FEDERAL COURT OF AUSTRALIA
Plaintiff M83A/2019 v Morrison (No 2) [2020] FCA 1198
ORDERS
First Applicant PLAINTIFF M83B/2019 BY HIS LITIGATION GUARDIAN, PLAINTIFF M83C/2019 Second Applicant | ||
AND: | First Respondent PETER DUTTON Second Respondent TONY BURKE (and others named in the Schedule) Third Respondent | |
DATE OF ORDER: | 21 August 2020 |
THE COURT ORDERS THAT:
1. Pursuant to r 16.21 of the Federal Court Rules 2011 (Cth), the whole of the Further Amended Statement of Claim filed on 8 November 2019 be struck out.
2. Leave to the applicants to file and serve any further amended statement of claim be refused.
3. Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth), there be summary judgment in the proceeding in favour of the respondents.
4. On or before 4 pm on 11 September 2020, the parties:
(a) file proposed agreed orders on the costs of the proceeding (including reserved costs); alternatively
(b) in the absence of agreement, file written submissions, limited to 5 pages, on the appropriate costs orders to be made in the proceeding, together with any affidavit material in support of those submissions and each party’s proposed form of order.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
MORTIMER J:
1 The focus of this class action is on a particular aspect of Australia’s regional processing arrangements with the nation of Nauru. It is common ground that some of the individuals affected by those arrangements, such as the first and second applicants, were taken against their will to Nauru after they had entered Australia without a valid visa. The particular aspect in focus in this proceeding is the practice of securing Nauruan visas for all individuals taken to Nauru. Again, it is common ground that this practice was contemplated at executive level by the regional processing arrangements between Australia and Nauru.
2 In relation to the process by which those Nauruan visas were secured, and the effects of the Nauruan visa conditions on the applicants and group members, allegations of misfeasance in public office are made against:
(a) three individuals who held Ministerial positions in the federal executive on and from 3 August 2013 and in substance are admitted to have been, at relevant times, the responsible Minister for the (variously titled) federal department administering the Migration Act 1958 (Cth), which included the design and implementation of Australia’s offshore processing arrangements in Nauru. Those individuals are Scott Morrison, Peter Dutton and Tony Burke; and
(b) two individuals who held positions as the Secretary to the (variously titled) department administering the Migration Act and in substance are admitted to have had the responsibilities set out in s 57 of the Public Service Act 1999 (Cth) (in its various iterations) for the administration of the department, including the implementation of Australia’s offshore processing arrangements in Nauru. Those individuals are Martin Bowles and Michael Pezzullo.
3 The Commonwealth is the sixth respondent, and is alleged to be vicariously liable for the conduct of the five individual respondents. The respondents do not dispute that, in principle, the Commonwealth may be vicariously liable for the tort of misfeasance in public office with respect to the conduct of a Minister, and with respect to the conduct of a Secretary of a federal department.
4 The respondents have applied for orders that this proceeding should be summarily dismissed pursuant to r 26.01 of the Federal Court Rules 2001 (Cth) and s 31A(2) of the Federal Court of Australia Act 1976 (Cth), and judgment entered in their favour. They have also applied for orders pursuant to r 16.21 of the Rules that the applicants’ further amended statement of claim filed on 8 November 2019 (FASOC) should be struck out in its entirety. They submit that the applicants should not be granted leave to re-plead, contending that the strike-out should also result in summary judgment for the respondents.
5 It is important to bear in mind the proceeding is at an early stage, and on any view involves complex questions of law and fact. At times, the respondents’ submissions appeared to encourage the Court to make final pronouncements on large questions such as the proper construction of aspects of s 198AHA of the Migration Act, or the reach of the tort of misfeasance in public office. While it can be accepted that in determining applications such as those currently before the Court, the Court is able to determine a question of law, in my opinion the Court should always be careful and cautious in going no further than it needs to, because the complete evidentiary and contextual framework for the determination of questions of law and fact is not before the Court. That approach is consistent with the authorities to which I refer later in these reasons concerning the caution attending acceptance of an application to strike out pleadings, or enter summary judgment in favour of a respondent.
6 Nonetheless, and applying appropriate caution as the authorities require, I have determined that the proceeding should be summarily dismissed, and judgment entered in favour of the respondents. Although in light of those conclusions the alternative orders may not be necessary, given the reasons for my conclusions, I consider it is also appropriate the Court order that the entirety of the FASOC be struck out, with no leave to re-plead. My reasons for reaching these conclusions are narrower than the various bases put forward by the respondents, but I am firmly persuaded the respondents are correct in the central submission which grounded both of their applications, relating to the requisite state of mind required for the tort of misfeasance in public office.
Some factual background
7 In order to understand the factual context in which the allegations against the respondents arise, it is necessary to set out some of the pleaded factual background for each of the lead applicants. The broader factual framework, concerning Australia’s regional processing arrangements with Nauru, is not in dispute and is summarised in Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; 257 CLR 42. Insofar as necessary, I also adopt what was said in the Court’s reasons on the separate question application: Plaintiff M83A/2019 v Morrison [2020] FCA 334.
