Consideration
16 The respondent correctly submitted that the fact that a hearing of a trial is anticipated to exceed five days is not a sufficient basis for ordering a transfer of a proceeding from the FCFCOA to this court.
17 The applicant submitted, and the judge seems to have thought, that there was a "rule of thumb" arising from a "practice" that if a proceeding is to occupy more than five days, it should be transferred to this court. There is no such rule.
18 Reading the Federal Circuit and Family Court Act and the Rules together, the following is a list of matters which a judge of the FCFCOA must take into account in deciding whether to transfer a proceeding from that Court to the Federal Court:
(1) the interests of the administration of justice;
(2) whether proceedings in respect of an associated matter are pending in the Federal Court;
(3) whether the resources of the FCFCOA are sufficient to hear and determine the proceeding;
(4) whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court on one or more of the points in issue;
(5) whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding were not transferred;
(6) whether the proceeding will be heard earlier in the FCFCOA;
(7) the availability of particular procedures appropriate for the class of proceeding; and
(8) the wishes of the parties.
19 The factors relating to "the interests of the administration of justice" referred to in s 153(3) of the Federal Circuit and Family Court Act, however, are not to be confined by the Rules. Those interests will always depend on the nature of the case. Other factors may include whether in any given case:
(1) the proceeding involves any properly identified and serious and substantial issue about difficult points of legal principle, or some significant question of public interest;
(2) the estimates of the hearing times given by the parties or their representatives are justified; and
(3) the issues apparently in dispute can be limited or more narrowly focussed.
20 In some cases the interests of the administration of justice may also involve consideration of the importance of the matters to the parties; and the need for expedition and despatch in the finalisation of the controversy.
21 As to those last two factors, compare Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 397 ALR 1 at 4-5 [13]-[15] (Allsop CJ and Besanko and O'Callaghan JJ). In that case, after the proceeding had been transferred from the FCFCOA to this court, and the transfer had been confirmed, the Chief Justice made a direction under s 20(1A) of the Federal Court Act, which is in these terms: "If the Chief Justice considers that a matter coming before the court in the original jurisdiction of the court is of sufficient importance to justify the giving of a direction under this subsection, the Chief Justice may direct that the jurisdiction of the court in that matter or a specified part of that matter shall be exercised by a Full Court".
22 Although the question that arises under s 20(1A) is of a different kind and arises in a different context, the interests of the administration of justice lie at the core of it. In that regard, and to highlight the wide range of circumstances that may in any given case be relevant to assessing those interests, it is instructive to set out what the Chief Justice said at the commencement of the hearing of the appeal in Djokovic on 16 January 2022:
[J]ust before we commence, it's appropriate that I deal with the matter that arose before Justice O'Callaghan yesterday in relation to the constitution of the bench of the court. Justice O'Callaghan yesterday raised with the parties a matter that I requested be raised and that was the [possible] engagement of section 20 subsection (1A) of the Federal Court of Australia Act …
The question arose whether it was appropriate to make a direction under that subsection. One consequence of the invocation of the section - the subsection is that there is no appeal to another bench of this court from this exercise of an original jurisdiction. The appellate jurisdiction of the court is exercisable in appeals from judgments of the court constituted by a single judge. The right to an appeal from the original jurisdiction is a statutory right but it takes its place within the structure of the Act, including section 20 subsection (1A).
Section 20(1A) gives the Chief Justice authority to constitute the court sitting in the original jurisdiction if the Chief Justice considers that a matter that is a controversy before the court in the original jurisdiction is of sufficient importance to justify giving a direction. The Minister yesterday, before Justice O'Callaghan, opposed the direction stating that there was nothing out of the ordinary in the legal issues before the court to warrant the direction. That, in my view, is too narrow a view of the words "sufficient importance."
The phrase refers to the controversy but that does not require that the Chief Justice's consideration be limited to the novelty or importance of the legal issues and their character within the controversy. The controversy is a wider conception and the phrase permits the evaluative consideration of not only the legal issues which are, of course, relevant, but the importance of the matter that is the controversy to the parties and otherwise. I considered the matter of sufficient importance for a number of reasons not the least of which was the fact that the Minister himself said in his decision … :
That the matters involved in the decision, and thus the matters involved in the controversy, go to the very preservation of life and health of many members of the community and further are crucial to the maintaining of the health system in Australia.
The applicant said, contrary to the conclusions reached by the Minister, that he acted illogically and irrationally. The importance of the matter in those circumstances is also heightened by the need for expedition and despatch in the finalisation of the controversy not just as an incident of the administration of justice or in the interests of the parties and third parties in the conduct of a major sporting event. But if the Minister is correct … it is important to resolve this controversy as quickly as possible for the reasons the Minister gave.
