FEDERAL COURT OF AUSTRALIA

Tanioria v Commonwealth of Australia (No 2) [2017] FCA 1117

ORDERS

THE COURT ORDERS THAT:

1.    Paragraph 18 of the applicant’s further amended statement of claim filed on 23 March 2017 be struck out.

2.    The second sentence of paragraph 19 of the applicant’s further amended statement of claim filed on 23 March 2017 be struck out.

3.    Paragraphs 30 and 31 of the applicant’s further amended statement of claim filed on 23 March 2017 be struck out.

4.    The applicant have leave to file and serve a second further amended statement of claim to replead the parts of his pleading struck out by Orders 1, 2 and 3 by 6 October 2017.

5.    The first respondent’s interlocutory application filed on 7 October 2016 is otherwise dismissed.

6.    The second respondent’s interlocutory application filed on 7 October 2016 is otherwise dismissed.

7.    The respondents pay 70% of the applicant’s costs of the interlocutory applications.

8.    The proceeding be listed for case management hearing on 12 October 2017 at 9.30 am.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    Aminio Ataninano Tanioria commenced this proceeding by the filing of an originating application on 1 July 2016, naming the Minister for Immigration and Border Protection (Minister) and Serco Australia Pty Ltd (Serco) as respondents. He was ordered to file and serve an amended originating application and a statement of claim and, on 22 August 2016, did so, substituting the Commonwealth of Australia (Commonwealth) for the Minister as first respondent. Mr Tanioria has, with leave, twice amended his statement of claim. His claims are now set out in the amended originating application filed on 22 August 2016 and a further amended statement of claim filed on 23 March 2017.

2    Since commencing this proceeding Mr Tanioria has departed Australia, having failed in his interlocutory application to restrain the Commonwealth from removing him from Australia: see Tanioria v Commonwealth of Australia [2016] FCA 1237 and Tanioria v Commonwealth of Australia [2016] FCA 1253 (per Griffiths J, dismissing an application for leave to appeal).

3    The Commonwealth and Serco have each filed an interlocutory application relevantly seeking:

(1)    in the case of the Commonwealth that:

(a)    the proceeding be summarily dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) and r 26.01 of the Federal Court Rules 2011 (Cth) (Rules) on the basis that there are no reasonable prospects of successfully prosecuting the proceeding; or

(b)    in the alternative, the further amended statement of claim be struck out pursuant to r 16.21 of the Rules on the ground that it fails to disclose a reasonable cause of action; and

(2)    in the case of Serco that:

(a)    there be judgment for Serco against Mr Tanioria in relation to the whole of the proceeding pursuant to s 31A(2) of the Federal Court Act; or

(b)    the further amended statement of claim be struck out in part or in whole pursuant to r 26.01 of the Rules; or

(c)    the paragraphs contained within the further amended statement of claim be struck out in part or in whole pursuant to r 16.21 of the Rules.

4    Those interlocutory applications are considered below.

BACKGROUND FACTS

5    The following facts were not in dispute.

6    Mr Tanioria is a citizen of Fiji. On 17 November 2014 the Minister made a decision pursuant to s 501(2) of the Migration Act 1958 (Cth) (Act) to cancel Mr Tanioria’s visa. The Minister’s decision was unsuccessfully challenged by Mr Tanioria in judicial review proceedings. An appeal to the Full Court of this Court and a subsequent application to the High Court of Australia (High Court) for special leave to appeal were also unsuccessful.

7    Upon cancellation of his visa, Mr Tanioria became an unlawful non-citizen for the purposes of the Act. He was detained under s 189(1) of the Act and remained in immigration detention pursuant to ss 189 and 196 until 24 October 2016, when he was removed from Australia pursuant to s 198 of the Act. Between the time of his detention and his removal from Australia, Mr Tanioria was accommodated at Villawood Immigration Detention Centre (VIDC), established and maintained on behalf of the Commonwealth pursuant to s 273(1) of the Act.

8    Serco provides detention services to the Commonwealth pursuant to an Immigration Detention Facilities and Detainee Services Contract between it and the Commonwealth (acting through and represented by the Department of Immigration and Border Protection). Through various instruments issued on 16 July 2010, 10 December 2014, 10 June 2015 and 30 June 2015 certain employees of Serco have been appointed as “officers” for the purposes of the Act.

9    Prior to his removal from Australia, Mr Tanioria acknowledged in writing that property held “in trust” on his behalf while he was in detention at VIDC had been returned to him. Various “In Trust Property” sheets headed with Mr Tanioria’s name listed the following property:

(1)    for in trust type “Safety Deposit Box” – one frequent flyer card; two Medicare cards; one Commonwealth card; two construction ID cards; one NSW driver’s licence; one lighter; one lynx spray; and one black wallet;

(2)    for in trust type “Filing Cabinet” – one photo frame; one PSP CD game; one PSP PlayStation (small portable); and one small grooming scissor; and

(3)    for in trust type “Container” – one Viano 24″ TV.

10    The following acknowledgement was included in those sheets:

I acknowledge that I have inspected my “In Trust” property returned to me on discharge and acknowledge that I am Satisfied / Not-Satisfied with the condition of the items. I give authority for DIBP to provide my current address to Serco for the purpose of forwarding mail and the return of any property inadvertently left behind. Agree/Disagree

(original emphasis)

11    The sheets for in trust type “Safety Deposit Box” and “Filing Cabinet” were completed by the circling of the word “Satisfied” and signed by Mr Tanioria on 24 October 2016, the day of his removal from Australia.

12    The sheet for in trust type “Container” was signed by Mr Tanioria but not dated. The acknowledgement on that sheet was not completed by the circling of any of the options where a choice was given.

13    A form titled “Property Reconciliation” was completed and signed by Mr Tanioria on 24 October 2016. It relevantly provided:

I, TANIORIA, Aminio Ataninano acknowledge that all the property listed on the in trust property MONEY, SAFETY DEPOSIT BOX, FILING CABINET, VALS BAG & CONTAINER Property Sheets have been returned to me on my discharge from Villawood Immigration Detention Centre. I have returned the Safety Deposit Box Key with number: NIL.

I sign on this day 24/10/2016 and confirm receipt of my effects.

I, TANIORIA, Aminio Ataninano am satisfied / dissatisfied with the state and condition of the property returned.

(original emphasis)

14    The word “satisfied” was circled on the form.

Mr tanioria’s claims

15    As I have already observed, Mr Tanioria’s claims have been the subject of amendment. On 23 March 2017, at the hearing of the interlocutory applications, I granted Mr Tanioria leave to file his further amended statement of claim, the third iteration of that pleading. The further amended statement of claim was, according to Mr Tanioria’s written submissions, prepared to account for Mr Tanioria’s removal from Australia and to respond to the Commonwealth’s and Serco’s submissions on their summary dismissal applications.

16    In his further amended statement of claim Mr Tanioria does not seek all of the relief claimed in his amended originating application filed on 22 August 2016. The relief he now seeks is limited to damages for the causes of action that he now advances, being claims of false imprisonment and conversion. Mr Tanioria pleads that:

(1)    at all material times the Commonwealth was, by the acts of its officers under s 5 of the Act and by arrangement known as the Immigration Detention Facilities and Detainee Services Contract (Contract) between Serco and the delegate of the Commonwealth, being the Minister, responsible for detention of Mr Tanioria at VIDC, a facility established and maintained on behalf of the Commonwealth under s 273 of the Act;

(2)    at all material times Serco was responsible for the operation of VIDC and for Mr Tanioria’s detention by employees appointed as officers under the Act;

(3)    at all material times prior to 17 November 2014 and up to 26 October 2016 Mr Tanioria held a class BF Transitional (Permanent) Visa (Visa) issued under the Act and was entitled to reside in Australia;

(4)    on 17 November 2014 the Minister cancelled the Visa and on or about that date Mr Tanioria was taken to VIDC by officers of the Commonwealth and held there in the custody and under the control of Serco, by its employees and agents;

(5)    between November 2014 and 26 October 2016, as a result of the actions of the Commonwealth and Serco, Mr Tanioria was detained at VIDC;

(6)    the detention of Mr Tanioria pending his removal from Australia involved the executive power of the Commonwealth under Ch II of the Commonwealth Constitution (Constitution). Executive power is vested in the Queen and must be exercised and maintained by the Governor-General under s 61 of the Constitution;

(7)    the exercise and maintenance of executive power must be by officers of the Commonwealth within the meaning of ss 64, 67 and 75(v) of the Constitution;

(8)    Serco was not an officer of the Commonwealth and its employees were not officers of the Commonwealth;

(9)    neither instrument DEL15/113, the instrument dated 30 June 2015 by which the Minister authorised employees of Serco to hold, occupy or perform in prescribed positions located at VIDC as officers for the purposes of the Act, nor the Contract, made Serco or its employees officers of the Commonwealth;

(10)    the detention of Mr Tanioria by persons who were not officers of the Commonwealth was unlawful;

(11)    the de facto detention of Mr Tanioria by Serco, by its servants or agents, was without lawful authority and false imprisonment;

(12)    as a result of the false imprisonment Mr Tanioria has suffered damage, particularised as hurt and emotional distress and economic loss in the form of inability to work while detained;

(13)    the Commonwealth is vicariously liable for the actions of Serco in detaining Mr Tanioria without lawful authority by inducing that conduct;

(14)    Mr Tanioria claims damages from the Commonwealth and Serco for false imprisonment and, if damages are awarded, seeks exemplary damages; and

(15)    the Commonwealth or Serco, by its servants or agents, took possession of property of Mr Tanioria, namely, his wallet and portable PlayStation device, and converted it to their use in a manner repugnant to Mr Tanioria’s possession of that property without lawful authority. As a result, Mr Tanioria seeks damages.