8 The first applicant alleges that he is a national of Cameroon. The respondents have admitted that he arrived on a ship, having held a “maritime crew visa” which would otherwise have entitled him to enter Australia, but which was declared to have “ceased” two days before the ship he was on arrived at the port of Darwin. He was detained under s 189 of the Migration Act on 31 October 2013. On or about 31 October 2013, the first applicant made a request to a Commonwealth officer that he be returned to Thailand, but on (or shortly before) 9 November 2013 the first applicant was taken to Nauru pursuant to s 198AD of the Migration Act.
9 The respondents admit that shortly before the first applicant’s arrival date in Nauru, a Commonwealth officer applied for what is described as an “RPC visa”, said to be granted pursuant to reg 9 of the Immigration Regulations 2013 (Nr). The respondents admit that visa was in force for approximately three months, and further three-month visas were issued to the first applicant under reg 9 of the 2013 regulations, and then its successor, reg 9 of the Immigration Regulations 2014 (Nr). The respondents admit that on 20 January 2017 the first applicant was found to be a refugee under the Refugees Convention Act 2012 (Nr) and thereafter he no longer held an RPC visa, but held a different kind of visa. It is not disputed that the first applicant was detained at what is called Regional Processing Centre 2 (or RPC2) in Nauru until 4 March 2018, when he was (to use the language in the respondents’ defence) “discharged into community based accommodation” in Nauru. He remained in Nauru until 6 August 2019, when he was brought to Australia. The pleaded facts do not address the basis on which he was brought to Australia.
10 The second applicant is, according to the pleading, now aged 19. At the time of the alleged misfeasance, the second applicant was a minor. It is pleaded that he is a national of Iran, and came by boat to Australia with his mother, arriving on Christmas Island on approximately 23 July 2013. The respondents have not admitted the allegations about the second applicant’s age and nationality. They have admitted, in substance, the alleged facts about his arrival in Australia, as well as the fact that he was taken to Nauru with his mother on or some time shortly prior to 23 August 2013. He was at this stage 12 years old. As in respect of the first applicant, the respondents admit, in substance, that a Commonwealth officer applied for an RPC visa for the second applicant, which was said to be granted pursuant to reg 9 of the 2013 regulations for a period of three months, with new RPC visas every three months thereafter, until around 12 September 2017, when the second applicant was found to be a refugee. The respondents admit that during this time the second applicant was transferred to Australia for a period of time in April to July 2015, before being transferred back to Nauru. He was also transferred to Taiwan for a period extending from March to May 2018 – apparently after he ceased holding an RPC visa. The respondents admit the second applicant “resided” in the centres known as RPC1 and RPC3 on Nauru at various periods between his initial arrival in August 2015 until 13 July 2018, when he was transferred to Australia following orders made by this Court: see BAF18 as litigation representative for BAG18 v Minister for Home Affairs [2018] FCA 1060; 162 ALD 115.
11 The second applicant is alleged to have a number of psychiatric conditions, about which the respondents make no admissions. Whether or not the respondents are in this proceeding prepared to admit the second applicant has any of the three alleged psychiatric conditions (major depressive disorder, post-traumatic stress disorder and suicidal ideation), a summary of the records of the Commonwealth’s own medical contractors on Nauru was set out by Bromberg J in BAF18 at [32] of his Honour’s reasons:
The IHMS medical records for the period August 2013 to March 2018 detail the applicant’s mental health symptoms as including: nightmares, sleep disturbance, panic attacks, significant weight loss, stress, social withdrawal, hopelessness, withdrawal from school two years ago, impulsivity, head-banging, increased anxiety and protectiveness towards his mother, anger, numerous threats of self-harm by scratching face, significant suicidal preoccupation and at least one thwarted suicide attempt (about 18 months ago when the applicant tried to cut his wrists with a knife which his mother prevented).
12 The current circumstances of both applicants are not the subject of any pleadings.
13 The Court has been informed that there are approximately 1600 group members in this proceeding. After the Court declined to state any separate questions in the proceeding, orders were made requiring the parties to progress discovery, in accordance with the Court’s Practice Notes, and requiring the applicants to commence and conclude the opt-out process in relation to the proceeding. The Court’s view was that it was preferable the opt-out process be completed prior to the pronouncement of any orders by the Court in relation to the respondents’ applications for summary dismissal and strike out. That is the reason there has been some delay in the making of these orders and the publication of these reasons.
14 By orders made on 2 April 2020, the opt-out period was to close on 31 July 2020. However, on 27 July 2020, the Court received a letter from lawyers representing some of the group members (not the lawyers representing the applicants) requesting that the opt-out period in effect be extended to 30 September 2020, to enable the group members to have certain personal injury claims assessed and consider whether they should opt out of this proceeding to preserve their interests in a different proceeding. I considered that a shorter extension, to 14 August 2020, would be sufficient to address the group members’ concerns. Orders to that effect were made on 29 July 2020.
15 None of the respondents’ contentions on these applications depend on, or relate to, the characteristics of this proceeding as a class action. Therefore, I will generally refer in these reasons only to the applicants, rather than the group members.
The relevant chronology
16 There are some matters of chronology about the implementation of Australia’s regional processing policies which should be set out. None are in dispute, and most can be taken from the High Court’s reasons in Plaintiff M68, the plaintiff’s submissions and case stated in that proceeding (which were admitted as an exhibit on these applications), and undisputed matters on the pleadings in this proceeding.
