Parker v Commonwealth of Australia [2011] FCA 1029 (2 September 2011)

Last Updated: 5 September 2011

FEDERAL COURT OF AUSTRALIA

Parker v Commonwealth of Australia [2011] FCA 1029

Citation:		Parker v Commonwealth of Australia [2011] FCA 1029
Parties:		TROY PARKER v COMMONWEALTH OF AUSTRALIA, LINDSAY O'NEIL, DANIEL BELL, MARCUS EDWARDES and SOPHIE SWANN
File number:		QUD 105 of 2010
Judge:		DOWSETT J
Date of judgment:		2 September 2011
Catchwords:		PRACTICE AND PROCEDURE – notice of motion seeking summary dismissal of the applicant’s claim for damages in respect of unlawful imprisonment and that the applicant’s statement of claim otherwise be dismissed – where the applicant detained pursuant to s 189 of the Migration Act 1958 (Cth) – where subsequently it was conceded that, at all times during his detention, the applicant was a lawful non-citizen – where the applicant pleaded numerous causes of action including: breach of fiduciary duty, misfeasance in public office, intentional infliction of damage by conspiracy, intentional infliction of psychiatric harm, unlawful imprisonment, breach of statutory duty, negligence wrongfully denying permission to work, personal injuries, money had and received, and work and labour done – in respect of unlawful imprisonment, whether the applicant had a reasonable prospect of prosecuting his claim – in respect of the applicant’s other causes of action – whether the pleadings disclose no reasonable cause of action and ought to be struck out.
Legislation:		Freedom of Information Act 1982 (Cth) Limitation Act 1935 (WA) s 38 Limitation Act 1985 (ACT) Migration Act 1958 (Cth) ss 189, 190, 191 Public Service Act 1999 (Cth) United Nations Covenant on Civil & Political Rights
Cases cited:		John Pfeiffer v Rogerson [2000] HCA 36; (2000) 203 CLR 503 followed Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538 applied Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 applied Legione v Hately [1983] HCA 11; (1983) 152 CLR 406 cited Hospital Products v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41 cited Pilmer v Duke Group [2001] HCA 31; (2001) 207 CLR 165 cited Norberg v Wynrib [1992] 2 SCR 226 cited Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 cited Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 cited Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 cited Meagher, Gummow and Lehane’s Equity Doctrines and Remedies (Meagher R, Heydon D, Leeming M, 4th ed, Lexis Nexis Butterworth, 1015)
Dates of hearing:	6 October 2010 and 4 November 2010
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	50
Counsel for the Applicant:	Mr L Boccabella
Solicitor for the Applicant:	AJ Torbey & Associates
Counsel for the Respondents:	Mr R Derrington and Mr M Brady
Solicitor for the Respondents:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 105 of 2010

BETWEEN:	TROY PARKER Applicant
AND:	COMMONWEALTH OF AUSTRALIA First Respondent LINDSAY O'NEIL Second Respondent DANIEL BELL Third Respondent MARCUS EDWARDES Fourth Respondent SOPHIE SWANN Sixth Respondent

JUDGE:	DOWSETT J
DATE OF ORDER:	2 SEPTEMBER 2011
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. the applicant’s claim for damages for unlawful imprisonment be dismissed; and
2. the applicant’s amended statement of claim otherwise be struck out.
   

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 105 of 2010

BETWEEN:	TROY PARKER Applicant
AND:	COMMONWEALTH OF AUSTRALIA First Respondent LINDSAY O'NEIL Second Respondent DANIEL BELL Third Respondent MARCUS EDWARDES Fourth Respondent SOPHIE SWANN Sixth Respondent