17    I note that, insofar as there is an allegation in the further amended statement of claim that the claim in conversion extended to various items of food and drink purchased by or for Mr Tanioria, counsel for Mr Tanioria indicated at the hearing that that aspect of the claim was not pressed.

statutory framework relevant to the pleaded case

18    In order to consider the claims made by Mr Tanioria in his further amended statement of claim and the parties’ submissions it is useful to set out the relevant sections of the Act and the Constitution referred to in the further amended statement of claim.

19    Section 5 of the Act relevantly defines “officer”, at paras (f) and (g) respectively of the definition of that word, to mean “a person who is authorised in writing by the Minister to be an officer for the purposes of this Act” or “any person who is included in a class of persons authorised in writing by the Minister to be officers for the purposes of this Act, including a person who becomes a member of the class after the authorisation is given”.

20    Section 189 of the Act concerns the detention of unlawful non-citizens. It relevantly provides:

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.

21    Section 196(1) of the Act relevantly provides that an unlawful non-citizen detained under s 189 must be kept in immigration detention until he or she is removed from Australia under ss 198 or 199. In turn, s 198 provides for the removal from Australia of unlawful non-citizens.

22    Central to Mr Tanioria’s claim for false imprisonment is s 61 of the Constitution which provides:

61     Executive power

The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor‑General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.

23    Mr Tanioria also relies on ss 64, 67 and 75(v) of the Constitution which provide:

64     Ministers of State

The Governor‑General may appoint officers to administer such departments of State of the Commonwealth as the Governor‑General in Council may establish.

Such officers shall hold office during the pleasure of the Governor‑General. They shall be members of the Federal Executive Council, and shall be the Queen’s Ministers of State for the Commonwealth.

Ministers to sit in Parliament

After the first general election no Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives.

67     Appointment of civil servants

Until the Parliament otherwise provides, the appointment and removal of all other officers of the Executive Government of the Commonwealth shall be vested in the Governor‑General in Council, unless the appointment is delegated by the Governor‑General in Council or by a law of the Commonwealth to some other authority.

75     Original jurisdiction of High Court

In all matters:

…

(v)     in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;

the High Court shall have original jurisdiction.

relevant principles – Summary dismissal and strike out

24    Section 31A(2) of the Federal Court Act provides that the Court may summarily dismiss a proceeding or any part of a proceeding where it is satisfied that an applicant has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. For the purposes of s 31A, a proceeding or part of a proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success: s 31A(3).

25    Rule 26.01 of the Rules relevantly provides:

26.01     Summary judgment

(1)     A party may apply to the Court for an order that judgment be given against another party because:

(a)     the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

…

26    In Spencer v The Commonwealth of Australia (2010) 241 CLR 118 (Spencer) French CJ and Gummow J observed at [24] that the exercise of powers to summarily terminate a proceeding must be attended with caution. Their Honours said at [25]:

Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a "fanciful" prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.

27    At [60] Hayne, Crennan, Kiefel and Bell JJ said in relation to the expression “no reasonable prospect” as used in s 31A that:

… [F]ull weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to "no reasonable prospect" can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase "just and equitable" when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.

28    In Takemoto v Moody’s Investors Service Pty Limited [2014] FCA 1081 (Takemoto) Flick J set out the principles applicable to an application for summary judgment pursuant to s 31A at [11]-[15]. Those principles relevantly include:

11    First, s 31A was introduced by way of amendment and came into effect on 1 December 2005. It was a provision which was intended to establish a lower standard than that previously laid down by decisions of the High Court (e.g., Dey v Victorian Railways Commissioners (1948) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125), namely that allegations are “so clearly untenable that [they] cannot possibly succeed”. See also: Hicks v Ruddock [2007] FCA 299 at [12] to [13], (2007) 156 FCR 574 at 582. The effect of s 31A is to “soften the test for a successful application for summary judgment”: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117 at [25], (2009) 178 FCR 401 at 407 per Spender, Graham and Gilmour JJ.

12    Second, the exercise of the power must necessarily be approached with caution: Spencer v Commonwealth of Australia [2010] HCA 28, (2010) 241 CLR 118 at 131 to 132 French CJ and Gummow J there observed:

[24]    The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence…

[25]    Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue.

See also: Leahy v Commonwealth of Australia [2013] FCA 1454 at [22] per Foster J.

13    Third, the requirement that there be “no reasonable prospects of success” can be satisfied where there is a defect in the pleadings which cannot be cured or, alternatively, by reference to evidence put on in support of an application under s 31A which reasonably excludes the possibility that facts essential to the success of the claim or defence will be able to be established: Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [20] per French J (as his Honour then was).

14    Not surprisingly, considerable attention has been given to those circumstances in which this Court may be called upon to enter summary judgment – not upon the basis of resolving a legal issue – but upon the basis of resolving a factual question dividing the parties. One party may plead a material fact which is either not admitted or denied. Upon an application being made pursuant to s 31A, the Court can – in an appropriate case – resolve that factual issue. But the circumstances in which it should do so, and thereafter proceed to enter summary judgment or summarily dismiss a proceeding, should be approached with considerable caution. Although the parties may seek to adduce evidence in respect to the resolution of that factual question, the Court is called upon, in an application pursuant to s 31A, to form a view in advance of a final hearing as to how that factual question is to be resolved and whether or not it is a more proper exercise of the discretion conferred by s 31A to allow the matter to proceed to hearing.

15    …

“Ultimately, the court must consider whether there are any real, as opposed to fanciful, issues of fact or law that require proper determination at a trial”: Adnunat Pty Ltd v ITW Construction Systems Australia Pty Ltd [2009] FCA 499 at [37] per Sundberg J. See also: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641 at [25] to [45], (2013) 220 FCR 256 at 266 to 271 per Reeves J. Summary judgment under s 31A may thus be appropriate “where the evidence is all one way so that only one conclusion can be said to be reasonable”: Australian Competition and Consumer Commission v Link Solutions Pty Ltd (No 2) [2010] FCA 919 at [108], (2010) 272 ALR 280 at 313 per Bennett J. Where there is “a triable issue of fact then summary judgment will not be entered”: Keynes v Rural Directions Pty Ltd (No 2) [2009] FCA 567 at [47], (2009) 72 ACSR 264 at 273 per Besanko J.

29    Rule 16.21 of the Rules relevantly provides:

16.21     Application to strike out pleadings

(1)     A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:

…

(c)    is evasive or ambiguous; or

(d)    is likely to cause prejudice, embarrassment or delay in the proceeding; or

(e)     fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

…

30    In Takemoto Flick J also summarised the principles applicable to r 16.21 of the Rules. At [17]-[20] his Honour said:

17    First, the rule is “concerned only with the adequacy of the pleading” and “does not permit or allow consideration of facts or evidence outside the pleadings”: Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920 at [4], (2008) 252 ALR 41 at 43 per Finkelstein J. See also: Windsor v Sydney Medical Service Co-Operative (No 2) [2009] FCA 704 at [12] per Edmonds J.

18    Second, a pleading will be embarrassing, “where it is unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him”: Priest v New South Wales [2006] NSWSC 12 at [34] per Johnson J. The term “embarrassment” refers to a pleading that is “susceptible to various meanings, or contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which irrelevant allegations are made that tend to increase expense”: Shelton v National Roads and Motorists Association Ltd [2004] FCA 1393 at [18], (2004) 51 ACSR 278 at 283 to 284 per Tamberlin J.

19    Third, a pleading will only be struck out as failing to disclose a reasonable cause of action or defence “where it is clear that there is no real question to be tried”: Spotwire Pty Limited v Visa International Services Inc & Anor [2003] FCA 762 at [10]; Global Brand Marketing Inc v Cube Footwear Pty Ltd [2005] FCA 479 at [22], (2005) 65 IPR 44 at 49 per Goldberg J. Where a claim is not so clearly untenable that it cannot possibly succeed, it will not be struck out: Sun Earth Homes Pty Ltd v Australian Broadcasting Corporation (1990) 98 ALR 101 at 112 to 113 per Burchett J.

20    Finally, and like the power conferred by s 31A, the power is to be exercised with caution and it is not to be lightly exercised: Wright Rubber Products Pty Ltd v Bayer AG [2008] FCA 1510 at [5] per Tracey J; Christou v Stantons International Pty Ltd [2010] FCA 1150 at [4] per McKerracher J. A “pedantic approach” should not be pursued: Australian Competition and Consumer Commission v Craftmatic Australia Pty Ltd [2009] FCA 972 at [14] per Logan J.

The false imprisonment claim

The Commonwealth’s and Serco’s submissions

31    The Commonwealth submitted that for the purposes of its application for summary judgment or, in the alternative, strike out, and without any admission, the proposition that Serco and its employees are not officers of the Commonwealth may be accepted. It submitted that it was not necessary for the purposes of its application for the Court to decide whether and, if so, in what circumstances, an independent contractor may be considered an officer of the Commonwealth. It contended that this was so because there were more fundamental difficulties with Mr Tanioria’s claim for false imprisonment and put three bases upon which the claim for false imprisonment ought to be summarily dismissed.

32    The Commonwealth noted that its understanding of Mr Tanioria’s position was that the act of detaining people in accordance with the obligations in ss 189 and 196 of the Act is conduct that amounts to execution of the laws of the Commonwealth and therefore comes within s 61 of the Constitution. Against that, the first basis put by the Commonwealth for summary dismissal was that detention of an unlawful non-citizen is conduct that is directly authorised by the Act and that no specific warrant under s 61 of the Constitution is required to carry out a statutory duty. The Commonwealth submitted that it would be productive of confusion if Mr Tanioria’s argument was correct because s 61 vests executive power in the Queen and her representative, the Governor-General, but statutes commonly vest statutory powers in specific Ministers or officers, not in the Governor-General. The Commonwealth contended that there is no need to read into s 61 that a statutory power or duty imposed upon a particular officer somehow involves the officer exercising a power under s 61. Rather, it submitted that the officer performs the duty imposed by statute because it is authorised and required to do so directly under the statute.

