[2024] SASC 11

Applicants: ABOLFAZL FIRUZIBAHKSH, ADAM SHABOOTI, AMIR BASHTIN, ARDESHIR GHOLIPOUR, ARIA BAVARSAD, AZAD MIRSANAM, AZIZ NOORI, DARYOUSH HOOSHMAND NEJAD, DANIEL HANSSEN, HAMED JAVANMARDY, HESAM ARIAEE, HOJATOLLAH MOHAMMADI, HOSSEIN AVESTA, JAFAR CHOHAILI SOBBI, JOHN WILLIAMS, KYAMARZ ZAHROONI, MOHAMMAD REZA SHOARI, MOHAMMAD TORKAMANI AHVAZI, MOKHTAR LAKMECHE, RAMIN AZIZI-FARD, NAJIEH ASCHER SOBBI, REZA MARHAMTIZADEH, SAID AHMAD HASHEMI, SHAHIN SHAROOEI, SHARBANO FARZY, SHOKROLLAH PAPARZADEH, YOUSEF YOUSEFI-NEJAD, ZAHRA HEJAZI, AND BEHROUZ RAMEZANI Counsel: MR M GUO - Solicitor: SHINE LAWYERS First Respondent: COMMONWEALTH OF AUSTRALIA Counsel: MS G WALKER SC WITH MS S HEIDENREICH - Solicitor: AUSTRALIAN GOVERNMENT SOLICITOR Second, Third, and Seventh Respondents: AUSTRALASIAN CORRECTIONAL SERVICES PTY LTD, THE GEO GROUP AUSTRALIA PTY LTD, AND AUSTRALASIAN CORRECTION MANAGEMENT PTY LTD Counsel: DR R GRAY KC - Solicitor: DENTONS AUSTRALIA Fourth and Fifth Respondents: G4S AUSTRALIA PTY LTD AND G4S REGIONAL MANAGEMENT (UK&I) LTD Counsel: MR CSL ABBOTT KC WITH MS C D’ARCY - Solicitor: HWL EBSWORTH LAWYERS Sixth Respondent: STATE OF SOUTH AUSTRALIA Counsel: MR T GOLDING KC WITH MR P LEESON - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 30/01/2024 File No/s: CIV-23-012025 B SUPREME COURT OF SOUTH AUSTRALIA (Civil: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. FIRUZIBAHKSH & ORS v COMMONWEALTH & ORS [2024] SASC 11 Judgment of the Honourable Chief Justice Kourakis (ex tempore) 30 January 2024 COURTS AND JUDGES - COURTS - JURISDICTION AND POWERS - CONCURRENT JURISDICTION OF DIFFERENT COURTS - TRANSFER OF PROCEEDINGS UNDER CROSS-VESTING LEGISLATION - WHERE APPROPRIATE AND IN INTERESTS OF JUSTICE - NEGLIGENCE ACTIONS COURTS AND JUDGES - COURTS - JURISDICTION AND POWERS - TRANSFER OF PROCEEDINGS TO OR FROM HIGHER COURT AND BETWEEN COURTS This is an application to make an order transferring proceedings in the District Court to this Court, and an order transferring those proceedings to the Federal Court. During various periods between 2000 and 2005, each of the applicants was detained in federal immigration detention centres in South Australia, in the course of which the applicants alleged they -- 1 of 6 -- suffered personal injury as a result of the respondents’ negligence. By an application under ss 8(1) and 5(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (SA), the applicants seek the transfer orders primarily on the bases that it would be desirable to conduct their proceedings as a class action, and that any such class action would be managed and conducted with greater efficiency in the class actions list of the Federal Court. Held, granting the application and transferring the proceedings to the Federal Court: 1. The considerations enumerated in (A), (B), and (C) in s 5(1)(b)(ii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (SA) are mandated relevant considerations rather than cumulative considerations each of which must favour the exercise of the discretion to make an order to transfer. 2. The Federal Court has jurisdiction to hear each of the applicants’ matters. 3. It is in the interests of justice to transfer each set of proceedings to the Federal Court. Civil Liability Act 1936 (SA); Jurisdiction of Courts (Cross-vesting) Act 1987 (SA) s 5(1)(b)(ii)(A)- (C), referred to. Comino v Kremetis (2023) 110 NSWLR 224; Hadid v Sabouh [2023] NSWSC 483, considered. -- 2 of 6 -- FIRUZIBAHKSH & ORS v COMMONWEALTH & ORS [2024] SASC 11 Civil: Application 1 KOURAKIS CJ (ex tempore): This is an application by Mr Firuzibahksh to transfer his claim to this Court and then to the Federal Court. He is one of over 50 personal injury applicants in the District Court who were detained at Woomera and Baxter immigration detention centres in South Australia. Their actions make claims in negligence against the respondents arising out of their detention over a period between about 2000 and 2005. 2 It was common grounds between the parties that the considerations (A), (B) and (C) in s 5(1)(b)(ii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (SA) (the JCCA Act) to which this Court must have regard are just that – mandated relevant considerations. Their conjunction means no more than that this Court must have regard to all three considerations. It is not necessary that all three considerations favour the exercise of the discretion to make an order to transfer.1 If that were so, the matters in each of those subparagraphs would become preconditions to the exercise of the power and not merely considerations to which the Court must have regard. 