth Officers means those officers of the Commonwealth who made requests for visa extensions in respect of the First Applicant, the Second Applicant and/or one or more group member(s).

•    RPC visa means Regional Processing Centre visa.

26    Questions 1A and 1B, 2, 3 and 4 are directed, respectively, to MIPO #2, MIPO #1, MIPO #3 and MIPO #4.

27    The applicants proposed three separate questions to address the contingency of the Court’s deciding to hear separate questions. The applicants’ questions 1 and 2 mirrored the respondents’ questions 1A and 1B. The applicants rejected the respondents’ questions 2, 3 and 4 and proposed a different question:

If the answer to Question 1 or 2 [ie the respondents’ questions 1A or 1B] is yes, was the exercise of that authority subject, as a matter of law at any time during the relevant period, to:

(a)    acting consistent with the law of Nauru, including the eligibility criteria for an RPC visa of any putative visa holder under Nauruan law to be granted a visa, or an extension of a visa, by Nauru?

(b)    compliance with the obligations in the MOU to treat the First Applicant, the Second Applicant and each Group Member in accordance with relevant human rights standards, as alleged in [104], [106] and [119] of the FASOC?

The applicants’ submissions

28    The applicants submitted that the facts that had been agreed by the parties, which I discuss below, were insufficient to enable the Court to finally determine all the proposed separate questions. In this respect, the applicants focused on part (a) of the respondents’ second question – whether the power of the Commonwealth officials to apply for or request extensions of RPC visas (assuming it existed) was subject to an obligation to afford procedural fairness.

29    In the joint report filed by the parties, the applicants submitted that the “content of the obligation to afford procedural fairness is determined by all of the relevant facts”. In oral submissions, the applicants contended it would be necessary for the Court to have full information about how Commonwealth officials applied for the RPC visas (a process which it was said might vary from case to case), as well as details of the applicants’ experiences in Nauru. In this context, the applicants referred to comments made by Beach J in Australian Energy Regulator v Snowy Hydro Limited [2014] FCA 1013, where his Honour said that “[s]ingle issue trials should only be embarked upon when their utility, economy and fairness to the parties are beyond question” (at [41]) and the facts are “not … left open [but are] established or agreed” (at [45]). To similar effect, the applicants referred to Tepko Pty Ltd v Water Board [2001] HCA 19; 206 CLR 1, Murphy v State of Victoria [2014] VSCA 238; 45 VR 119 and Evans v Davantage Group Pty Ltd [2019] FCA 884.

30    The applicants’ approach led to two alternatives. Either the Court could hear all of the separate questions with the factual complexities presented, they contended, by the procedural fairness question; or the Court could hear some separate questions but not the question whether the relevant power was subject to an obligation to afford procedural fairness. In either event, it was said, a hearing of separate questions would be an inefficient use of resources and would fragment proceedings in the event that part or all of the determination of the separate questions were the subject of appeal.

31    The applicants noted that the respondents had foreshadowed a possible strike-out application, and summary dismissal application, and they submitted that that was the most appropriate course open to the respondents if they considered that the proceeding could be disposed of without the need for a full trial. Indeed, the applicants submitted that any determination of separate questions in circumstances where the respondents maintained, and wished to present at a later stage, fundamental objections to the competency of the FASOC might be characterised as a determination of a hypothetical question.

32    The applicants pointed to the possibility that the respondents might not succeed on one or more of the proposed separate questions, meaning that the proceeding would not be disposed of. In that event, it was submitted, the trial that would then have to occur would not necessarily be any shorter than it would have been if there had been no hearing and determination of separate questions. It followed that it would not be efficient to hear and determine separate questions even if the Court were minded to adopt all of the questions proposed by the respondents.

33    The applicants also submitted that it would take up to seven months to complete the opt-out process and that by the time that process was complete the parties could be well progressed towards trial. In this context, the applicants suggested that a full trial would take three to four weeks and could be listed in the middle of next year.

The respondents’ submissions

34    The respondents submitted that the separate questions were narrow and focused and, if resolved in their favour, would dispose of the proceedings. They contended their proposed agreed facts provided a sufficient basis to answer the separate questions. The question whether the relevant power (whether statutory or executive) was subject to an obligation to afford procedural fairness was, the respondents said, essentially a question of law, not fact; it was therefore irrelevant exactly how the Commonwealth officials applied for or requested extensions of the RPC visas and what the experiences of the applicants were. The respondents repeated this with respect to the other proposed separate questions.

