DBE17 v Commonwealth of Australia

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.

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.