JUDGE:	DOWSETT J
DATE:	2 SEPTEMBER 2011
PLACE:	BRISBANE

REASONS FOR JUDGMENT

BACKGROUND

1. In these proceedings the applicant alleges that he was wrongfully detained by the Commonwealth between April and October 2004. He seeks declaratory relief and damages from the Commonwealth and a number of its officers. The applicant was born in Zimbabwe on 15 March 1971 and is now a permanent resident of Australia. In late 1996 he came to Australia to marry an Australian citizen, Liesl Anne Parker. Following their marriage in early 1997, the applicant and his wife travelled to Zimbabwe, returning to Australia in late 1999.
2. On or about 28 January 2000, the applicant applied for a subclass 820/801 spouse visa. In connection with that application, he was granted a bridging visa class A (the “initial bridging visa”) which was to remain in force whilst his application was pending. Pursuant to that visa, he was entitled to undertake employment. In early February 2002, his application for a spouse visa was refused for reasons which are not presently relevant. The Department of Immigration and Cultural Affairs (the “Department”) advised him by letter (the “2002 letter”) that his application was unsuccessful, the letter being sent on or about 4 February 2002. That letter is of particular importance in these proceedings. The applicant contends that it was defective in form. Specifically, it is said that the letter was not dated, with the consequence that the initial bridging visa was never cancelled and remained in force during and after his detention. For present purposes, the respondents do not dispute that assertion.
3. On 20 March 2002 the applicant applied for a protection (class XA) visa and a bridging visa E – subclass 050 (the “second bridging visa”). The latter visa was granted, one of the conditions being that the applicant was not to work. On 25 August 2003 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the “Minister”) refused the application for a protection visa. The effect of this decision was to cancel the second bridging visa and to grant a further bridging visa E (the “third bridging visa”). The Department advised the applicant of the decision by letter of the same date, stating that under the terms of the third bridging visa he was required to leave Australia no later than “28 days after notification of this decision, which you are taken to have received 7 days from the date of this letter” or, if he sought review, “28 days after you receive a decision on that review application”. The applicant did not seek review of that decision. He submits that he did not receive notice of the rejection of his protection visa and, as a consequence, was not aware that he had been granted a third bridging visa, or that it was to expire 35 days later.
4. In April 2004 the applicant was asked to attend the Perth office of the Department. At that time he was working as an agronomist in the Pilbara region of Western Australia. He travelled to Perth and, on 30 April 2004 attended a meeting with officials of the Department. He was informed that he was an unlawful non-citizen, immediately detained and held until 21 October 2004. He was then released and issued with another bridging visa class E (the “fourth bridging visa”). A condition of this visa was that he was not to work.

THE CAUSES OF ACTION

5. As I have observed, the respondents do not dispute that the letter of January 2002, refusing the application for a spouse visa, was undated. Had the applicant been validly notified of the refusal of his application, his initial bridging visa would have expired within 28 days. The effect of the Department’s failure to give valid notice is said to be that the bridging visa was never cancelled. Accordingly, it remained valid during the entire period of his detention. Hence the applicant was, during his detention, a lawful non-citizen.
6. The applicant’s amended statement of claim asserts the following causes of action arising out of his detention:

• breach of fiduciary duty;
• misfeasance in public office;
• intentional infliction of psychiatric injury;
• infliction of damage by conspiracy;
• unlawful imprisonment;
• breach of statutory duty;
• negligence;
• wrongfully denying permission to work;
• personal injuries;
• money had and received; and
• work and labour done.

MOTION TO STRIKE OUT AND FOR SUMMARY JUDGMENT

7. The respondents seek judgment on the claim for unlawful imprisonment. They submit that any such cause of action is statute-barred. As to the other causes of action, the respondents submit that in each case, no viable cause of action is pleaded, and that the statement of claim should be struck out.

UNLAWFUL IMPRISONMENT

8. The circumstances giving rise to this claim appear above. It is not necessary that I say anything more about them. The respondents deny that the applicant’s detention was unlawful. They assert that s 189(1) of the Migration Act 1958 (Cth) (the “Migration Act”) obliged officers of the Commonwealth to detain any person reasonably suspected of being an unlawful non-citizen, and that the relevant officers had such suspicion. However they also assert that the claim is statute-barred pursuant to s 38 of the Limitation Act 1935 (WA) (the “Limitation Act (WA)”) which provides:

(1) Subject to the preceding sections of this Act and as hereinafter provided, actions, suits, or other proceedings as herein set out shall and may be commenced within the time herein expressed after the cause of such actions, suits, or other proceedings respectively: —

(a) ...

(b) Actions for trespass to the person, menace, assault, battery, wounding, or imprisonment:

4 years.

(c) ...

(d) ...

(2) ...

(3) In this section the word actions means such actions as are in the nature of actions at common law, but in reference to this section contained in the succeeding sections of this Act, the word “action” shall be construed as including “actions” or “actions and suits” or “actions, suits, and other proceedings” where any of such meanings is necessary in order to give a complete reference to the matters set out in subsection (1).