33    The Commonwealth relied in support of its submissions on The Australian Communist Party v The Commonwealth (1951) 83 CLR 1 (Communist Party Case) at 230, where Williams J said:

… Section 61 provides that the executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth. The execution of the Constitution in the section “means the doing of something immediately prescribed or authorized by the Constitution without the intervention of Federal legislation” … . The maintenance of the Constitution therefore means the protection and safeguarding of something immediately prescribed or authorized by the Constitution without the intervention of Federal legislation. The execution and maintenance of the laws of the Commonwealth must mean the doing and the protection and safeguarding of something authorized by some law of the Commonwealth made under the Constitution. …

34    The Commonwealth submitted that, because his Honour did not use the word “prescribed” in explaining the ambit of “the execution and maintenance of the laws of the Commonwealth”, s 61 of the Constitution does not extend to conduct performed by an officer of the Commonwealth where that conduct is required to be undertaken or prescribed by statute. It further submitted that s 189 of the Act imposes a duty on an officer to detain a person who he or she reasonably suspects to be an unlawful non-citizen. That is, it requires, rather than authorises, detention in those circumstances. The Commonwealth submitted that if, properly understood, Mr Tanioria’s detention as required by ss 189 and 196 of the Act was not the exercise of executive power under s 61 of the Constitution then his case would fall away entirely.

35    Secondly, the Commonwealth submitted that, even if detention is an exercise of power under s 61 of the Constitution, there is no constitutional limitation or restriction that would prevent a statute conferring such power on persons who are not officers of the Commonwealth.

36    The Commonwealth further submitted that the High Court has accepted that, in the context of immigration detention, the power to detain may be exercised by persons other than officers of the Crown. It relied on Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 (Lim) at 30-31, where Brennan, Deane and Dawson JJ said:

In this Court, it has been consistently recognized that the power of the Parliament to make laws with respect to aliens includes not only the power to make laws providing for the expulsion or deportation of aliens by the Executive but extends to authorizing the Executive to restrain an alien in custody to the extent necessary to make the deportation effective. The clearest example is Koon Wing Lau v. Calwell. There, it was held by the Court that the War-time Refugees Removal Act 1949 (Cth) was a valid exercise of the legislative power of the Parliament of the Commonwealth. That Act provided (s. 5):

The Minister may at any time within [a specified period] make an order for the deportation of a person to whom this Act applies and that person shall be deported in accordance with this Act.

Among the persons to whom the Act applied was "every person ... who entered Australia during the period of hostilities and is an alien" (s.4(1)(a)). Section 7 provided, among other things, that a "deportee may ... pending his deportation ... be kept in such custody as the Minister or an officer directs". …

(footnotes omitted)

37    The Commonwealth submitted that, at least under s 7 of the War-time Refugees Removal Act 1949 (Cth), the relevant Minister or his officers were not required to actually hold a non-citizen in detention pending removal but could “direct” that that person be in the custody of another person.

38    The Commonwealth also referred to the following passage from Lim at 32, where Brennan, Deane and Dawson JJ said:

It can therefore be said that the legislative power conferred by s. 51(xix) of the Constitution encompasses the conferral upon the Executive of authority to detain (or to direct the detention of) an alien in custody for the purposes of expulsion or deportation. Such authority to detain an alien in custody, when conferred upon the Executive in the context and for the purposes of an executive power of deportation or expulsion, constitutes an incident of that executive power. …

39    The Commonwealth submitted that the phrase “or to direct the detention of” states unambiguously that the aliens power in s 51(xix) of the Constitution not only supports a law that confers a power on an officer of the Commonwealth to detain a non-citizen, but also a law that confers a power to direct that detention. The Commonwealth further submitted that the definition of “officer” in s 5 of the Act includes those persons referred to at paras (f) and (g) (see [19] above); that in this case there is no dispute between the parties that the delegations and authorisations appointing employees of Serco to be “officers” were acts by the Minister to direct or confer a power upon Serco’s employees; and that, when that status is conferred, those officers come under the obligation to detain persons reasonably suspected of being unlawful non-citizens pursuant to s 189 of the Act. The Commonwealth contended that it is clear in light of Lim that the legislative power of the Commonwealth is not confined in a way that would prevent executive power from being conferred on persons who are not the Governor-General in Council, civil servants or officers of the Commonwealth and that the whole premise of Mr Tanioria’s case is thus contrary to High Court authority.

40    Thirdly, the Commonwealth submitted that, even if detention is an exercise of power under s 61 of the Constitution and even if that power cannot be conferred on persons who are not officers of the Commonwealth, Mr Tanioria’s claim must fail because his detention was in fact detention by the Commonwealth. The Commonwealth submitted that s 189(1) of the Act imposes an obligation on an officer to detain a person who the officer knows or reasonably suspects to be an unlawful non-citizen; the officer has no discretion. It further submitted that once detained, because he or she is an unlawful non-citizen, the person must be kept in immigration detention pursuant to s 196(1) of the Act until one of the events set out in that subsection occurs. The Commonwealth relied on S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 217 (Applicant S) at [205], where Finn J, in the context of considering claims founded in negligence arising out of the long-term detention of the applicants, said at [205]:

While the scheme of the Migration Act levels the processes of detaining and holding in detention to detaining or holding by “an officer”, the context and structure of the Act in my view makes plain that, whosoever the officer in a given case, the detaining and holding is both on behalf of the Commonwealth and by the Commonwealth. “Officers” provide the Commonwealth's medium for the purposes of the Act. It is for this reason I consider that the Commonwealth has correctly conceded in this matter that it owes a non-delegable duty of care to the applicants because of its particular “relationship” with detainees: see Kondis v State Transport Authority (1984) 154 CLR 672 at 687.

41    The Commonwealth submitted that [16] of the further amended statement of claim should be summarily dismissed. It contended that the inclusion of the words “de facto”, added to the pleading to clarify that Mr Tanioria’s claims “rel[y] on his de facto detention by the operations of Serco in running VIDC”, was a concession by Mr Tanioria that, as a matter of law, the Commonwealth detained him. This was said to create an irreconcilable contradiction in Mr Tanioria’s case because, while Mr Tanioria alleges that he was falsely imprisoned because his detention was not by the Commonwealth or its officers, by the introduction of the words “de facto” Mr Tanioria admits that, as a matter of law, he was detained by the Commonwealth. The Commonwealth contended that it is no answer to say that Serco, as a matter of fact, carries out the day-to-day incidences of detention because the cause of action that Mr Tanioria seeks to agitate is one of false or unlawful imprisonment.

42    The Commonwealth submitted that Mr Tanioria was not assisted by the decision in Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486 (Behrooz) and, in particular, the observations of Gleeson CJ at [21] that persons who manage a detention centre may be liable to a detainee in tort. The Commonwealth noted that if there is an issue about the conditions of detention that gives rise to a tortious claim then a non-citizen may be entitled to prosecute that claim. But the Commonwealth submitted that the difficulty with Mr Tanioria’s case, putting aside the claim in conversion, is that the relevant tort is false imprisonment. It contended that the decision in Behrooz does not assist Mr Tanioria because that decision stands for the proposition that detention continues to be lawful notwithstanding its conditions. Mr Tanioria’s allegation that, as a matter of fact, he was held by Serco officers is thus said not to give rise to an action for false imprisonment because the detention is still required by ss 189 and 196 of the Act.

43    Insofar as the case against the Commonwealth is expressed to be one of vicarious liability for the conduct of Serco, the Commonwealth made the following submissions:

(1)    Serco’s liability is alleged in [16] of the further amended statement of claim to arise because its servants or agents detained Mr Tanioria. Thus, his claim is in fact that the Commonwealth is vicariously liable for the acts of Serco’s employees. The Commonwealth submitted that such a contention is untenable because there is no concept of “dual vicarious liability” under Australian law and, in circumstances where Serco, as an employer, is vicariously liable for the acts of its employees, “there is no sound basis for imputing vicarious liability to another person”: Day v The Ocean Beach Hotel Shellharbour Pty Ltd (2013) 85 NSWLR 335 at [33] (per Leeming JA); and

(2)    if, contrary to the submission outlined in the preceding paragraph, Serco, rather than its employees, is the entity that is said to have detained Mr Tanioria, the Commonwealth could not be vicariously liable for its actions because Serco is clearly not its employee or its agent in the relevant sense. The Commonwealth submitted that an agent for the purposes of vicarious liability is a person with the authority or capacity to create legal relations with third parties on behalf of the principal and that a person does not become an agent in the relevant sense simply because that person carries out a task for the benefit of, as the representative for, or pursuant to a contract with, another person. The Commonwealth contended that nothing in the contractual arrangements between Serco and the Commonwealth confer on Serco authority to bind the Commonwealth in its legal relationships.

44    The Commonwealth also adopted, as an alternative basis upon which summary dismissal would be ordered, Serco’s submissions that the Court would summarily dismiss the claim for false imprisonment because only nominal damages could be awarded (see [48]-[49] below).

45    In the alternative, the Commonwealth submitted that the further amended statement of claim should be struck out. It submitted that the difficulties with Mr Tanioria’s case could not be cured by amendment and for completeness it further submitted that the further amended statement of claim is embarrassing in the sense that it is susceptible to various meanings and contains inconsistent allegations. In that regard the Commonwealth referred to the allegation that it is “responsible” for Mr Tanioria’s detention noting that the claim depends on Serco and not the Commonwealth being the party detaining Mr Tanioria. The Commonwealth contended that its “responsibility” for Mr Tanioria’s detention was not otherwise articulated or explained in the pleading.

46    The Commonwealth submitted that the further amended statement of claim pleads conclusions without reference to the material facts from which those conclusions are drawn referring for example to the allegation that the Commonwealth is vicariously liable for the acts of Serco and its officers but that no facts that could establish that liability are pleaded.

