Plaintiff S164/2020 v The Commonwealth of Australia & Anor [2021] HCATrans 32 (22 February 2021)

Last Updated: 22 February 2021

[2021] HCATrans 032

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S164 of 2020

B e t w e e n -

PLAINTIFF S164/2020

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

First Defendant

INTERNATIONAL HEALTH AND MEDICAL SERVICES PTY LIMITED

Second Defendant

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 22 FEBRUARY 2021, AT 9.30 AM

Copyright in the High Court of Australia

HER HONOUR: On 20 October 2020, the plaintiff filed an application for an order remitting the proceedings to the Supreme Court of the Australian Capital Territory. For the reasons that I now publish, the orders of the Court are:

1. Pursuant to s 44(1) of the Judiciary Act 1903 (Cth), this proceeding be remitted to the ACT Registry of the Federal Court of Australia.

2. The proceeding continue in the Federal Court of Australia as if any steps taken in the High Court of Australia had been taken in the Federal Court of Australia.

3. The Registrar of the High Court of Australia is to forward to the proper officer of the Federal Court of Australia a copy of all documents filed in the High Court of Australia.

4. The costs of the proceedings in the High Court of Australia be costs in the cause in the Federal Court of Australia.

I publish those orders and my reasons. I direct that the reasons be incorporated into the transcript.

The plaintiff applies for an order remitting the proceeding to the Supreme Court of the Australian Capital Territory (“the ACT Supreme Court”). The first defendant (“the Commonwealth”) accepts that remitter is appropriate but contends that the balance of convenience favours that the proceeding be remitted to the Registry of the Federal Court of Australia in the Australian Capital Territory (“the ACT”). A timetable was fixed for the filing of submissions and evidence and I directed that the application be determined without listing it for hearing^[1]. The plaintiff relies on the affidavits affirmed by his solicitor, Emma Hearne, on 20 October 2020 and 4 February 2021. The Commonwealth relies on the affidavit of its solicitor, Louise Buchanan, affirmed on 8 February 2021.

The plaintiff arrived in Australia by boat in September 2013 as an “unauthorised maritime arrival”^[2]. He was taken into immigration detention and conveyed from Christmas Island to Nauru pursuant to s 198AD of the Migration Act 1958 (Cth) (“the Act”). It appears that in or about October 2018 the plaintiff was brought to Australia as a “transitory person” for a temporary medical purpose^[3]. The proceeding was commenced by writ of summons and statement of claim filed on 15 September 2020. The plaintiff claims damages from the Commonwealth and the second defendant, International Health and Medical Services Pty Limited (“IHMS”), for personal injuries said to have been suffered while he was in immigration detention as a result of, inter alia, the defendants’ failure to provide him with appropriate medical treatment.

At the time the proceeding was commenced, the jurisdiction of federal courts, and courts of the States and Territories exercising federal jurisdiction, to entertain a claim such as the plaintiff’s claim was awaiting the determination of four appeals then pending in this Court. These appeals served as test cases in determining the jurisdictional issues raised by a tranche of claims against the Commonwealth for alleged breach of duty of care brought by persons who had been taken to a “regional processing country”^[4] pursuant to s 198AD of the Act (“the Federal Court cohort”).

Judgment in the four appeals, Minister for Home Affairs v DMA18 as litigation guardian for DLZ18, was delivered on 2 December 2020^[5]. It was held that the Act does not limit the jurisdiction of federal courts, nor federal jurisdiction invested in State and Territory courts, to entertain a claim such as the plaintiff’s claim^[6]. In her first affidavit, Ms Hearne states that save for the point taken by the Commonwealth in DMA18, the plaintiff would have commenced his proceedings in the ACT Supreme Court. Ms Hearne identifies five reasons why remitter to that Court is appropriate:

(a) The Commonwealth is located in the ACT;

(b) IHMS is a company with its registered office in the ACT;

(c) the contract to provide health services in regional processing countries between the Commonwealth and IHMS includes a choice of law provision nominating the laws of the ACT;

(d) one case raising “not dissimilar issues” has already been commenced in the ACT Supreme Court and procedural notices have been served in relation to more than 20 cases, many of which raise issues similar to the present; and

(e) the solicitors acting for the plaintiff, the National Justice Project Ltd, are involved in those other proceedings in the ACT Supreme Court and it will be more cost-effective to organise the proceedings as part of a group in a single court.

In her second affidavit, affirmed on 4 February 2021, Ms Hearne states that the plaintiff’s preference for remitter to the ACT Supreme Court is based upon advice that his solicitors have received instructions from several other persons who are making claims that are similar to the claims that he makes and that nine such claims have been lodged in the ACT Supreme Court and it is expected that more will be lodged. The plaintiff has been further advised that a “proposal would be put forward as to how best to manage the cases, selecting some as representative cases and attempting to conduct the whole litigation efficiently and cost effectively”.

