Hendi by her tutor Hamed Hendi v Commonwealth of Australia

The plaintiffs in each of proceedings numbered 2014/00068193, 2014/00068203, 2014/00068211 and 2014/00068216 respectively move on notices of motion filed on 16 December 2015. The plaintiffs seek an order that these proceedings, which were commenced in the Supreme Court, be transferred to the District Court pursuant to s 146 of the Civil Procedure Act 2005 (NSW).

The reason the plaintiffs seek a transfer is that they, or at least some of them, apprehend that there is a real possibility, if not a probability, that, if they are successful in their claim for damages in negligence against the Commonwealth, the damages will not exceed the jurisdictional limit of the District Court, and, perhaps more importantly for present purposes, will not exceed $500,000.

The plaintiffs' concern arises from the provisions of Uniform Civil Procedure Rules 2005 (NSW) (UCPR) which limits the awarding of costs in favour of a successful plaintiff where an amount less than $500,000 is awarded against a defendant. UCPR 42.34 provides:

In these proceedings Mr Williams QC, who appears on behalf of the Commonwealth, has made submissions in writing to the effect that, because of the complexity of the proceedings, an order for transfer ought not be made. Mr McGrath, who appears on behalf of the first cross-defendant, Serco Australia Pty Ltd, adopts the same position as the Commonwealth and relies on its submissions. Mr Vincent, who appears on behalf of the second cross-defendant, IHMS, neither consents nor opposes the transfer to the District Court.

After a short discussion with counsel, each counsel for the defendant and the two cross-defendants has confirmed to the Court that neither the defendant nor the cross-defendants will seek to argue (by reference to UCPR 42.34) that the plaintiffs ought be deprived of their costs if successful in the event that those four sets of proceedings remain, continue to be prosecuted and are completed in this Court.

Mr Raine, who appears on behalf of the plaintiff, confirmed that the costs question was the only matter of potential prejudice to the plaintiffs, and was the reason for, the plaintiffs’ application for transfer to the District Court.

I have considered the pleadings which are contained in the amended statement of claim filed on behalf of the plaintiff Hamed Hendi. It is alleged in that statement of claim that the plaintiff was intercepted by the Commonwealth on a boat journey to Australia in June 2010. For the following two years he remained in detention. For some of that period he was in detention in centres run by or on behalf of the Commonwealth or its contractors. For the period from March 2011 until July 2011 it is alleged that the plaintiff was held in what is called community detention. On 20 July 2011 the plaintiff was granted a protection visa pursuant to the Migration Act 1958 (Cth). The plaintiffs in these proceedings claim damages for negligence against the Commonwealth.

The duty of care owed by the Commonwealth to persons such as the plaintiffs was addressed by Finn J in S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2005] FCA 549; 143 FCR 217 at [213]-[219]. Justice Finn considered that the Commonwealth owes a non-delegable duty of care to persons detained under the Migration Act. Whether its non-delegable duty continues when the plaintiff is in community detention did not need to be decided. In cases such as the present, issues such as the ambit and content of the duty of care; the standard of care; causation and quantum of damages tend to be complex. They are to be distinguished from more orthodox negligence cases which are commonly heard in the District Court.

In these circumstances I am satisfied, for the purposes of s146(4)(b)(ii) of the Civil Procedure Act, that there are several sufficient reasons for hearing the proceedings in this Court, including: the potential complexity of the proceedings; and the circumstance that the plaintiffs, having regard to the defendant and cross-defendants' attitude on costs, will not be prejudiced by the matter remaining in the Supreme Court and may even receive a benefit in the form of an earlier hearing date.

The parties have asked that, having regard to its complexity and the circumstance that the four proceedings are related, the matter be listed for judicial case management in this Court. In all the circumstances I consider that to be a reasonable request and will list the matter before me on the next occasion.

Accordingly, I make the following orders and notation in each of the following proceedings 2014/00068193, 2014/00068203, 2014/00068211 and 204/00068216,: