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[2021] FCA 556
Federal Court of Australia
2021-05-26
Jessup J, Mortimer J
Original judgment source is linked above.
The applicant's additional proposed common questions
Purpose of detention questions for the Visa Group members 56 The applicant's proposed questions are: Was it a purpose of the detention of the Applicant and all other Visa Group Members to either: a. receive, investigate and determine an application for a visa permitting that person to enter and remain in Australia; or b. determine whether to permit a valid application for a visa from that person? If the answer to question [1] is 'yes': a. what was the maximum period of time within which it was reasonably practicable to pursue and carry into effect either or both of the visa purposes? b. was detention unlawful beyond that period of time? 57 In the form proposed, these questions lack the very commonality sought to be exposed. The factual inquiry into the circumstances of each individual, in terms of when and how their Australian visa processing occurred (indeed, if they were offered the opportunity to apply for a visa at all), and the circumstances in which they were either taken, or not taken, to a regional processing country, would be highly complex. The potential size of the class is about 42,000 individuals, as the Court was advised by senior counsel for the Commonwealth at the 11 March 2021 case management hearing. 58 While this is a question which will need to be answered for each group member to succeed on liability (assuming AJL20 is upheld by the High Court), it is not a formulation which reveals any common question of fact, because the answers will depend on the factual situation that existed for each individual, over a period of several years. 59 I do not accept the applicant's submissions (at [4]) that these questions "do not fundamentally alter the way in which the initial trial is to occur. The applicant's formulation therefore does not create any prejudice or uncertainty". I consider posing these question will require the applicant to adduce evidence about the purpose of detaining individual group members; or at least a sufficient number of them that inferences could reasonably be drawn that the same purpose existed for all group members. That is a very different forensic exercise to proving these matters in relation to the applicant and his family members; and given the size of the group, it would be a considerable exercise, to say the least. 60 Having said that, this does not mean (as no more than an example) that evidence of policies, or practices, which might be applicable to a larger group of people than the applicant and his family members, will not be admissible on the purpose questions as framed, or in order to prove the applicant's own case. Such evidence may well tend to prove the purpose of the applicant's detention and that of his family members, or to disprove the Commonwealth's case on these matters. 61 These matters will be decided in the December 2021 trial in respect of the applicant, and his family members (since he was a young child at the time), but they will not be suitable for the Court to pronounce common orders on, after only a trial on the applicant's case. If during the trial it emerges that some common question or questions could be framed around this issue, the applicant may apply for leave to add a further question or questions, and the Court will consider any such application. 62 At this stage however, these questions (numbered 1 and 2 on the applicant's list) are rejected.
Further purpose of detention questions for the applicant and all group members 63 The applicant proposes two further questions that focus on purpose of detention arguments. They are numbered 8 and 9 in the applicant's list: Was there was any purpose, other than the visa purpose or the removal purpose, for the detention of the Applicant and all other Group Members? If: a. for Visa Group Members, the answer to question 2b is "yes" and the answer to question 8 is "no"; b. for Designated Regional Processing Cohort Group Members, the answer to question 7 is "yes" and the answer to question 8 is "no"; was the detention while there was no purpose, unlawful? 64 The applicant made no specific submissions about these questions. 65 The Commonwealth submits the first of these two questions has no utility because it will turn on the facts of each case. I agree. It is the mirror proposition to the purpose question rejected above; and asks the applicant to prove in a positive way, and the Court to identify, the "real" purpose of each group member's detention, on the assumption it was not for the purpose of deciding whether to grant a visa, removal or taking under s 198AD. Yet the premise of the first agreed question is that those three purposes exhaust the universe of lawful purposes (assuming AJL20 to be correctly decided). Neither party advances any other lawful purpose. Therefore, this question looks at a factual level to the specification of the unlawful (but "real") purpose, and this could only be done on a case by case factual basis. That renders the question not a common question at all. 66 The Commonwealth's objection to the second of these two questions is said to flow from its objection to the other purpose questions which it contends are fact specific. I agree that is one basis on which this second question is inappropriate - it also looks forensically at the individual circumstances of the detention of each group member. 67 In my opinion a further difficulty with this question is that it is unnecessary. The premise of all the "purpose" questions is that AJL20 is correctly decided. As I have noted, both parties appear to accept there are only three "lawful" purposes for executive detention under the Migration Act - determining whether a person should be granted a visa, removal, or taking to a regional processing country under s 198AD (perhaps together with processes related to any of these purposes, such as any exercise of personal Ministerial discretion). If that is the case, then following AJL20, detention for any other purpose (or for no purpose) would be unlawful. That is a logical consequence of answering the other questions in favour of the applicant, and there is no utility in separating out another question, indeed it is likely to lead to confusion. 68 Finally, I agree with the Commonwealth's submissions at [15] that there is some ambiguity in what is meant by "purpose" in these questions, and that is a further reason to reject them. 69 These two proposed questions are rejected.
An additional question on reasonable practicability 70 After the agreed questions on reasonable practicability, the applicant seeks to have a further question formulated. The additional question is posed by reference to the second of the two reasonable practicability questions I have accepted above: If the answer to question 6 is "yes", was any detention for such purpose unlawful? 71 I consider this is covered in substance by (b) of the agreed purpose question, about taking to a regional processing country. The premise of that question is that the taking is not reasonably practicable. The question then asks if that renders the detention unlawful. There is no further or different utility that I can see in this additional question. 72 This proposed question is rejected.
An additional loss and damage question 73 The applicant proposes an additional question on loss and damage: What other matters are relevant for assessing loss and damage? 74 The Commonwealth submits this question is too vague to be of assistance and I agree. It may be the case that there are additional matters relevant for assessing loss and damage if the applicant, his family, or any group member is found to have been unlawfully detained. Indeed it seems to me to be quite likely there will be a range of other factors, but they are likely to be personal to individual group members. They may relate to their particular circumstances of physical or mental health, or to their particular vulnerabilities. They may relate to a particular way in which they were treated in one of the regional processing countries, or in Australia. 75 Without evidence about the circumstances of all group members, it will not be possible to know what further or other range of factors might be relevant. Therefore, such a general question is not appropriate.
Conclusion 76 Orders will be made adopting the form of orders made by Jessup J. The parties made no submissions about the form of orders. If there are any difficulties, the parties can apply to amend or vary the orders as made. 77 I consider it is appropriate to reserve an initial question for the Court, as the Full Court suggested and Jessup J ordered, to re-consider at the time of answering the questions, if the questions remain properly characterised as common questions. As I have also noted, the making of these orders do not preclude the parties during the trial, and on the basis of the evidence as it has been adduced, proposing that there are additional questions which should be added to this Schedule. 78 The costs of determining the common questions should be costs in the cause. I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mortimer.
Definitions In this Schedule: Relevant period means the period between 27 August 2011 and 25 February 2020 inclusive. Designated Regional Processing Group Member means any group member who arrived in Australia after 12 August 2012 and, if that person arrived in Australia: (a) before 1 June 2013, met the definition of "offshore entry person" under the Migration Act; and (b) on or after 1 June 2013, met the definition of "unauthorised maritime arrival" under the Migration Act.
Commonality (1) Are any and which of the questions set out below common to the claims of the group members?
Limits of lawful detention (2) During the Relevant Period, did the detention in Australia of a person, initially required by s 189(1) of the Migration Act 1958 (Cth), become unlawful if: (a) neither: (i) the consideration of possible grant of a visa to the person; (ii) the removal of the person under s 198 of the Migration Act; (iii) nor the taking of the person to a regional processing country under s 198AD of the Act, was being pursued by officers of the Commonwealth; or (b) in the case of a person who was required to be taken to a regional processing country under s 198AD - (i) that taking was not reasonably practicable, and (ii) there was an insufficient prospect of that taking becoming reasonably practicable in the foreseeable future?
Reasonable practicability (3) In taking, or considering whether to take, an unauthorised maritime arrival to whom s 198AD of the Migration Act applies from Australia, are the following matters relevant to the question of whether that removal is "reasonably practicable": (a) whether taking the person to a regional processing country would amount to refoulement; (b) whether the person would be unlawfully detained on arrival at a regional processing country; (c) whether taking the person to a regional processing country would result in detaining a minor other than as a measure of last resort; (d) whether the person was, or had a family member who was, a child, a pregnant woman of over 30 weeks' gestation, or carrying a blood borne virus, when neither regional processing country had adequate facilities to accommodate the family or travel to a regional processing country for those members was not otherwise reasonably practicable? (4) Is it open to a court to find that the taking of a person to a regional processing country was not "reasonably practicable", within the meaning of s 198AD of the Migration Act even if that person was in fact taken to a regional processing country? (5) If the answer to any of question 3(a)-(d) is "yes", was it for that reason not reasonably practicable, during the period 27 August 2011 and 25 February 2020, to: (a) take any Designated Regional Processing Group Member to Nauru or Papua New Guinea, or (b) alternatively, take to Nauru or Papua New Guinea any Designated Regional Processing Group Member who was not so taken?