I accept that the plaintiff’s preference to have his claim determined in the ACT Supreme Court in tandem with a proceeding brought by his wife making similar claims is a factor which weighs in favour of remitter to that Court. Nonetheless, I reject the plaintiff’s submission that the fact that he would have commenced his action in the ACT Supreme Court had he not been “compelled” to bring it in this Court when the Commonwealth took the jurisdictional point is a factor to be given particular weight. In the event, the proceeding is in this Court and the determination of the remitter turns on the balance of convenience, which consideration is not confined to the convenience of the parties^[7].

As the Commonwealth submits, the first three reasons that Ms Hearne identifies as supporting remitter to the ACT Supreme Court are neutral in that they are factors that are equally accommodated by remitter to the ACT Registry of the Federal Court. A prominent consideration is the efficient and cost‑effective conduct of the proceeding in circumstances in which it raises issues in common with other like claims. In this respect I note that the Federal Court cohort comprises some 60 claims. These claims were pending in the Federal Court at the time this proceeding was commenced. The plaintiff’s solicitors are the solicitors on the record for the applicants in 13 proceedings in the Federal Court cohort. These include two applicants who were respondents to the appeals that determined the jurisdictional issues^[8]. On 8 December 2020, the plaintiff’s solicitors and a law firm representing the respondents in the other two proceedings that were appealed to this Court in DMA18 wrote jointly to the Melbourne Registry of the Federal Court proposing the coordinated case management of those four test cases. As at 8 February 2021, the Commonwealth was negotiating with the plaintiff’s solicitors on the form of orders for the case management of the two test cases in which they are acting.

As at 8 February 2021, Ms Buchanan states that only one similar claim to the plaintiff’s claim filed in the ACT Supreme Court in which the plaintiff’s solicitors are on the record has been served on the Commonwealth. The Commonwealth submits that remitter to the Federal Court will permit the management of this proceeding as part of the Federal Court cohort, a much larger cohort of cases raising common issues. The Commonwealth notes that the plaintiff in this proceeding resides in New South Wales and that his solicitors are based in New South Wales. In a number of the cases forming part of the Federal Court cohort the Commonwealth has pleaded a defence invoking the statutory duty under s 198AD(2) of the Act. More generally, the Commonwealth submits that the scheme of the Act will bear on the determination of the existence, scope and breach of any duty of care, which makes the Federal Court the natural and appropriate forum.

I approach the application on the footing that at least 10 claims that are similar to the plaintiff’s claim have been filed by his solicitors in the ACT Supreme Court (“the ACT Supreme Court cohort”). It would appear that as at 8 February 2021 service of nine of these claims had not been effected on the Commonwealth. The Federal Court cohort is substantially larger than the ACT Supreme Court cohort and progress towards the efficient case management of the Federal Court cohort is underway by contrast with the position in the ACT Supreme Court. Consideration of the efficient and cost‑effective conduct of this proceeding in the context of the efficient and cost‑effective conduct of the large number of similar proceedings favours remitter to the Federal Court. So, too, does the circumstance that while the proceeding is a common law claim, the construction and application of the Act may be expected to be prominent in its determination. Finally, the fact that the claim concerns matters arising in a regional processing country is a factor that favours remitter to the Federal Court^[9].

For these reasons there will be the following orders:

1. Pursuant to s 44(1) of the Judiciary Act 1903 (Cth), this proceeding be remitted to the ACT Registry of the Federal Court of Australia.

2. The proceeding continue in the Federal Court of Australia as if any steps taken in the High Court of Australia had been taken in the Federal Court of Australia.

3. The Registrar of the High Court of Australia is to forward to the proper officer of the Federal Court of Australia a copy of all documents filed in the High Court of Australia.

4. The costs of the proceedings in the High Court of Australia be costs in the cause in the Federal Court of Australia.

Adjourn the Court.

AT 9.31 AM THE MATTER WAS CONCLUDED

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^[1] High Court Rules 2004 (Cth), r 13.03.1.

^[2] Migration Act 1958 (Cth), s 5AA.

^[3] Migration Act, s 5AA.

^[4] Migration Act, s 198AB.

^[5] (2020) 95 ALJR 14; 385 ALR 16.

^[6] Minister for Home Affairs v DMA18 as litigation guardian for DLZ18 (2020) 95 ALJR 14 at 18 [4]; 385 ALR 16 at 19.

^[7] Scott v Bowden [2002] HCA 60; (2002) 194 ALR 593 at 596 [12] per McHugh J; Robinson v Shirley [1982] HCA 1; (1982) 149 CLR 132 at 136 per Brennan J.

^[8] Minister for Home Affairs v DMA18 as litigation guardian for DLZ18 (2020) 95 ALJR 14 at 33; 385 ALR 16 at 18.

^[9] McCauley v Hamilton Island Enterprises Pty Ltd [1986] HCA 86; (1986) 61 ALJR 235 at 238 per Mason J; [1986] HCA 86; 69 ALR 270 at 275-276.