17 The first Memorandum of Understanding between the Commonwealth and Nauru was concluded on 29 August 2012.
18 On 10 September 2012, the responsible Minister designated Nauru as a regional processing country under s 198AB(1) of the Migration Act.
19 On 29 July 2013 and 15 July 2014, the Minister made directions pursuant to s 198AD(5) of the Migration Act which dealt with the regional processing countries to which certain “unauthorised maritime arrivals” (as that term is defined in the Migration Act) were to be taken. The directions included Nauru.
20 A second Memorandum of Understanding dated 3 August 2013 replaced the first MOU.
21 The Administrative Arrangements came into effect from 11 April 2014. It was under these Arrangements (cl 2.2.6) that the Commonwealth agreed to lodge an application for an RPC visa in respect of each individual transferred by the Commonwealth to Nauru. Clause 2.2.6 provided:
Australian officials will lodge applications with [Nauru] for [RPC Visas] for Transferees pursuant to subsection 9(3) of the Nauru Immigration Regulations 2013 as soon as reasonably practicable prior to the scheduled departure of a flight or arrival of a sea vessel.
22 Other, non-contentious, aspects of the visa processing arrangements are described by Gordon J in Plaintiff M68 at [296]-[313]. As her Honour recounts at [311]-[313], the fee payable by the Commonwealth to Nauru for each RPC visa was $3000, and as at 30 March 2015, the Commonwealth had paid to Nauru visa fees totalling $27,893,633.
23 On 30 June 2015, by the Migration Amendment (Regional Processing Arrangements) Act 2015 (Cth), s 198AHA was inserted into the Migration Act, with its terms expressed to be given retrospective effect to 18 August 2012.
24 The case stated in Plaintiff M68 was heard on 7 and 8 October 2015, with the proceeding having been commenced on 14 May 2015.
The applicants’ case on the pleadings in summary
25 I have described the central aspects of the applicants’ allegations in the separate question reasons at [7]-[20]. After some development during argument on these applications, that summary may not entirely capture how the applicants now seek to have their contentions described. The respondents are correct to observe that there has been some considerable movement in the way the applicants put their case, certainly as to the legal aspects of it, and in some material respects as to the factual aspects as well. However, the respondents’ interlocutory applications are to be decided on the applicants’ pleading as it now stands.
26 In their responsive submissions on the interlocutory applicants, the applicants described their case in the following way. The acronym “MIPO” stands for “misfeasance in public office”, and was used by all parties in submissions, and I shall adopt that term in these reasons.
The central allegation in the proceeding is that each of the individual Respondents authorised, or directed, or caused or failed to prevent officers of the Commonwealth acting unlawfully in applying for and requesting RPC visas on behalf of the Applicants and Group Members; and did so with reckless disregard for the means of ascertaining the extent of his power to do so. Each of the individual Respondents is said to be liable for the alleged MIPOs based on his role in the administration of Part 2, Division 8 of the Migration Act or as the Secretary of the Australian Department responsible for the administration of that Division.
It is alleged with respect to each of the MIPOs that there was a reasonably foreseeable risk of harm to the Applicants and the Group Members as a result of each of the MIPOs alleged by the Applicants or, alternatively, that each of the individual Respondents was recklessly indifferent to the harm that was likely to ensue to the Applicants and each Group Member.
…
(b) MIPO 2
By MIPO 2, the Applicants allege that, at all relevant times, the individual Respondents authorised, or directed, or caused, or failed to prevent, officers of the Commonwealth acting unlawfully because the officers of the Commonwealth who purported to apply for, or request extensions of, the RPC visas lacked any power to do so. The lack of power is alleged to flow from the absence of any statutory, executive or other power to apply for or request the RPC visas. The plea could have been but is not a mere assertion of an absence of power; potential sources of power in each of three temporal periods are identified and a reasoned plea in respect of the absence of power is articulated in respect of each.
MIPOs 1, 3 and 4 proceed on the assumption that, contrary to the allegations the subject of MIPO 2, Commonwealth officers had the requisite statutory or executive power to apply for, or request extensions of, RPC visas. It is nevertheless alleged in each of MIPOs 1, 3 and 4 that there were certain legal conditions on the exercise of that power, and the Commonwealth officers did not comply with those conditions.
(c) MIPO 1
By MIPO 1, it is alleged that the individual Respondents authorised, or directed, or caused, or failed to prevent, officers of the Commonwealth acting unlawfully because Commonwealth officers were required, but failed, to afford procedural fairness to the Applicants and Group Members before applying, or making requests, for the RPC visas on their behalf.
(d) MIPOs 3 and 4
By MIPO 3, it is alleged that Mr Morrison, Mr Dutton, Mr Bowles and Mr Pezzullo (i.e., not Mr Burke), authorised, or directed, or caused, or failed to prevent, officers of the Commonwealth acting unlawfully because, before applying or making requests for RPC visas, Commonwealth officers were required, but failed, to ensure that the Applicants and Group Members would be treated in detention in Nauru in accordance with relevant human rights standards.
The relevant human rights standards are alleged to include a prohibition on cruel, inhuman or degrading treatment; a prohibition on arbitrary detention and/or deprivation of liberty except in accordance with such procedure as is established by law; and an obligation to treat those deprived of their liberty with humanity and with respect for the inherent dignity of the human person.
