FEDERAL COURT OF AUSTRALIA

Tang v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 1494

PRACTICE & PROCEDURE – where application seeks damages said to be the consequence of criminal conduct of Commonwealth employees – whether a general criminal statute permits a private right of action – whether application should be struck out as abuse of process

Judiciary Act 1903 (Cth) s 44

Crimes Act 1914 (Cth) s 72 

Criminal Code Act 1995 s 142.2, s 155.4

Federal Court Rules O 11 r 16 and O 20 r 2

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

O’Connor v S.P. Bray Ltd (1937) 56 CLR 464 followed

Australian Iron & Steel Ltd v Ryan (1957) 97 CLR 89 followed

Schiliro v Peppercorn Child Care Centres Pty Ltd No. 2 [2001] 1 QdR 518 cited

Scultz v Schmauser [2001] 1 QdR 540 cited

YUNCHANG TANG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND ETHNIC AFFAIRS

No Q 27 of 2003

SPENDER J

BRISBANE

16 DECEMBER 2003

THE COURT ORDERS THAT:

1.             Proceedings Q27 of 2003 are dismissed.

2.             The applicant in those proceedings is to pay the costs of the respondent of the notice of motion to strike out those proceedings and of the application, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

1                     I am presently concerned with four notices of motion, which were listed for hearing by the Court on 31 July 2003.  Dr Tang acts on his own behalf in relation to his application and, as will become apparent, has a view as to the cogency of his claims and the absence of any proper defence to them.  Dr Tang came to Australia on a student visa in 1989.  He worked as a scientist at the University of Queensland after his arrival.  He alleges that officers of the respondent Minister’s Department engaged in criminal conduct in 1993, and in 1995, and as a result, Dr Tang claims he suffered damage.  Dr Tang was granted a protection visa on or about 23 May 1995, and is now an Australian citizen.  He initiated legal proceedings in the High Court in 2003.  He displays an obsessional fixation with what he claims is an erroneous diary note in 1993 on his immigration file, and on a concerning letter from the Department to the Chinese Embassy in 1995, and attributes his subsequent difficulties to these two events.

2                     The present motions have their origins in a writ of summons which Dr Tang filed in the High Court of Australia on 8 November 2002 in proceedings B91 of 2002.  Dr Tang was the plaintiff and the Minister for Immigration and Multicultural and Indigenous Affairs was the defendant.  The plaintiff’s claim in that document was:

‘On the grounds stated in the accompanying Statement of Claim that the Defendant has committed against the Plaintiff the following criminal offences,

·        Falsification of records by officers.         Section 72, Crimes Act 1914.

·       Abuse of public office.                              Section 14.2, Criminal Code Act 1995

And the severe traumatic consequences these criminal offences have caused on the Plaintiff’s personal life,

The Plaintiff claims that,

1.        The High Court of Australia to make an order for the Australian Federal Police to investigate thoroughly the conspiracy crime within the Defendant’s Queensland Office.

2.        The Defendant to pay the Plaintiff AUD$600,000 career damages.

3.        The Defendant to pay the Plaintiff AUD$100,000 psychological damages.’

3                     On 4 December 2002 the defendant Minister filed a notice of motion in the High Court seeking that the writ of summons be stayed, on the grounds:

‘… that there is not a reasonable or probable cause of action and the proceeding is vexatious and oppressive and is otherwise an abuse of process of the Court, pursuant to Order 63 Rule 1 and/or Rule 2 of the High Court Rules’

and:

‘Further, that the Statement of Claim be struck out pursuant to Order 26 Rule 18 of the High Court Rules.’

Alternatively, the defendant sought an order pursuant to s 44 of the Judiciary Act 1903 (Cth) remitting the matter to the Federal Court of Australia for further hearing and determination, ‘together with such directions as this Honourable Court might seem appropriate’.

4                     That notice of motion was heard by Callinan J in Chambers in Brisbane in the High Court of Australia on 20 February 2003.  In the course of that hearing, Callinan J indicated that the nub of Dr Tang’s claim was an assertion that he had wanted to return to China, and that he could not get his passport because it had been lodged with an application that he had made for an extension of his academic visa at some time.  Callinan J asked Dr Tang:

‘Why did you not, Mr Tang, back in early 1993 or at the end of 1992 go to the Chinese Embassy in Australia and explain the position, that you wanted to come back to China but that, according to you, the Australian authorities were holding your passport, you could not get it back, and could you not then have asked the Chinese authorities to give you a temporary travel document or a new passport to go back to China and then you would not have been in default in any way of your arrangements?’

