A Child (by his next friend, Arthur) v Secretary, Department of Immigration and Citizenship

REASONS FOR JUDGMENT 1 This is an application by respondents to a proceeding for an order that a question arising in the proceeding be heard separately from any other questions in the proceeding. The applicant opposes the application. The application is brought pursuant to r 30.1 of the Federal Court Rules 2011. That rule is in the following terms: 30.01 Application for separate trials (1) A party may apply to the Court for an order that a question arising in the proceeding be heard separately from any other questions. (2) The application must be made before a date is fixed for trial of the proceeding. Note 1 The Court may order that a party state a case and the question for decision. Note 2 The Court will give any directions that are necessary for the hearing of the separate question. 2 The requirement in r 30.1(2) is designed to ensure that applications for the hearing of a separate question are made promptly and before significant resources are expended on the preparation for trial on all issues. The Court has the power to dispense with the requirement (r 1.34). 3 The applicant's Amended Originating Application claims against the respondents the following relief: 1. A permanent injunction against the First and Third Respondents restraining them by themselves, their servants or agents or howsoever otherwise, from placing or keeping the Applicant in any non-residential place of detention and from so detaining him as to prevent or inhibit his access to immediate assessment, treatment and supervision by suitably qualified mental health workers; 2. A writ of mandamus to the Third Respondent in his capacity as the guardian of the Applicant directing him to use his best endeavours to secure for the Applicant a residential place of detention with access to and supervision from suitably qualified mental health workers. 3. A writ of mandamus to the Third Respondent in his capacity directing him to use his best endeavours to obtain forthwith for the Applicant the grant of a visa under the Migration Act 1958 and directing him to ensure that the Applicant receives immediate medical assessment, treatment and supervision from suitably qualified mental health workers. 4. Damages in negligence. 5. Interest pursuant to statute. 6. Costs. 7. Such further order as the Court considers appropriate. 4 In the course of submissions counsel for the applicant made it clear that the applicant would not be pressing a claim for a writ of mandamus and therefore paragraphs 2 and 3. 5 The question that the respondent seeks to have heard separately is as follows: 1. The question whether the relief sought in paragraph 1 of the Amended Originating Application dated 15 December 2011 is barred absolutely by the terms of ss 5(a) and (b) (the definition of 'immigration detention') and 197AB of the Migration Act 1958 (Cth) (the Act) be heard separately from the balance of the claim for relief in orders 4 to 6 inclusive of the said Application. 6 The respondent contends that only the following facts are relevant to the determination of the separate question identified above. 1. By order 1 of the Amended Originating Application, the applicant seeks an order requiring that he be placed in a residential place of detention in the community. 2. The applicant is an 'unlawful non-citizen' within the meaning of the Migration Act 1958 (Cth) ('the Act'). 3. The applicant is in 'immigration detention' within the meaning of the Act. 7 The applicant's claims in paragraphs 1, 4, 5, 6 and 7 of the Amended Originating Application are based on an allegation of a breach of common law duty by one or more of the respondents. Putting the matter generally at this stage, the breach is alleged to relate to the place of and circumstances under which he is being kept in immigration detention. It is alleged that the breach is causing harm and potentially very serious harm. While the respondent contends that there are a number of other difficulties for the applicant in securing the order in paragraph 1, they contend that the provisions of the Act identified in the separate question are decisive in their favour. They contend that, by virtue of those provisions, the Court would not make an order which had the effect of requiring the applicant to be placed or kept in a particular place or not in a particular place. The respondents do not contend that the determination of the separate question would determine the applicant's claim for damages for breach of a common law duty of care or any element (duty, breach, damage and quantum of damage) of that claim. 8 The applicant commenced this proceeding by Originating Application filed and served on 14 December 2011. He claimed urgent interlocutory relief relating to his detention. The application for interlocutory relief came before a judge of this Court who declined to make the interlocutory order sought by the applicant at that time: A Child (by his next friend, Arthur) v Secretary, Department of Immigration and Citizenship [2011] FCA 1497. After delivering that decision the proceeding came before the judge again on 24 December 2011 and he made a number of orders including an order that the application be adjourned for further directions to 9.00 am on 9 January 2012, 'including for giving of directions as to the hearing of the application for final relief, including, if appropriate, for the separation of any issue if it arises, as to the amount of damages': A Child (by his next friend, Arthur) v Secretary, Department of Immigration and Citizenship (No 2) [2011] FCA 1519. The transcript of the hearing on 22 December 2011 shows that counsel for the applicant told the Court that the applicant could be ready for trial 'in four weeks time' and that counsel for the respondents said that they did not stand in the way of 'a prompt resolution of the substantive issues'. 