(4) This section shall not apply to any action, suit, or other proceeding the time for commencing which is limited by the preceding sections of this Act.

9. The respondents submit that the “cause of the action” was the applicant’s imprisonment which ended on 21 October 2004. Any right to bring an action therefore expired on 21 October 2008 at the latest. The application in this matter was filed on 30 March 2010. The respondents submit that the decision of the High Court in John Pfeiffer v Rogerson [2000] HCA 36; (2000) 203 CLR 503 establishes that the relevant limitation period is to be determined by the law of the place of the tort. They submit that as the imprisonment occurred in Western Australia, the Limitation Act (WA) applies. The applicant accepts that the relevant choice of law depends upon the location of the tort but submits that the Limitation Act 1985 (ACT) (the “ACT Act”) applies. This submission depends upon the applicant’s assertion that the persons who detained him were employees of the Australian Public Service engaged by the Secretary of the relevant Department in Canberra. The applicant further submits that “the essential factual nature of the tort was that the respondents were employees of the Australian Public Service ...”.
10. In Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538 at 567, the High Court (Mason CJ, Deane, Dawson and Gaudron JJ) said:

It was held in Jackson v Spittal [(1870) LR 5CP 542 at 552], that the question whether a cause of action is to be classified as local or foreign is to be answered by ascertaining the place of “the act on the part of the defendant which gives the plaintiff his cause of complaint”. It may sometimes be that the “cause of complaint” is the failure or refusal of the defendant to do some particular thing – in other words, an omission. It makes no sense to speak of the place of an omission. However, it is possible to speak of the place of the act or acts of the defendant in the context of which the omission assumes significance and to identify that place as the place of the “cause of complaint”.

11. Their Honours also noted that:

The authority of Jackson v Spittal was expressly affirmed in [Distillers Co v Thompson [1971] AC 458 at 467-468]. In the latter case Lord Pearson said ... that “(t)he right approach is ... to look back over the series of events ... and ask ... where in substance did this cause of action arise?”

12. Their Honours continued:

The approach formulated in Distillers does not more than lay down an approach by which there is to be ascertained, in a common sense way, that which is required by Jackson v Spittal, namely, the place of “the act on the part of the defendant which gives the plaintiff his cause of complaint”. That approach has particular point if, as was the case in Distillers, it is necessary to ascribe a place to an omission for the purpose of determining where, if at all, a tort was committed.

13. In Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 at 606, the majority (Gleeson CJ, McHugh, Gummow and Hayne JJ) said at [43]:

References to decisions ... show that locating the place of commission of a tort is not always easy. Attempts to apply a single rule of location (such as a rule that intentional torts are committed where the tortfeasor acts, or that torts are committed in the place where the last event necessary to make the actor liable has taken place) have proved unsatisfactory if only because the rules pay insufficient regard to the different kinds of tortious claims that may be made. Especially is that so in cases of omission. In the end the question is “where in substance did this cause of action arise ...?”. In cases, like trespass or negligence, where some quality of the defendant’s conduct is critical, it will usually be very important to look at to where the defendant acted, not to where the consequences of the conduct were felt ... .

14. Whilst the liability of the Commonwealth for the actions of its officers may, to some extent, be dependent upon the circumstances of their employment, I do not accept that in this case, in answer to the question posed by the High Court as to where the cause of action, in substance, arose, one would answer that the cause of action arose at the location at which some of the tortfeasors were employed by another tortfeasor. The cause of action clearly arose in Western Australia where the applicant was detained. The applicant’s submission is without merit. The Limitation Act (WA) applies.
15. The applicant then submits that it is unconscionable for the respondents to rely on the limitation point. He asserts that the Department delayed in granting him access to his file and that, by the time he secured such access, the limitation period had expired. He claims that he did not know that he had a cause of action until after he had seen his file and received advice. By reference to aspirational statements in the Migration Act and the Public Service Act 1999 (Cth) (the “Public Service Act”) he asserts that the officers’ conduct should be assessed by reference to the national interest and the highest ethical standards of the Public Service.
16. For the moment I set aside any question as to whether a party can lose the right to rely upon a limitation period as a result of unconscionable conduct. It is not immediately clear that access to the applicant’s file was a necessary precondition to his commencing these proceedings. In para 7 of his amended statement of claim, he pleads that the relevant error was apparent on the face of the 2002 letter. In other words, obtaining the file was not necessary to his discovering the error which now forms the basis of his claim to have been unlawfully imprisoned. Moreover, the defect was specifically brought to the applicant’s attention by the Department in a letter dated 13 December 2005. That same letter invited the applicant to apply for review of the decision of February 2002. Mr Parker acknowledges that an officer of the Department informed him in December, 2005 that he had “held a valid Bridging Visa A at all times during [his] detention and that prior to, during and after [his] detention [he] had permission to work”. In summary, the claimant was apprised of the error upon which he now founds his claim, and the legal ramifications of that error more than two years before the expiry of the limitation period. In those circumstances, he cannot successfully assert that non-access to his file prevented him from commencing proceedings within the limitation period.
17. In any event, the allegation of unconscionable conduct cannot be maintained. On or about 22 May 2006 the applicant applied for access to his file under the Freedom of Information Act 1982 (Cth) (the “FOI Act”). The application was refused. The exact course of events in relation to this application is unclear. Mr Parker offers this explanation for the refusal of his application:

