CVV20 v Commonwealth [2025] FCA 1214

1. The proceeding was commenced by an originating application that was accepted for filing on 10 November 2023, accompanied by an affidavit of the applicant sworn on 20 October 2023. In his affidavit, the applicant recounted the circumstances of a search of his room at MIDC that was carried out by Serco officers on 1 September 2023, and his subsequent complaints about missing personal property, including a mobile phone.
2. After the applicant obtained the assistance of pro bono counsel, he filed a further amended originating application and an amended statement of claim dated 23 February 2024.
3. In its defence dated 16 July 2024, the Commonwealth objected to the jurisdiction of this Court to hear and determine the proceeding. The Commonwealth also relevantly denied that Serco was the agent of the Commonwealth in so far as the alleged acts or omissions "were not required or authorised by the terms of the Serco Contract, on its true construction". The "Serco Contract" was a reference to an agreement entered into between the Commonwealth (represented by the Department of Immigration and Citizenship) and Serco on or around 10 December 2014.
4. By his further amended statement of claim dated 27 August 2024, the applicant seeks damages and orders to compel the return of his property. He also challenges the validity of a "Controlled Items Policy" that is alleged to have been adopted by the Secretary of the Department of Home Affairs as part of the "Detention Services Manual". The causes of action on which the applicant relies include trespass to the person, trespass to goods, conversion and detinue, and deceit.
5. By an interlocutory application dated 7 July 2025, which was accepted for filing on 23 July 2025, the applicant seeks orders that the proceeding be transferred from this Court to the Supreme Court of Victoria, along with all necessary orders to facilitate the transfer of the file and related documents to the receiving court. The interlocutory application follows correspondence between the parties, in which the Commonwealth pressed its concerns that the original statement of claim had failed to engage the jurisdiction of this Court, and that the further amended statement of claim had not resolved the jurisdictional issue.
6. On 16 May 2025, the respondents' solicitors had informed the Court that the Commonwealth considered that an application to transfer the proceeding was necessary in the circumstances, and that they understood that the applicant agreed with this course and was considering a timetable for the transfer application. In his affidavit sworn on 24 June 2025, the applicant referred to this correspondence and stated:

I understand and agree with the Commonwealth that a transfer to the Supreme Court of Victoria will allow for the appropriate management of this case.

1. Section 5(4)(b)(iii) of the Cross-vesting Act provides:

(a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Federal Court or the Federal Circuit and Family Court of Australia (Division 1) (in this subsection referred to as the first court); and

(b) it appears to the first court that:

...

(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of a State or Territory;

the first court shall transfer the relevant proceeding to that Supreme Court.