Dr Tang said:

‘I must clear things, settle the things myself with the department and come back to China with a clear record.’

Dr Tang asserts that there is a ‘totally forgery record on my file’ which he discovered through Freedom of Information.

5                     Callinan J indicated that he was minded to refer the action to the Federal Court.  His Honour asked Dr Tang why the High Court should deal with the case rather than the Federal Court.  Dr Tang’s response is covered in Callinan J’s judgment given ex tempore.  While this judgment is somewhat lengthy, it provides an understanding of Dr Tang’s complaints and the matters presently before the Federal Court.  As such, I will set out Callinan J’s reasons for ordering that all of the applications before the High Court be remitted to the Federal Court to be determined according to law, and that the costs be reserved to the Federal Court judge who determines the matter.  Callinan J said:

‘I have before me three applications.  One of them is an application by the defendant seeking the stay of the plaintiff’s action on the grounds that the writ does not disclose a reasonable or probable cause of action and that, in any event, the proceedings are vexatious and oppressive, or otherwise an abuse of the process of the Court.  The defendant seeks relief in the alternative that the statement of claim be struck out, or that I make an order pursuant to section 44 of the Judiciary Act 1903 (Cth) remitting the matter to the Federal Court for hearing on the basis that, although the matter is not entirely clear, the plaintiff appears to be seeking to sue the defendant on behalf of, or as an officer of, the Commonwealth.

The plaintiff also has filed applications, purportedly pursuant to Order 31 rule 2 of the Rules, seeking relief in various forms, including the dismissal of the defendant’s application to which I have already referred, orders as to the further conduct of the action, and that it be set down for trial immediately.  The third application relates to discovery and inspection of documents.

I intimated to the parties that I had a disposition, having read the submissions and the materials, to remit the matter to the Federal Court for further disposition and asked the plaintiff to make submissions as to why I should not do that if he were opposed to it.  He said that he was and he made a number of submissions which are substantially these.  He contended that the case should be heard by the High Court because it had no precedent.  He sought to emphasise that criminality was involved, that is to say criminality on the part of officials, and that that criminality was perpetrated against a non-citizen and a foreign embassy.  He sought to argue that what had occurred was damaging to the international reputation of the nation as a democratic and free country.

He said it was important that the High Court hear the matter in order to safeguard the rule of law.  This was, it was his submission, a case of universal significance for the common law and would provide an important authority for future cases, of which, he implied, there were or might be many of a similar kind.  He sought to argue that what had occurred was an affront to judicial power, that officials of the government were involved, and that they deserved punishment.  The prosecution of the case and its determination in the High Court would have a salutary deterrent effect upon other officials who should be obliged to pay such damages as might be assessed personally rather than the taxpayers.

He also sought to articulate a submission that a lower court – presumably he was referring to the Federal Court – might be influenced by anti-immigration sentiments.  Finally, he argued that the conduct of a criminal kind was obvious and that he was being obstructed in his prosecution of the case by the lawyers for the defendant.

I reject all of these submissions.  Mr Tang misconceives the difference between criminal and civil proceedings in this country.  There is no reason why the Federal Court could not and, indeed, would not deal with this case in all respects appropriately.  If, which I doubt, there is anything at all in Mr Tang’s claim and case, and if conceivably the matter, as an appeal or otherwise, were ever to reach this Court, it would be greatly assisted by the decision and reasoning of the Federal Court.

It has been said many times in various ways that courts do not lightly strike out proceedings, that a very strict test is to be applied and if the possibility of an arguable case can be discerned a court asked to strike it out should be very careful and slow to do so.  I must say that of this case I entertain many serious doubts about its prospects.  These include the availability of any relevant cause of action, if it exists, its connection with any loss that Mr Tang might be able to demonstrate, whether, indeed, he has suffered any compensable loss or damage at all, and whether, in any event, even if, contrary to my tentative view, he could, his claim might, in any event, it would be defeated by a limitations defence which has not been yet taken but which might be available to the defendant, and perhaps justifiably so in view of difficulties associated with the location of relevant documents.

In all of the circumstances, therefore, I propose to remit all of the applications which are before me, save as to the application for remitter itself, of course, to the Federal Court to be determined according to law.’

