KDSP v Secretary of the Department of Home Affairs

THE MAKING OF THE TRANSFER ORDER 13 KDSP's originating application in the related matter was filed in the Federal Circuit and Family Court of Australia (Division 2) on 10 August 2022. The filed documents also included an affidavit of Mr Gregory Hanson, a senior lawyer with Victoria Legal Aid, made on 15 August 2022. In his affidavit, Mr Hanson stated that the lower court proceeding should be transferred to this Court "in the interests of justice" in order that that proceeding be heard with the proceeding in this Court. 14 The respondents to the proceeding in the Federal Circuit and Family Court of Australia (Division 2) are the same respondents in the proceeding in this Court. In their submissions in this Court, the respondents state that their solicitor was served with a sealed copy of the originating application in the Federal Circuit and Family Court of Australia (Division 2) and Mr Hanson's affidavit on 15 August 2022, that is, on the date on which the completed affidavit was filed in that Court. As already stated, the transfer order was made the following day, 16 August 2022. 15 At the time the transfer order was made, the respondents had not yet filed a notice of address for service or taken any other active step in the proceeding in the Federal Circuit and Family Court of Australia (Division 2). The respondents were not informed that the judge was actively considering KDSP's application for the transfer order prior to it being made on 16 August 2022, and were not given an opportunity to communicate their wishes regarding that application before the transfer order was made.

REASONS FOR THE TRANSFER ORDER 16 In reasons dated 4 October 2022, his Honour stated that the following factors, as set out in Mr Hanson's supporting affidavit, weighed in favour of the matter being transferred to this Court: (a) proceedings in respect of an associated matter were pending in the Federal Court; (b) having regard to the respective caseloads of the Court and the Federal Court, it was likely that the matter would be heard earlier if the matter was transferred to the Federal Court; (c) noting that the applicant had been held in immigration detention since December 2015, it was in the interests of the administration of justice that this proceeding be transferred and be heard together with the associated application pending in the Federal Court; (d) determining the matters together would be quicker, more efficient and less costly than pursuing two separate applications in two separate courts; and (e) the Federal Court had procedures appropriate for the case management and determination of the entire matter if the matter were transferred to the Federal Court and the two proceedings were heard together. 17 His Honour concluded that, having regard to the considerations in s 153 of the Federal Circuit and Family Court of Australia Act and r 8.02(4) of the Federal Circuit and Family Court of Australia Rules, he was satisfied that the proceeding was suitable for transfer to the Federal Court: see KDSP v Secretary of the Department of Home Affairs [2022] FedCFamC2G 804 at [13]. 18 Further, his Honour noted (at [14]-[15]) that: It is contemplated under the Rules that there will be dialogue between the Courts to determine whether a matter is appropriate for transfer. The Court notes that the Chief Justice of the Federal Court and the Chief Judge of this Court conferred prior to the making of the [transfer] order. 19 His Honour concluded (at [16]): In the circumstances, the Court determined that, on the basis of that conferral and having been so advised, it was appropriate for the matter to be transferred to the [] Federal Court pursuant to s 153 of the Act. Accordingly, the Court ordered that the matter be transferred to the Federal Court.

KDSP's submissions 20 In his written submissions, KDSP submitted that his Honour's reasons showed that he considered the matters prescribed by ss 153 and 154 of the Federal Circuit and Family Court of Australia Act and r 8.02 of the Federal Circuit and Family Court of Australia Rules. KDSP submitted that his Honour determined that the five matters listed in (a)-(e) in [16] above favoured the making of the transfer order. 21 KDSP contended that it should be inferred that his Honour considered the factor in r 8.02(4)(a), although he did not consider this to be a decisive factor. KDSP further contended that "[i]f his Honour was in error in not considering the wishes of the respondents, because those wishes were not before him, this did not prevent the Court from confirming the transfer under s 32AD of the [Federal Court Act]". Citing Van den Berg v Monash Health, KDSP contended that, although the exercise of this Court's discretion is not confined by express criteria, it would be appropriate to have regard to the factors that his Honour was required to consider in making the transfer order on the basis of the material now before the Court. 22 KDSP submitted that confirmation of the transfer order was appropriate because: (a) given his already lengthy period in immigration detention, it was in the interests of the administration of justice that proceedings be heard together, consistently with s 37M of the Federal Court Act; (b) a matter associated with the lower Court proceeding was pending in this Court; (c) the question of the sufficiency of the resources of the two courts was not significant in this case, having regard to the "integral connection" between the lower court proceeding and the proceeding in this Court; (d) although it was not said that the lower court proceeding is likely to involve a question of general importance, this factor was outweighed by other factors; (e) it was likely that the proceeding to be transferred would be heard "at less cost and more convenience to the parties than if the proceeding were not transferred, having regard to the consolidation of the two related proceedings"; (f) it is likely that the proceeding would be heard more quickly in the Federal Court; (g) the Federal Court had appropriate procedures to determine that proceeding; (h) the parties supported confirmation of the transfer order (or, in the alternative, the respondents did not oppose confirmation). 23 KPSD contended that the judge's failure to consider the respondents' wishes before making the transfer order was not material because the parties now agreed that it was appropriate that the proceeding should be transferred to the Federal Court. KPSD further contended that had the judge invited the respondents to state their position on the application for transfer, the respondents would have supported, or at least not opposed, the transfer. KPSD submitted that immaterial non-compliance should not prevent the Court from exercising its discretion to confirm the transfer order where the transfer was plainly in the interests of the administration of justice and supported by the parties.