MIPO 4 makes the same allegations with respect to the Second Applicant and a sub-group of Child Group Members, who, it is alleged, had to be treated in accordance with specific human rights standards applicable to children. These standards are alleged to include the right of each child to only be detained as a measure of last resort; the right of each child, when deprived of liberty, to be treated in a manner which takes into account the needs of the child’s age; and the right of each child to education and/or access to education.
(Footnotes omitted.)
27 This summary, especially in relation to MIPOs 3 and 4, glosses over some of the disconformities and difficulties in the terms of the pleading. Although those disconformities and difficulties are not in themselves the reason the Court allows the respondents’ applications, it is important to make it clear that the applicants’ descriptions of their case in written and oral submissions departed, sometimes in quite substantive ways, from the pleaded text, even read generously.
28 The chronology I have set out above is relevant because the applicants’ allegations of misfeasance are made in respect of three distinct time periods. In their submissions, the applicants described the time periods in the following way:
(a) from 3 August 2013 to 10 April 2014, being a period before the “Administrative Arrangements for Regional Processing and Settlement Arrangements in Nauru”, entered into by the governments of the Commonwealth and Nauru (Administrative Arrangements), came into effect;
(b) from 11 April 2014 to 29 June 2015, being a period after the Administrative Arrangements came into effect but before s 198AHA of the Migration Act 1958 (Cth) (Migration Act) came into effect; and
(c) from 30 June 2015 onwards, being a period after s 198AHA came into effect.
29 Central to the applicants’ case, and the respondents’ defence, are the terms of s 198AHA of the Migration Act. That section provides:
(1) This section applies if the Commonwealth enters into an arrangement with a person or body in relation to the regional processing functions of a country.
(2) The Commonwealth may do all or any of the following:
(a) take, or cause to be taken, any action in relation to the arrangement or the regional processing functions of the country;
(b) make payments, or cause payments to be made, in relation to the arrangement or the regional processing functions of the country;
(c) do anything else that is incidental or conducive to the taking of such action or the making of such payments.
(3) To avoid doubt, subsection (2) is intended to ensure that the Commonwealth has capacity and authority to take action, without otherwise affecting the lawfulness of that action.
(4) Nothing in this section limits the executive power of the Commonwealth.
(5) In this section:
action includes:
(a) exercising restraint over the liberty of a person; and
(b) action in a regional processing country or another country.
arrangement includes an arrangement, agreement, understanding, promise or undertaking, whether or not it is legally binding.
regional processing functions includes the implementation of any law or policy, or the taking of any action, by a country in connection with the role of the country as a regional processing country, whether the implementation or the taking of action occurs in that country or another country.
30 One point about s 198AHA can be made immediately. The respondents submit, and I accept, that all subs (3) is saying is that while subs (2) confers authority and capacity on the Commonwealth to undertake certain conduct, Parliament does not intend the conferral of that authority or capacity to provide to the Commonwealth (or, I infer, its officers and agents) any immunity from suit. That is why the respondents have not pleaded s 198AHA(3) erects a bar to the cause of action in this proceeding. To the extent the applicants appeared to contend (at least in oral submissions) that s 198AHA(3) represents some “carve out” from the authority given by s 198AHA(2), no basis in the text or context of the provision, or the legislative scheme of this part of the Migration Act, was developed which could support such a contention.
The respondents’ contentions in summary
31 The respondents’ contentions on these applications are many and varied, some directed at the very core of the applicants’ case, others seemingly more peripheral. In fairness to the respondents, any difficulty in disentangling their submissions may reflect the difficulties in disentangling the impugned pleadings.
32 In the respondents’ written submissions, the following summary of the argument was given:
The failings of the FASOC fall into two broad categories.
Misfeasance pleading failures: The FASOC is replete with sweeping and indiscriminate allegations of a most serious kind. Yet it fails to plead any facts which could make good the alleged reckless indifference to unlawfulness and resulting harm. More generally, it exhibits numerous pleading deficiencies – it is vague, ambiguous, scandalous, embarrassing, abusive of the process of the Court and fails to disclose a single reasonable cause of action. These deficiencies are so fundamental and incurable that the FASOC should be struck out and summary judgment given. These matters are addressed in Parts III and IV below.
Contrary High Court authority: Additionally, three of the misfeasance claims – MIPOs 2, 3 and 4 – have no reasonable prospect of success because they allege species of unlawfulness which depend upon propositions of law that contradict binding High Court authority. These claims thereby fail to disclose a reasonable cause of action and have no reasonable prospect of success; they should be struck out and summary judgment entered in respect of them. These matters are addressed in Part V below.
33 I have understood the focus of the respondents’ arguments to be as follows:
(a) whether the case as pleaded is sufficient with respect to the mental elements of the tort of misfeasance in public office, both as to unlawfulness and harm;
(b) whether the conduct pleaded against the individual respondents is identified with sufficient specificity, and whether there are sufficient material facts alleged to establish the cause of action;
(c) relatedly, in the absence of pleadings alleging specific conduct establishing the tort, whether factual inferences necessary to establish the tort (in particular the requisite state of mind) are reasonably open on the pleaded facts;
(d) whether existing authority precludes three of the four central legal arguments being made by the applicants, and therefore the Court should conclude the case has no reasonable prospects of success.
34 The respondents appear to accept, at least in their reply submissions, that some aspects of their arguments may require the Court to rule on the law of misfeasance in public office.
The applicants’ response in summary
35 The applicants reject all criticisms made, and contend that
[t]he FASOC adequately pleads material facts on which the Applicants rely that are necessary to give the Respondents fair notice of a case to be made against them at trial, as required by r 16.02(1)(d) of the Rules.
36 The applicants add to this by contending adequate particulars have been provided, and second, insofar as particulars have not been supplied, that is because the applicants await discovery, a position which the applicants contend is “entirely conventional”.
37 They also submit that the respondents’ contention described in [33(d)] above is misguided, and relies on a misreading of the High Court cases, including Plaintiff M68.
38 Similarly, they contend the approach the respondents submit the Court should take in relation to assessing whether the inferences called for on the pleadings are open is an approach applicable to trial but not to summary disposition. In the latter situation, the applicants contend a “more lenient requirement” is adopted: namely, that the inferences be reasonably arguable.
39 The applicants also contend that some of the questions of law raised by their allegations are novel, and the Court should take this into account in its determination of the interlocutory application:
Deploying the blunt procedural instruments invoked by the Respondents in this application to foreclose proper consideration of those questions at trial within the pleaded factual context is inappropriate and would impermissibly stifle incremental development of the law.
Approach to the respondents’ submissions
40 As I have noted, the respondents do not contend that MIPO 1 (the misfeasance allegation said to arise from a denial of procedural fairness to the applicants in the RPC visa application process) is contrary to High Court authority and therefore has no reasonable prospects of success for that reason. They do make this contention for MIPOs 2, 3 and 4. However on all four sets of misfeasance allegations, the respondents contend each has no reasonable prospects of success because the pleaded case is incapable of satisfying the mental element of the tort. Although this contention was expressed in a number of different ways in the respondents’ submissions, it was clearly one of their principal submissions and it is the one I have accepted.
41 My acceptance of this submission is sufficient to dispose of the applications in the respondents’ favour, and I do not consider it is necessary to determine the other arguments raised by the respondents. Some of them are relatively minor and do not have the same force as the ones which I consider justify the orders that have been made. An example of that is the argument about the non-specificity in pleadings directed in the alternative to each of the individual respondents, such as the one extracted at [70] below. Those kinds of complaints fail to recognise the knowledge imbalance that inevitably arises in factually intensive proceedings such as this between individuals and government. They could not of themselves have supported orders under either r 16.21 or s 31A.
42 Other contentions by the respondents are subsumed in the findings I have make on the mental element of misfeasance. This includes the respondents’ argument that there is no basis for the pleaded (or non-pleaded) inferences the applicants seek to have the Court draw and that the pleadings require inferences to be drawn from inferences. There is force in some of these criticisms, but the real flaw in the FASOC stems from the absence of pleaded material facts which are capable of supporting the applicants’ case on the mental element. The respondents’ contentions about inferences are simply another way of highlighting this fundamental flaw.
43 Yet other contentions by the respondents would involve this Court deciding between the parties’ competing arguments about the ratio of Plaintiff M68, as well as deciding whether the construction of s 198AHA so clearly encompasses conduct such as Commonwealth officers applying for RPC visas that the applicants’ contentions have no reasonable prospects of success. The legal question whether s 198AHA authorises such conduct is an important question. The respondents’ contentions that the majority reasoning in Plaintiff M68 answers that question comprehensively is not without force. However, the question of authority to undertake what is on any view an unusual and somewhat extraordinary step – namely, Australian government officials applying for visas for large numbers of individuals to enter and remain in another nation state, where those individuals have not sought such visas – is a matter which in my opinion is best left for determination in circumstances where it must be decided. Given the view I have taken about the overwhelming force of the respondents’ submissions on the aspects of the interlocutory applications as I have decided them, for this Court to enter into an analysis of Plaintiff M68 and of the construction questions which arise in relation to s 198AHA, is simply unnecessary.
44 For similar reasons, it is not necessary to express any views on the parties’ competing contentions about the meaning and effect of the Full Court’s decision in FRM17 v Minister for Home Affairs [2019] FCAFC 148; 271 FCR 254.
45 Nor is it necessary to enter into the debate the applicants submitted exists about whether, for the purposes of misfeasance, there must be only a “foreseeable risk of harm” arising from the deliberate excess of power, or whether there must be knowledge or reckless indifference of the likelihood of harm: see Obeid v Lockley [2018] NSWCA 71; 98 NSWLR 258 at [153]-[172], [223]-[242]; Brett Cattle Company Pty Ltd v Minister for Agriculture [2020] FCA 732 at [269]-[284]. While it may be correct to describe that aspect of the applicants’ allegations as one of the ways in which the applicants seek to “develop the law” by this proceeding, such an aspiration does not remove or mitigate the basic flaws in the applicants’ case which I have identified.