47    Serco adopted the Commonwealth’s submissions on all matters save the submission made about the Commonwealth’s alleged vicarious liability. On the issue of vicarious liability Serco submitted that the question of whether the Commonwealth could be vicariously liable for any act or omission by Serco or its employees might depend on evidence which may be called, in particular, about the contractual arrangements as between the Commonwealth and Serco. Because of that, Serco submitted that it would not be appropriate to summarily dismiss the claim against the Commonwealth on the basis of vicarious liability. Serco further submitted that, while there is no theory of dual vicarious liability, that does not lead to a conclusion that the case against the Commonwealth based on vicarious liability is hopeless. Serco contended, based on [16] of the further amended statement of claim, that the Commonwealth could have some form of “corporate liability” for it and that the Commonwealth might be vicariously liable in that limited respect.

48    Serco submitted that an alternative basis on which the action for false imprisonment would be summarily dismissed was that, taking the claim at its highest, only nominal damages would be awarded. Serco submitted that:

(1)    the Court is now dealing with a claim for damages, namely, a tortious claim of false imprisonment;

(2)    Mr Tanioria accepts that it would have been lawful for the Commonwealth to detain him and that the only possible unlawfulness arises by reason of the alleged breach of the Constitution. That is, the alleged unlawfulness arises because Serco officers were not officers of the Commonwealth;

(3)    Mr Tanioria does not allege that the circumstances and duration of his allegedly unlawful detention differed in any way from what might have been the circumstances and duration of his lawful detention; and

(4)    in those circumstances there can be no damage suffered as a result of the detention because, even if it were unlawful in the way asserted by Mr Tanioria, he must accept that he would have been lawfully detained in any event.

49    Serco also submitted that the unparticularised claim for exemplary damages adds nothing to Mr Tanioria’s case because, contrary to r 16.44(2) of the Rules and authority, he pleads no facts to make good that claim.

Mr Tanioria’s submissions

50    Mr Tanioria submitted that in order for the Commonwealth and Serco to succeed in their applications for summary judgment the Court would have to find that he had no cause of action. He further submitted that that was particularly relevant to the argument that the false imprisonment claim would be summarily dismissed because he may only be entitled to nominal damages. Mr Tanioria contended that, if he had a cause of action, it did not matter that he was only entitled to nominal damages.

51    Mr Tanioria accepted that on cancellation of the Visa his status changed and he became liable to be detained pursuant to s 189(1) of the Act. He accepted that he could be taken into and kept in “immigration detention” by being in the company of, or under restraint by, an officer under the Act or being held by, or on behalf of, an officer in a detention centre established under the Act. Mr Tanioria does not dispute that officers of Serco were appointed under the Act. Rather, he disputes the capacity of those officers to be validly appointed and to lawfully carry out detention for and on behalf of the Commonwealth. Mr Tanioria submitted that the appointment of Serco and its employees by a formal instrument undermines the central proposition advanced by the Commonwealth and Serco that detention under the Act occurs only by and for the Commonwealth because, as a matter of day-to-day operation, VIDC is run by Serco and its employees for the Commonwealth under a contractual arrangement.

52    Mr Tanioria further submitted that his claims do not depend on allegations of duty of care but concern the lawful authority of Serco and its employees to hold and keep him on a day-to-day basis. He contended that his claim disputing the constitutional lawfulness of that authority, arising within his claim of false imprisonment, depends on several propositions, namely:

(1)    Commonwealth executive power must be exercised by officers;

(2)    Commonwealth officers have definable features compatible with the exercise of those powers; and

(3)    the Commonwealth cannot define for itself the limits and boundaries of those features.

53    Mr Tanioria submitted that each of those propositions is arguable based on existing authority concerning Ch III officers or on the text and structure of the Constitution. He further submitted that, contrary to the submissions put by the Commonwealth and adopted by Serco, there is no authority for the proposition that the Commonwealth may vest executive power in any private individual or company. Mr Tanioria contended that, even if executive power can be conferred on persons that would not ordinarily be described as executive officers, there is authority in the United States of America that supports the second proposition on which he relies (at [52(2)] above). This was said to arguably rebut the submission that executive power can be vested in any private contractor because it emphasises that there are still constitutional limits which require some oversight or accountability mechanism to be part of any such arrangement.

54    Mr Tanioria submitted that there is no dispute that VIDC has been established as an immigration detention centre under s 273(1) of the Act. However, he noted that no regulations for its operation and regulation have been made under s 273(2) of the Act and contended that the operation and regulation of VIDC is accordingly by the exercise of the executive power of the Commonwealth under s 61 of the Constitution concerning the “execution and maintenance” of the “laws of the Commonwealth”. Mr Tanioria further contended that his de facto detention had to be carried out by constitutional officers capable of exercising power under s 61 of the Constitution and that employees of Serco did not and could not have that status. He submitted that, albeit that some form of his detention at VIDC was lawful, and indeed mandated by s 189(1) of the Act, this does not prevent him from claiming that some aspect of that detention was in violation of his rights, relying on Behrooz. Mr Tanioria contended that the employees of Serco who detained him did not have lawful authority to do so and committed a tort against him, making Serco liable to him in damages and the Commonwealth similarly liable for inducing that conduct by contracting with Serco to carry out his day-to-day detention.

55    Mr Tanioria submitted that his complaint depends on the “foundational Constitutional allegation” that Serco employees were and are incapable of exercising the executive power of the Commonwealth. He provided detailed written submission under the headings: “The Constitutional questions: separations of powers”; “Constitutional officers”; “Employees of a trading or financial corporation are not constitutional officers” and “Review”. I do not propose to set those submissions out in full. Suffice it to say that they address Mr Tanioria’s central argument, underpinning his claim for unlawful imprisonment, that Serco and its employees are not officers of the Commonwealth. But the success or otherwise of the applications now before me for determination do not require me to address that issue.

Is there any reasonable prospect of Mr Tanioria prosecuting his claim for false imprisonment?

56    The exercise of the power to summarily dismiss a proceeding or a part of it must be approached with caution. The Commonwealth and Serco have made submissions that the claim for false imprisonment has no reasonable prospect of success because of matters that do not traverse the “foundational Constitutional allegation” that Serco and its employees are not officers of the Commonwealth and are incapable of exercising the executive power of the Commonwealth.

57    The Commonwealth put three alternative bases, adopted by Serco, on which the claim for false imprisonment would be summarily dismissed. Having considered each of those bases I am not persuaded that the claim should be summarily dismissed.

58    The first basis relied on by the Commonwealth is, in summary, that the detention of Mr Tanioria pursuant to ss 189 and 196 of the Act was not, properly considered, an exercise of executive power within the meaning of s 61 of the Constitution in that it is not the execution of the laws of the Commonwealth but is conduct authorised directly by the Act. However, as counsel appearing for the Commonwealth frankly submitted, the decision relied on in support of that submission is not conclusive. As set out at [33]-[34] above, the Commonwealth relies on a passage from the decision of Williams J in the Communist Party Case at 230. The argument relies on the fact that, in giving a meaning to the phrase “the execution and maintenance of the laws of the Commonwealth”, Williams J did not use the word “prescribed” but only referred to something that is “authorized” by a law of the Commonwealth.

59    True it is that s 189 of the Act requires or obliges detention once an officer forms the necessary state of mind; it does not authorise it. Notwithstanding that, I am not minded to summarily dismiss the claim on this basis. In issue is the meaning of the phrase “the execution and maintenance … of the laws of the Commonwealth” in s 61 of the Constitution. The Commonwealth relies on a single line in a detailed and complex judgment without making clear what, if any, submissions were made on the meaning of the phrase to the High Court. In response, and to demonstrate that detention of a person for the purposes of their expulsion or deportation is an executive function, Mr Tanioria relied on the extract of the decision in Lim set out at [38] above. The meaning of the phrase in issue has not been settled such that I would summarily dismiss Mr Tanioria’s claim for false imprisonment on this basis.

60    The second basis on which the Commonwealth argued that the claim for false imprisonment ought to be summarily dismissed is the contention that, even if detention is an exercise of executive power, there is no constitutional limitation that might preclude a statute from conferring such power on persons who are not officers of the Commonwealth. The Commonwealth relied on O’Donoghue v Ireland (2008) 234 CLR 599 (O’Donoghue) at [40] and [51] and NEAT Domestic Trading Pty Limited v AWB Limited (2003) 216 CLR 277 (NEAT Domestic Trading) at [49]-[99] in support of that contention and as authority for the proposition that there is no general prohibition on a Commonwealth statute conferring a power or duty upon a person who is not an officer of the Commonwealth, such as a State officer, a corporation or a private citizen. That is so.

61    In NEAT Domestic Trading the issue before the High Court was whether the refusals by AWB (International) Ltd (AWBI) to give its approval to applications made by NEAT Domestic Trading Pty Ltd were decisions of an administrative character made under an enactment and thus whether they were amenable to review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The issue arose because the Wheat Marketing Act 1989 (Cth) prohibited the export of wheat from Australia without the consent of the Wheat Export Authority (Authority). The Authority was required to consult with AWBI prior to granting any consent and was prohibited from giving a bulk-export consent without the approval of AWBI. The effect was to confer upon AWBI, a private company, a discretion to oblige the Authority to refuse third parties’ applications to bulk-export wheat. No issue was identified by the High Court that suggested that that scheme was invalid or that a statute could not vest a discretionary power in a private company.

62    O’Donoghue concerned s 19 of the Extradition Act 1988 (Cth), which provided that, where an application was made to a magistrate for proceedings to be conducted in relation to a person, “the magistrate shall conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or extradition offences for which surrender of the person is sought by the extradition country”. That is, a Commonwealth statute conferred administrative functions on State magistrates. The High Court held that there could be no constitutional objection to the granting of powers by the Federal Government to State magistrates, nor anything that prevented the State magistrates from accepting those functions. At [40] and [51] the plurality (Gummow, Hayne, Heydon, Crennan and Kiefel JJ) said:

40    It is settled by authority including Pasini v United Mexican States and Vasiljkovic that the determination under s 19(1) of eligibility to surrender and the making of consequential orders under s 19(9) and (10) involves the exercise of administrative functions and not the exercise of the judicial power of the Commonwealth. Accordingly, s 19 is not the product of an exercise by the Parliament of its power conferred by s 77(iii) of the Constitution to make laws investing State courts with federal jurisdiction.

…

51    This Court in Aston v Irvine also referred with apparent approval to the following passage in the treatise by Willoughby:

In general, however, the Federal and State Governments act independently of each other, as regards their executive or administrative services, and the principle is well established that the Federal Government may not impose upon State officials the imperative obligation and burden of executing Federal laws, nor, a fortiori, may the States obligate Federal officials to execute State laws. However, it is equally well established that there is no constitutional objection to the granting by the Federal Government to State officials of authority to execute Federal functions, if they, or rather their respective State governments, are willing that they should do so.

(footnotes omitted)

63    The Commonwealth also placed reliance on Lim, which concerned the validity of the then-current legislative scheme for the detention of certain non-citizens. While there were differences of opinion on some issues, all members of the High Court accepted that the legislative power conferred by s 51(xix) of the Constitution extended to conferring upon the Executive the authority to detain non-citizens for the purposes of expulsion or deportation. The Commonwealth relied on the passage from the judgment of Brennan, Deane and Dawson JJ at 32 (see [38] above) to support its argument that a statute may confer on persons who are not officers of the Commonwealth the power to detain. That is, the Commonwealth submitted that their Honours expressly held that the power in s 51(xix) of the Constitution includes the power to confer authority upon the Executive to either detain or to direct the detention of an alien in custody for the purposes of expulsion or deportation. Because the Executive may direct the detention of aliens, those aliens do not have to be held by an officer of the Commonwealth and such an officer can direct that the detention be effected, in this case, by persons who are “officers” within the meaning of s 5 of the Act.

64    Mr Tanioria submitted that the phrase “direct the detention of” included in the passage at 32 of Lim did not mean that a direction to detain could be made to “anybody in the universe” and that there was no authority for that proposition in Lim or any other decision. He further submitted that the correct position must be determined by the language of the Constitution, which is as set out in s 61, “exercisable by the Governor-General”. He contended that those words have a meaning that do not refer to the Governor-General as an individual, but to the Governor-General as the representative of a state with officers who carry out functions on his or her behalf.

65    The question that arises, assuming that detention is an exercise of executive power and accepting that the Executive can direct the detention of an alien, is whether the Executive can give such a direction to persons who fall within the definition of “officer” as that term is defined by s 5 of the Act. The cases to which I was taken by the Commonwealth do not answer that question and, in my opinion, it is not an issue that can be determined on this application. There is an issue that arises for determination and I am unable to say that the claim for false imprisonment has no reasonable prospect of success on the basis of this second ground.

66    The third and final basis put forward by the Commonwealth for summary dismissal of Mr Tanioria’s claim for false imprisonment is that his detention was in fact detention by the Commonwealth and, accordingly, that he was lawfully detained. There is no issue between the parties that the Commonwealth could have lawfully detained Mr Tanioria pursuant to ss 189 and 196 of the Act. So much is apparent from Mr Tanioria’s submissions and the amendment made to [16] of the further amended statement of claim. But Mr Tanioria asserted that his “de facto” detention was carried out by Serco or its employees. He asserted that he could still make a claim of unlawful imprisonment where, notwithstanding that he could have been lawfully detained, there was a violation of his civil rights because his detention was carried out by persons not authorised to do so.

67    Even if it is assumed that Serco held Mr Tanioria on behalf of the Commonwealth, that his detention was thus relevantly “by the Commonwealth” and, as is accepted by Mr Tanioria, that the Commonwealth was authorised to detain him under the Act, it does not follow that the mode of detention employed by the Commonwealth was lawful. The claimed unlawfulness underlying Mr Tanioria’s claim of unlawful imprisonment is said to arise from the unconstitutionality of the mode of detention that was employed by the Commonwealth. That is, Mr Tanioria claims that Serco and its employees could not lawfully detain him on behalf of the Commonwealth because it was unconstitutional to do so. The Commonwealth’s contention that Mr Tanioria’s detention was lawful because it was in fact detention by the Commonwealth is unable to overcome or circumvent that complaint. The question whether the mode of his detention was unconstitutional must be resolved before it can be said that his detention by the Commonwealth was lawful or unlawful.

68    The detaining and holding of a person pursuant to the Act is undertaken by an “officer” as that term is defined. As Finn J held in Applicant S, whoever the officer is in a given case, the detaining and holding is both on behalf of and by the Commonwealth: at [205]. It was for that reason that Finn J considered that the Commonwealth had correctly conceded that it owed a non-delegable duty of care to the applicants. But Mr Tanioria’s claims depend on the question whether Serco and its employees could be, within the framework of the Constitution, authorised to hold him on a day-to-day basis.

69    In Behrooz Gleeson CJ said at [21] that “[a]n alien does not stand outside the protection of the civil … law” and thus that “[i]f those who manage a detention centre fail to comply with their duty of care, they may be liable in tort”. Mr Tanioria relies on the statement of Gleeson CJ to support a submission that the fact that his detention was lawful, in the sense that it was by the Commonwealth under the Act, does not prevent him from claiming that some aspect of his detention was in violation of his “civil rights”. That is so. Gleeson CJ referred to aspects of the conditions of detention that might give rise to a claim in tort and, while his Honour did not refer to false imprisonment, it cannot be said that such a claim would be excluded.

70    Here Mr Tanioria’s claim in tort is for false imprisonment based on an allegation that he was in fact held by officers of Serco who, it is alleged, were not officers of the Commonwealth for the purposes of s 61. As Gleeson CJ also said at [21], “there is no warrant for concluding that, if the conditions of detention are sufficiently harsh, there will come a point where the detention itself can be regarded as punitive, and an invalid exercise of judicial power”. His Honour further said that “for an alien, the detention is an incident of the exclusion and deportation to which an alien is vulnerable”. The detention is not punitive and does not become so because of its conditions. Nor does the detention in that way become an invalid exercise of judicial power, as opposed to a valid exercise of executive power.

71    That does not provide an answer to the claims made by Mr Tanioria. As set out at [67] above, Mr Tanioria’s complaint goes to the mode of detention employed by the Commonwealth and, in particular, the allegation that his detention was unconstitutional because it was effected by Serco. His complaint does not concern the conditions of detention or the harshness of those conditions in the sense that those issues were considered by Gleeson CJ in Behrooz. Indeed, Mr Tanioria, in conceding that there is a real risk that he will be limited to nominal damages, implicitly concedes that the conditions of detention to which he was subjected are likely the same as those he would have faced if he had been lawfully detained by the Commonwealth pursuant to ss 189 and 196. Rather, Mr Tanioria’s case concerns the constitutionality of the arrangement between the Commonwealth and Serco by which a non-citizen is detained by and on behalf of the Commonwealth.

72    In any event, the claim against the Commonwealth is also that it is vicariously liable for the actions of Serco and/or its employees. There is no evidence before me about the relationship between the Commonwealth and Serco. The framing of the claim in that way adds complexity and a factual issue, namely, determining the nature of the relationship between the Commonwealth and Serco, such that I would not summarily dismiss the claim.

73    I turn then to consider Serco’s submission, adopted by the Commonwealth, that the claim should be summarily dismissed because Mr Tanioria is entitled to no more than nominal damages. That submission relies on the decision in Fernando v Commonwealth of Australia (2014) 231 FCR 251 (Fernando). In that case the appellant, Mr Fernando, a Sri Lankan national, was granted a permanent residency visa in 1995. He was later convicted by the District Court of Western Australia of certain charges and sentenced to eight years imprisonment. He was due to be released on parole on 5 October 2003.

74    In 2001 the Minister cancelled Mr Fernando’s visa under s 501(2) of the Act. Mr Fernando brought an application for judicial review which resulted in this Court making an order on 16 September 2003 that the Minister’s decision be set aside. The Minister thereafter once again commenced the process by which he would consider whether to cancel Mr Fernando’s visa. As a result, Mr Fernando’s visa was cancelled by the Acting Minister for Immigration and Multicultural and Indigenous Affairs (Acting Minister) on 3 October 2003. Upon Mr Fernando’s release from prison he was immediately taken into immigration detention.

75    Mr Fernando commenced a second application for judicial review in relation to the conduct of the officers of the Acting Minister’s Department in issuing him with a notice of intention to cancel his visa on 17 September 2003. That application was subsequently amended to challenge the decision to cancel his visa. Following the decision in Sales v Minister for Immigration and Multicultural Affairs [2006] FCA 1807 and, as a result of a review undertaken by the Department of cases that might be affected by that decision, Mr Fernando was informed that he may not have been accorded procedural fairness in relation to the decision to cancel his visa. He was released from detention on 18 January 2007. On 24 January 2007 orders were made quashing the cancellation of Mr Fernando’s visa.

76    By the time of his release Mr Fernando had spent 1,203 days in immigration detention. He thereafter brought a claim for damages, including aggravated and exemplary damages, against the Commonwealth and the Acting Minister relying on various causes of action, including the tort of false imprisonment.

77    At first instance the primary judge relevantly found that Mr Fernando had been falsely imprisoned by the Commonwealth for one day and awarded him $3,000 in damages. The primary judge found that Mr Fernando’s detention had been lawful on and from the second day. Orders were also made against the Acting Minister that made him jointly and severally liable for the damages. In a later judgment the primary judge found that there were grounds for an award of exemplary damages against the Commonwealth and awarded Mr Fernando $25,000.

78    The Commonwealth and Acting Minister appealed from, among other things, the primary judge’s holdings that Mr Fernando had been falsely imprisoned for one day and that the Commonwealth was liable to pay exemplary damages. Mr Fernando cross-appealed against the primary judge’s holding that he had not been falsely imprisoned for the entire period of his detention. A Full Court of this Court dismissed the appeal against the holding that Mr Fernando had been falsely imprisoned for one day. It remitted to the primary judge the question of whether there should be an award for exemplary damages and, if so, the amount to be awarded. The cross-appeal was successful and the issue of damages was remitted to the primary judge.