6                     On 3 April 2003, Dr Tang filed an amended application, the details of his claim being:

‘On the grounds stated in the accompanying Affidavit, the Applicant claims:

1.        The Respondent or his delegates bearing the relevant criminal responsibilities be punished according to applicable Criminal Law.

2.        The Respondent pay the Applicant reasonable amount of criminal compensation, as this Honorable Court thinks appropriate, for the career and health damages caused by the said criminal offences.’

7                     That affidavit annexes what Dr Tang says is a forgery.  The document is part of the applicant’s immigration file, and purports to be a diary note which bears date 12.2.93 and is signed by David Browne 12.2.93, the body of which diary note reads:

‘Tang, Yun Chang

At 7^th floor counter to enquire re: p/p.

I told him that the application was probably one for refusal (as per advice of Betty Ball).

I asked when he would depart A/a.  He stated 27/2/93.

I told him to buy a ticket, + show it to DILGEA next week.

We will fax airport + put a departure slip in his p/p, + give him the p/p.

I asked if he needed a letter for the Chinese authorities + he stated – No, no problems with China.’

8                     Dr Tang says he did not go to the Department on 12 February 1993 at all.  He says that it was on 18 February 1993 that he collected his last cheque payment from the University of Queensland, and on that same day bought a domestic air ticket to Sydney, went to the Department, told them that he would be flying from Sydney back to China on 27 February 1993 and asked for his passport back.  He says that on 18 February 1993 he did not obtain his passport from the departmental officers, which prevented him departing Australia.

9                     Dr Tang further alleges that on 16 May 1995 the Department of Immigration and Ethnic Affairs, Brisbane, sent a facsimile transmission to an officer of the Embassy of the People’s Republic of China including ‘a fraudulent and undermining cover sheet’.  The cover sheet said:

‘Attached is a letter requested from the Department by Dr TANG to help in his request for assistance in obtaining a ticket for his return to China.’

Dr Tang says this was ‘completely contrary and damaging’ to what he had given his approval for.  It constitutes what Dr Tang claims is an abuse of public office, contrary to s 142.2 of the Criminal Code Act 1995.

10                  The respondent filed a notice of motion on 11 March 2003 seeking the strike-out of Dr Tang’s application on the basis that there is no reasonable or probable cause of action.  On the same day Dr Tang filed a summons to strike out the respondent’s motion as an abuse of the court process.  The summons also sought to discover and inspect the file numbered Q96/5215 in the respondent’s possession, and to have a Court-appointed expert graphologist present  to ‘examine these documents and to give opinions in respect of the concerns of The Honourable Justice and of all the parties.’  There is an application by the Minister seeking to have the motion to strike out determined prior to the determination of Dr Tang’s right to discover documents, and a further recent motion by Dr Tang for orders to add the Commonwealth of Australia, Mr David Browne, and Mr Michael Belcher as parties – respondents in the said proceedings. 

11                  It is appropriate to deal with the strike-out application initially, because if the application is struck out, the other matters are otiose.  The strike-out application ought, nonetheless, to be considered on the basis that the claims advanced by Dr Tang might be considered against the Commonwealth of Australia, rather than the Minister for Immigration and Multicultural and Indigenous Affairs.  I am conscious of s 75(v) of the Constitution in this respect.

12                  The applicant’s outline of submissions succinctly record the basis of his claims:

‘Two DIMIA Officers, Mr David Browne and Mr Michael Belcher, have committed criminal offences against the Commonwealth Law.  The Applicant is the victim, having the inalienable right to bring them to justice through court proceedings, without any limitation.

The crimes committed have caused severe traumatic consequences on the Applicant’s family and personal career and are continuing to jeopardise the future of the Applicant, because the physical elements of the crimes are outstanding official records falsely created by Commonwealth officials.

There is no doubt that at the time Mr David Browne and Mr Michael Belcher committed the said crimes they were in the position in which they were placed as representatives of the Respondent.

There is no doubt at the time when Mr David Browne and Mr Michael Belcher committed the said crimes they were prompted by a desire to gain advantage for the Respondent, and their conducts were incidental to their official duties.

There is no doubt the Respondent owes duty of care to all his clients, including the Applicant, to ensure his representatives in DIMIA perform official duties on his behalf in obedience to the Law.