Resolution
Summary judgment and striking out pleadings: applicable principles
46 In Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) [2011] FCA 1126; 203 FCR 293 at [7]-[18], Kenny J set out the applicable principles for both strike out applications under r 16.21 of the Rules and summary dismissal under s 31A of the Federal Court Act. I respectfully agree with and adopt her Honour’s description. On the present applications, the following aspects of the applicable principles should be emphasised.
47 The distinction between the basis for striking out pleadings and for entering summary judgment may be of significance in some cases: see [18] of Polar Aviation (No 4) and the extract from Lindgren J’s decision in White Industries Australia Ltd v Federal Commissioner of Taxation [2007] FCA 511; 160 FCR 298 at [47]. A reasonable cause of action may be available on the facts alleged, but the pleadings may fail to disclose it. The question will then be whether a party has been given a sufficient opportunity to attempt to articulate the cause of action. That is not this case. This is a case where the facts alleged do not disclose a reasonable cause of action.
48 Despite the acknowledged broadening of the approach for summary dismissal brought about by s 31A, in Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 at [25]-[26], French CJ and Gummow J also recognised a proceeding should not be summarily dismissed simply because the allegations in a proceeding challenge existing law, or involve questions of fact which would be difficult to prove. Indeed, Spencer itself involved allegations of this character, both as to law and fact. This is one reason it is important for Courts to be cautious in exercising summary dismissal powers. The law advances and develops though claims thought at the time to be novel, and which are sometimes made in circumstances of considerable controversy. The applicant relied on observations of this kind but they are not apposite to the applicants’ case as pleaded. The alleged novelty in the applicants’ claims is overshadowed by the absence of a proper basis for the claims made.
The role of “modern” case management in challenges to pleadings
49 The applicants contended the Court should take account of principles of modern case management, which they submitted tended against the respondents’ arguments on these applications. They referred the Court to Sadie Ville Pty Ltd v Deloitte Touche Tohmatsu [2017] FCA 1202; 123 ACSR 223 at [20]-[21], where Moshinsky J adopted observations by Weinberg J in McKellar v Container Terminal Management Services Ltd [1999] FCA 1101; 165 ALR 409 at [18]-[29], including an observation about the “revision of the strictness” of the approach to striking out pleadings, and observations about the need to ensure that pleadings attacks do not become “an arsenal for litigation by attrition”. The applicants also referred to Gilmour J’s observations in Oswal v Apache Corporation (No 3) [2014] FCA 835 at [7]-[8], to the effect that “[t]he Court does not, in the current era, take an unduly technical or restrictive approach to pleadings”. They also placed considerable reliance on the observations of Macaulay J in Andrianakis v Uber Technologies (Ruling No 1) [2019] VSC 850. After the hearing of the interlocutory applications in this proceeding, an appeal was dismissed from Macaulay J’s decision: Uber Australia Pty Ltd v Andrianakis [2020] VSCA 186.
50 Whatever these cases might say about less stringent approaches and “modern” case management, these authorities nevertheless emphasise that pleadings must still fulfil the “basic functions” of identifying the issues between the parties, disclosing an arguable cause of action or defence (as the case may be), and ensuring parties are apprised of the case to be met: see Martin CJ in Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; 33 WAR 82 at [7], extracted in Gilmour J’s reasons in Oswal at [8]. Macaulay J acknowledged those basic functions in Andrianakis at [38]. Weinberg J also referred to these basic functions in McKellar at [22], quoting a decision of Goldberg J in Mitanis v Pioneer Concrete (Vic) Pty Ltd [1997] FCA 1040; [1997] ATPR 41-591 at 44,151-44,153. The passages from the reasons of Mason CJ and Gaudron J in Banque Commerciale SA (en liqn) v Akhil Holdings Limited [1990] HCA 11; 169 CLR 279 at 286-287 make these functions clear.
51 The Court’s Practice Notes recognise those basic functions may in an appropriate case be fulfilled by concise statements rather than pleadings. Yet it is those functions which remain central to the adversarial system of justice administered by the Court, whichever form of written articulation of a party’s case (or defence) is selected.
52 It can be accepted that recent authorities in this Court recognise that its approach to case management, through its Rules and its Practice Notes, reflects an intention that the Court and the parties concentrate their resources on matters which are capable of resolving the “real” issues between the parties. The Court is astute to factors which may suggest an imbalance of power or resources between parties, and astute that those imbalances not be used for forensic purposes antithetical to ensuring that the real matters in dispute between the parties are fairly adjudicated.
53 However, this approach does not assist the applicants. That is because the defects in their case as pleaded are more fundamental than the kinds of defects to which these authorities are addressed. The FASOC is not capable of fulfilling the “basic functions” of a statement of claim, and the cause of action it articulates against the respondents has an inadequate factual basis. Nothing about “modern” case management approaches can rectify such a defect.
Could there have been a pleading of bare absence of power?
54 One particular contention made by the applicants should be addressed. At several points in oral submissions, counsel for the applicants suggested the applicants need not have engaged in what are quite complicated pleadings about the unlawfulness of each exercise of power relied on for each MIPO. He contended they could have simply alleged unlawfulness, and left it at that. This was a submission particularly advanced in relation to MIPO 2.