... when I made an application under the Freedom of Information Act, I did not have enough identification to make the application because I required 100 points in terms of documentary proof of identity ... .

18. He made a further application on 7 October 2008, two weeks before the limitation period expired. Following the submission of this second FOI request, an officer contacted the applicant’s nominated Migration Agent by email on 15 October 2008, seeking further clarification as to the documents sought. Another related conversation took place on 16 October 2008. In a letter dated 31 October 2008, the Department notified the applicant of its decision to “partially release a copy of the documents requested”.
19. Nothing in this account of the processing of the applicant’s FOI requests suggests unconscionable conduct on the part of the respondents. The applicant offers no explanation for his failure to take any further steps in the period between the refusal of his initial FOI request, on or about May 2006, and his subsequent request, over two years later, on 7 October 2008. The applicant has not suggested that the refusal of his initial FOI request, as he alleges, on the basis of insufficient documentary proof of identity, was other than in accordance with the FOI Act. With respect to the applicant’s later request for access to his file, there is nothing in the length of time taken to process the request which could form the basis for an inference of deliberate delay on the part of the officers of the Department. The Department contacted the applicant within eight days of his application, seeking clarification of his request, and informed him of its final decision in a little over three weeks. The applicant does not point to any other evidence from which it might be concluded that the Department deliberately withheld the information until his claim was statute-barred. Accordingly, based upon the evidence currently before the Court, the applicant cannot demonstrate ‘delay tactics’ amounting to unconscionable conduct on the part of the Department or its officers.
20. The applicant has not cited any authority for the proposition that unconscionable conduct can operate to bar a party from relying on a limitation defence. He rather points to the general observations of the High Court in Legione v Hately [1983] HCA 11; (1983) 152 CLR 406 per Mason J (as his Honour then was) and Deane J at 78 as follows:

... underlying the approach ... is an expansive view of the equitable jurisdiction to relieve against forfeiture. This in turn conforms to the fundamental principle according to which equity acts, namely that a party having a legal right shall not be permitted to exercise it in such a way that the exercise amounts to unconscionable conduct.

21. It is difficult to see how a doctrine based on even an expansive view of the equitable jurisdiction to relieve against forfeiture can be used as a basis for depriving a defendant of a statutory defence. The authorities suggest that where a limitation period has extinguished a common law cause of action, equity is also likely to deny recourse to equitable relief on the basis of the general equitable maxim that “equity follows the law”. In Meagher, Gummow and Lehane’s Equity Doctrines and Remedies (Meagher R, Heydon D, Leeming M, 4th ed, Lexis Nexis Butterworth, 1015) the learned authors state:

There are few statutory provisions directly affecting equitable proceedings... However there is some authority to the effect that the statutes of limitation do, indirectly, bar certain claims viz that where the statutes impose a bar on the prosecution at law of a legal claim, there is no equitable jurisdiction to grant equitable remedies in aid of that claim.

22. While some equitable remedies such as the grant of a declaration by the Court may remain available to the applicant, it is an altogether different proposition to assert that equity will intervene to allow the applicant to claim remedies in equity for causes of action which are statute barred at common law. There will be judgment for the respondents on the claim for damages for unlawful imprisonment.