79    After the Full Court had made its orders, but before the primary judge had considered the issue of damages, a new argument emerged that Mr Fernando should be awarded no more than nominal damages in respect of his false imprisonment because he could and would have been lawfully detained in any event. On the remitter the primary judge found that the Commonwealth and the Acting Minister had committed the tort of false imprisonment and ordered that they pay Mr Fernando nominal damages of $1. The primary judge also ordered that the Commonwealth pay Mr Fernando $25,000 as exemplary damages. Mr Fernando appealed from those orders and the Commonwealth cross-appealed. The issues before the Full Court were, in the case of Mr Fernando’s appeal, whether the primary judge erred in not awarding compensatory and aggravated damages and the alleged inadequacy of the award of exemplary damages against the Commonwealth: at [17].

80    In considering the issues in the appeal Besanko and Robertson JJ referred at [61]-[63] to the primary judge’s finding that Mr Fernando could and would have been lawfully detained in any event:

61     The primary judge referred to the relevant statutory provisions and said that they had the effect that a non-citizen whose permanent residency visa has been cancelled under s 501 of the Act, and who challenged the validity of that decision in court, was to be kept in detention for the duration of the relevant court proceeding. He also said that, after the Acting Minister had made his decision to cancel the appellant’s visa, the appellant was susceptible to being detained and, in fact, could and would have been detained by an officer in the performance of that officer’s duty under s 189(1) of the Act. That followed from the fact that the decision to cancel the appellant’s visa was valid on its face and was sufficient to engender in an officer a reasonable suspicion that the appellant was an unlawful non-citizen.

62     The primary judge referred to his conclusion in his second judgment (at [36]) that the provisions of s 189 of the Act meant that, on cancellation of a person’s visa, it is highly likely they will be detained even if it transpires that the cancellation is unlawful. He also referred to the fact that, in Ruddock v Taylor (2003) 58 NSWLR 269 (Ruddock (NSWCA)) at [72], Meagher JA referred to the detention of an unlawful non-citizen as inevitable.

63     The primary judge did not think that the question of which party bore the onus of establishing what would otherwise have happened was significant because the provisions of the Act rendered the appellant’s detention following the cancellation of his visa inevitable or virtually inevitable.

81    Besanko and Robertson JJ then turned to consider two English authorities: R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245 (Lumba) and R (on the application of Kambadzi) v Secretary of State for the Home Department [2011] 1 WLR 1299. Those decisions were handed down after the primary judge delivered his first judgment but were relied on by the Commonwealth on the remitter in support of the argument that Mr Fernando should only be awarded nominal damages for his false imprisonment because he could and would have been lawfully detained in any event. In considering those authorities their Honours noted at [69] in relation to the decision in Lumba that:

A majority of the Court in Lumba held that it was inevitable that the claimants would have been detained even if the published policy had been applied to them. The question then arose as to what effect that conclusion had on any award of compensatory damages and what is referred to in the United Kingdom as vindicatory damages.

82    At [72] their Honours referred to the conclusion of Lord Dyson JSC on the issue of nominal damages:

His Lordship stated his conclusion on the issue of nominal damages in the following terms (at [95]):

The question here is simply whether, on the hypothesis under consideration, the victims of the false imprisonment have suffered any loss which should be compensated in more than nominal damages. Exemplary damages apart, the purpose of damages is to compensate the victims of civil wrongs for the loss and damage that the wrongs have caused. If the power to detain had been exercised by the application of lawful policies, and on the assumption that the Hardial Singh principles had been properly applied (an issue which I discuss at paras 129-148 below), it is inevitable that the appellants would have been detained. In short, they suffered no loss or damage as a result of the unlawful exercise of the power to detain. They should receive no more than nominal damages.

83    Besanko and Robertson JJ noted at [74] that the rest of the court in Lumba agreed with Lord Dyson JSC on the issue of whether there should be an award of compensatory damages. As far as their Honours were able to ascertain, the principle set out in Lumba “concerning the recoverability or otherwise of compensatory damages for unlawful detention has not since been doubted in the United Kingdom” and has been applied in areas outside immigration detention: at [76].

84    Besanko and Robertson JJ then turned to consider Mr Fernando’s case. At [81]-[82] their Honours said:

81     The respondents submitted that, even though the appellant had been unlawfully detained for 1,203 days, he could and would have been lawfully detained in any event, and it followed that he was not entitled to compensatory damages. He could and would have been lawfully detained if the tort had not been committed because, having regard to the cancellation of his visa by the Acting Minister, an officer could and would have formed the reasonable suspicion referred to in s 189(1) of the Act. He would then have been kept in immigration detention under s 196(1) of the Act, and the fact that he was challenging the decision to cancel his visa on the ground that it was unlawful would not have affected the statutory requirement in s 196 of the Act to keep him in immigration detention. We think that contention is correct.

82     This conclusion certainly goes one step further than Ruddock (High Court) in that it relates to the damages to be awarded, not the lawfulness of the detention. However, the step is consistent with the principle identified in Lumba and subsequent cases in the United Kingdom. We say identified rather than established or enunciated because the principle is not a new one. It is a basic principle relevant to the award of compensatory damages under Australian common law as much as the common law of the United Kingdom. Unless there was reason to think that the principle had been excluded by the particular statutory context, then it should be applied. No statutory provisions suggesting the exclusion of the principle were identified in this case.

85    At [84]-[88] their Honours considered and rejected four arguments put by Mr Fernando as to why compensatory, as opposed to nominal, damages would be awarded. The arguments were: first, that Lumba and the decisions that followed it were of limited assistance because they were decided under different statutory regimes and because this Court is not bound by those decisions; secondly, that acceptance of the respondents’ argument would be to go one step further than the High Court did in Ruddock; thirdly, that he had not been lawfully detained in the first place and there was nothing to suggest that he would have been detained at any time during which he was kept in detention under s 196(1) of the Act; and, finally, that the respondents had not adduced any evidence to the effect that it was inevitable that an officer would have formed the relevant opinion under s 189(1) of the Act and detained him. Their Honours upheld the primary judge’s conclusion that Mr Fernando was only entitled to nominal damages: at [89]. In a separate judgment Barker J agreed with the reasoning of Besanko and Robinson JJ: at [164].

86    Serco also drew my attention to the decision in CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 (CPCF). That case concerned a claim for unlawful detention on board a Commonwealth vessel and damages for wrongful imprisonment. A number of agreed questions, based on agreed facts, were referred to the Full Court of the High Court by way of special case. The central question was whether the Maritime Powers Act 2013 (Cth) (MPA) and/or s 61 of the Constitution authorised the detention and taking of the plaintiff from Australia’s contiguous zone to India. The question of particular significance to the issue now under consideration was as follows:

Question 6    Was the detention of the plaintiff unlawful at any, and if so what period, from 1 July 2014 to 27 July 2014 and if so are they [sic] entitled to claim damages in respect of that detention?

87    A majority of the High Court held in separate judgments (per French CJ, Crennan, Gageler and Keane JJ) that the detention was authorised under the MPA.

88    Hayne and Bell JJ and Kiefel J (as her Honour then was), in dissent, found that the plaintiff had been unlawfully detained and thus went on to consider what flowed from that finding on the question of damages. At [155] Hayne and Bell JJ said:

The submission of the Commonwealth parties implicitly assumed that damage is the gist of the tort of false imprisonment. It is not. Like all trespassory torts, the action for false imprisonment is for vindication of basic legal values: in this case the value long assigned by the common law to liberty from restraint, especially restraint at the behest of government. False imprisonment is, and long has been, actionable without proof of special damage. Hence, demonstrating that a plaintiff was unaware of the imprisonment, or for some other reason suffered no substantial loss, neither denies the availability of the action nor provides a defence to it. Such matters are relevant, if at all, only to the assessment of damages but do not, of themselves, require the conclusion that only nominal damages may be awarded.

(footnotes omitted)

89    At [324]-[325] Kiefel J said:

324    Unlawful detention is a trespass and actionable as a tort regardless of whether the plaintiff has suffered harm. In the present case, had the plaintiff not been detained on the Australian vessel for the period in question, he would have been detained in immigration detention. The circumstances of this case are similar to those pertaining in R (Lumba) v Secretary of State for the Home Department. In that case, the claimants were falsely imprisoned, but the Supreme Court of the United Kingdom held that it was inevitable that they would have been detained in any event, had correct principles and lawful policies been applied. The claimants were held to have suffered no loss or damage as a result of the unlawful exercise of the power to detain and therefore nominal damages only could be awarded.

325    The plaintiff submits that this Court should leave the question as to the extent of any award of damages to be assessed on remitter. However, it seems to me that only one conclusion is possible and the terms of any remitter ought to be made clear. Damages could only be awarded for the infraction of the MP Act. In such circumstances, only nominal damages can be awarded.

(footnotes omitted)

90    While Keane J found that the plaintiff’s detention was lawful, he nonetheless addressed the question of entitlement to damages at [510]-[512]. In doing so, like Kiefel J, his Honour referred, with apparent approval, to the decision in Lumba. At [512] Keane J said:

512    In the present case, the issue is as to the duration of lawful detention. If the plaintiff had been brought directly to Australia, he would have been detained immediately under s 189 of the Migration Act. In those circumstances, the plaintiff would have been in lawful detention at all material times, whether the authority for that detention derived from s 72(4) of the Act or s 189 of the Migration Act. In this scenario, there would be no need for a lawfully made executive decision to justify the plaintiff's ongoing detention. The present case differs from Lumba's Case in this respect. This difference might well leave the plaintiff in a worse position than the claimant in Lumba's Case, so far as a claim for damages for unlawful imprisonment is concerned, in that even nominal damages would not be recoverable.

91    Mr Tanioria accepts that it would have been lawful for the Commonwealth to detain him during the period of his alleged unlawful detention. In his written submissions he says that he “must accept that on the cancellation of his visa, his status changed and he became liable to be detained pursuant to s 189(1) of the Act”. That is, even if the alleged tort had not been committed, Mr Tanioria, like Mr Fernando, could and would have been lawfully detained. There is no allegation that Mr Tanioria’s alleged unlawful imprisonment was different in its duration or conditions to what would have been his lawful detention. In those circumstances, even if Mr Tanioria can establish his claim of false imprisonment, he may only be entitled to nominal, as opposed to compensatory, damages.

92    The issue which then arises is whether, because of that outcome, the Court would summarily dismiss Mr Tanioria’s claim. Serco submitted that, because s 31A(3) provides that a proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success, I would dismiss the claim summarily. This was said to be so because, even if Mr Tanioria might succeed in establishing his claim for unlawful imprisonment, in circumstances where the best he might achieve is damages of $1, the Court would not permit its resources to be used for the purpose of entertaining a proceeding involving complex issues and a lengthy trial having regard to s 37M of the Federal Court Act.

93    I accept that Mr Tanioria’s claim for false imprisonment is a claim for damages only and, as I have already observed, one where the outcome may be at best an award of nominal damages. But I do not think that that outcome permits a characterisation of the claim as having no reasonable prospect of success, even having regard to the provision in s 31A(3) that the proceeding need not be hopeless or bound to fail. In the end the outcome may be of limited utility in the sense of the damages award achieved, but the Court must ask itself whether there are any real, as opposed to fanciful, issues of law or fact to be determined: see Takemoto at [15]. The question is focused on the identification of issues to be determined rather than the ultimate outcome in terms of the quantum of an award of damages. In this case, there are real issues of law to be determined notwithstanding what may be the outcome for Mr Tanioria even if successful.

94    Before leaving this issue I should say something about s 37M. It appears in Pt VB of the Federal Court Act headed “Case management in civil proceedings” and relevantly provides:

37M    The overarching purpose of civil practice and procedure provisions

(1)    The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:

(a)    according to law; and

(b)     as quickly, inexpensively and efficiently as possible.

(2)    Without limiting the generality of subsection (1), the overarching purpose includes the following objectives:

(a)      the just determination of all proceedings before the Court;

(b)      the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c)      the efficient disposal of the Court’s overall caseload;

(d)      the disposal of all proceedings in a timely manner;

(e)      the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

(3)    The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.

…

95    The application of the principles of case management set out in s 37M and in the subsequent sections that make up Pt VB are critical to the efficient running of proceedings in this Court for the benefit of all litigants. That s 37M(3) is mandatory in its terms emphasises the importance of those principles. But the principles of case management set out in s 37M and the balance of Pt VB of the Federal Court Act cannot excuse, avoid or detract from the analytical exercise that is required on an application for summary dismissal, namely, in this case, whether Mr Tanioria has reasonable prospects of successfully prosecuting the proceeding. In accordance with s 37M(3), that analysis must be informed by principles of case management which may, in an appropriate case, cause the balance to shift in favour of summary dismissal. However, in my opinion, case management considerations do not substantially affect the present assessment of whether Mr Tanioria has reasonable prospects of successfully prosecuting his case.

96    The final issue is that of vicarious liability. I do not propose to summarily dismiss the claim against the Commonwealth on the basis that it could not be vicariously liable. I accept Serco’s submission that the issue of whether the Commonwealth would be vicariously liable for the actions of Serco and/or its employees is a question the answer to which is likely to depend on evidence, including evidence about the contractual relationship between the Commonwealth and Serco. There is no concept of dual vicarious liability but, as Serco submitted, there may an argument that the Commonwealth is vicariously liable for the actions of Serco if any liability were found against it.

Should the claim in false imprisonment as pleaded in the further amended statement of claim be struck out?

97    I do not accept the Commonwealth’s submission that the whole of Mr Tanioria’s claim in false imprisonment would be struck out. However, there are two aspects of the claim as pleaded in the further amended statement of claim that are susceptible to strike out pursuant to r 16.21 of the Rules.

98    The first aspect concerns the allegation of vicarious liability set out in [18] of the further amended statement of claim. As submitted by the Commonwealth, the facts upon which it is alleged that the Commonwealth is vicariously liable for the acts of Serco are not pleaded. The pleading contains no more than a bald assertion that the Commonwealth “is vicariously liable for the actions of [Serco] in detaining [Mr Tanioria] without lawful authority by inducing that conduct”. That pleading is inadequate. It is a statement of a conclusion drawn from facts that are not included in the further amended statement of claim: see Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109 at 114-115. Paragraph 18 should be struck out.

99    The second aspect concerns Mr Tanioria’s claim for exemplary damages arising out of his claim for false imprisonment. As submitted by Serco, that claim is unparticularised and, contrary to r 16.44(2) of the Rules, Mr Tanioria pleads no facts to make good that claim. This is despite the pleading history, which has given Mr Tanioria sufficient opportunity to amend his claims. In those circumstances the claim for exemplary damages contained in [19] of the further amended statement of claim should be struck out.

100    Having concluded that those two aspects of the further amended statement of claim should be struck out, the question of whether leave to replead should be granted arises. The Commonwealth and Serco point to the pleading history as a reason why such leave would be denied. The further amended statement of claim was prepared as “responding to the [Commonwealth and Serco’s] submissions” on the applications for summary judgment and, in the alternative, strike out. Notwithstanding that the deficiencies of the pleading referred to above were identified in the Commonwealth’s and Serco’s written submissions, no amendments have been made.

101    However, Serco takes a different position on the vicarious liability case against the Commonwealth. It submitted that if the Court were persuaded by the Commonwealth’s argument that the claim of vicarious liability against it should be summarily dismissed then it would need to consider its position, including whether it would file a cross-claim. That submission must apply equally to a successful argument on the part of the Commonwealth that the claim for vicarious liability be struck out, if leave to replead is not granted.

102    Having considered the pleading history and the submissions of the parties on this issue I would, albeit reluctantly, allow Mr Tanioria the opportunity to replead those two aspects of his claim.

The claim in conversion

103    In the further amended statement of claim Mr Tanioria alleges that either the Commonwealth or Serco converted his property, namely, his wallet and his portable PlayStation device. The Commonwealth and Serco submitted that this claim does not have reasonable prospects of success. The Commonwealth made the following submissions, which were adopted by Serco:

(1)    the contemporaneous records indicate that Serco held as “In Trust Property” Mr Tanioria’s wallet and his portable PlayStation but that those items were returned to him when he was released from detention on 24 October 2016. At that time Mr Tanioria signed a form indicating that he was “satisfied with the condition of the items”;

(2)    relying on Bunnings Group Ltd v CHEP Australia Ltd (2011) 82 NSWLR 420 (Bunnings Group) at [124] and [136], the essential element of a cause of action in conversion is an intentional act or dealing with goods that is inconsistent with or repugnant to the rights of the owner. Such an act or dealing must involve an intended act of dominion or assertion of rights over the goods and mere detention of goods will not amount to conversion; and

(3)    receipt of property on the basis that it will be returned in satisfactory condition upon a person leaving the detention centre cannot be said to constitute use of the property in a manner that amounts to conversion.

104    Serco further submitted that:

(1)    the conversion claim, like the false imprisonment claim, depends on the allegation of unlawful detention. Thus, if the submissions advanced in relation to false imprisonment are accepted then the conversion claim is also untenable; and

(2)    in the event that the conversion case does not depend on the allegation of unlawfulness:

(a)    in order to succeed in his claim for conversion, Mr Tanioria must allege and prove that the interference with his property was wrongful in some way. The Court has a discretion as to whether to award damages even if the conversion is proved; and

(b)    the allegation made against Serco that the act of holding Mr Tanioria’s property for the period of his detention was wrongful is untenable because it appears to assume that the mere fact that Serco held the property is sufficient to establish a cause of action in conversion. That is wrong because an element of the cause of action is that the “interference” with Mr Tanioria’s property was wrongful in some way.

105    In the alternative, Serco submitted that if the Court does not summarily dismiss the claim for conversion then it should refuse leave to file the further amended statement of claim because the cause of action is not properly pleaded. That submission must fall away in light of Serco’s acceptance that leave to file the further amended statement of claim would be granted without prejudice to its right to argue that the further amended statement of claim should be summarily dismissed or struck out. Leave was granted and the matter proceeded on that basis.

106    Mr Tanioria submitted that the fact that the respondents have sought to challenge his conversion claim by production of evidence highlights the futility of the application for strike out and that the Court should allow that part of the claim to proceed to trial. Mr Tanioria further submitted that:

(1)    it was not disputed that he was deprived of possession of his property for a period of time and that the question for trial would be whether the interference with his possession of particular chattels was something authorised by the Act;

(2)    no specific section of the Act authorises the taking of his property or makes clear what authority the Commonwealth or Serco had to deprive him of possession of his property while in detention. This is a consequence of the absence of regulations under s 273(2) of the Act;

(3)    ordinarily, courts would ensure that remedies were available to guard against encroachments onto liberty;

(4)    general provisions would not be read as authorising the interference with property rights; and

(5)    even if damages were nominal, which was not conceded, he is entitled to the vindication of his rights by this Court following a trial.

107    At the hearing, counsel for Mr Tanioria submitted that it was not “quite right” that the only way to make a conversion claim is for there to be an exercise of dominion over the property. In support of that proposition he referred the Court to Trindade F, Cane P and Lunney M, The Law of Torts in Australia (4th ed, Oxford University Press, 2007) at 5.3.4.5, where the authors say:

In the absence of any lawfully asserted right, an intention to withhold or detain goods in defiance of the person who is entitled to possession of them is a conversion of those goods – a conversion by detention.

