FLH18 v Minister for Home Affairs

1. Order 1 of the orders dated 22 October 2018 be set aside.
2. The proceeding be referred to a docket Judge for case management.
3. Costs be reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 The issue is whether it remains appropriate for the Court to hear and determine, as a separate question, whether s 494AB of the Migration Act 1958 (Cth) (the Act) imposes a bar on the applicant instituting or continuing the proceeding. 2 The substantive proceeding was commenced on 18 October 2018 by the filing of an Originating Application and Statement of Claim. The respondents subsequently filed their Defence and the applicant has filed a Reply. Notices have also been given under s 78B of the Judiciary Act 1903 (Cth) (Judiciary Act). 3 The applicant is a minor and is represented by her parent as litigation representative. The applicant, her parents and her brother arrived in Australia on 18 August 2013 as unauthorised maritime arrivals and were sent to Nauru on 22 March 2014. Nauru is a regional processing centre for the purposes of the Act. On 16 February 2016, the applicant was recognised as a refugee by the Government of the Republic of Nauru pursuant to the Refugees Convention Act 2012 (Nr). Up until very recently, the applicant and her family resided on Nauru pursuant to a visa granted under the laws of Nauru. The applicant's parents and now two siblings have also been recognised as refugees by the Government of the Republic of Nauru. 4 In her Originating Application, the applicant sought various relief against the Minister for Home Affairs and the Commonwealth. The relief includes damages for an alleged breach of the duty of care owed to her by the respondents; an injunction requiring the respondents to take all steps within their power to ensure that the applicant, together with her parents and two siblings, are brought to Australia from Nauru so that the applicant can immediately access necessary medical treatment and care; alternatively, an injunction requiring the respondents to cease failing to discharge their duty to procure and ensure the continued provision to the applicant of the necessary care; and a declaration that the respondents will contravene their duty of care to the applicant if they fail to take reasonable steps to ensure the continued provision to the applicant of the necessary care. 5 The applicant also sought various interlocutory relief, including an order that the respondent Minister take all steps within 48 hours to ensure that the applicant, together with her relevant family members, be transferred to a location in Australia where she can immediately access rehydration and refeeding management treatment as well as treatment by paediatric psychiatric services in accordance with medical advice. 6 When the proceeding came before the Duty Judge on 18 October 2018, the respondents raised the issue whether the proceeding was barred by ss 494AB(1)(a) or (ca) of the Act. Those provisions are as follows: 484AB Bar on certain legal proceedings relating to transitory persons (1) The following proceedings against the Commonwealth may not be instituted or continued in any Court: (a) proceedings relating to the exercise of powers under section 198B; … (ca) proceedings relating to the performance or exercise of a function, duty or power under Subdivision B of Division 8 of Part 2 in relation to a transitory person; … 7 On 18 October 2018, the respondents gave an undertaking that they would take all reasonable steps to ensure that the applicant, together with her parents and two siblings, would be transferred to a location in Australia where she can be assessed in a tertiary level hospital and treated in accordance with the recommendations of the medical practitioners at that tertiary hospital. The undertaking was given so that the question as to the possible application of s 494AB of the Act could be determined in an orderly fashion, rather than in the urgent circumstances in which the injunctive relief was sought. 8 On 22 October 2018, the Duty Judge ordered that the separate question be heard and determined pursuant to r 30.01 of the Federal Court Rules 2011 (Cth) (2011 FCRs). The hearing of the separate question was initially listed for hearing on 25 October 2018, but for reasons which will shortly emerge, this was subsequently deferred to 2 November 2018. The Chief Justice made a determination under s 20(1A) of the Federal Court of Australia Act 1976 (Cth) that the Court's original jurisdiction in respect of the hearing and determination of the separate question be exercised by a Full Court. 9 The applicant and her family were transferred from Nauru to Australia on 21 October 2018. In view of this development, the requirements of s 78B of the Judiciary Act, and also noting the applicant's request that she have more time to prepare a response to the lengthy outline of written submissions originally filed by the respondents on 23 October 2018, the hearing of the separate question was deferred to 2 November 2018. Directions were given for the respondents to file a Defence, the applicant to file a Reply, and the parties to provide outlines of written submissions. The parties were directed to seek to agree a statement of facts and documents upon which the Court is to determine the separate question. 