My conclusions on the parties' positions
43 I accept that the mechanism of stating separate questions in a proceeding, especially questions of law, is capable of providing a just and convenient method for either resolving a proceeding entirely or substantially narrowing what is to be tried. I accept that such a process is capable of advancing the objectives set out in s 37M of the FCA Act. Whether the Court can be sufficiently satisfied that it will do so in an individual proceeding will depend on a range of factors particular to the proceeding itself, rather than any acknowledgment of such potential.
44 While r 30.01 of the Federal Court Rules 2011 (Cth) (Rules) confers a broad discretion on the Court to make an order for the determination of a separate question or questions in a proceeding, it remains the case that the use of the power conferred by that rule is an exception to the ordinary processes for trial and determination of all issues in a proceeding for which the Rules, and the FCA Act, otherwise provide. Judicial power at trial level in this Court is ordinarily exercised after a contested adversarial process, on fact and law, of all the allegations made by the parties. It is this process which is assumed by the FCA Act and the Rules to be the appropriate mechanism for quelling the controversy between the parties, and for providing the basis for any exercise of appellate jurisdiction.
45 The caution which attends any constriction of those processes is apparent not only in the authorities dealing with r 30.01 and its equivalents in other jurisdictions but also in the authorities concerning summary dismissal: see Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 at [24], [60]; AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68; 241 FCR 30 at [44]. The same caution is apparent in the exercise of power to strike out pleadings: see Murphy v Nationwide News Pty Limited (No 2) [2017] FCA 781 at [20], [31].
46 While I accept the respondents' submission that the use of such powers must be understood and applied in light of the objectives in s 37M of the FCA Act, the premise of s 37M remains what is in the interests of the administration of justice. While s 37M requires the powers conferred by the FCA Act and the Rules to be exercised conformably with the proposition that disputes in the Court should be resolved as "quickly, inexpensively and efficiently as possible", that is only insofar as to do so "facilitate[s] the just resolution of disputes".
47 Despite the respondents' submissions encouraging me to discount the dicta in Tepko at [168]-[170] (Kirby and Callinan JJ), their Honours' proposition that trials of separate questions should "only be embarked upon when their utility, economy and fairness to the parties are beyond question" remains apposite and is regularly invoked. It is especially apposite in a proceeding which has the features that this proceeding has.
48 I turn to discuss those features.
49 The first and obvious feature is that this is a class action. Of itself that is no impediment to the stating of a separate question: see, for example, Evans. However, according to the most recent information provided by the Commonwealth to the applicants, and conveyed to the Court during the recent hearing, the group members are located in a range of places, and find themselves in a variety of circumstances. Senior counsel for the applicants stated that, based on the information provided by the Commonwealth, there are 887 group members in Australia (of whom 795 are in Australia for medical treatment), 345 in Nauru (of whom 236 are in the community - as opposed to, I infer, in detention), 348 in the United States, and small numbers in Cambodia, Canada, Switzerland and Taiwan. Of the 795 people who are stated to be in Australia for medical treatment, no breakdown was given of how many of them are in immigration detention (of one form or another) or are in the community. Further, senior counsel for the applicants informed the Court the information provided contained phone numbers for 80% of the identified group members, addresses for 71% and email addresses for 18%, although it is not known whether these details are up to date. Senior counsel for the respondents did not dispute the figures put to the Court.
50 I accept the applicants' submissions that these circumstances make the opt-out process challenging. In my opinion the giving of such notices would be an essential precondition to the listing of any separate question. On the respondents' submissions, answers to the proposed separate questions in their favour are capable of resulting in the dismissal of the proceeding, thus affecting at a fundamental level the interests of the group members. While the applicants' estimate of seven months may seem excessive, the respondents' estimates that the notification process could occur in a matter of weeks is unduly optimistic. It is likely a reasonable period of time lies somewhere in between, in the region of four to five months, and this would mean significant delay in the proceeding if all that were planned to occur at the conclusion of the op-out process was the listing of separate questions. Further, the applicants' case involves allegations of unlawful detention, and allegations that the autonomy of group members was seriously and consciously compromised by their subjection to a visa application process not of their choosing and which was substantively detrimental to them. Where the Court is determining matters that will bind group members, it should in my opinion be cautious about doing so when allegations of this nature are involved.
51 Second, the respondents take issue, at a fundamental level, with the applicants' pleadings, and indeed with whether there is an arguable cause of action at all. They have made it clear they propose to challenge both the pleadings and the causes of action by way of strike-out and/or summary dismissal applications. Although the respondents submitted that the allegations of fact and law which underpin the proposed separate questions could be quarantined from what they contend are the flawed aspects of the applicants' case, such an approach has a high degree of artificiality about it. It is also fraught with a risk that the Court will be deciding questions of law (and possibly fact) without a clear understanding of the applicants' allegations and the respondents' defence, because both are uncertain until the respondents' challenges are resolved.
