FEDERAL COURT OF AUSTRALIA

Abraham v Commonwealth of Australia [1999] FCA 1613

JURISDICTION – Federal Court – claim by appellant against Australian Federal Police alleging failure to ensure that appellant’s wife complied with order of Family Court prohibiting removal of daughter of marriage from Australia – whether application should be summarily dismissed.

Australian Federal Police Act 1979 (Cth) ss 8, 9, 64B

Judiciary Act 1903 (Cth) s 39B, 39B(1A)(c)

Federal Court Rules O 20 r 2(1)(a), O 52 r 5, O 52 r 18

Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 referred to

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 referred to

L.N.C. Industries Limited v B.M.W. (Australia) Limited (1983) 151 CLR 575 at 581-2 referred to

JEMAS ABRAHAM v COMMONWEALTH OF AUSTRALIA

V 337 of 1999

MERKEL, GOLDBERG and WEINBERG JJ

18 NOVEMBER 1999

MELBOURNE

ON APPEAL FROM A SINGLE JUDGE

THE COURT ORDERS THAT:

The appeal be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A SINGLE JUDGE

REASONS FOR JUDGMENT

THE COURT

1                     This is an appeal against a decision of North J who, on 31 May 1999, ordered that application V 221 of 1999, filed with the Court on 10 May 1999, be struck out.  A formal order to that effect was entered on 8 June 1999.  The application named as respondent the “Family Law Squad Federal Police”.  It alleged a contravention of an order of the Family Court, and negligence, on the part of that squad.

2                     In ordering that the application be struck out, North J appears to have invoked O 20 r 2(1)(a) of the Federal Court Rules.  His Honour’s reasons are brief, but they make it clear that his Honour was satisfied that the application disclosed no reasonable cause of action.  His Honour no doubt applied the settled principle that a summary order which prevents a party from pursuing a claim according to the ordinary course of procedure should be made only in a very clear case:  Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.

3                     On 22 June 1999 the appellant filed a notice of appeal against his Honour’s decision.  That notice was filed one day out of time – see O 52 r 5 – but the respondent has taken no point about this and did not object to the Court granting an extension of time for the filing of the notice of appeal.  The order made by North J striking out the application was arguably interlocutory in nature, but once again the respondent did not object to the Court granting the appellant leave to appeal should such leave be required.  Accordingly, the Court granted the leave necessary for it to deal with the matter as an appeal.

4                     In the notice of appeal the appellant named as respondent the Commonwealth of Australia rather than the “Family Law Squad Federal Police”.  The sole ground of appeal set out in the notice of appeal is:

“From Australian Tort Report under law (50-540) negligence; and

(52-740) breach of statutory duty.”

5                     It goes without saying that this ground is wholly defective.  The appellant is, however, unrepresented, and was given appropriate latitude by the Court in order to enable him to formulate and make submissions concerning the decision which is the subject of the appeal.

6                     The only order sought by the appellant in the notice of appeal is:

“The Commonwealth Government Federal Police to pay all of my expenses to bring my daughter Lem Lem Sara Jemas from Japan to Australia.”

7                     On the same date as the notice of appeal was filed with the Court, the appellant filed a statement of claim also naming the Commonwealth of Australia as respondent.  In that statement of claim he complained of the failure of the Federal Police to stop his wife from removing his daughter from Australia.  He set out what were described as “Particulars of Negligence”, and referred to various breaches of statutory duty, and to certain other matters which were not relevant.

8                     By notice of motion dated 26 August 1999 the Commonwealth moved for an order that the appeal be dismissed as incompetent pursuant to O 52 r 18.  Nothing of any consequence turns upon the fact that such a motion was filed.  The Court heard the appeal in its entirety and is in a position to deal with the matter without having to determine whether the respondent made good its case for summary dismissal of the appeal.

The background to the proceedings

9                     It must be said at the outset that the appellant’s situation is both sad and disturbing.  His daughter, who was born on 6 March 1995, was removed from Australia on 2 August 1998 by her mother, Saori Horikoshi.  The appellant’s daughter was then just over three years of age.  The mother abducted the child in clear breach of an order of the Family Court which was made on 31 July 1998 by a Registrar of that Court.  The order was made ex parte at the behest of the appellant, who had come to suspect that his wife was about to return to Japan, her country of origin, taking their daughter with her.  The order provided in terms that the wife was restrained from removing or attempting to remove the child from the Commonwealth of Australia.

10                  On the same day that the order was made, 31 July 1998, a letter was faxed by the Court Services Supervisor at the Dandenong Registry of the Family Court to the Family Law Squad of the Australian Federal Police.  That letter was headed:

“RE:  MATTER OF ABRAHAMS [sic]/HORIKOSHI/DG2970 of 1998”

11                  The letter stated that it attached a sealed order and the restraining order made by the Judicial Registrar that day.  A copy of the letter was sent to the Marshall/Family Court of Australia, Canberra.

12                  The transcript of the proceedings before the Judicial Registrar reveals that the name of the child given to him in court was “Lemlem Sara Jemas”.  That name was spelt out with care by the appellant’s legal representative who appeared on his behalf in support of his application for injunctive relief against his wife.  Unfortunately, it seems that the name of the appellant’s daughter, as it appeared in her passport, was different from that which was given to the Judicial Registrar.  In the passport, it seems, the name is “Sarah Lemlem Abraham-Horiko”.  The material before us, but not before North J, indicates that, had the Family Court recorded the name of the appellant’s daughter as it is said to appear in her passport, this would have resulted in immigration officers at passport control at the airport being able to act to prevent her from being removed from Australia in breach of the Family Court order.  Although the order made was against the mother and restrained her from removing the child from Australia, the material before us does not indicate that any information concerning the mother’s name, or the order made against her, was provided to the relevant immigration officers at the airport.

The appeal to this Court

13                  The fact that the appellant is unrepresented has caused us to consider with some care whether or not the application which he brought before the Court, and which was struck out by North J, was capable of disclosing a cause of action.  The appellant’s case seems to be based upon one or more of the following assumptions:

·                    The Federal Police contravened an order of the Family Court by not preventing the appellant’s daughter from being removed from Australia.

·                    The Federal Police acted in breach of a statutory duty, said to arise under ss 8 and 9 of the Australian Federal Police Act 1979 (Cth), or were negligent in the discharge of their functions, or the exercise of their powers or duties under that Act.

·                    The Federal Police were negligent in having failed to prevent the wife from abducting her daughter.

14                  The relief sought by the appellant appears to be something akin to a mandatory injunction compelling the Federal Police, or perhaps the Commonwealth of Australia, to fund his trip to Japan and the legal proceedings which he will have to institute in that country in order to have any prospect of regaining custody of his daughter.

15                  When the matter was before North J, his Honour had before him limited material and submissions that were confusing as to the basis of the claim.  In those circumstances, and having regard to the form of the application before him, we are unable to discern any error on the part of his Honour in the manner in which he conducted the proceeding, or in the order his Honour made striking out the appellant’s application. 

16                  Before us there was additional material, and the appellant put further and more detailed submissions, as to the basis upon which he was contending that he has a justiciable cause of action in this Court against the Commonwealth of Australia on the basis of breach of statutory duty or negligence by officers of the Federal Police.

17                  It is clear to us, on the material before the Court, that there is no factual basis for a claim against either the Federal Police or the Commonwealth arising out of the bare assertion that the Federal Police contravened an order of the Family Court by not preventing the appellant’s daughter from being removed from Australia.  In these circumstances, it is unnecessary for us to consider whether a contravention of an order of the Family Court, without more, could give rise to any cause of action in this Court.

18                  On the material before us, the appellant’s claim for breach of statutory duty is in our view untenable.  No particular duty under any of the provisions of the Australian Federal Police Act, or any other Act, was identified as having been breached.  It is unnecessary therefore to consider whether any such breach might entitle the appellant, as a private individual, to claim damage or loss.

19                  It is also unnecessary to consider whether the claim for damages in negligence at common law, which does not rely upon a federal enactment, is tenable, as the Court does not have jurisdiction to entertain such a claim.  The fact that the Commonwealth of Australia is now the respondent to this proceeding does not have the consequence that this Court has jurisdiction to entertain such a claim – see s 39B of the Judiciary Act 1903 (Cth). 

20                  The claim that officers of the Federal Police were negligent in the discharge of their functions or the exercise of their powers or duties raises more difficult questions.  On the very limited material and submissions before us, it may be arguable that the officers of the Federal Police who were responsible for communicating the orders made by the Family Court to the relevant immigration authorities failed to discharge their function adequately.  One could not say that the contention that the appellant might have a cause of action arising out of such a finding was so wholly untenable as to warrant the summary dismissal of the proceeding if the matter were properly pleaded and presented to the Court.

21                  Under s 39B(1A)(c) of the Judiciary Act, the Court has jurisdiction in any matter arising under any law made by the Parliament.  In so far as a cause of action is pleaded on the basis of negligent discharge of functions, or the negligent exercise of powers or duties, under ss 8 and 9 of the Australian Federal Police Act and that cause of action is brought against the Commonwealth on the basis of its liability in respect of a tort committed by a member of the Federal Police under s 64B of that Act, we need go no further than to say that it is at least arguable that such a claim would be within the jurisdiction of this Court – L.N.C. Industries Limited v B.M.W. (Australia) Limited (1983) 151 CLR 575 at 581-2.

22                  No error has been demonstrated in respect of the decision by North J the subject of this appeal and the appeal must therefore be dismissed.  However, there are now new circumstances, including the substitution of the Commonwealth as a party, and the formulation of a cause of action arguably within the jurisdiction of this Court.  These new circumstances have led us to conclude that the order made by the trial judge does not prevent the appellant from bringing a fresh application against the Commonwealth in respect of an alleged cause of action for the negligent discharge by the Federal Police of their functions, or the negligent exercise of their powers or duties, under the Australian Federal Police Act.

23                  This appeal, however, must be dismissed.

Associate:

Dated: