Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. Under r 22.06 of the Federal Court Rules 2011 (Cth), grant leave to the applicant to withdraw the admission he was taken to have made under r 22.04, that admission being that each person who detained the applicant during the transfer of the applicant from the Villawood Immigration Detention Centre to Yongah Hill Immigration Detention Centre had met the character and training requirements specified in the Immigration Detention Facilities and Detainee Services Contract. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ROBERTSON J: 1 These are the reasons for the leave I granted on 27 August 2019, in the course of the hearing, to the applicant under r 22.06 of the Federal Court Rules 2011 (Cth) to withdraw the admission he was taken to have made under r 22.04. 2 The deemed admission was, so far as presently relevant, that each person who detained the applicant during the transfer of the applicant from Villawood Immigration Detention Centre (Villawood IDC) to Yongah Hill Immigration Detention Centre (Yongah Hill IDC) had met the character and training requirements specified in the Immigration Detention Facilities and Detainee Services Contract. 3 The relevant provisions of the Federal Court Rules are as follows: 22.01 Notice to admit facts or documents A party (the first party) may serve on another party (the second party) a notice, in accordance with Form 41 (the notice to admit), requiring the second party, for the purpose of the proceeding only, to admit the truth of any fact … specified in the notice to admit. Note: Authenticity of a document is defined in the Dictionary. 22.02 Notice disputing facts or documents The second party may, within 14 days after service of the notice to admit, serve on the first party a notice of dispute, in accordance with Form 42, disputing the truth of any fact … specified in the notice to admit. … 22.04 Facts or documents taken to be admitted if not disputed If the second party does not serve a notice of dispute in accordance with rule 22.02, the second party will be taken to have admitted the truth of each fact … specified in the notice to admit. Note: The Court may dispense with compliance with this rule - see rule 1.34. … 22.06 Withdrawal of admissions A party may apply for the leave of the Court to withdraw an admission made under this Part. 4 The circumstances are as follows. 5 So far as relevant, the applicant seeks review of his transfer from Villawood IDC to Yongah Hill IDC, that decision being made on or around 17 May 2019. 6 By his amended application dated 14 June 2019 the applicant claimed that the transfer decision was unlawful and made without power and constituted an unlawful trespass to the person. It was pleaded that "to the extent that the transfer decision was made by a third party contractor operated (sic) to manage or operate Villawood Detention Centre, that decision was without power…". 7 The matter came on for interlocutory hearing on 22 July 2019 and I set it down for early final hearing on 27 August 2019. I directed that the respondent file and serve any further evidence by 6 August 2019. 8 An important part of the background is provided by the terms of the definition of "officer" in s 5(1) of the Migration Act which relevantly stated that "officer" means (g) "any person who is included in a class of persons authorised in writing by the Minister to be officers for the purposes of this Act, including a person who becomes a member of the class after the authorisation is given." 9 The terms of the Instrument of Authorisation 2015 signed by the Minister on 30 June 2015 was relevantly as follows: I, PETER DUTTON, Minister for Immigration and Border Protection acting under subsection 5(1) of the Migration Act 1958 (the Act): … 2. AUTHORISE employees of SERCO Australia Pty Ltd, who are located at: a. detention centres (known as Immigration Detention Centres) established under section 273 of the Act; or b. … to be officers for the purposes of the Act, who perform duties and who have met character and training requirements as specified in the Immigration Detention Facilities and Detainee Services Contract and who hold or, occupy or perform the duties of the positions listed in Schedule 1 of this Instrument. Schedule 1 listed "Positions held by Serco Pty Ltd employees" and included at item 16 "Client/Detainee Service Officers". 10 On 8 August 2019, the respondent filed an affidavit affirmed on that day by an Operational Assurance Director employed by Serco Australia Pty Ltd. 11 The respondent's notice to admit facts was also served on 8 August 2019. 12 So far as relevant, the notice required the applicant to admit the truth of the following fact: "Each person who detained the Applicant during the transfer … had met the character and training requirements specified in the Immigration Detention Facilities and Detainee Services Contract". 13 In response to the notice to admit, on 15 August 2019 the applicant's solicitors sent an email to the solicitor for the respondent saying that the writer was unable to advise his client that he should admit the facts referred to in the notice to admit. It was stated that the evidence by the Operational Assurance Director did not address paragraph 2(b) of the notice to admit and that the applicant did not know that each of the relevant officers "had met the character and training requirements specified in the Immigration Detention Facilities and Detainee Services contract." It was said that the contract extracts the applicant's solicitors had been provided with did not appear to specify the character and training requirements needed to be appointed an "officer". The email continued: "could you please provide more specific evidence or material on this point to allow the applicant to properly consider the Notice to Admit." The substance of the email concluded with the following: "Could you please provide specifics of the requirements and evidence if (sic) when and how each of those officers met those requirements to allow the applicant to properly consider point 2 (c) in the Notice." 14 By email dated 22 August 2019, a week later, the solicitor for the respondent said that she hoped to respond to the email of the applicant's solicitor shortly. 15 It was common ground that the 14 days referred to in r 22.02 ended on 22 August 2019. 16 On 23 August 2019 the solicitor for the respondent provided a substantive response to the email of the applicant's solicitors dated 15 August 2019, by letter attached to a reply email. Item 7 of the letter stated: "We look forward to hearing your final response to the notice to admit." 