9 The proceeding came before the judge again on 9 January 2012 and on that occasion the judge indicated that he would attempt to find a judge to hear the matter for a period of up to four days as soon as possible. There was a suggestion at that time that the quantum for damages might be dealt with separately. 10 The proceeding was referred to me and on 12 January 2012 my associate wrote to the parties indicating that in the absence of good reason to the contrary being shown the proceeding would be listed for hearing before me on 23 January 2012. I also fixed Thursday 19 January 2012 at 9.15 am as the time for a directions hearing. Nothing was heard from the parties and on 17 January 2012 my associate again wrote to the parties advising that the matter had been listed for hearing commencing on Monday 23 January 2012. My associate also raised with the parties the need for a translator and a question as to whether one or both of the parties would be asking that part of the hearing be conducted by video link. 11 On 18 January 2012 the respondents issued this application supported by an affidavit and detailed written submissions. The application was not made before the date fixed for trial of the proceeding, although, as I have said, I have the power to dispense with the requirement in r 30.01(2). 12 The trial has been fixed for hearing next week. The effect of the order sought by the respondents is that all other issues in the proceeding would be postponed until the hearing and determination of the separate question. The respondents have not pursued an application for the determination of the all issues other than the quantum of any damages. Bearing in mind that this proceeding has come on for hearing very quickly that might still be an order that is sought by one or other of the parties, but unless and until it is, and I have heard submissions, it is not appropriate that I comment further on the merits of such an application. The fact is that to this point such an application has not been made. 13 The respondents have been required to prepare themselves for trial within a very short period of time and that is the result, primarily at least, of the order sought in paragraph 1 of the Amended Originating Application. In the course of submissions, they alluded to some of the difficulties that short time frame was causing them in terms of their preparation for trial. However, they did not contend, at least at this stage, that they could not be ready for a trial next week. That to my mind is an important consideration. 14 I have considered the authorities dealing with the circumstances in which it is appropriate to make an order for the determination of a separate question, including Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495; Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2003) 216 CLR 515 and Spirits International B.V. v Federal Treasury Enterprise (FKP) Sojuzplodoimport (2011) IPR 438 (2011) IPR 438. I proceed on the basis that the principles under the Federal Court Rules 2011 are the same as they were under the Federal Court Rules in force immediately before 1 August 2011. 15 The respondents' principal contentions were as follows. First, it contended that it was appropriate, and would happen in the usual course, that the applicant's claim for damages for breach of a duty of care would first go to mediation and if not settled only then go to trial (see, for example, Part 28 of the Federal Court Rules). If that is a factor it is not a factor of much weight in circumstances where the proceeding has been listed for trial and there is no evidence that the parties cannot be ready for trial. Furthermore, this is not a case where it can be said that the determination of the separate question in a particular way will increase appreciably the prospects of settling the balance of the claim. Secondly, the respondents contend that there are difficult choice of law questions associated with the applicant's claim for damages. The laws of other jurisdictions may be relevant (see, for example, Part VBA of the Wrongs Act 1958 (Vic)) and they may preclude, either at this stage, or at any stage, the applicant's claim. I did not understand the respondents to say that they could not be ready to deal with these matters. It is not possible for me to reach even a provisional view about these matters on this application. There may be other applications the respondents can make in relation to these matters. It seems to me that I will have to deal with them as and when they arise and in the usual way. To my mind, they are not a reason to make the order sought by the respondents. 16 In my opinion, the respondents' application must be refused. In circumstances where a tight timetable has been fixed I would do so on the merits and not on the basis that the requirement in r 30.01(2) has not been met. Had the merits favoured the respondents, I would have dispensed with that requirement. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.