FIDUCIARY DUTY

23. The applicant asserts the existence of a fiduciary relationship between the Commonwealth and himself during the period of his detention, and that fiduciary obligations owed to him have been breached. The applicant cites no authority in support of his general proposition that the Commonwealth owes a fiduciary obligation to those it holds in custody. Rather, he seeks to draw an analogy between that situation and the established fiduciary relationship of “guardian and ward”. This comparison is advanced on the basis that “during his detention, the Commonwealth had taken over the interests of Mr Parker as far as his interest of freedom, food, shelter, wellbeing and ability to work was concerned”, and that the Commonwealth’s control of the applicant during his detention necessarily imposed upon it a fiduciary obligation to act in his best interests.
24. The respondents submit that the obligations of the respondents under the Migration Act are inconsistent with the existence of a relationship of a fiduciary nature, which would in effect require the Commonwealth and its officers to subordinate the Commonwealth’s own interests to those of the applicant. In the present case, Mr Parker’s interest was in being released from detention, whereas the Commonwealth’s was to ensure the detention of persons suspected of being unlawful non-citizens. Accordingly, it is said that the applicant’s pleading discloses no reasonable cause of action in respect of a fiduciary duty and ought to be struck out.
25. In Hospital Products v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41 at 68, Gibbs CJ observed:

The authorities contain much guidance as to the duties of one who is in a fiduciary relationship with another, but provide no comprehensive statement of the criteria by reference to which the existence of a fiduciary relationship may be established. The archetype of a fiduciary is of course the trustee, but it is recognized by the decisions of the courts that there are other classes of persons who normally stand in a fiduciary relationship to one another e.g., partners, principal and agent, director and company, master and servant, solicitor and client, tenant-for-life and remainderman. There is no reason to suppose that these categories are closed. However, the difficulty is to suggest a test by which it may be determined whether a relationship, not within one of the accepted categories, is a fiduciary one.

26. At 69-70, his Honour also identified the existence of a relationship of confidence and inequality of bargaining power as possible bases for imposing a fiduciary duty. Gibbs CJ held that neither was necessarily sufficient for that purpose.
27. At 96-97 Mason J said:

The accepted fiduciary relationships are sometimes referred to as relationships of trust and confidence or confidential relations ..., trustee and beneficiary, agent and principal, solicitor and client, employee and employer, director and company, and partners. The critical feature of these relationships is that the fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense. The relationship between the parties is therefore one which gives the fiduciary a special opportunity to exercise the power or discretion to the detriment of that other person who is accordingly vulnerable to abuse by the fiduciary of his position. The expressions “for”, “on behalf of”, and “in the interests of” signify that the fiduciary acts in a “representative” character in the exercise of his responsibility, to adopt an expression used by the Court of Appeal.

It is partly because the fiduciary’s exercise of the power or discretion can adversely affect the interests of the person to whom the duty is owed and because the latter is at the mercy of the former that the fiduciary comes under a duty to exercise his power or discretion in the interests of the person to whom it is owed. ...

28. An essential feature of a fiduciary relationship is the undertaking by one party to act in the interests of the other, at least in certain respects. This was accepted by the High Court in Pilmer v Duke Group [2001] HCA 31; (2001) 207 CLR 165. At 196 McHugh, Gummow, Hayne and Callinan JJ referred with approval to the comments of McLachlin J in Norberg v Wynrib [1992] 2 SCR 226, that:

The essence of a fiduciary relationship ... is that one party exercises power on behalf of another and pledges himself or herself to act in the best interests of the other.

29. The language used in the cases is quite inconsistent with the existence of a fiduciary relationship in the present case. The applicant does not allege any facts specific to the circumstances of his individual case which would indicate a basis for finding that a fiduciary relationship existed between him and the Commonwealth or its officers. It is not suggested that the Commonwealth undertook to act in the applicant’s interests to the exclusion of the interests of others, including its own. Nor is there any evidence to suggest that Mr Parker reposed special trust or confidence in the Commonwealth or its officers to act on his behalf and in his interests to the exclusion of their own.
30. The applicant does not plead any facts which suggest the existence of a fiduciary relationship. The claim must be struck out.