17 Later on the same day, 23 August 2019, the solicitor for the respondent wrote to the applicant's solicitors stating: "We note that you did not serve a notice disputing facts within 14 days of service of the notice to admit (ie by yesterday). Accordingly, the facts in the notice to admit are taken to be admitted by your client, subject to leave of the Court…". The letter went on to say that if the applicant "intends to apply for leave to withdraw his deemed admissions, please notify us by no later than 12 noon on Monday, 26 August 2019 of: (a) the fact that your client intends to make such an application; and (b) the precise basis upon which you contend that the facts set out in the notice of dispute are reasonably open to dispute, in light of the affidavit of [the Operational Assurance Director], the extracts of the Serco contract produced informally to you and the additional material provided to you today." "Failing this", the letter continued, "we put you on notice that our client will oppose any application for leave to withdraw the deemed admissions." 18 By email dated later the same day, 23 August 2019, the solicitors for the applicant stated that they did not consider the Department's response to have been adequate "and therefore put your client on notice of our intention to file a notice of dispute today. We outline below the deficiency in the evidence led thus far, and note that we remain willing to consider admitting the relevant facts subject to the provision of further material." The email stated that no admissible evidence had been filed by the Department identifying the relevant requirements under the contract. 19 Still later on the same day, 23 August 2019, the solicitors for the applicant served the applicant's notice of dispute. 20 A further email from the solicitor for the respondent on 23 August 2019 said that in light of the fact that they had provided the solicitors for the applicant with Annexure D of the Serco contract which detailed the character and training requirements the solicitor for the respondent did not understand the statement of the solicitors for the applicant. 21 This theme was taken up by email from the solicitors for the applicant to the solicitor for the respondent on Monday, 26 August 2019. 22 At about the same time on 26 August 2019, the solicitor for the respondent confirmed that the respondent would oppose any application by the applicant to withdraw the deemed admission consequent upon the applicant's "failure to dispute that notice within 14 days." 23 It was common ground that the notice of dispute was served on 23 August 2019, one day late. 24 Three matters were relied on by the respondent in opposing the applicant's application for leave. First, it was submitted there was no good reason why there was not a notice to dispute served within the 14 day period: there was no explanation given. Secondly, the respondent submitted there was no good reason advanced showing a positive challenge to the training and character requirements. He submitted that this was no more than a belated attempt to put the respondent to proof, in circumstances where a notice to admit facts is designed to dispense with precisely that. Thirdly, the respondent submitted that there was prejudice to the respondent if the deemed admission were permitted to be withdrawn. 25 In my opinion, the overriding consideration is the interests of justice. Relevant principles are referred to by Santow J in Drabsch v Switzerland General Insurance Co Ltd (unreported, Supreme Court, NSW, 16 October 1996), as subsequently adopted and applied in this Court: see, eg, Deangrove Pty Ltd v Commonwealth Bank of Australia [2003] FCA 268 at [28]-[35]; Turner and Townsend Pty Ltd v Berry [2012] FCA 111 at [14]; Chyb v Commonwealth Scientific and Industrial Research Organisation [2012] FCA 872 at [17]; and Lo Pilato (Liquidator) v Barclays Workshop Pty Ltd (In Liq) [2013] FCA 729 at [12]. 26 In the present case the applicant acted reasonably in seeking further information, having been served with the notice to admit. The relevant information was not available to the applicant. As noted in the second letter of 23 August 2019 from the solicitor for the respondent to the solicitors for the applicant, the requested additional material was not provided until after the 14 days had expired. Indeed, as I have already set out, the first letter of that date stated that the solicitor for the respondent "look forward to hearing your final response to the notice to admit." 27 While it would have been possible for the solicitors for the applicant to have filed the notice of dispute on 22 August 2019 rather than 23 August 2019, in the context of the communications between the solicitors for the parties to which I have referred this is not of significance. It was reasonable for the notice of dispute not to be filed on 22 August 2019 in light of the communications between the parties to which I have referred and the fact that the substantive response to the 15 August 2019 letter was not provided until 23 August 2019, the day after the 14 day period had expired. 28 No doubt the shortened preparation time, in light of the shortened timetable, meant that there remained to the respondent only one weekday within which to prepare evidence to meet the non-admission, if the deemed admission were permitted to be withdrawn. However I take into account that the notice to admit was not served by the respondent until 8 August 2019: it could have been served earlier, the relevant facts having been put in issue by the amended application dated 14 June 2019, in which case the very short time which in fact remained would have been longer. In any event, if the notice of dispute had been served within time that would have given only one weekday longer to the respondent to obtain the evidence. 29 I do not give weight to the second of the respondent's propositions, that this was a mere and belated attempt to put the respondent to proof: the issue of whether the Serco employees were each an officer goes, on the pleadings, to the lawfulness of the transfer of the applicant to Yongah Hill IDC. It is not presently clear to me why this was a matter which was not able simply to be proved by the respondent. I do not on this interlocutory application go into the question of on which party the onus of proof lies in this respect. 30 As to the respondent's third submission, I am not persuaded that there was relevant prejudice to him. The respondent had, as I have said, one weekday less than he would have had if the notice of dispute had been served on 22 August 2019, but I would not force the respondent to close his evidence on this point if, as his counsel has indicated, he needs further time to marshal the direct evidence. 31 Returning to the principles in Drabsch, I am not persuaded that there was a clear and distinct admission which was accepted by the respondent and acted upon by the respondent or that the admission was made after consideration and advice and after full opportunity to consider the applicant's case and whether the admission should be made. I am not persuaded that the admission was made with deliberateness and formality. 32 For these reasons, I granted leave to the applicant to withdraw his deemed admission. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.