35    In this context, the respondents referred in particular to CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514, Plaintiff M68 and Plaintiff S195/2016 v Minister for Immigration and Border Protection [2017] HCA 31; 261 CLR 622, which were said to show that, contrary to the applicants’ submissions, it was not necessary to descend into any factual detail to answer the separate questions. Those decisions were also submitted to show that the respondents had real prospects of persuading the Court that the answers to the separate questions should be favourable to the respondents and should therefore result in the dismissal of the proceeding.

36    The respondents submitted that the cases relied upon by the applicants for the proposition that courts should be wary of determining separate questions in the face of contested facts were either distinguishable, because the contested facts went to the heart of the proposed separate questions, or were less consistent with modern approaches to case management.

37    The respondents submitted that is was “fantastical” that the parties would be ready for a trial by the middle of next year, and that the trial would only take three to four weeks. They contended the costs of having a full trial could be 20 or 30 times what they would be if the Court heard and determined separate questions.

38    The respondents submitted they maintained no fundamental objections to the parts of the FASOC upon which the proposed separate questions turned. They submitted the prospect of a strike-out application to parts of the FASOC not connected with the separate questions was not relevant to deciding whether or not to state separate questions on the matters they had identified.

39    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

40    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.

41    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.

42    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

43    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.

44    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.

45    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].

46    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”.

47    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.

48    I turn to discuss those features.

49    The first and obvious feature is that this is a class action. Of itself that is no impediment to the stating of a separate question: see, for example, Evans. However, according to the most recent information provided by the Commonwealth to the applicants, and conveyed to the Court during the recent hearing, the group members are located in a range of places, and find themselves in a variety of circumstances. Senior counsel for the applicants stated that, based on the information provided by the Commonwealth, there are 887 group members in Australia (of whom 795 are in Australia for medical treatment), 345 in Nauru (of whom 236 are in the community – as opposed to, I infer, in detention), 348 in the United States, and small numbers in Cambodia, Canada, Switzerland and Taiwan. Of the 795 people who are stated to be in Australia for medical treatment, no breakdown was given of how many of them are in immigration detention (of one form or another) or are in the community. Further, senior counsel for the applicants informed the Court the information provided contained phone numbers for 80% of the identified group members, addresses for 71% and email addresses for 18%, although it is not known whether these details are up to date. Senior counsel for the respondents did not dispute the figures put to the Court.

50    I accept the applicants’ submissions that these circumstances make the opt-out process challenging. In my opinion the giving of such notices would be an essential precondition to the listing of any separate question. On the respondents’ submissions, answers to the proposed separate questions in their favour are capable of resulting in the dismissal of the proceeding, thus affecting at a fundamental level the interests of the group members. While the applicants’ estimate of seven months may seem excessive, the respondents’ estimates that the notification process could occur in a matter of weeks is unduly optimistic. It is likely a reasonable period of time lies somewhere in between, in the region of four to five months, and this would mean significant delay in the proceeding if all that were planned to occur at the conclusion of the op-out process was the listing of separate questions. Further, the applicants’ case involves allegations of unlawful detention, and allegations that the autonomy of group members was seriously and consciously compromised by their subjection to a visa application process not of their choosing and which was substantively detrimental to them. Where the Court is determining matters that will bind group members, it should in my opinion be cautious about doing so when allegations of this nature are involved.

51    Second, the respondents take issue, at a fundamental level, with the applicants’ pleadings, and indeed with whether there is an arguable cause of action at all. They have made it clear they propose to challenge both the pleadings and the causes of action by way of strike-out and/or summary dismissal applications. Although the respondents submitted that the allegations of fact and law which underpin the proposed separate questions could be quarantined from what they contend are the flawed aspects of the applicants’ case, such an approach has a high degree of artificiality about it. It is also fraught with a risk that the Court will be deciding questions of law (and possibly fact) without a clear understanding of the applicants’ allegations and the respondents’ defence, because both are uncertain until the respondents’ challenges are resolved.