Issues common to the Applicant and all Group Members (6) As to the Group Members (if any) in relation to which the Commonwealth is liable in damages for unlawful imprisonment, are any of the following matters to be taken into account in assessing loss and damage: (a) the fact that the person is a minor; (b) if the person is a minor, the fact they were detained with family members and, if so, is there is any difference between accompanying family members; (c) the number of days spent in detention by the person; (d) whether the person was detained unlawfully in Australia; (e) whether the person was detained unlawfully (as a matter of Australian law or Nauruan law) in Nauru; (f) whether the person was detained unlawfully (as a matter of Australian law or Papua New Guinea law) in Papua New Guinea; (g) the conditions of the detention, including but not limited to access to educational programs, medical facilities, and conditions of accommodation for detainees; and if so which conditions; (h) the fact that the person was initially detained lawfully and their detention became unlawful at a later date? (7) If the answer to any of question 6(a)-(h) is "yes", how should the Court take those matters into account in assessing any loss and damage suffered by individual Group Members?
DBE17 (by his litigation guardian Marie Theresa Arthur)
Commonwealth of Australia
MORTIMER J: 1 On 10 July 2020 the Court dismissed the Commonwealth's application to strike out the claim in this proceeding, and dismissed the Commonwealth's application for summary judgment. Since then, the parties have been preparing for trial, in compliance with the court's orders made on 2 December 2020, and varied on 11 March 2021. The trial in this proceeding is listed for December 2021. 2 As part of that preparation for trial, two other matters arose. The first was a late application by the Commonwealth under s 33N of the Federal Court of Australia Act 1976 (Cth) for orders that the proceeding no longer continue as a representative proceeding under Part IVA of the Federal Court Act. The basis for that application, in substance, was the Commonwealth's contention that there were no common questions of law or fact arising in the proceeding which justified the proceeding continuing under Part IVA. 3 There was also some significant non-compliance by the Commonwealth with the Court's discovery orders. That conduct is traced in the costs ruling handed down on 26 February 2021. So far as the Court is aware, discovery is now proceeding in compliance with the Court's revised orders. 4 Relatedly to the s 33N application, the parties raised the question whether the Court should make what are generally called "Merck orders", so named because of their origin in the trial judgment of Jessup J in Peterson v Merck Sharpe & Dohme (Australia) Pty Ltd [2010] FCA 180; 184 FCR 1; and the predecessor Full Court decision in Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2009] FCAFC 26; 355 ALR 20 (Merck FC). 5 The Merck orders issue had been under consideration for some time and had been addressed in the Court's orders of 2 December 2020. The following orders were made: 1. The applicant provide the respondent a draft list of issues to be determined at the trial of the proceeding by 20 January 2021. 2. The respondent provide to the applicant any response to the draft list of issues referred to in the preceding paragraph by 10 February 2021. 3. The parties having conferred about the draft list of issues, the applicant file and serve any agreed list of issues by 19 February 2021. 4. There be a further case management hearing in the week commencing 22 February 2021 for the purposes of identifying the issues arising on the applicant's case which are said by the parties to be common and are proposed to be the subject of orders pursuant to s 33ZB of the Federal Court of Australia Act 1976 (Cth) following the initial trial. 6 A case management hearing was listed on 24 February 2021 as the orders contemplated. It was shortly before this case management hearing that the Commonwealth filed its s 33N application. The explanation given by senior counsel for the filing of this application after approximately 18 months of case management and other interlocutory applications by the Commonwealth was, in substance, that during the process of attempting to identify common questions, the Commonwealth had formed the view that there were no such questions, and had resolved the most appropriate course was to bring a s 33N application. At the 24 February case management hearing, there was little common ground between the parties about the identification of common questions. 7 After hearing from counsel, the approach the Court indicated it would adopt was to hear the parties on their respective positions on the common questions on 11 March 2021, and to see if through the case management hearing the parties could come to an agreed position. If they could not, the Commonwealth's s 33N application would be heard on 30 March 2021. 8 In the Court's view, the 11 March 2021 hearing was a useful exercise. It clarified a number of matters about how the applicant puts his case, which were not clear before. Some of those matters are critical to the identification of common questions, as I explain below. After hearing counsel's respective submissions, including follow up submissions after questions from the Court, the Court gave the parties an indication, no more than that, about some matters which appeared from the submissions made, considered with the pleadings, to give rise to common questions and why the existence of those matters might make it appropriate for the matter to remain as a representative proceeding, at least for the time being. Chief amongst those matters was the applicant's reliance on the decision in AJL20 v Commonwealth of Australia [2020] FCA 1305. 9 After the case management hearing, the Commonwealth informed the Court that it did not press its application under s 33N. The parties also informed the Court they still could not agree on common questions. Accordingly, the Court requested the parties to provide their proposed common questions and submissions supporting them, so that the Court could determine what questions should be identified ahead of the trial in December 2021. 10 The parties agreed that the matter could be determined on the papers without any further hearing.