That this approach is not novel is revealed by how the courts on a regular basis has dealt with other cases. For instance, the practice of the court, both while I have been Chief Justice and in years past, to use section 20(1A) to deal swiftly with cases of arrest of seagoing ships when the court's jurisdiction to arrest is questioned. The importance of those matters is not often from the nature of the legal issues but from the importance of the question of jurisdiction to arrest highly valuable vessels, usually foreign, interrupting their participation in world trade and commerce.
The importance of these circumstances, not the legal issues, lead, in those cases, to the invocation of the provision. The nature of the legal issues are, of course, not irrelevant, especially the fact that, as a matter of judicial review, they are unlikely - there are unlikely to be any advantages of the trial judge as they are - as is the case here. The provision is, of course, to be used sparingly given the call on the court's resources and the affectation of the rights of appeal of the parties. But, in my view, it was appropriate in this case, notwithstanding the Minister's attitude, and recognising that minds may differ.
The question of … the discretion to exercise the power, once satisfied of the sufficient importance of the matter, was also affected here by a consideration that the decision, not having been made or notified until Friday evening, having been under consideration since Monday, I assume because of the need to consider an important matter for the Minister, Mr Djokovic and the public, meant that unless the court, as a court, not just a single judge subject to appeal, finalised the matter by today or at the latest tomorrow, any right of appeal of Mr Djokovic, if he lost, would or may be, at least in part, made inutile because of the proximity of the commencement of the event, being the purpose of his visit and the purpose of his visa previously granted to him.
23 The first and most obvious thing to say about the judge's reasons in this case is that he did not, as he was bound to do, give consideration to each of the factors listed in [18] above. His Honour confined his consideration to the parties' estimate of the length of the hearing (which he described as "lengthy and difficult") and to the respondent's concession that part of the case involved some ill-defined question of "general importance".
24 As to the first of those points, I am not satisfied that the hearing of this proceeding will be "lengthy and difficult". But in any event, as the combined operation of the Federal Circuit and Family Court Act and the Rules makes quite clear, in considering whether to make an order transferring a proceeding, a judge of the FCFCOA is obliged to take into account a wide range of circumstances that extend far beyond the parties' estimates of a hearing.
25 Further, in my view, the judge erred in the exercise of his discretion, because he seems to have regarded himself as powerless to do anything about the parties' estimates. But that is simply not so.
26 There are many ways in which courts can and should ensure that hearings are conducted expeditiously. And the need to give consideration to doing so is more pressing where an applicant is self-represented, and necessarily unfamiliar with the processes of the court and the conducting of a trial. It is the duty of a judge in such matters to do her or his best to ensure that submissions are put as effectively as possible, that witnesses that are proposed to be called are likely to give relevant evidence, and that cross-examination be limited to matters of relevance. As I say, the need to do so can be particularly acute in matters involving self-represented litigants.
27 The judge was, with respect, also wrong to proceed, as he put it, on the basis that the parties would not "act in a sensible and pragmatic manner particularly if the history of this matter is any guide". The tools of case management available to a judge both permit and require the judge to do all within her or his authority to ensure that parties act appropriately and consistently with their duties to the court.
28 In that regard, I also note that the respondent's submission before me, in addition to urging further mediation, said this:
Further, despite our good faith estimate, this need not be a proceeding exceeding 5 days or an approximate time. The parties should reach agreement on key questions of fact and written outlines can identify matters in issue. The Respondent is open to a judge-engineered trial plan in which time is allocated according to the nature of the contested issue.
29 It is true that r 8.02(4)(a) provides that one of the factors to be considered is "whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court on one or more of the points in issue".
30 But that is not to say, as the judge appears to have suggested, that the FCFCOA should not decide questions of general importance. It does so, with respect, every day of the week.
31 The critical question to address under r 8.02(4)(a), which the judge did not address, is whether the proceeding involves a question of general importance such that it would be desirable for there to be a decision of the Federal Court. Here, the judge did not address that question, and from my review of the pleadings, I cannot identify anything remotely resembling a question of general importance in respect of which "it would be desirable for there to be a decision of the Federal Court".
32 As I said, the primary judge did not have regard to any of the other factors, as he was obliged to do. They included whether, if the proceeding were transferred, it would be likely to be heard and determined at less cost and more convenience, whether the proceeding would be heard earlier in the FCFCOA, and whether there are any procedures appropriate for this proceeding (which would include mediation).
33 There is nothing to suggest that a proceeding such as this would be heard and determined at less cost and more convenience in the Federal Court. I would have thought the opposite was true. And there is no reason that I know of that would lead me to believe that the proceeding would be heard significantly later were it to remain in the FCFCOA. (Mediation, of course, is a procedure available in both courts.)
34 For those reasons, I decline to confirm the transfer of the proceeding.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Callaghan.