52    Third, as I have noted, I consider – not inconsistently with the general position taken by the respondents – that there is a substantial lack of clarity in the applicants’ pleadings, in particular concerning MIPO #3 and MIPO #4. Separate questions are proposed involving these allegations, as they need to be in order for any separate question process to be capable of resolving the entire proceeding. But MIPO #3 and MIPO #4 proceed, in my respectful opinion, on a currently uncertain and unclear basis. These aspects of the applicants’ allegations should be clarified, and I am satisfied that is likely to occur – for better or for worse in terms of the applicants’ case – through the other interlocutory processes foreshadowed by the respondents.

53    Next, I am not satisfied there is a sufficient factual basis for the separate questions. In my view, there would need to be a considerable number of additional facts, particularly about the RPC visa application and visa extension process at least for the two named applicants, but likely also for other identified categories of group members, and perhaps for the three time periods identified in the FASOC . Some of these additional facts are likely to be contained in documents which will be discoverable in the proceeding. While I accept the respondents properly offered to engage in the process of agreeing further facts, and possibly documents, to date the parties have not shown a high degree of cooperation in this proceeding, and have proven themselves to bring very different approaches to the conduct of the proceeding. I do not say that critically, but it is the fact. In my opinion there is likely to be a cost- and resource-intensive process required to secure agreement to sufficient additional facts and documents for the Court to be confident it has an appropriate basis to determine separate questions. I do not consider that process will occur speedily. The time will be better and more efficiently spent, in my opinion, in progressing the other interlocutory processes foreshadowed by the respondents, as well as progressing the matters to which I refer at [57]-[58] below.

54    A further factor is the nature of the issues in this proceeding, including those identified by the respondents in the separate questions, and the likely course the proceedings would take even if the Court determined separate questions. They are weighty issues on any view: they involve the executive power of the Commonwealth (s 78B notices having been given), important issues of statutory construction, and consideration of the approach to bilateral arrangements made between the Commonwealth and Nauru. There is much at stake on both sides, including beyond the confines of this proceeding. The likelihood of an appeal from any separate question determination is high. That would lead to fragmentation of the proceeding, and additional cost and resources being expended before any further substantive trial preparation steps are taken in the proceeding. That is in circumstances where at least a proportion of group members remain, as the Court has been informed, in some form of immigration detention.

55    Cumulatively, these matters have led me to conclude it is not appropriate to make the orders sought by the respondents. I consider the better course is to hold the parties to a fair but demanding timetable to progress the matter to trial, taking into account the foreshadowed interlocutory applications by the respondents. If the respondents are correct in their contentions about the considerable and clear weaknesses of the applicants’ allegations, that will become apparent during those interlocutory processes. If the respondents are proven to be correct, then the burden of the proceedings on the individual respondents will also be lifted. The Court’s refusal to state separate questions does not necessarily condemn them to a long and drawn-out trial process which puts their personal, professional and political reputations in the public spotlight. If they are correct, they may well secure the dismissal of the proceedings within a reasonable period of time. If they are not correct, then it is appropriate the applicants have their trial.

56    My conclusion does not preclude a renewal by either or both parties of the proposal for separate questions at a later stage of the proceeding. There may yet be a time at which the Court is persuaded that process will be appropriate. That should not be taken as encouragement to renew the application: rather, it is a recognition that circumstances in a proceeding such as this may change and the Court retains an open mind about the appropriate form of case management to be undertaken.

57    Accordingly, there will be orders to accommodate the foreshadowed interlocutory applications by the respondents. The applicants will be required to commence the opt-out notice process, and will be given a reasonable but not extensive time in which to do so, one which can be completed prior to the Court handing down judgment on any interlocutory applications made by the respondents, which will be programmed for hearing in the presently reserved week commencing in 11 May 2020. The parties will be given an opportunity to confer on proposed orders about notices under s 33X, and to have a case management hearing about the proposed orders and timetable if necessary.

58    The parties will also be directed to engage in a discovery process in accordance with the Central Practice Note: namely, a process which is self-directed, responsible and cooperative, and in which the parties approach the Court only if and when there are intractable issues between them which require the intervention of the Court by way of ruling. To assist the parties in that process a general referral will be made to a Judicial Registrar.

59    The matters which are the subject of this decision occurred during the case management process and without any formal interlocutory applications. Accordingly, I consider it is appropriate that the costs of and incidental to the hearing on 5 and 6 March 2020 be costs in the cause. If either party wishes to contend a different costs order should be made, that matter can be addressed at the next case management hearing.

Associate:

Dated:    13 March 2020