Taheri v Queensland Police Service [2023] FCA 352

Federal Court of Australia

Taheri v Queensland Police Service [2023] FCA 352 File number(s): VID 8 of 2020

Judgment of: Sarah C DERRINGTON J

Date of judgment: 18 April 2023

Catchwords: PRACTICE AND PROCEDURE – application by respondent to transfer proceedings to Queensland Registry and/or Federal Circuit and Family Court of Australia – whether public interest considerations and expenditure of public funds justify prejudice to applicant – where applicant is represented by pro bono counsel – where no evidence provided by respondent as to the benefit of transferring proceedings

Legislation: Australian Human Rights Commission Act 1986 (Cth) Disability Discrimination Act 1992 (Cth) Federal Court of Australia Act 1976 (Cth) ss 32AB, 37M, 48(1) Racial Discrimination Act 1976 (Cth) Federal Court Rules 2011 (Cth) rr 2.02, 20.13, 27.01

Cases cited: Australian Competition and Consumer Commission v Virgin Mobile Australia Pty Ltd [2002] FCA 1239 Moss v Contracoin Pty Ltd [2023] FCA 125 Mulhern v Pearce [2013] FCA 1138 National Mutual Holdings Pty Ltd v Sentry Corporation [1988] FCA 359; 19 FCR 155

Division: General Division

Registry: Victoria

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 28

Date of hearing: 18 April 2023

Counsel for the Applicant: Ms K O'Gorman

Counsel for the Respondent: Ms N A-Khavari

Solicitor for the Respondent: Crown Law

ORDERS VID 8 of 2020

BETWEEN: KEYAN TAHERI Applicant

AND: QUEENSLAND POLICE SERVICE Respondent

order made by: SARAH C DERRINGTON J DATE OF ORDER: 18 April 2023

THE COURT ORDERS THAT:

1. The respondent's interlocutory application of 20 March 2020 be dismissed. 2. The respondent pay the applicant's cost in the fixed sum of $9440. 3. By 4pm on 2 May 2023, the respondent is to make discovery of all the documents relating to the stop and search of the applicant on 22 March 2019 including: (a) in relation to any inquiry by the Ethics Standard Command of the respondent into the stop and search including: (i) the documents and evidence that were considered as part of that inquiry; and (ii) the results of that inquiry and any reasons for those results; and (b) relevant to the allegation that the body camera footage that the respondent produced to applicant in response to an earlier Right to Information request had been in any way muted or edited. 4. The applicant file and serve his statement of claim by 4pm on 30 May 2023. 5. The respondent file and serve its defence by 4pm on 27 June 2023. 6. The matter be listed for case management hearing by Teams on 10 July 2023 at 9.30am. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SARAH C DERRINGTON J: 1 Mr Taheri commenced proceedings against the State of Queensland on 8 January 2020 by filing an originating application pursuant to s 46PO of the Australian Human Rights Commission Act 1986 (Cth). Pursuant to that originating application, Mr Taheri alleges breaches of the Racial Discrimination Act 1976 (Cth) and Disability Discrimination Act 1992 (Cth) by the Queensland Police Service (QPS) over an interaction between him and police officers in early 2019. 2 On 20 March 2020, the State applied for orders transferring the proceedings from the Victorian Registry of this Court to the Queensland Registry or, alternatively, to the Queensland Registry of the Federal Circuit and Family Court of Australia (FCFCOA), pursuant to ss 48 and 32AB(1) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and rr 2.02 and 27.01 of the Federal Court Rules 2011 (Cth). The State relies on two affidavits of Jody Cosgrove dated 20 March 2020 (First Cosgrove Affidavit) and 4 November 2022 (Second Cosgrove Affidavit) respectively. 3 Despite being filed over three years ago, the matter has not progressed. On 14 October 2022, the matter was reallocated to my docket and a case management hearing took place on 7 November 2022. At that time, Mr Taheri was unrepresented. On 16 November 2022, after a referral by the Court for pro bono representation, Ms O'Gorman of counsel accepted the pro bono brief. Mr Taheri opposes the transfer application. He relies on an affidavit dated 18 April 2023 (First Taheri Affidavit) and a second of the same date, which annexes a report of his treating psychiatrist (Second Taheri Affidavit).

