Federal Court of Australia Plaintiff S111A/2018 v Minister for Home Affairs (No 3) [2021] FCA 207 File number(s): NSD 584 of 2019 Judgment of: MORTIMER J Date of judgment: 11 March 2021 Catchwords: MIGRATION – interlocutory application to file second further amended statement of claim – ASIO security assessment – whether the respondents have sufficient awareness of the applicant's case to advance their own case – leave granted Cases cited: CGU Insurance Ltd (ACN 004 478 371) v Blakeley and Others [2016] HCA 2; 327 ALR 564 Employers Reinsurance Corporation v Ashmere Cove Pty Ltd [2008] FCAFC 28 Martech International Pty Ltd v Energy World Corporation Ltd [2004] FCA 1470 Plaintiff S111A/2018 v Minister for Home Affairs (No 2) [2020] FCA 499 Plaintiff S111A/2018 v Minister for Home Affairs [2019] FCA 1271 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 29 Date of last submission/s: 1 March 2021 Date of hearing: Determined on the papers Counsel for the Applicant: Mr Michael Finnane Q.C. Solicitor for the Applicant: Ms Zali Burrows Counsel for the Respondents: Mr Perry Herzfeld SC Ms Zelie Heger Solicitor for the Respondents: Australian Government Solicitor Table of Corrections: 5 April 2022 Judgment citation amended to correctly read 'Plaintiff S111A/2018 v Minister for Home Affairs (No 3) [2021] FCA 207'. 5 April 2022 Applicant's name on orders page amended to correctly read 'PLAINTIFF S111A/2018'. ORDERS NSD 584 of 2019 BETWEEN: PLAINTIFF S111A/2018 Applicant AND: MINISTER FOR HOME AFFAIRS First Respondent COMMONWEALTH OF AUSTRALIA Second Respondent DIRECTOR GENERAL OF SECURITY Third Respondent order made by: MORTIMER J DATE OF ORDER: 11 March 2021 THE COURT ORDERS THAT: 1. The applicant be granted leave to rely at trial upon the second further amended statement of claim in the form annexed to the affidavit of Ms Zali Burrows affirmed 23 February 2021, but with all necessary redactions to remove any identifying information about the applicant. 2. On or before 12 noon on Friday 12 March 2021 the applicant file and serve the second further amended statement of claim referred to in order 1 with the necessary redactions. 3. On or before 4 pm on 25 March 2021 the respondents file and serve a further amended defence. 4. The respondents' costs of the interlocutory application be reserved. 5. No further interlocutory application is to be filed in this proceeding without the leave of the Court. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT MORTIMER J: 1 This is a ruling on an interlocutory application made on behalf of the applicant to amend the statement of claim in this proceeding for the third time (the 2FASOC). For the reasons set out below, leave should be granted to the applicant to rely upon the 2FASOC. 2 Much of the background to this proceeding is set out in Robertson J's reasons for a discovery ruling, made on 13 August 2019: see Plaintiff S111A/2018 v Minister for Home Affairs [2019] FCA 1271. However, some of the background bears repeating. 3 The proceedings were commenced in the High Court of Australia in August 2018. They were remitted by consent on 20 February 2019, in part to this Court and in part to the Federal Circuit Court of Australia. Orders were then made transferring part of the proceeding from the Federal Circuit Court to this Court, so that the whole of the proceeding could be dealt with together in this Court. That transfer occurred by order made on 16 May 2019. For a substantial part of 2019, the parties dealt with discovery disputes, including by way of Robertson J's ruling to which I have referred. I note the first paragraph of his Honour's ruling states that the applicant's legal representatives did not appear at the listed hearing. 4 Almost a year later the parties were still embroiled in pleadings debates. A ruling of Robertson J on 16 April 2020 concerned the applicant's application to rely on a proposed further amended statement of claim: see Plaintiff S111A/2018 v Minister for Home Affairs (No 2) [2020] FCA 499. In those reasons Robertson J notes (for example at [2]) requests from the applicant's solicitor for extensions of time to comply with orders about the filing of a further amended statement of claim. It was at this point, as I understand it from Robertson J's reasons, that the present senior counsel appearing for the applicant first became involved in the proceeding. The nature of the claims made in the proceeding 5 The proceeding has several components. First, there is a claim for an order in the nature of certiorari quashing a purported visa refusal decision dated 13 June 2018, and an order in the nature of mandamus compelling the Minister to consider the application for a visa made by the first applicant on 12 June 2015. Second, the applicant claims his detention is unlawful, and claims damages for false imprisonment. Third, there are challenges to the validity of ASIO security assessments made in respect of the applicant. The present interlocutory application 6 It appears the amendment arises mostly because the applicant has been subject to a third security assessment, carried out by ASIO in 2020. It appears from the pleading that this assessment was adverse to him. 7 After the respondents indicated they did not consent to the proposed amendments, the applicant filed written submissions in support of the interlocutory application. The applicant submitted at [7] that the 2FASOC sought to address issues arising out of the third ASIO security assessment. The applicant submitted at [10] and [12] that contrary to the claims raised in correspondence by the respondents, sufficient particulars have been provided to the respondents in relation to the contested paragraphs of the 2FASOC: [102]-[118]. 8 The respondents filed submissions and what they described as a "bundle of material". The applicant filed reply submissions. The applicant also relied on an affidavit of Ms Zali Burrows affirmed 23 February 2021. The terms of the proposed 2FASOC 9 A copy of the proposed 2FASOC was annexed to Ms Burrows' affidavit as ZB-3. It is clear the pleaded factual background remains largely unchanged. Previously non-substantive particulars have been amended to refer to discovered documents, which is appropriate. There are some deletions of factual and legal allegations (e.g. [62]-[63]; [76]-[78]). From around [91] onwards there are more amendments: (a) at [91]-[92] are allegations about the existence of an adverse ASIO assessment precluding the grant of a protection visa, and a factual allegation about the threatened removal of the applicant to Egypt in June 2018, which did not occur. (b) There are some deletions from [93] about the lawfulness of any removal of the applicant, but a pleading about his removal to Egypt placing Australia in breach of its non-refoulement obligations is retained. (c) At [101] there is a factual pleading about community detention, and following this some paragraphs are deleted. (d) From [102]-[114] is a new pleading about the 2020 ASIO assessment. Particulars are given by reference to discovered documents. The pleading is, proportionally, a substantial addition to the statement of claim. It contains some factual allegations about ASIO's communications with the Department of Home Affairs concerning the applicant over several years since 2013, the alleged withholding of documents from the applicant (described as an "unreasonable and unjust policy"); the failure of ASIO to consider documents proffered by the applicant, and its use of documents obtained under what the applicant alleges was torture; a failure by ASIO to consider the likely removal of the applicant to Egypt and Australia's breach of its non-refoulement obligations. (e) From [115]-[118] is another substantive addition, also about the ASIO assessment. In these paragraphs, the applicant alleges a denial of procedural fairness in the conduct of the ASIO interview; ASIO giving undue weight to unreliable sources and relying on "unreliable information", rendering the conclusions of ASIO in the security assessment legally unreasonable. 10 I note that in several places (at [114] and all through the particulars in [115]), the applicant's name is used. His identity is intended to be suppressed by reason of the pseudonym given to him in this proceeding. Those paragraphs will require redaction or amendment before filing and orders have been made accordingly. The respondents' position 11 It is clear that the parties engaged in some discussion (at least by correspondence) concerning whether the respondents could consent to the proposed amendments. That discussion centred on the respondents' request for particulars, and the supplying of particulars, followed by the respondents expressing their dissatisfaction with some of the particulars provided (or lack thereof). 12 The respondents put their position on the interlocutory application by reference to what they said in correspondence to Ms Burrows on 23 February 2021. The 23 February correspondence runs over four pages and 16 paragraphs. It descends into great detail about the applicant's new pleaded paragraphs, alleging certain particulars are inadequate, engaging in debates about whether matters are properly for evidence or particulars, seeking to confine the applicant to statements in previous correspondence, and pointing out allegations the respondents say are not raised in the pleadings and "inviting" amendments. Parts of it are, in my opinion, an exercise, not unfamiliar for respondents, in seeking to articulate what the respondents say is the applicant's case, whether or not that may be how the applicant puts the case. 13 On the interlocutory application, the respondents submit the Court should make yet further procedural orders, compelling the applicant to address matters raised by the respondents, and providing for yet another round of waiting and seeing whether the respondents are satisfied, and consent to the amendments or continue to seek further details. The applicant's position 14 The applicant's solicitor is a sole practitioner. She deposes in her affidavit at [3], to receiving in the afternoon of 16 February 2021 a letter of 8 pages from the respondents seeking clarification and particulars, and giving her 46 hours to respond. She deposes that she could not do so, as a sole practitioner with other existing court commitments. 15 The respondents "bundle" indicates Ms Burrows provided a 28 page response on 22 February 2021. 16 She then deposes to receipt of the 23 February letter requesting yet more details and deposes: I have made the suggested amendments to the pleadings 17 I infer that is Ms Burrows' way of saying that, on behalf of the applicant, the matters raised in the 23 February letter have been considered and addressed to the extent the applicant considers necessary. Resolution 18 The interlocutory debates between the parties need to cease. While it is important that parties be able to advance their cases, and are aware of the case they have to meet, in this proceeding both sides have had plenty of time to acquaint themselves with these matters. The incessant inter-party squabbles, the pages and pages of correspondence, and the nice legal arguments, have not advanced the circumstances of the applicant one jot. He remains detained without his allegations of false imprisonment having been determined. It is his liberty at stake, and on both sides there appears to have been insufficient regard paid to this fact. Whether or not his case succeeds, he is entitled to have it tried, and tried with relative efficiency, and at a cost which is proportionate to the length and complexity of the ultimate trial. It is clear the respondents are unlikely to recoup any legal costs from the applicant and the time has come to cease running up costs on interlocutory and preliminary matters. 19 The proceeding is fixed for trial on 16 – 18 June 2021. Barring the most exceptional of circumstances, the Court will see to it that it proceeds on those dates and some finality is brought to at least the first stage of the applicant's claims. 