NEGLIGENCE

31. The applicant contends that the Commonwealth and its officers were negligent in detaining him, given that he held a valid visa. In support of his assertion of such a duty he refers to decisions of the High Court to the effect that a public authority may be subject to a common law duty of care in the exercise of its statutory function. However the High Court has also identified the difficulties inherent in seeking to establish such a duty. In Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1 at [93], McHugh J identified factors relevant to the existence of a duty of care as follows:
    1. Was it reasonably foreseeable that an act or omission of the defendant, including a failure to exercise its statutory powers, would result in injury to the plaintiff or his or her interests? In no, then there is no duty.
       
    2. By reason of the defendant’s statutory or assumed obligations or control, did the defendant have the power to protect a specific class including the plaintiff (rather than the public at large) from a risk or harm? If no, then there is no duty.
       
    3. Was the plaintiff or were the plaintiff’s interests vulnerable in the sense that the plaintiff could not reasonably be expected to adequately safeguard himself or herself or those interests from harm? If no then there is no duty.
       
    4. Did the defendant know, or ought the defendant to have known, of the risk of harm to the specific class including the plaintiff if it did not exercise its powers? If no, then there is no duty.
       
    5. Would such a duty impose liability with respect to the defendant’s exercise of “core policy-making” or “quasi-legislative” functions? If yes, then there is no duty.
       
    6. Are there any other supervening reasons in policy to deny the existence of a duty of care (eg, the imposition of a duty is inconsistent with the statutory scheme, or the case is concerned with pure economic loss and the application of principles in that field deny the existence of a duty)? If yes, then there is no duty.

(emphasis added)

32. Similarly, in Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 at [146] Gummow and Hayne JJ observed:

The existence or otherwise of a common law duty of care allegedly owed by a statutory authority turns on a close examination of the terms, scope and purpose of the relevant statutory regime. The question is whether that regime erects or facilitates a relationship between the authority and a class of persons that, in all the circumstances, displays sufficient characteristics answering the criteria for intervention by the tort of negligence.

33. In fact the applicant has not sought to undertake any such detailed examination of the structure and operation of the Migration Act. He has, effectively, pleaded a duty not wrongfully to imprison a lawful non-citizen and calls it a duty of care. Clearly, the pleading is defective and must be struck out.

MISFEASANCE IN PUBLIC OFFICE

34. The applicant appears to assert recklessness on the part of Commonwealth officers in not discovering that the applicant was a lawful non-citizen. In particular he asserts that in April 2004, before taking the applicant into custody, the officers of the Department ought to have identified the defect in the 2002 letter, despite the fact that no such assertion had been made by the applicant, he had made a subsequent visa application in March 2002 and had been granted two further bridging visas. Further, he had not sought to challenge the decision to decline to grant him a protection visa. It seems almost certain that the relevant officers assumed that from 20 March 2002 his claim to residence in Australia was based solely upon his application for a protection visa, and that his lawful authority to remain in Australia depended upon the second and third bridging visas, both of which had expired.
35. Had the applicant asserted reliance upon the initial bridging visa, and had the Commonwealth officers failed to investigate that matter, there may well have been a case of misfeasance in public office. However, given the absence of any such assertion, it is difficult to see how the Commonwealth officers can be accused of either knowingly acting beyond power, or recklessly disregarding the means of acquiring the knowledge that such acts were beyond power. In those circumstances it is incumbent upon the applicant to provide particulars of the basis upon which he asserts recklessness. To the extent that he seeks to undertake this task at all, it is by pointing to statements of general effect in various manuals and associated documents relating to the need to check and be careful. However there is no basis in the pleading from which the Court could infer that a Commonwealth officer acted recklessly in the circumstances. The claim must be struck out.

BREACH OF STATUTORY DUTY

36. The applicant alleges that:

The second and sixth respondents and/or any employee of the first respondent had a statutory duty pursuant to ss 189-191 of the Migration Act 1958, not to detain a person who holds a valid visa or to take immediate reasonable steps to ascertain whether the applicant had a valid visa before detaining him.

37. Again it is said that the respondents, or some of them, ought to have taken steps to ascertain the contents of the applicant’s file and discovered the irregularity concerning the termination of the initial bridging visa. The applicant relies upon the observations made by Brennan CJ, Dawson and Toohey JJ in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, where their Honours said at 424:

A cause of action for damages for breach of statutory duty arises where a statute which imposes an obligation for the protection or benefit of a particular class of person is, upon its proper construction, intended to provide a ground of civil liability when the breach of the obligation causes injury or damage of a kind against which the statute was designed to afford protection.