Legal Framework 4 Section 48(1) of the FCA Act provides the Court power to: … at any stage of a proceeding in the Court, direct that the proceeding or a part of the proceeding be conducted or continued at a place specified in the order, subject to such conditions (if any) as the Court or Judge imposes. 5 The relevant test in determining whether a proceeding should be transferred was established by the Full Court in National Mutual Holdings Pty Ltd v Sentry Corporation [1988] FCA 359;19 FCR 155 at 162: Ultimately, the test is: where can the case be conducted or continued most suitably bearing in mind the interests of all of the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court. 6 It is well established that the Court should be flexible in exercising its discretion under s 48 of the FCA Act, no single factor is determinative: National Mutual at 162; Moss v Contracoin Pty Ltd [2023] FCA 125 at [19]. Of relevance is the "national character of the court including its capacity to make flexible arrangements for the taking of evidence and the receipt of submissions": Mulhern v Pearce [2013] FCA 1138 at [14] referring to Australian Competition and Consumer Commission v Virgin Mobile Australia Pty Ltd [2002] FCA 1239. The factors the Court may take into account in considering whether one city is more appropriate than another are numerous and the Court must weigh those factors in each case. They include, "residence of parties and of witnesses, expense to parties, the place where the cause of action arose and the convenience of the Court itself": National Mutual at 162. 7 After considering these matters, the Court must be satisfied that there is sound reason to direct the proceedings be transferred: National Mutual at 162.