108    Counsel for Mr Tanioria submitted that that is what is pleaded. That is, Mr Tanioria says that his goods were taken from him and that that amounted to a withholding or detaining of his goods in defiance of his entitlement to possession. He contended that the claim might be met by a defence that there was lawful authority to take those items of property. But he contended that the state of the law is not so clear that Mr Tanioria should be deprived of his right to argue that, notwithstanding that his goods were returned to him, there was for a period a deprivation of his right to possession.

Is there any reasonable prospect of Mr Tanioria prosecuting his claim for conversion?

109    In my opinion it cannot be said that there is no reasonable prospect of Mr Tanioria successfully prosecuting his claim in conversion. My reasons for reaching this conclusion follow.

110    In Bunnings Group at [117] Allsop P (as his Honour then was), with whom Giles and Macfarlan JJA relevantly agreed, said:

Conversion can, of course, occur by retaining goods after a demand. The act of retention is one that is repugnant to the owner's right to possession expressed by the call for making available or return of the goods. Mere unauthorised possession of another's chattel is not a conversion of it: Clayton v Le Roy [1911] 2 KB 1031 at 1048-1050; Barclay's Mercantile Business Finance Ltd v Sibec Developments Ltd [1992] 1 WLR 1253 at 1257; Spackman v Foster (1882-1883) 11 LR QBD 99 at 100-101. For possession or keeping to be a conversion a demand is required: Clayton v Le Roy at 1052; and General and Finance Facilities Ltd v Cooks Cars (Romford) Ltd [1963] 1 WLR 644 at 649.

111    At [124] his Honour set out the essential elements of the tort of conversion:

The framing of a precise definition of the tort of conversion has been described as "well nigh impossible": Lord Nicholls of Birkenhead in Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5) [2002] UKHL 19; [2002] 2 AC 883 at 1084 [39]; and see also Hiort v London & North Western Railway Co (1879) 4 Ex D 188 at 194 per Bramwell LJ. The essential elements, or basic features, involve an intentional act or dealing with goods inconsistent with or repugnant to the rights of the owner, including possession and any right to possession. Such an act or dealing will amount to such an infringement of the possessory or proprietary rights of the owner if it is an intended act of dominion or assertion of rights over the goods: see generally Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204 at 217-221 (per Latham CJ), 228-230 (per Dixon J, with whose statements of principle Starke J agreed at 221), 234-235 (per McTiernan J), and 239-244 (per Williams J); and Kuwait Airways at 1084 [39]-[42] (per Lord Nicholls of Birkenhead), 1104 [119] (per Lord Steyn) and 1106 [129] (per Lord Hoffmann).

112    At [125] and [135]-[137] his Honour said:

125    … Whilst there can be a conversion for a limited period of time, this would occur only if there was an intention to exercise dominion over the goods inconsistent with the rights of the owner, including the right to possession. …

And:

135    The principles to which I have referred do not permit the conclusion, in my view, that "lack of consent" is equivalent to a demand to return or make available or deliver up. The forms of conversion may be many, but essential to all of them is the act or dealing amounting to an act of dominion repugnant to the proprietary rights of the true owner including the immediate right to possession. Clerk & Lindsell at 1007-1008 [17-08] list seven categories:

(a)     when property is wrongfully taken or received by someone not entitled to do so;

(b)     when it is wrongfully parted with;

(c)     when it is lost by a bailee in breach of his duty to the bailor;

(d)     when it is wrongfully sold, even without delivery, so as to pass good title to the buyer;

(e)     when it is wrongfully retained;

(f)     when it is wrongfully misused or destroyed; and

(g)     when the defendant, without physically interfering with it, wrongfully denies access to it to the claimant.

136    W Prosser, "The Nature of Conversion" (1957) 42 Cornell Law Quarterly 168 at 174 gave the following list:

... taking the chattel, removing it, transferring it, withholding it, damaging or altering it, and using it.

137    All the examples given by Prosser of use (at 183-184) involve physical use and application of the chattel beyond mere possession, in a context and in a manner that can be seen as contrary to the rights of the true owner.

113    Mr Tanioria’s wallet and portable PlayStation were recorded on the relevant “In Trust Property” sheets as “Transaction/Date in”, which I infer is the date on which the items were removed from his possession, on 27 November 2014 and 4 February 2015 and then returned when he departed the detention centre.

114    The mere act of taking possession of those goods is insufficient to establish a claim in conversion. Mr Tanioria must establish that the Commonwealth or Serco or both intentionally dealt with the goods in a way that was inconsistent with or repugnant to his rights as owner. His pleading alleges that the Commonwealth or Serco took possession of the property and “[c]onverted that property to its use in a manner repugnant to [his] possession of that property” without particularising how the Commonwealth or Serco are alleged to have done that. The goods were held by the Commonwealth or Serco pending their return upon Mr Tanioria’s release from detention. There is no evidence that they were removed, transferred, withheld, damaged, altered or used. To the contrary, the evidence is that they were held in custody and then returned in good repair.

115    I accept the Commonwealth and Serco’s submissions that the mere fact that Serco held Mr Tanioria’s property is insufficient to establish a cause of action in conversion; that the property was returned to Mr Tanioria in a satisfactory condition when he departed Australia; and that it is not pleaded that Mr Tanioria made a demand for the property during the course of his detention. Those submissions, along with the “In Trust Property” sheets that were put into evidence by the Commonwealth, were directed to the contention that neither the Commonwealth nor Serco wrongfully interfered with Mr Tanioria’s property rights in a manner that would constitute conversion. However, they do not provide a complete answer to the allegations made by Mr Tanioria.

116    The Commonwealth and Serco have not grappled with a critical part of the factual matrix underlying Mr Tanioria’s claims, namely, the circumstances in which he was deprived of possession of his property. The Act does not authorise the taking of a detainee’s property and there remains a question as to whether the Commonwealth or Serco were lawfully authorised to deprive Mr Tanioria of possession of his property. The fact that Mr Tanioria’s property was returned to him in satisfactory condition before he departed Australia cannot displace the possibility that he was wrongfully deprived of possession of his property in the first place. Nor does the fact that Mr Tanioria did not make a demand for the return of his property during the course of his detention preclude that possibility. In that regard, I note that conversion by retention of goods after a demand is but one way in which a cause of action in conversion might arise.

117    In the circumstances I am satisfied that there is a factual issue between the parties which warrants Mr Tanioria’s claim for conversion proceeding to final hearing. The applications for summary dismissal must be approached with considerable caution, particularly because dismissal is not sought upon the basis of resolving a legal issue but upon the basis of resolving a factual question dividing the parties: Takemoto at [14]. To adopt the words of French CJ and Gummow J in Spencer, in my opinion, there are factual issues capable of being disputed and that are disputed in Mr Tanioria’s claim for conversion. I am unable to conclude that Mr Tanioria has no reasonable prospects of prosecuting his claim for conversion and, as Mr Tanioria submitted, the question at trial would be whether the Commonwealth or Serco had some basis upon which they lawfully took possession of his property.

118    For completeness I note that it appears that Mr Tanioria signed the “In Trust Property” sheets to acknowledge the transfer of possession of each article of his property to Serco. A signature appears under the column headed “Detainee’s Signature” alongside a brief description of each article of property. I would infer that the signature in each instance is that of Mr Tanioria. It may be that Mr Tanioria thus consented to deposit his property into the custody of Serco for safekeeping for the duration of his detention and that the possession of his property by the Commonwealth or Serco was in that way lawful. However, that factual contention was not put to me at hearing and, in the absence of an opportunity for Mr Tanioria to adduce evidence or make submissions to the contrary, I am not prepared to draw that conclusion. There remains a live issue of fact to be determined.

Should the claim in conversion as pleaded in the further amended statement of claim be struck out?

119    That then leaves the question whether the claim in conversion should be struck out. Serco submitted that the further amended statement of claim does not plead the material facts that could lead to a finding that the elements of the cause of action in conversion are made out. It further submitted that [30] of the further amended statement of claim fails to plead why the detention of Mr Tanioria’s goods was unlawful, but only asserts that the Commonwealth or Serco took possession of Mr Tanioria’s property and converted it to their use in “a manner repugnant to [Mr Tanioria’s] possession of that property” and “without lawful authority”.

120    That is so. The basis upon which it is alleged that the detention of the goods was wrongful is simply not pleaded. The Commonwealth and Serco cannot know how it is claimed that the detention was wrongful and, in particular, whether the alleged wrongful possession arises from Mr Tanioria’s alleged unlawful detention or for some other reason. I would therefore strike out [30] and [31] of the further amended statement of claim.

121    The issue of whether leave to replead should be given then arises. There is clearly a factual issue that arises for resolution on this claim, namely, how and whether the detention of Mr Tanioria’s goods was wrongful. The claim ought to be clearly pleaded so that the Commonwealth and Serco know the case they are required to face. But it does not seem to me that it would be futile to permit Mr Tanioria to amend his claim, particularly given that the nature of the deficiency is limited in the way identified above. In the circumstances I would permit Mr Tanioria the opportunity to amend his claim.

COSTS

122    Given that Mr Tanioria has been substantially successful in resisting the applications for summary dismissal or, in the alternative, strike out, he should recover a significant proportion of his costs of those applications. In light of the fact that the main focus of the applications was on the unlawful imprisonment claim, in particular, on arguments going solely to summary judgment, and that the Commonwealth and Serco have only had limited success on their applications for strike out I would order the Commonwealth and Serco to pay 70% of Mr Tanioria’s costs of the interlocutory applications.

conclusion

123    I will make orders giving effect to the conclusions I have reached, including orders that Mr Tanioria’s claims for exemplary damages and conversion as pleaded be struck out and that Mr Tanioria be granted leave to file a second further amended statement of claim repleading those parts of his claim. The interlocutory applications should otherwise be dismissed and the Commonwealth and Serco ordered to pay 70% of Mr Tanioria’s costs of those applications.

Associate:

Dated:    22 September 2017