38. Sections 189-191 of the Migration Act read as follows:

189 Detention of unlawful non-citizens

(1) If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.

(2) If an officer reasonably suspects that a person in Australia but outside the migration zone:

(a) is seeking to enter the migration zone (other than an excised offshore place); and

(b) would, if in the migration zone, be an unlawful non-citizen;

the officer must detain the person.

(3) If an officer knows or reasonably suspects that a person in an excised offshore place is an unlawful non-citizen, the officer may detain the person.

(4) If an officer reasonably suspects that a person in Australia but outside the migration zone:

(a) is seeking to enter an excised offshore place; and

(b) would, if in the migration zone, be an unlawful non-citizen;

the officer may detain the person.

(5) In subsections (3) and (4) and any other provisions of this Act that relate to those subsections, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force.

190 Non-compliance with immigration clearance or section 192 basis of detention

(1) For the purposes of section 189, an officer suspects on reasonable grounds that a person in Australia is an unlawful non-citizen if, but not only if, the officer knows, or suspects on reasonable grounds, that the person:

(a) was required to comply with section 166; and

(b) did one or more of the following:

(i) bypassed, attempted to bypass, or appeared to attempt to bypass, immigration clearance;

(ii) went to a clearance authority but was not able to present, or otherwise did not present, evidence required by section 166 to be presented;

(iii) if a non-citizen – went to a clearance authority but was not able to provide, or otherwise did not provide, information required by section 166 to be provided;

(iv) if a non-citizen – went to a clearance officer but was not able to comply with, or did not otherwise comply with, any requirement referred to in section 166 to provide one or more personal identifiers to the clearance officer.

(2) For the purposes of section 189, an officer suspects on reasonable grounds that a person in Australia is an unlawful non-citizen if, but not only if, that person fails to provide a personal identifier, under subsection 192(2A), of a type or types prescribed.

191 End of certain detention

(1) A person detained because of section 190 must be released from immigration detention if:

(a) the person gives evidence of his or her identity and Australian citizenship; or

(b) an officer knows or reasonably believes that the person is an Australian citizen; or

(c) the person complies with section 166 and either:

(i) presents to a clearance officer evidence of being a lawful non-citizen; or

(ii) is granted a visa.

(2) A person detained because of subsection 190(2) must be released from immigration detention if:

(a) the person provides to an authorised officer one or more personal identifiers of the type or types prescribed, and the officer is satisfied that the person is not an unlawful non-citizen; or

(b) the person gives evidence of his or her identity and Australian citizenship; or

(c) an officer knows or reasonably believes that the person is an Australian citizen; or

(d) the officer becomes aware that the non-citizen’s visa is not one that may be cancelled under Subdivision C, D or G of Division 3 or section 501 or 501A.

39. It is difficult to read s 189 as imposing an obligation for the protection or benefit of a particular class of persons. It confers upon officers of the Commonwealth a power and duty to do certain things, provided that certain circumstances exist. A similar comment applies with respect to s 190. Section 191 is in a slightly different category. It provides that in certain circumstances a person who has been detained must be released. However the duty to release arises primarily where the person arrested has provided appropriate evidence. See s 191(1)(a) and (c) and s 191(2)(a) and (b). Apart from those provisions the obligation to release arises if an officer knows or reasonably believes certain things, or becomes aware of certain things. As there is no suggestion either that the applicant discharged any of the obligations conferred upon a detained person by s 191, or that any officer became aware of, or formed a reasonable belief as to any of the matters therein specified, the section has no operation for present purposes. None of the three sections creates a statutory duty not to detain a person who holds a valid visa, or a duty to take immediate steps to ascertain whether the person has a valid visa. The claim is misconceived and must be struck out.

INFLICTION OF DAMAGE BY CONSPIRACY

40. The applicant alleges that the second and sixth respondents orally agreed between themselves, in the days before the applicant’s detention to detain him. This is said to have occurred at the premises of the Department of Immigration and Multicultural and Indigenous Affairs in Perth. The exact details of the conversations are not particularized and, it is said, cannot be particularized prior to interrogatories and discovery. It is then said that the matters pleaded in para 9 establish that there was “no serious attempt to ascertain that the applicant was a lawful non-citizen at that time”. Paragraph 9 pleads the provisions of various procedural manuals. It is then alleged that:

The second and sixth respondents knew or ought to have known that the detention of the applicant was unlawful.

41. The particulars of this allegation are that the second and sixth respondents did not take relevant steps to determine whether the applicant was a lawful non-citizen and, again, the matters pleaded in para 9. It is then said that one purpose of detaining him was to cause him harm. Particulars of that allegation are that the second and sixth respondents had that purpose in the period immediately leading up to his detention. Further, it is said that the natural and ordinary consequences of such detention was harm.
42. In my view the pleading is embarrassing. It is cast in the form of a plea of conspiracy which inevitably involves actual intention to bring about a particular result, but seeks to support that allegation by reference to matters of which the second and sixth respondents knew “or ought to have known”. The applicant also seeks to rely on failure to take relevant steps to determine whether the applicant was a lawful non-citizen. There is no clear pleading of an overt act of conspiracy. The allegation of an intention to cause harm is compromised by the reference to “the natural and ordinary consequences of detaining a person”, suggesting something other than actual intention to harm. These matters lead inevitably to the conclusion that the pleading is embarrassing and should be struck out.

WORK AND LABOUR DONE

43. As against the first respondent the applicant asserts that because he was required by the persons operating the detention centre to perform cleaning, cooking and associated work in and about the detention centre, for about 25 hours each week, there was an implied agreement with the Commonwealth that it would pay him.
44. There are two fatal flaws in this pleading. The first is that there is no basis for inferring that the operator was authorized to enter into such a contract on behalf of the Commonwealth. The second is that the circumstances seem entirely inconsistent with there being any such implied contract. There is no pleaded basis for inferring such an intention. References to the United Nations International Covenant on Civil and Political Rights do not assist in this regard. The claim must be struck out.

MONEYS HAD AND RECEIVED

45. When the applicant was released in October 2004, he was required to provide the sum of $6,000 as security for his release. He claims damages for loss incurred in providing that security. The claim is for interest at a commercial rate for the period from 21 October 2004 until 15 December 2005, together with associated costs and expenses. As the respondent points out, the applicant pleads that the bond was provided by Ms Carin Fraser. In order to make any such claim, the applicant would have to plead some obligation on his part to reimburse Ms Fraser. He does not do so. Further, it is not clear whether money was actually paid to the Commonwealth or whether some form of security was arranged. The pleading is embarrassing and should be struck out.

INTENTIONAL INFLICTION OF PSYCHIATRIC INJURY

46. This pleading is also embarrassing for reasons similar to those given in connection with the claim for infliction of damage by conspiracy. Whilst the applicant alleges intentional infliction of psychiatric injury, he then pleads that the second and sixth respondents “knew or ought to have known that each of them had no authority to detain the applicant”. This claim is particularized by reference to the second and sixth respondents’ failure to take relevant steps to determine whether he was a lawful non-citizen. It is then pleaded that the second and sixth respondents “ought to have known that the detention of the applicant would cause him psychiatric injury”. The inherent inconsistency between the primary assertion of intentional infliction of psychiatric injury and the subsequent assertion is obvious. The problem is highlighted by the applicant’s own submission that:

If the relevant respondent did not take steps to ascertain his or her proper authority to take or keep [the applicant] in detention that relevant respondent cannot assert he or she had no intention to take or keep [the applicant] in detention.

47. That proposition may be true but it says nothing about the deliberate infliction of psychiatric injury. The claim must be struck out.

WRONGFULLY DENYING PERMISSION TO WORK

48. This seems to be a particular of damage rather than a separate cause of action. In particular it seems to relate to the causes of action of misfeasance in public office and negligence. As I have struck out the pleadings in respect of both matters, the question of any such wrongful denial does not arise.

PERSONAL INJURIES

49. Once again this appears to be a head of damage rather than a cause of action. It is said that the applicant claims damages for personal injuries for which the first and/or second and sixth respondents and/or third and fourth respondents are liable. The relevant conduct is said to be the applicant’s detention without lawful cause. It is said that particulars of injury and damage will be supplied prior to trial. The claim cannot stand by itself.

ORDERS

50. I give judgment for the respondents against the applicant on the unlawful imprisonment claim. I otherwise order that the statement of claim be struck out. I shall hear submissions as to other orders and as to costs.
    

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated: 2 September 2011