52 Third, as I have noted, I consider - not inconsistently with the general position taken by the respondents - that there is a substantial lack of clarity in the applicants' pleadings, in particular concerning MIPO #3 and MIPO #4. Separate questions are proposed involving these allegations, as they need to be in order for any separate question process to be capable of resolving the entire proceeding. But MIPO #3 and MIPO #4 proceed, in my respectful opinion, on a currently uncertain and unclear basis. These aspects of the applicants' allegations should be clarified, and I am satisfied that is likely to occur - for better or for worse in terms of the applicants' case - through the other interlocutory processes foreshadowed by the respondents.
53 Next, I am not satisfied there is a sufficient factual basis for the separate questions. In my view, there would need to be a considerable number of additional facts, particularly about the RPC visa application and visa extension process at least for the two named applicants, but likely also for other identified categories of group members, and perhaps for the three time periods identified in the FASOC . Some of these additional facts are likely to be contained in documents which will be discoverable in the proceeding. While I accept the respondents properly offered to engage in the process of agreeing further facts, and possibly documents, to date the parties have not shown a high degree of cooperation in this proceeding, and have proven themselves to bring very different approaches to the conduct of the proceeding. I do not say that critically, but it is the fact. In my opinion there is likely to be a cost- and resource-intensive process required to secure agreement to sufficient additional facts and documents for the Court to be confident it has an appropriate basis to determine separate questions. I do not consider that process will occur speedily. The time will be better and more efficiently spent, in my opinion, in progressing the other interlocutory processes foreshadowed by the respondents, as well as progressing the matters to which I refer at [57]-[58] below.
54 A further factor is the nature of the issues in this proceeding, including those identified by the respondents in the separate questions, and the likely course the proceedings would take even if the Court determined separate questions. They are weighty issues on any view: they involve the executive power of the Commonwealth (s 78B notices having been given), important issues of statutory construction, and consideration of the approach to bilateral arrangements made between the Commonwealth and Nauru. There is much at stake on both sides, including beyond the confines of this proceeding. The likelihood of an appeal from any separate question determination is high. That would lead to fragmentation of the proceeding, and additional cost and resources being expended before any further substantive trial preparation steps are taken in the proceeding. That is in circumstances where at least a proportion of group members remain, as the Court has been informed, in some form of immigration detention.
55 Cumulatively, these matters have led me to conclude it is not appropriate to make the orders sought by the respondents. I consider the better course is to hold the parties to a fair but demanding timetable to progress the matter to trial, taking into account the foreshadowed interlocutory applications by the respondents. If the respondents are correct in their contentions about the considerable and clear weaknesses of the applicants' allegations, that will become apparent during those interlocutory processes. If the respondents are proven to be correct, then the burden of the proceedings on the individual respondents will also be lifted. The Court's refusal to state separate questions does not necessarily condemn them to a long and drawn-out trial process which puts their personal, professional and political reputations in the public spotlight. If they are correct, they may well secure the dismissal of the proceedings within a reasonable period of time. If they are not correct, then it is appropriate the applicants have their trial.
56 My conclusion does not preclude a renewal by either or both parties of the proposal for separate questions at a later stage of the proceeding. There may yet be a time at which the Court is persuaded that process will be appropriate. That should not be taken as encouragement to renew the application: rather, it is a recognition that circumstances in a proceeding such as this may change and the Court retains an open mind about the appropriate form of case management to be undertaken.
57 Accordingly, there will be orders to accommodate the foreshadowed interlocutory applications by the respondents. The applicants will be required to commence the opt-out notice process, and will be given a reasonable but not extensive time in which to do so, one which can be completed prior to the Court handing down judgment on any interlocutory applications made by the respondents, which will be programmed for hearing in the presently reserved week commencing in 11 May 2020. The parties will be given an opportunity to confer on proposed orders about notices under s 33X, and to have a case management hearing about the proposed orders and timetable if necessary.
58 The parties will also be directed to engage in a discovery process in accordance with the Central Practice Note: namely, a process which is self-directed, responsible and cooperative, and in which the parties approach the Court only if and when there are intractable issues between them which require the intervention of the Court by way of ruling. To assist the parties in that process a general referral will be made to a Judicial Registrar.
59 The matters which are the subject of this decision occurred during the case management process and without any formal interlocutory applications. Accordingly, I consider it is appropriate that the costs of and incidental to the hearing on 5 and 6 March 2020 be costs in the cause. If either party wishes to contend a different costs order should be made, that matter can be addressed at the next case management hearing.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.