The Merck litigation itself 12 The Merck case itself was a long trial about the sale of a pharmaceutical product marketed as "Vioxx", distributed and sold in Australia from early 2001 until it was withdrawn from the market in September 2004. There were two respondents, the Australian arm of Merck, Merck Sharp & Dohme (Australia) Pty Ltd, and its parent company in the US, Merck & Co., Inc. 13 Mr Peterson, the lead applicant, took Vioxx for back pain but in December 2003 he suffered a serious heart attack which he alleged in the proceeding was related to the consumption of Vioxx. His principal claim was thus in tort, but there were also claims under the then Trade Practices Act 1974 (Cth). The class was defined, relevantly, by reference to the medical conditions group members were alleged to have suffered as a result of consuming Vioxx. There were a number of medical conditions, not just heart attack; for example thrombotic stroke, unstable angina, transient ischaemic attack and peripheral vascular disease. 14 Two interlocutory matters went to the Full Court on appeal ahead of the main trial. First, the respondents applied for orders under s 33N ahead of trial, but were unsuccessful. The Full Court refused leave to appeal from Jessup J's decision in this respect. Second, the respondents sought orders under s 33ZF requiring Mr Peterson to specify "each of the matters that the Court is being invited to determine for all alleged group members through a trial of the Applicant's claim": see [1] of the Full Court's reasons in Merck FC. Jessup J refused to make such orders, and on appeal the Full Court held his Honour erred in refusing to do so, and that such orders should have been made. 15 Jessup J's approach to this matter is set out at [4] of the Full Court's reasons (extracting [54]-[57] of Jessup J's decision on the interlocutory application in Peterson v Merck Sharp & Dohme (Australia) Pty Ltd (No 3) [2009] FCA 5). In substance, his Honour took what he described as a "conventional template" approach, concluding he should decide the allegations made by Mr Peterson in his pleading. Jessup J accepted some evidence might be admitted which was not strictly relevant to Mr Peterson's case alone, but declined to construct what his Honour described as an "inventory". He considered it was not appropriate for the Court to draw up an inventory of matters or issues to which the trial would be confined would serve only to provide considerable scope for later argument, particularly with respect to the admissibility of evidence. Questions which ought to be resolved by reference to the pleadings might then, in the contention of one or other of the parties, have to be resolved also by reference (or rather by reference) to the inventory. In other words, any such inventory would introduce a layer of complication, with the additional delays and costs necessarily attendant thereon. 16 The Full Court did not agree, for a number of reasons. In substance, the following factors appear from the Full Court's reasoning: (a) The fact a matter is a representative proceeding needs to be accommodated in the way the initial trial proceeds, even if its principal focus is on the claim of the lead applicant (at [5]-[6]). (b) Even where there is a controversy about which issues of fact and law are "common", the Court (at [7]): should, in the ordinary course (at least in relation to proceedings involving a sizable group where liability may depend on each member's individual circumstances), initially deal with issues that are common to all members of the representative group or a sub group of that group. (c) An advantage of such a process is, if the common issues are framed as questions, and answers are given in the orders, an affected party can appeal from them (at [8]). (d) Common questions will provide a "touchstone" for rulings in relation to evidence during the trial, where the pleadings may not, especially if the pleadings raise issues relevant to group members other than the lead applicant, which would not be part of the trial (at [9]). 17 The Full Court had invited the parties to submit common questions as part of the appeal process, but ultimately determined to leave the formulation of the questions to the trial judge in remitter. The Court emphasised the need for a "preliminary question" whether a matter was a common issue: at [12]. 18 The Full Court's observations at [5]-[6] and [9] reflect the intended outcome of Part IVA of the Federal Court Act, in the sense that an objective is to ensure that the Court can make orders which can then operate as a form of "statutory estoppel" against group members: see Timbercorp Finance Pty Ltd (in liquidation) v Collins; [2016] HCA 44; 259 CLR 212, at 234-245; [48]-[52].