3 The applicant brings this application on behalf of himself and some 28 others (the transfer applicants) to transfer the proceedings in the District Court ultimately to the Federal Court. Trial dates have been set for the hearing of their actions, as separate trials, on dates which, according to the latest list provided to me, range from 6 May 2024 to January 2029. 4 There is reason to be pessimistic about the prospect that those trials will be completed within the time set aside for the hearings, having regard to the hearing of a similar matter, an action brought by Mr Saadat in this Court, which proceeded over some 12 months. If the hearings take longer than the estimates in the list provided to me, it is likely that the last of the matters will not be heard until well after 2029. Such are the limited judicial resources of the District Court, that if the trials listed were not finalised within the estimated times, it is unlikely that judges would become available to hear the remainder of the matters as currently scheduled. 5 The applicant has put before me a letter from a Registrar of the Federal Court, indicating that that Court has the capacity to conduct the hearings of the matters sought to be transferred, and to make case management orders in respect of them. Importantly, I am told, from the bar table without objection, and no counsel for the respondents has suggested otherwise, that the Federal Court has a class action list 1 Comino v Kremetis (2023) 110 NSWLR 224, 240 [73] (Chen J); Hadid v Sabouh [2023] NSWSC 483, [84]-[94] (Meek J). -- 3 of 6 -- [2024] SASC 11 Kourakis CJ 2 and that judges with much experience in case-managing, hearing, and determining class actions are assigned to that list. 6 I am satisfied that there is sufficient commonality between, although perhaps not an identity in, the issues in those actions for it to be practical to determine common questions. To the extent that there might be some difference, even some significant difference, between the factual circumstances of the detention of some detainees as against others, I am satisfied that there will be sufficient underlying common questions about the content of the duty of care, and the way in which it was or was not discharged, for there to be a single hearing or hearings and determinations of common issues. Moreover, the Federal Court has procedures to hear and resolve remaining issues which are peculiar to individual claims. It seems to me plain, therefore, that efficiency will be achieved in the hearing of the matter in the class actions list of the Federal Court. It would not take much, by way of enhanced efficiency, for there to be a more expeditious resolution of the claims of the transfer applicants than that contemplated by the schedule of hearings in the District Court. 7 I am satisfied that the Federal Court has jurisdiction to hear the claims for the following reasons. First, all of the transfer applicants intend to bring claims for unlawful detention by the Commonwealth on the grounds that there was no real prospect of deportation within the reasonably foreseeable future, at least at some point, within their long periods of detention. 8 In any event, the Federal Court would have jurisdiction for the following additional reasons. The question of the existence of a tortious duty of care, its content, and whether or not it has been discharged on the one hand or breached on the other, cannot be considered in a vacuum. The tortious duty of care and its discharge must be moulded to its statutory context. The statutory context in these matters is Commonwealth legislation providing for the detention of unlawful entrants, the conditions of those detentions, and the establishment of detention centres. Moreover, those detention centres are on Commonwealth places. The Civil Liability Act 1936 (SA) (the CL Act), which regulates actions for negligence, applies to those places by reason of Commonwealth legislation. 9 So, for those reasons, the Federal Court has jurisdiction over those matters, using the word ‘matters’ in the constitutional sense. The Commonwealth accepts that the Federal Court has jurisdiction on those grounds, as does the State. The second, third, fourth, fifth, and seventh respondents do not contend that the Federal Court does not have jurisdiction. They described their position on the application as neutral. 10 Nonetheless, Mr Abbott KC, for the fourth and fifth respondents, has contended that the claims of unlawful detention might be colourable. No evidentiary basis for so finding has been put before me. On the other hand, I accept that no evidence has been put before me that the claims would necessarily be successful. I do not know anything about the particular circumstances of each of -- 4 of 6 -- [2024] SASC 11 Kourakis CJ 3 the applicants. However, I am told that they were detained for periods of two to five years. On that basis, I am satisfied that their claims are not colourable. Whether they ultimately fail or succeed is not the point. Importantly, the Commonwealth does not contend that they are colourable. It is not obvious to me that the fourth and fifth respondents would have an interest or standing to argue that the claims against the Commonwealth are colourable if the proceedings were to be transferred to the Federal Court. 11 Whether the interests of justice are best served by a transfer to the Federal Court, having regard to what is often referred to the “nuts and bolts” of the hearing of an action or actions, is at least neutral on this application. 12 The potential witnesses might reside anywhere in Australia and it is not clear whether they reside in one State or jurisdiction in greater number than the other. In any event, the Federal Court is a national court and regularly holds hearings all over the country, irrespective of the registry in which they were commenced. I also observe that the taking of evidence by video conference is now commonplace. 13 Finally, I am told by Mr Abbott KC that, in any event, many of the base facts are not in dispute. It is the intermediate and ultimate questions which are primarily in dispute. 14 In those circumstances, although the “nuts and bolts” considerations are at least neutral, I find that the hearing of the matters can be more conveniently heard and determined in the Federal Court because of that Court’s greater experience in managing complex class actions. 15 It has been contended, although perhaps only faintly, that because the determination of the claims will require the interpretation of State legislation that the courts of this State are better equipped to undertake that judicial function. In the 21st Century, I think that that contention has very little weight. The courts of the States and Territories regularly construe Commonwealth legislation, and there is no suggestion that federal courts are any more skilled in construing federal legislation than state courts. Equally, the Federal Court, because of its extensive jurisdiction and, in particular, its accrued jurisdiction, regularly construes state statutes. As to the particular legislation in question here, the CL Act, which regulates tortious claims like those made by the transfer applicants, is the product of a national response to rising insurance premiums some 20-odd years ago. The underlying purpose, and mischief to which the legislation is directed, is well-known nationally. 16 Moreover, the Federal Court would have the benefit of the decisions of state courts on the construction of that legislation, which Federal Court judges are as capable as reading and understanding as District Court judges. 17 It has also been contended that I should hesitate before transferring the proceedings because of undue delay by the applicants in bringing the proceedings -- 5 of 6 -- [2024] SASC 11 Kourakis CJ 4 to this point. I do not have enough material before me to be confident that I could apportion blame correctly. True it is that statements of claim have been amended, often over a period of many years, but that might be as much a reflection of the complexity of the matter as it is any lack of diligence on the part of the applicants or their solicitors. 18 Insofar as it is suggested that the applicants or their solicitors will continue to be lax in their prosecution of the matter, then that will be a problem in whichever court the actions remain. Given the multiplicity of cases of this complexity, I do have more confidence in the case management of class of actions in the dockets of the Federal Court judges who are assigned to the class action list than I do in the individual hearing and determination of matters by different Judges of the District Court. 19 In any event, irrespective of such delay and such fault as there may have been in the past, it is important to remain focussed on where the claims will best be heard and determined from this point in time. For the reasons that I have already outlined I am confident that the case management of these cases by specialist judges in the class actions list of the Federal Court is more likely to produce expeditious determinations or resolutions of the cases than the current listings in the District Court. 20 For that reason, I will make orders for transfer of the actions of the transfer applicants. -- 6 of 6 --