55 I reject that submission. Apart from anything else, in a case such as misfeasance, where (contrary also to the applicants’ submissions) the state of mind element is connected to the unlawfulness alleged, such a pleading would have been embarrassing in the sense that it would have placed the respondents in a position of not knowing what is alleged against them: see Andrianakis at [38]. In relation to MIPO 2, given the High Court’s decision in Plaintiff M68, the applicants needed to set out how it was that their unlawfulness case on MIPO 2 was put. In a proceeding with subject matter such as this, that is what compliance with r 16.02(1) requires. The “basic functions” of a pleading would not have been observed if a “bare assertion” approach had been taken.
56 The applicants’ argument would also run counter to the emphasis in all authorities dealing with misfeasance and like causes of action, that the allegations made against a respondent be pleaded specifically and with particularity, because of the serious nature of the allegation: see Polar Aviation (No 4) at [107]-[109], and the authorities there referred to.
57 In Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1, in a passage cited by Kenny J in Polar Aviation (No 4), and to which the respondents took the Court in argument, Lord Millett said (at [186]):
The second principle, which is quite distinct, is that an allegation of fraud or dishonesty must be sufficiently particularised, and that particulars of facts which are consistent with honesty are not sufficient. This is only partly a matter of pleading. It is also a matter of substance. As I have said, the defendant is entitled to know the case he has to meet. But since dishonesty is usually a matter of inference from primary facts, this involves knowledge not only that he is alleged to have acted dishonestly, but also the primary facts which will be relied upon at trial to justify the inference. At trial the court will not normally allow proof of primary facts which have not been pleaded, and will not do so in a case of fraud. It is not open to the court to infer dishonesty from facts which have not been pleaded, or from facts which have been pleaded but are consistent with honesty. There must be some fact which tilts the balance and justifies an inference of dishonesty, and this fact must be both pleaded and proved.
(Bold emphasis added; italic emphasis in original.)
The tort of misfeasance in public office: elements and principles
58 The applicable principles concerning proof of the tort of misfeasance in public office were set out by Flick J in Pharm-a-Care Laboratories Pty Ltd v Commonwealth (No 3) [2010] FCA 361; 267 ALR 494 at [57]-[70], and also by Kenny J in Polar Aviation (No 4) at [101]-[111]. Her Honour appeared to cite with approval Flick J’s descriptions of the tort in Pharm-a-Care. Their Honours’ careful and thorough exposition of the authorities relieves me of the need to do more than adopt, with respect, their Honours’ respective articulation of the applicable principles. Both of their Honours’ summaries return to the High Court’s decision in Northern Territory v Mengel [1995] HCA 65; 185 CLR 307 for first principles. I also accept the fundamental relevance to the issues on these applications of what was said by the House of Lords in Three Rivers. The following points are of significance in my reasoning on the present applications.
59 Misfeasance in public office is a “deliberate tort”: Mengel at 345, 357, 370-371; Sanders v Snell [1998] HCA 64; 196 CLR 329 at [42]; Pharm-a-Care at [58]; Polar Aviation (No 4) at [102]; Obeid at [154], [171].
60 In Mengel, Brennan J explained what the state of mind required (at 357):
[T]he mental element is satisfied when the public officer engages in the impugned conduct with the intention of inflicting injury or with knowledge that there is no power to engage in that conduct and that that conduct is calculated to produce injury. These are states of mind which are inconsistent with an honest attempt by a public officer to perform the functions of the office. Another state of mind which is inconsistent with an honest attempt to perform the functions of a public office is reckless indifference as to the availability of power to support the impugned conduct and as to the injury which the impugned conduct is calculated to produce.
61 In his reasons in Mengel, Deane J described three ways in which the mental state could be satisfied where the act was done (at 370-371):
(a) “with an actual intention to cause such injury”: or
(b) “with knowledge of invalidity or lack of power and with knowledge that it would cause or be likely to cause such injury”; or
(c) “with reckless indifference or deliberate blindness to that invalidity or lack of power and that likely injury”.
62 The connection between the unlawfulness relied upon and the state of mind of a respondent was explained by Brennan J in Mengel (at 357):
The state of mind relates to the character of the conduct in which the public officer is engaged — whether it is within power and whether it is calculated (that is, naturally adapted in the circumstances) to produce injury.
63 In other words, it is the knowing abuse of public power which is the gravamen of the tort.
64 In Three Rivers at 191, Lord Steyn described the tort as involving “the unifying element of conduct amounting to an abuse of power accompanied by subjective bad faith”. Just prior to this, his Lordship had observed on the same page that there were two different forms of liability for misfeasance:
First there is the case of targeted malice by a public officer, i e conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful.
65 At 192, Lord Steyn explained why English law should adopt the same approach already taken by the High Court in Mengel, and by the New Zealand courts, and recognise reckless indifference to the illegality as a state of mind sufficient for the tort:
The policy underlying it is sound: reckless indifference to consequences is as blameworthy as deliberately seeking such consequences.
(Emphasis added.)
66 In Commonwealth v Fernando [2012] FCAFC 18; 200 FCR 1, a case which involved misfeasance allegations based on an alleged unlawfulness by way of denial of procedural fairness, and therefore a situation with some similarities to the present set of allegations at least in MIPO 1, the Full Court said (at [130]):
A finding that a Commonwealth Government Minister has deliberately exercised an important statutory power knowing that, in doing so, he was acting unlawfully is properly to be characterised as grave. The legal consequences are potentially serious as too is the effect on the Minister’s reputation. In circumstances in which, on the facts found, conflicting inferences are open and one of those inferences is favourable to the respondent, the Court will not be satisfied that the applicant’s case has been proved to the necessary standard. For the reasons which we have explained this is such a case.