The respondents' submissions 24 The respondents did not oppose the confirmation of the transfer order. In this connection, they referred to the fact that "steps had now been taken in this proceeding in the Federal Court, such as the holding of a first case management hearing and preliminary discussions between Kenny J and the parties about how this (and the applicant's other proceeding, VID449/2022) should move forward procedurally". 25 Having said this, however, the respondents made a number of "observations" that tended against confirmation of the transfer order. They observed that, contrary to the KPSD's submissions, the respondents did not inform KPSD that they supported the transfer or that they agreed that it was appropriate to transfer the proceeding. They further "observed" that by not seeking their views on the transfer order, the Federal Circuit and Family Court of Australia (Division 2) failed to comply with r 8.02(4)(e) of the Federal Circuit and Family Court of Australia Rules and denied them procedural fairness. The respondents stated that: [T]he applicant's submissions ... as to the materiality of any denial of procedural fairness should not be accepted. They proceed on the wrong basis that the respondents "agree that it is appropriate to transfer" and "support" the transfer ... Further, they wrongly assume that, because the respondents now do not oppose the transfer being confirmed (given that steps, such as a first case management hearing, have been taken in the Federal Court), the respondents would, on 16 August 2022, have necessarily taken the same position. They also assume that the respondents would have been unable to make any submissions to [the judge] that could realistically have led his Honour to make a different decision. However as Kiefel CJ, Keane and Gleeson JJ recently observed in Nathanson v Minister for Home Affairs [2022] HCA 26 at [33], "there will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration". [A]lthough the respondents do not now oppose confirmation of the transfer, that is not a concession as to the correctness of the matters raised in Mr Hanson's affidavit ... or in the applicant's written submissions dated 6 October 2022. ... 26 The respondents further stated that there was a real question about the Federal Court's jurisdiction and power to make an order confirming the transfer of this proceeding. They observed that: [I]t is not entirely clear whether s 32AD(1) requires, as a precondition on the exercise of power under that provision, that the Federal Circuit and Family Court of Australia (Division 2) has made an order lawfully under s 153(1) of the Federal Circuit Court and Family Court Act 2021 (Cth). 27 The respondents continued: The transfer order made by [the judge] has not, at this time, been set aside. However, the Federal Circuit and Family Court (Division 2) is not a superior court of record: ss 9 and 10 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and Hrycenko v Hrycenko [2022] FCAFC 152 at [126]. As such, an order of that Court made without jurisdiction has no legal force as an order of that court: New South Wales v Kable (2013) 252 CLR 118 at [56]. Assuming that the transfer order was made without jurisdiction, it does not necessarily follow that that order has no effect for the purpose of s 32AD of the Federal Court of Australia Act 1976 (Cth): see Boensch v Somerville Legal (2022) 286 FCR 293 at [135]-[149]. It may well be that, properly construed, s 32AD(1) requires no more than a transfer order having been made as matter of fact. 28 The respondents proposed that, in view of the uncertainty attending the validity and effect of the transfer order made by the Federal Circuit and Family Court of Australia (Division 2), this Court might consider it preferable to decline to exercise the discretion to confirm the transfer of the proceeding. It would follow that the proceeding the subject of the transfer order remained in the Federal Circuit and Family Court of Australia (Division 2) for its management and determination.