After the Merck trial 19 After the trial, an appeal against Jessup J's final orders in favour of Mr Peterson was successful: see Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2011] FCAFC 128; 196 FCR 145 (the second Full Court). An application for special leave to appeal to the High Court was refused. However, the success of the appeal is not material in looking at the issue of making of orders about common questions. That was the subject of the earlier Full Court decision and in its judgment on the appeal after trial, the Full Court did not need to engage with the "common questions" aspect of the trial.
Other authorities 30 In some cases, the list of common questions formulated may involve a significant amount of detail: see for example Dillon v RBS Group (Australia) Pty Ltd [2017] FCA 896; 252 FCR 150 at [14], Lee J. Much will depend on the nature of the causes of action in a proceeding. 31 Also in Dillon, Lee J noted at [66] that in addition to the Court dealing with common questions "properly so called", the Court might also deal with questions which have utility in resolving aspects of the claims of a subset of the group members, which, to adapt Gillard J's phrase, may be called issues of commonality. (Emphasis original.) 32 The reference to Gillard J is a reference to Gillard J's reasons for judgment in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2003] VSC 27; Aust Torts Reports 81-692, at [42]: In my opinion, it is important that the Court conducts group proceeding litigation in a practical manner and ensures that as many questions of law and fact having a degree of commonality are decided. Once the group proceeding is completed and if an individual claim is to proceed, the individual litigant has the benefit of findings of law or fact to assist him in obtaining relief. It follows that a group proceeding is not concerned with the complete cause of action of a claimant, in the sense that all elements of the cause of action and issues raised are determined in the proceeding. The Court considers and determines the common questions of law and fact. 33 In Dillon at [7]-[8], Lee J pointed out that while the provisions of Part IVA such as s 33H are designed to allow a Court to ensure that a proceeding is properly constituted as a class action, what are initially set out as common questions in the originating application do not operate to confine, or define, the common questions for the balance of the proceeding. His Honour used as an example common issues of fact which may arise from an averment in a defence or other pleading. At [9], his Honour said: By whatever means common questions arise, what is critical for the orderly conduct of a Pt IVA proceeding, is that prior to an initial trial there is specificity in what common questions are being determined at the trial. In Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2009] FCAFC 26; (2009) 355 ALR 20, the Full Court explained that at the conclusion of an initial trial, the court should pronounce formal orders regarding the common questions, perhaps by way of formal declarations or answers to questions. 34 In Ethicon Sàrl v Gill [2021] FCAFC 29, the Full Court emphasised the importance of orders being made reflecting the common questions in a Part IVA proceeding, and the confusion which can arise if such orders are not made: see [60]-[61]. 35 I have taken all these authorities into account in determining the parties' competing submissions about the proposed common questions in this proceeding.
Some initial qualifications and clarifications 38 During the 11 March 2021 hearing, the circumstances of group members were discussed, in relation to the applicant's pleading at [25] of the amended statement of claim. The applicant confirmed that the group description covers, and is intended to cover, people who were in fact taken from Australia to Nauru and Papua New Guinea. In Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; 257 CLR 42, a majority of the High Court held that people taken to regional processing countries under s 190AD of the Migration Act 1958 (Cth) were not detained by the Commonwealth once they were in those countries. Therefore, it seem important to clarify in the common questions whether the detention referred to is detention in Australia, or in a regional processing country. 39 There are terms used in these reasons which are defined in the further amended statement of claim, or defence. I use those terms in the same sense they are used in those pleadings. In the Schedule to the orders, I have inserted a definition of terms taken from the pleadings. 40 Except where otherwise indicated, I have generally taken the form of the common questions from the respondent's proposal, and accordingly in this ruling the quotations include cross-references to question numbers as they appear in the respondent's proposal. These numbers have been amended in the Schedule. 41 There are some further amendments I have made for clarification which I explain in context below.
[2003] VSC 27
(2009) 355 ALR 20