1. Notwithstanding that the Commonwealth has raised a question concerning this Court's jurisdiction to hear and determine the proceeding, I am satisfied that I have power to make an order to transfer the proceeding under s 5(4) of the Cross-vesting Act.
2. It can be accepted that an order to transfer a proceeding involves an exercise of jurisdiction in respect of the proceeding: McIntosh v National Australia Bank Ltd [1988] FCA 72; (1988) 17 FCR 482 at 483-484 (Gummow J). Accordingly, uncertainty as to the existence of jurisdiction might not of itself be a sufficient basis on which to conclude that a transfer of the proceeding is in the interests of justice for the purposes of s 5(4) of the Cross-vesting Act, although doubts about jurisdiction can arguably be taken into account as a relevant factor in the exercise of discretion: cf. Bell Group Ltd v Westpac Banking Corp [2000] FCA 439; (2000) 104 FCR 305 at [209]-[211] (Carr J); Johnson Tiles Pty Ltd v Esso Australia Ltd (No 4) [2001] FCA 421; (2001) 113 FCR 42 at [15(3)] (Merkel J).
3. If it is clear that a pending proceeding is not within the jurisdiction conferred on this Court, including accrued jurisdiction and jurisdiction in associated matters under s 32 of the Federal Court of Australia Act 1976 (Cth) (FCA Act), the appropriate course may be to dismiss the proceeding for want of jurisdiction rather than make an order for its transfer to another court, at least if the matter is not one within federal jurisdiction: see e.g. Amalia Investments Ltd v Virgtel Global Networks NV (No 2) [2011] FCA 1270; (2011) 198 FCR 248 at [11]-[12], [19]-[20], [33], [35] (Greenwood J); cf. BZX23 v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 299 FCR 312 at [19]-[20] (Rares J), in relation to the power conferred by s 32AB of the FCA Act to transfer a pending proceeding from this Court to the Federal Circuit and Family Court of Australia.
4. In order to engage the jurisdiction of this Court, it is sufficient that there is a non-colourable, bona fide allegation that attracts such jurisdiction: see Prasad v Google LLC [2020] FCA 67 at [18] (Wheelahan J), referring to Abebe v Commonwealth (1999) 197 CLR 510 at [32] (Gleeson CJ and McHugh J). The matter will then remain within federal jurisdiction regardless of how the federal issues are ultimately resolved: Rana v Google Inc [2017] FCAFC 156; (2017) 254 FCR 1 at [21]-[22] (Allsop CJ, Besanko and White JJ).
5. Although the current matter clearly involves federal jurisdiction (see s 75(iii) of the Constitution), the fact that the Commonwealth and the Secretary have been joined as respondents does not itself bring the proceeding within the jurisdiction conferred on this Court by s 39B of the Judiciary Act 1903 (Cth). Relevantly, the matter will be within jurisdiction if it arises under any laws made by the Parliament for the purposes of s 39B(1A)(c) of the Judiciary Act.
6. Putting to one side the question whether the determination of the jurisdictional issue is itself capable of raising a matter of that kind (cf., e.g., BZX23 at [16]-[17] (Rares J), in the context of the power to dismiss proceedings for want of jurisdiction and to award costs in such proceedings), the claims made by the applicant in the further amended statement of claim and joined in the Commonwealth's defence involve non-colourable and bona fide allegations arising from the provision of services by Serco in relation to the operation and regulation of a detention centre established under the Migration Act. This includes an issue about whether and to what extent Serco was acting on behalf of the Commonwealth when engaging in any of the acts or omissions that are alleged in the further amended statement of claim. Further, the applicant has claimed against the Secretary that the adoption of the Controlled Items Policy as part of the Detention Services Manual was beyond power and was not authorised by ss 252 or 273 of the Migration Act. The respondents have not yet pleaded in response to that claim.
7. Accordingly, I am satisfied that the proceeding involves a matter arising under a law made by the Parliament within the meaning of s 39B(1A)(c) of the Judiciary Act, and that the jurisdiction of this Court has been regularly invoked.
8. I consider that it is in the interests of justice that the proceeding be determined by the Supreme Court of Victoria. In reaching this conclusion, I have taken into account the parties' consent to the transfer of the proceeding, from which "it can be inferred that there are advantages, and that there are no relevant disadvantages, to the transfer of the proceeding, such that it is in the interests of justice to do so": Prasad at [30] (Wheelahan J). In addition, the transfer may reduce costs and avoid any potential uncertainty arising from residual jurisdictional issues. In so far as the principal claims advanced in the proceeding involve common law remedies in respect of alleged acts of trespass, conversion and detinue, such causes of action are appropriate to be litigated in a State court.
9. For these reasons, the proceeding should be transferred to the Supreme Court of Victoria pursuant to s 5(4) of the Cross-vesting Act. I note that s 12 of the Cross-vesting Act provides that the court to which a proceeding is transferred may make an order as to costs that relate to the conduct of the proceeding before the transfer if those costs have not already been dealt with by another court. In the present case, the parties have agreed that the costs of the proceeding to date in this Court should be costs in the cause.

I certify that the preceding nineteen (19) numbered paragraph are a true copy of the Reasons for Judgment of the Honourable Justice Horan.