Therefore the Respondent clearly bears vicarious liabilities for the said crimes Mr David Browne and Mr Michael Belcher committed.  (Fleming, The Law of Torts, 9^th ed, p.426 & p.428)

The Respondent and his representatives/delegates are employed by the Commonwealth of Australia for the function of the “Department of Immigration and Multicultural and Indigenous Affairs” (DIMIA) of the Commonwealth of Australia.  In fact, the Respondent is the sole representative to administer DIMIA on behalf of the Commonwealth of Australia. (Section 64 [Ministers of State], The Constitution)

Therefore the Commonwealth of Australia undoubtedly bears vicarious liabilities for everything unlawfully but officially performed in DIMIA under the Respondent’s administration that results in damages.  (Fleming, The Law of Torts, 9^th ed, p.426 & p.428; Criminal Code Act 1995, Commonwealth, Sec. 12.1, 12.2, 12.3)

13                  Dr Tang has persisted in allegations of the Minister’s ‘extremely bizarre and unacceptable behaviours’ and contends that the second Summons of the respondent ‘and the Respondent’s abnormal behaviours surrounding it have demonstrated a clear attempt to pervert justice. (Section 43 Crimes Act 1914, Commonwealth).  This attempt is subjected to further prosecution.’

14                   Referring to the outline of submission by the respondent Minister in the High Court, Dr Tang contended:

‘… although the Outline repeatedly asserts that the Minister or the Commonwealth of Australia has no vicarious liabilities, it provides neither convincing reasoning nor proper quotation of Authorities to support this assertion.  Ironically, some of its key quotations actually go directly against the Outline itself.  Let’s see page 426-429 of its main source of quotations, “Law of Torts” (Fleming, 9^th ed. LBC).  The whole part under the title of “Intentional Wrongdoing” is actually an excellent support to the Applicant’s assertion that the Minister and/or the Commonwealth of Australia must bear vicarious liabilities for the offences committed by Mr David Browne and Mr Michael Belcher. (Fleming, The Law of Torts, 9^th ed, p.426 & p.428).’

15                  The statutory provisions relevant to the strike-out application are O 11 r 16 and O 20 r 2 of the Federal Court Rules.   Order 11 r 16 provides:

‘Where a pleading:

(a)     discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading;

(b)     has a tendency to cause prejudice, embarrassment or delay in the proceeding; or

(c)     is otherwise an abuse of the process of the Court;

the Court may at any stage of the proceeding order that the whole or any part of the pleading be struck out.’

Order 20 rule 2 provides:

‘(1)   Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding:

(a)   no reasonable cause of action is disclosed;

(b)   the proceeding is frivolous or vexatious; or

(c)   the proceeding is an abuse of the process of the Court;

         the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding.

(2)     The Court may receive evidence on the hearing of an application for an order under subrule (1).’

16                  Notwithstanding the scatter-gun approach of allegations which Dr Tang tends to make (including allegations of repeated contraventions of the criminal law, and of contempt of courts by persons in the department of the respondent Minister, and solicitors acting for him), the strike-out application is to be considered in respect of the amended application filed 3 April 2003, where the details of the applicant’s claim are:

‘1.     The Respondent or his delegates bearing the relevant criminal responsibilities be punished according to applicable Criminal Law.

2.            The Respondent pay the Applicant reasonable amount of criminal compensation, as this Honorable Court thinks appropriate, for the career and health damages caused by the said criminal offences.’

17                  Dr Tang’s submissions in response to the respondent’s outline of argument suggest:

‘Although it seems that practically the Respondent and/or the Commonwealth of Australia could not be criminally liable for the said offences committed by their delegates/employees, there is no doubt they are tortiously/civilly liable for the said offences through vicarious liabilities, which is a good cause of action.  Simply not being criminally liable for the said offences is not enough for a good defence, especially for a “strike out” defence.  (Re: SHARON MARY NAPIER, as an Executor of the Estate of the late COLIN ROSS NAPIER And: NATIONAL AUSTRALIA BANK LIMITED No. QG8 of 1992 FED No. 304 Practice and Procedure. Paragraph 9.’

18                  That contention seems to me more directly to be concerned with whether there ought to be given liberty to replead. 

19                  The jurisdiction to strike out is to be exercised with great caution: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, particularly at 128-129.  The Court has to take into account the difficulties that confront a litigant acting on his own behalf and be sensitive to the possibility of any amendment which might remedy the defects or deficiencies that presently exist. 