20 By orders made on 5 February 2021, and largely by agreement after the trial date was identified, the Court has fixed the time for the filing of affidavit evidence: 1 April for the applicant, 29 April for the respondent, 13 May for reply evidence. The court book is due to be filed on 20 May 2021. Outlines of submissions, and objections to evidence, are due on 20 and 27 May 2021 respectively, with a reply on 3 June 2021. 21 Thus, there is still a great deal of preparatory work to be done. It is imperative it be done on time, so that the trial can proceed. I take into account the considerable disparity in resources between the applicant's and respondents' legal representatives. I consider the applicant's legal representatives should be left to focus on ensuring proper compliance with the Court's timetable as set. 22 It is important that insofar as it is possible, the Court resolve all disputes between the parties in the one proceeding: see CGU Insurance Ltd (ACN 004 478 371) v Blakeley and Others [2016] HCA 2; 327 ALR 564 at [115]; Employers Reinsurance Corporation v Ashmere Cove Pty Ltd [2008] FCAFC 28 at [74]; Martech International Pty Ltd v Energy World Corporation Ltd [2004] FCA 1470 at [29] per French J. It is clear the latest ASIO assessment may operate as a bar to the grant of a protection visa to the applicant. He should be permitted to challenge it in these proceedings, to the extent the law allows. 23 I do not consider there is any prejudice to the respondents in proceeding on the pleadings as proposed. Rather it seems to me from their extremely detailed and targeted correspondence the respondents are aware of the nature of the allegations against them. There appears to have been extensive discovery, so the respondents also know what they have discovered and how the discovered documents may affect the parties' cases. 24 If during the conduct of the trial, the respondents are truly taken by surprise, or the applicant's case is put in a way they could not reasonably have anticipated, they will of course be given reasonable time to deal with such events. The respondents are capably represented by experienced counsel and solicitors. A trial is always an organic creature to some extent. Not every detail can be prepared perfectly in advance, especially where there is such a significant disparity in resources between the parties. 25 I consider the point has been reached in this proceeding where the need to get the matter on for trial, and to facilitate compliance with existing orders of the Court, overwhelms other considerations. In a perfect world with two fully funded parties and numerically strong legal teams at their disposal, a trial may well much more closely resemble the adversarial, gladiatorial style of the past. Encouraging that kind of process is inappropriate to the circumstances of a proceeding such as this. To the extent the proceeding has been conducted in this way to this point, the history of the proceeding is the best evidence of its failure. The applicant remains deprived of his liberty more than three years after he commenced this proceeding alleging his detention is unlawful, and there has still not been a trial, but no doubt the respondents' legal costs are already very high. All for what the parties jointly say to the Court is a three day trial. That is not an effective and efficient use of anybody's resources, and especially not public resources, on the side of the respondents and the Court. 26 I have also taken into account that the applicant's legal representatives – in particular his solicitor – have not complied with court orders and deadlines on repeated occasions. There comes a point at which, again, effort must be focussed on securing compliance with the core Court orders needed to ensure a trial can occur. The applicant's solicitor has been warned of the Court's view that the day may be approaching where the Court may consider of its own motion asking the applicant's solicitor to show cause why any future costs orders should not be made against her personally, if non-compliance with the Court's orders sees the respondents incur additional costs. However, legal costs are a side issue. The Court's main concern is that more than three years have passed while this proceeding has been on foot, without a trial occurring, and the applicant has remained deprived of his liberty for all that time. 27 I have no confidence that the orders proposed by the respondents will address their own complaints satisfactorily. First, that is because it seems likely the applicant's solicitor may not have the capacity to comply on time. Second, on the evidence, it is unlikely her answers will satisfy the respondents, and the parsing and technicality of their responses may continue. More time will have been wasted, and considerably more costs incurred. All this is highly disproportionate to what the parties agree should be a three day trial. 28 For those reasons, I consider the appropriate course is to grant leave to the applicant to file and serve the 2FASOC, subject to one qualification, in the form annexed to Ms Burrows' affidavit. The necessary qualification is the need to redact the pleading and remove all references which may identify the applicant. 29 The respondents should plead to the allegations, and the parties should get on with preparation for trial. I have fixed the time for the filing of a further amended defence by the respondents by reference to the time agreed between the parties in the 5 February 2021 orders, on the alternative scenario that the respondents had agreed to the proposed amendments. That time gap was two weeks. Giving the respondents two weeks for an amended defence will allow the remainder of the Court's orders to be complied with. The respondents have also had the proposed pleading for some time, and have obviously spent a considerable amount of time working through it, so it is not new to them. Leave will be required for the filing of any further interlocutory applications, due to the pressing amount of work which already has to be done ahead of 16 June 2021. The respondents' costs of this application will be reserved. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mortimer. Associate: Dated: 11 March 2021