Transfer to the Queensland Registry 8 The State submits there is sound reason to warrant the transfer of the proceedings to the Queensland Registry of this Court. It points to the following factors: (1) the allegations involve QPS Officers and are therefore allegations of public interest to the people of Queensland and are of direct relevance to Queensland; (2) the incident to which the allegation relates occurred in Cairns, where Mr Taheri then resided; (3) there is no relevant nexus between the proceeding and the Victorian Registry other than the residence of Mr Taheri; (4) all relevant witnesses, except for Mr Taheri, reside in Queensland; (5) the proceedings are only at the beginning and, in circumstances where the application was lodged promptly, the State should not be prejudiced by delays for which it is not responsible; (6) the State's legal representatives reside in Brisbane; (7) the State will expend significant additional public money if the matter remains in Victoria; and finally, (8) any prejudice suffered by Mr Taheri is outweighed by the expense incurred by the State. 9 The State outlined these matters in a letter to Mr Taheri dated 5 March 2020 by which it invited Mr Taheri to consent to the application for transfer. The letter also referred to the overarching purpose of civil litigation in this Court, as provided for in ss 37M and 37N of the FCA Act, and to paragraph 12 of the Central Practice Note: National Court Framework and Case Management (CPN-1), which relates to the Court's expectations as to keeping interlocutory hearings to a minimum: Second Cosgrove Affidavit, Annexure JC-1, p 32-33. The State did not receive a response to that letter: First Cosgrove Affidavit at [7]. 10 By letter dated 5 October 2022, the State reiterated its invitation to consent to its application for transfer for the reasons outlined in the letter of 5 March 2020 but again received no response: Second Cosgrove Affidavit at [3]-[5]. Mr Taheri has offered no explanation for his failure to respond to these communications. I note, however, that he was unrepresented up until 16 November 2022. 11 Mr Taheri contends that there are three matters that militate against the transfer of the matter to the Queensland Registry: (1) He is a litigant of limited means, whose sole source of income is his Austudy payments. He resides in Victoria, and has done so since 2019 prior to the filing of the originating application. Contrary to the State's submission, there was unchallenged evidence that Mr Taheri has no means of funding travel to Queensland: First Taheri Affidavit at [3] and [6]. (2) He is represented by pro bono counsel and is unable to fund the travel and accommodation expenses of counsel. The consequence would be that he would be unrepresented were the proceedings to be transferred to Queensland: First Taheri Affidavit at [8]. By contrast, the State contended that Mr Taheri would be able to find pro bono counsel in Queensland. No evidence was adduced in support of that contention. (3) Mr Taheri contended he would suffer harm by being required to return to Cairns for a hearing given this was the location where he alleges events caused him significant distress and trauma: First Taheri Affidavit at [4]-[5]; Second Taheri Affidavit, Annexure KJT1. 12 Despite that evidence, which was unchallenged, the State contended that any risk to Mr Taheri's health could be mitigated by his attending the proceedings remotely by video link. This submission is surprising to say the least, given that its consequence would be to deprive a litigant from attending his own proceedings, regularly commenced in accordance with the Rules. 13 I accept the State's submission that there is an obligation on the Court, pursuant to s 37M of the FCA Act, to see that litigation is conducted with reasonable efficiency and expedition and with the least delay and expense as is practical. The Court also has an obligation to consider the interests of justice and to ensure that the balance is struck in such a way so as not to impede an impecunious litigant from pursuing a prima facie legitimate claim. 14 The State has not submitted that Mr Taheri's claim is devoid of merit nor brought any application to have it struck out. Further, the State has done no more than submit that the conduct of the proceedings in Victoria "will require significant additional expenditure of public money, where all witnesses and legal representatives will need to travel to Melbourne". There is, at this stage of the proceedings, no evidence that all the witnesses will be located in one jurisdiction rather than another. The evidence adduced this morning of Mr Taheri's treating psychiatrist is but one example of a witness who may be required to travel to Queensland in addition to Mr Taheri. 15 Further, no evidence has been adduced as to the actual relativity of costs likely to be incurred as between the proceedings being conducted in Cairns, Brisbane or Melbourne. The State did not hold instructions as to where the witnesses were most likely to be located, but I infer from the originating application that those witnesses are most likely to be located in Cairns. If the proceedings are ultimately heard in Brisbane, witnesses will presumably need to be flown to and accommodated in Brisbane. Conversely, if the proceedings are conducted in Cairns, the State's legal team will need to be flown to and accommodated in Cairns, an almost equal distance from Brisbane as is Melbourne from Brisbane. 16 Alternatively, the State has not proffered any reason why it would not be in a position to brief Victorian-based counsel. Just as this is a national Court, so too is the profession that practises in this Court. Parochial attitudes to legal practice are surely relics of a bygone era. 17 Of course, if the proceedings are transferred to either Brisbane or Cairns, Mr Taheri's costs will obviously be increased. 18 There is the further risk, as submitted by Mr Taheri, that he would likely be unrepresented were the matter to be transferred to Queensland. The conduct of a trial as between and unrepresented litigant and the State is a matter which must also be weighed in the balance when contemplating the obligation of the Court under s 37M of the FCA Act to see that litigation is conducted "with reasonable efficiency". 19 As the State has observed, it lodged its application for transfer promptly and should not be prejudiced by any delay not of its making. Nevertheless, the proceedings were commenced after Mr Taheri relocated to Victoria and the State's application necessarily post-dated that event. The State has not pointed to any factor that would have been materially different had its application been heard promptly in early 2020.

Proposed transfer to the FCFCOA 20 The State submits there are six factors that lead to the conclusion that it is in the interests of justice for the proceedings to be transferred to that Court: (1) the proceedings concern a small and uncomplicated legal claim; (2) the overarching purpose as prescribed in s 37M of the FCA Act is best achieved by transferring the proceedings to the FCFCOA; (3) as there have been no significant steps yet, it creates no further disruption for the matter to be transferred to the FCFCOA; (4) the hearing of the proceedings will be more cost efficient in the FCFCOA in the event that Mr Taheri is not legally represented because it will be a more appropriate and less formal jurisdiction for him in which to appear; (5) the parties will not be limited as to the nature and scope of possible relief in that Court as compared with this Court; and (6) the transfer of the proceedings to the FCFCOA is consistent with the rationale for its establishment. 21 First, as with its submissions in relation to its application to transfer the proceedings to the Queensland Registry of this Court, the State has adduced no evidence to support its contention that there would be any significant costs savings to either party should the matter be heard in the FCFCOA. Whilst I take judicial notice of the fee schedules for the matters heard in two different courts, in this case, where there is a government party involved and a self-represented litigant or a litigant represented by pro bono counsel, there is no obvious advantage to the matter being heard in the FCFCOA. 22 Further, the State adduced no evidence as to the relative speed within which the matter might be heard in the FCFCOA. In circumstances where this matter is now docketed to a Judge of this Court and has been moving relatively swiftly since September 2022, there are considerable prospects that these proceedings will be heard and determined in this Court sooner than if they were transferred to the FCFCOA 23 Secondly, the State's submissions appear to accept that Mr Taheri would, or at least might, lose the benefit of his pro bono counsel's assistance given her appointment pursuant to the Federal Court's pro bono assistance programme. It submissions seem to assume that it would be acceptable, in weighing the interests of justice in this case, for Mr Taheri to be at risk of losing the benefit of pro bono counsel and that any detriment thereby suffered will somehow be mitigated by the "less formal jurisdiction" of the FCFCOA. That is an extraordinary submission to be made by the State who has imposed upon it the obligations and expectations of a model litigant. 24 In all the circumstances, and bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court, I am not persuaded to accede to the State's application to transfer the proceedings either to the Queensland Registry of this Court or to the FCFCOA.

Mr Taheri's application 25 Pursuant to r 20.13 of the Rules, Mr Taheri seeks an order that the State make discovery of documents which he sought by way of a request for information almost five months ago. They comprise all documents relating to the stop and search of Mr Taheri on 22 March 2019 (Stop and Search) including all documents: (1) in relation to any inquiry by the Ethics Standard Command of the QPS into the Stop and Search including: (a) the documents and evidence that were considered as part of that inquiry; and (b) the results of that inquiry and any reasons for those results; and (2) relevant to the allegation that the body camera footage that the QPS produced to Mr Taheri in response to an earlier Right to Information request had been in any way muted or edited. (Documents) 26 As deposed to by Mr Taheri (First Taheri Affidavit at [9]-[10]), Mr Taheri made a request for information of the QPS for the Documents on 1 December 2022. After receiving no response for some months, he emailed Ms Cosgrove on 18 March 2023 about the request: First Taheri Affidavit at [12]-[13]. He subsequently received a response from the QPS which did not produce the documents because the copy of the passport Mr Taheri had produced for identification purposes was certified by a pharmacist rather than a lawyer. That letter, dated 21 March 2023, is Exhibit 1. Despite providing a properly certified copy of his passport on 2 April 2023, neither the Documents, nor any response from the QPS have been received by Mr Taheri: First Taheri Affidavit at [17]-[18]. 27 More tellingly, in the State's oral submissions this morning, the State gave no indication that the documents would be produced with any degree of promptitude and the request for documents would follow its course. In circumstances where it is unknown at what time these documents will be produced by the QPS and in circumstances where this proceeding has been on foot since 2019 and suffered a long delay through no fault of the parties, it is in the interests of justice that the QPS be ordered to produce those documents pursuant to r 20.13 of the Rules.

Costs 28 I accept the State raised the principles and rational reasons as to why the application should be granted. However, the State failed to adduce anything approaching an evidentiary basis that might support the application. Consequently, I am prepared to make an order that Mr Taheri have his costs, fixed in the sum of $9440. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Sarah C Derrington.

Associate: Dated: 2 May 2023