20                  In my judgment, neither the writ in its original form in the High Court nor the amended application and the affidavit in support, pleads a cause of action known to the law against the Minister for Immigration and Multicultural and Indigenous Affairs.  Dr Tang’s complaints relate to conduct which he alleges was engaged in by officers employed by the Commonwealth of Australia in 1993 and in 1995 in the Department of Immigration and Ethnic Affairs, as the Department was then known. 

21                  There is, in my view, no proper basis for asserting that the Minister could be civilly liable in damages for any conduct allegedly engaged in by officers employed by the Commonwealth of Australia.  In my opinion also, the Commonwealth is not able to be held vicariously liable for a falsification of records by an officer in breach of s 72 of the Crimes Act 1914 (Cth) or s 155.4 of the Criminal Code, where, it seems to me, the officer would not be undertaking duties imposed on him by the nature of the employer’s business: see New South Wales v Lepore (2003) 195 ALR 412   .  Further, it cannot be said that the Minister has been guilty of any offence referred to s 142.2 of the Criminal Code. 

22                  In the view I take of the matter, even if officers employed by the Commonwealth in 1993 and 1995 had committed offences of the kind which Dr Tang alleges in the material he has placed before the Court, (a matter which is, at the very least, contentious and the correctness of which depends on the acceptance as correct of that which the applicant asserts), that would not provide a proper basis for asserting that the Minister would be liable to pay Dr Tang civil damages as a result.

23                  If officers then employed by the Commonwealth had committed breaches of the criminal statutes which Dr Tang asserts they committed, they would clearly be acting outside their authority as such officers, either actual or ostensible.  If there were breaches of provisions of the Crimes Act or the Criminal Code by officers employed by the Commonwealth, that does confer a right to claim damages against the Commonwealth.

24                  The question of whether a criminal statute in general prohibitory terms, which does not prescribe a course of conduct in the interests of the safety of members of the public or a class of them, permits a private right of action really is a matter of construction.  In the ordinary course, it does not.  Such a view is consistent with the observations of Dixon J (as he then was) in O’Connor v S.P. Bray Ltd (1937) 56 CLR 464 at 477 and 478.  That and Australian Iron & Steel Ltd v Ryan (1957) 97 CLR 89, particularly at 98 are simply illustrations of the fact that where a duty of the kind in those cases was imposed for the benefit of particular persons, there arises at common law a correlative right in those persons who may be injured by its contravention.  No such consideration applies in relation to a general provision of a criminal statute.  See also Schiliro v Peppercorn Child Care Centres Pty Ltd No. 2 [2001] 1 QdR 518 and Scultz v Schmauser [2001] 1 QdR 540.

25                  In my judgment, Dr Tang’s material does not disclose a reasonable cause of action or suit against either the Minister or the Commonwealth of Australia.  I am not concerned in the present motions to consider whether Dr Tang might be able to bring a civil claim against persons who once were officers of the Commonwealth and whom, according to Dr Tang, engaged in criminal conduct.  The present proceeding, in my opinion, is vexatious, oppressive and an abuse of process of the Court.  Reminding myself again of the care with which a strike-out application ought be considered and the need to recognise the difficulties an unrepresented litigant has in pursuing complex litigation, nonetheless, in my judgment it is proper to make an order pursuant to O 20 r 2 of the Federal Court Rules dismissing these proceedings.  There is no reason why Dr Tang should not be ordered to pay the respondent’s costs of and incidental to the application to strike out, and I so order.

26                  It is not appropriate to give an opportunity to replead.  Such an opportunity would lack utility.  This is because neither the Minister nor the Commonwealth of Australia can be vicariously liable for civil damages as a consequence of criminal conduct, not in the course of their employment, by persons who were employed as officers of the Commonwealth, even if those asserted offences could be established.  I say nothing about the evidentiary difficulties that confront the applicant in establishing his major premise of criminal conduct, or of the absence of evidence (as opposed to assertion) of damage, or of causation.  Any matter of time limitation is not a relevant matter on a strike-out application, though the delay from when the claimed causes of action arose to the filing of proceedings lends colour to the contention that there is no arguable case.

27                  It is unnecessary, in the light of the orders proposed, to make orders in respect of the other motions that fell for consideration.

28                  The orders that I make are that proceedings Q27 of 2003 are dismissed, and the applicant in those proceedings is to pay the costs of the respondent of the notice of motion to strike out those proceedings and of the application, to be taxed if not agreed.

Associate:

Dated:              16 December 2003