10 At the commencement of the hearing on 2 November 2018, the Court heard submissions from the parties as to whether the separate question procedure remained appropriate in light of developments which had occurred post 22 October 2018. These developments related to the content of the pleadings and the issues which remained in dispute between the parties, as well as the limited ambit of the statement of agreed facts. One of the matters which was influential in the original decision to proceed by way of separate question was that the Court was told that the current proceeding was a test case and that more proceedings seeking similar relief in this Court were anticipated in the near future. 11 The Court's power under r 30.01 of the 2011 FCRs is a broad one. Some of the general principles are summarised in Rainsford v Victoria [2005] FCAFC 163; 144 FCR 279 (Rainsford) at [35]-[44] per Kenny J (with whom Hill and Finn JJ agreed). The basic requirement is that it must be just and convenient to make such an order, against the background of the normal procedure being that all issues of fact and law are to be determined at the one time. It is well settled that care should be taken in exercising the separate question procedure. As Black CJ and Moore J observed in Save the Ridge Inc v Commonwealth [2005] FCAFC 203; 147 FCR 97 at [15], the procedure "should be adopted with caution and can be fraught with difficulties". The difficulties are well exemplified in this proceeding. 12 It is important to avoid using the separate question procedure to determine issues which are not "ripe" for separate and preliminary determination, as Kirby P observed in CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601 at 606. It is generally necessary for the parties to agree the relevant facts (or for the Court to determine those facts) before determining the separate question (Rainsford at [36], referring to Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at [49]). 13 It is important not to lose sight of the underlying objective of the procedure which is to promote efficient case management and to save time and resources for both the parties and the Court. 14 Where the proposed separate question raises the issue for preliminary determination of the Court's jurisdiction to entertain the proceeding, as is the case here, it might be thought that time and costs will be saved if that issue is heard and determined as a separate question. For the following reasons, however, we do not consider that that is the case here having regard to the pleadings and statement of agreed facts which have been filed. 15 First, the respondents have raised numerous pleading issues in their Defence and reply submissions. They have emphasised the applicant's failure to identify with precision any statutory powers which are relied upon. The point is highlighted by the position taken by the respondents in their Defence to [22] of the Statement of Claim, which relates to the central issue of whether the Commonwealth owes a duty of care. The applicant pleads that the Commonwealth owes her a duty of care to exercise its statutory powers (as vested in the Minister) and non-statutory executive power to take reasonable steps inter alia to procure for the applicant a reasonable and adequate standard of medical treatment, to be provided in an appropriate environment. The specific statutory powers are not identified. In their Defence to this pleading, the Commonwealth objects to the pleading and says that the applicant should be required to identify the relevant statutory powers. Otherwise, the Commonwealth denies the paragraph. It is not appropriate to resolve such a pleading dispute in the context of a separate question procedure. This issue should be left to the Docket Judge. 16 Secondly, in their reply submissions, the respondents raise the issue whether the applicant's failure to identify relevant statutory provisions in the Statement of Claim is in non-compliance with various rules of the 2011 FCRs. This issue should be left to the Docket Judge. 17 Thirdly, to date, the applicant has not sought to amend the Originating Application or Statement of Claim, or to identify any relevant statutory power relied upon, stating that it is a matter for the Commonwealth to determine the source of any power upon which it relies to give effect to any relief granted by the Court. The parties' inability to resolve the issues concerning the identification of any statutory powers relied upon by the applicant and, indeed, the respondents, produces an additional complexity which may be relevant to the determination of the separate question, namely whether any relevant statutory power displaces non-statutory executive power. Again, this issue should be left to the Docket Judge. 18 Fourthly, there are other significant difficulties presented by the pleadings. The Statement of Claim was filed prior to the grant of interlocutory injunctive relief, and the applicant and her family have since been transferred to Australia in order that she can receive appropriate medical treatment. This fundamental change in circumstance is not reflected in the Statement of Claim. The fact that any anticipated breach of duty has now been answered also does not appear. If there remains a claim of continuing breach of duty, it is not now pleaded, and the scope of any alleged past breach is unclear. There is a related problem in the prayer for relief. The need for the injunctions originally sought no longer exists, the applicant having been taken to an appropriate hospital for treatment. The only relief that is, or may be, pressed now is for damages. The basis for this claim is not, however, pleaded. Damages remain unparticularised. If the Statement of Claim were amended, as it should be, there would be no prayer for injunctive relief for transfer to Australia and, in this circumstance, no question could arise about whether or not continuation of the proceedings could relate to the exercise of powers under s 198B so as to attract the bar under s 494AB(1)(a). A question might still remain as to whether or not the bar was attracted by virtue of s 494AB(1)(ca). This however raises different issues. Looking at the case as it exists, leaving aside these problems, it is plain that the applicant and the respondents have a different conception of how the duty of care arises or could arise, and therefore how it must be pleaded. 19 The applicant's case is in substance that this case is about an alleged breach of duty of care owed to her by the respondents, which duty primarily arose from the respondents' assumption of responsibility for her welfare, including medical care, on Nauru, and her vulnerability and dependence on the respondents to make provision for her welfare and provide adequate medical care. The breach of duty, thus described, was a failure to provide adequate medical care for her. The claim for damages would fall to be assessed against this breach. On this understanding, the statutory and non-statutory provisions on which the Commonwealth acted to give rise to its assumption of responsibility explain but are not central to the applicant's case. The respondents, on the other hand, contend that the existence of any duty of care necessarily depends on the relevant statutory framework under which the Commonwealth acted. 20 These very different approaches are not reflected in the agreed facts. Instead, the separate question is put to the Court with only the barest of agreed facts. There is nothing in the statement of agreed facts that provides any support for the significant allegations which are central to the applicant's case. The circumstances here are distinguishable from those in Director of Public Prosecutions for the Commonwealth v JM [2013] HCA 30; 250 CLR 135. 21 There are no facts agreed to indicate that there might be any basis for the claimed duty of care, let alone breach. There are no agreed facts describing the steps the Commonwealth actually took to transfer the applicant and her family to Australia, and no agreed facts as to what powers the Commonwealth purported to exercise in giving effect to the undertakings earlier provided to the Court. 22 Fifthly, the applicant and her family have now been brought to Australia, but it is unclear whether any statutory power was relied upon and whether or not the family were granted visas. 23 Sixthly, if the matter were to proceed to trial in the normal way, and depending on what other evidence may be adduced, the applicant could seek discovery, which may disclose material relating to such matters as the source of any statutory power under which the family was brought to Australia, whether visas were granted, or whether executive power was used. 24 Seventhly, there is a degree of artificiality about hearing the separate question in circumstances where the applicant and her family have now been brought to Australia. In light of that fact, this case can no longer be a test case for anyone who remains on Nauru because the applicant can no longer seek injunctive relief relating to her transfer to Australia. The form of any pleadings in a future case is unknown. 25 Finally, the applicant no longer supports the use of the separate question procedure. This is another relevant consideration even though it is not determinative. 26 These matters, which indicate that the separate question is not ripe for determination, outweigh the fact that, at the time the order was made to proceed by way of separate question, the respondents proffered undertakings with a view to the Court determining whether it had jurisdiction which at that time it was contemplated would be resolved by a separate question. 27 It is important that the bar imposed by s 494AB operates by reference to the institution or a continuation of the proceeding. The issue of jurisdiction may therefore need to be determined more than once, as the proceeding evolves. That is an important matter in the circumstances of the present proceeding, which for reasons given above, are not yet fully developed.