CONSIDERATION 29 In this case, it is plain enough that, in making the transfer order, the judge did not have regard to the wishes of the parties as required by r 8.02(4)(e) of the Federal Circuit and Family Court of Australia Rules. This follows from the fact that the respondents were not afforded an opportunity to make their wishes on transfer known to the judge before the transfer order was made. In making the transfer order, his Honour did not therefore take the respondents' wishes into account as mandated by r 8.02(4)(e). This leads me to conclude that, in making the transfer order in this case, the judge misunderstood his task under the Federal Circuit and Family Court of Australia Act and the Federal Circuit and Family Court of Australia Rules, failed to have regard to a mandatory relevant consideration and, in so doing, denied the respondents procedural fairness. 30 Further, the statements at [14]-[16] of his Honour's reasons, set out at [18]-[19] above, are problematic. Precisely what his Honour intended by his statement at [16] of his reasons is unclear. It is possible that he meant to say no more than that he was persuaded to make the transfer order on the basis of the documents filed by KDSP, his consideration of the applicable statutory and other provisions, and the information he had received about the two courts referable to, for example, the matters mentioned in r 8.02(4)(b) and (c) of the Federal Circuit and Family Court of Australia Rules. It may be that his reference to "conferral" and advice in [16] of his reasons merely expressed his understanding that this information derived from a consultation between the heads of jurisdiction. If, however, his statement at [16] of his reasons indicated that in substance his Honour made the transfer order at the direction of another, then this would disclose a further error. As I have said, however, the precise import of the judge's statement at [16] of his reasons is unclear and, in this circumstance, it appears to me that it should be understood as no more than an awkwardly expressed statement by his Honour that he had the benefit of relevant information following what he understood to be consultation between the heads of jurisdiction. 31 There is another ambiguity at this point of his Honour's reasons. As noted at [18] above, in making the transfer order, the judge also stated that "[i]t is contemplated under the Rules that there will be dialogue between the Courts to determine whether a matter is appropriate for transfer", noting that the Chief Justice of the Federal Court and the Chief Judge of the Federal Circuit and Family Court of Australia (Division 2) had conferred prior to the making of the transfer order in this case: see KDSP v Secretary of the Department of Home Affairs [2022] FedCFamC2G 804 at [14]-[15]. If his Honour was suggesting that the Federal Circuit and Family Court of Australia Rules expressly contemplate "dialogue" between the two heads of jurisdiction about whether an order for transfer should be made in respect of any particular proceeding, it seems to me that his Honour was in error. Whether the heads of jurisdiction consult one another about issues relating to the transfer of proceedings, either generally or with reference to a particular case, is a matter for them to determine. Consultation between jurisdictional heads does not appear to be a matter specifically addressed by those parts of the Federal Circuit and Family Court of Australia Rules relating to transfer. It may be that his Honour had in mind s 154(3) of the Federal Circuit and Family Court of Australia Act, according to which the Chief Judge of the Federal Circuit and Family Court of Australia (Division 2) must consult the Chief Justice of the Federal Court before Rules of Court are made for the purposes of s 154. That is, s 154(3) requires consultation about the rules that are generally to govern the lower court's making of a transfer order. It may be, however, that all his Honour intended to say in his reasons at [14]-[15] was that the application of r 8.02 contemplated some form of inter-court exchange of relevant information about, for example, the matters mentioned in r 8.02(b)-(d). This would appear to be correct. It seems to me that [14]-[15] of his Honour's reasons should be understood in this way. They are no more than another instance of awkward expression. 32 Having found, however, that his Honour misunderstood his task in making a transfer order, it seems to me that I should refuse to confirm the transfer order. Even if it were open to me to confirm the transfer order, I would not do so. This is because of the uncertainty that attends the effect of the transfer order itself, given that the order was not made in conformity with r 8.02(4)(e) of the Federal Circuit and Family Court of Australia Rules and s 153(3)(a) of the Federal Circuit and Family Court of Australia Act. That is, bearing in mind that the Federal Circuit and Family Court of Australia (Division 2) is not a superior court of record (Hrycenko v Hrycenko [2022] FCAFC 152 at [126]), if the transfer order was made without jurisdiction, then that order has no legal force as an order of that Court: see New South Wales v Kable [2013] HCA 26; 252 CLR 118 at [56]. An inferior court's failure to take into account a mandatory relevant consideration has been recognised as an error going to jurisdiction: Craig v South Australia [1995] HCA 58; 184 CLR 163 at 177-178. The position respecting a denial of procedural fairness by an inferior court is less clear: DMI16 v Federal Circuit Court of Australia [2018] FCAFC 95; 264 FCR 454 at [55]-[57]; Boensch v Somerville Legal [2021] FCAFC 79; 286 FCR 293 at [135]-[149]. In this case, it is unnecessary to determine the precise effect of the judge's failure to take into account the respondents' wishes, bearing in mind that the parties have not addressed this particular issue in their submissions. It is, however, tolerably clear that the effect of the transfer order in this case is uncertain, and for this reason too the order should not be confirmed. 33 For the reasons stated, I would not confirm the transfer order made by the Federal Circuit and Family Court of Australia (Division 2) on 16 August 2022. This means that the matter begun in that Court remains in that Court. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kenny.