67 Those observations were made on an appeal, after a full trial, which is quite a different context from the two present applications, but nevertheless the conclusions for which the applicants’ pleadings contend in this proceeding are of this nature.
68 The respondents repeatedly emphasised the characterisation of the applicants’ allegations as “grave”, making the same point with different language on many occasions both in written and oral submissions. The point did not need to be made as repeatedly as it was. At the same time, the applicants sought to downplay the seriousness of the allegations being made, which was also not appropriate. The gravity of the foundational allegations in this proceeding should be recognised, but not to the point where an impression of some kind of presumptive immunity from such allegations is created. The rule of law in Australia applies to the conduct of officers of the Commonwealth, including Ministers, as it applies to every other person subject to it. That said, the rule of law also requires a properly articulated factual basis for contraventions of the law, especially contraventions involving lack of honesty.
Application of principles to the FASOC
69 It is now necessary to set out the paragraphs of the FASOC where the respondents’ alleged state of mind for each MIPO is articulated. It is also necessary to set out examples of the conduct and unlawfulness pleaded for each MIPO, before setting out the state of mind pleading. It will be recalled that MIPO 2 alleges an absence of any power in Commonwealth officers to apply for RPC visas, while the remaining three MIPOs assume there was power, but then deal with alleged conditions or limitations on that power.
70 One further matter should be mentioned, to avoid repetition. For each MIPO, allegations are made by way of a particular formulation against each or some of the individual respondents. The respondents complained about this formulation; however, as I have noted at [41] above, I do not agree this aspect of the pleading is a fatal flaw. Nonetheless, it is necessary to reproduce the formulation, in order to explain how it sits with the mental state pleading. This part of the pleadings divides up allegations against some of the individual respondents, by reference to who the responsible Minister and Secretary were at the time, rather than by reference to the time periods outlined at [28] above. For example, in respect of the first period, prior to 18 September 2013, the applicants allege as against Mr Burke and Mr Bowles:
69. On or about the Arrival Date on Nauru of the Second Applicant and each Group Member who arrived on Nauru before 18 September 2013:
(a) Mr Burke; and/or
(b) Mr Bowles-; or
(c) both Mr Burke and Mr Bowles-
either:
(i) authorised or directed or caused an Applying Commonwealth Officer to apply for the First Visa; or
(ii) failed to prevent an Applying Commonwealth Officer from applying for the First Visa.
Particulars
For Mr Burke, this is to be inferred from the matters alleged in paragraphs [60], [61], and [68A].
For Mr Bowles, this is to be inferred from the matters alleged in paragraphs [64] and [65] and the particulars subjoined thereto, and [68A].
Further particulars will be provided following the completion of discovery.
71 For ease of reference, having recognised how the pleading is formulated, in this section of the reasons I shall simply refer to “the respondents” and this should be understood as encompassing all of the variations the applicants employ about which respondents are said to have undertaken which conduct, at which points in time.
72 The respondents submitted the “failure to prevent” allegation (see eg [69(c)(ii)] above) suffers from independent flaws, and I accept that is the case. For the failure to be actionable there would need to be a positive duty discernible on the individual respondents to take action to prevent the RPC visa applications, and nothing whatsoever is identified in the pleadings about the existence, source or nature of this duty. The same is true of each occasion on which the “failure” formulation is employed for each MIPO: see [71], [74], [75], [76], [77], [78].
73 For the purposes of the next section of my reasons, I will call these parts of the FASOC (such as [69]) the “conduct allegation”. The conduct allegations are repeated in relation to the renewal of the RPC visas, in addition to the original applications for RPC visas.
74 After the conduct allegation, there is then a pleading as to each of the four kinds of unlawfulness, around which the four sets of misfeasance allegations are structured.
MIPO 1
75 Assuming against the absence of power allegation in MIPO 2, MIPO 1 concerns an alleged limit on the visa application authority relating to procedural fairness. As I set out below, a number of the basics steps in such a pleading are missing. All that is pleaded in relation to procedural fairness is what appears at [80]-[81]:
80. At no time was:
(a) the First Applicant;
(b) the Second Applicant and/or the Second Applicant’s mother;
(c) any Child Group Member and/or that Child Group Member’s accompanying parent or guardian;
(d) any Group Member who was not a Child Group Member
provided with any:
(e) notice that an officer of Australia would; and/or
(f) opportunity to be heard on the question of whether an officer of Australia should:
either or both:
(g) apply for the First Visa in or including each of their names; or
(h) request any of the Subsequent Visas in or including each of their names.
81. Each of:
(a) the application for the First Visa; and
(b) the request for each of the Subsequent Visas;
was apt to affect the rights or interests of the person in or including the name of the First Applicant, Second Applicant and/or each Group Member because of one or more of the following:
(i) the Residence Condition; and/or
(ii) the Tent Conditions; and/or
(iii) the No Work Condition; and/or
(iv) the No Education Condition.
76 These two paragraphs may go to aspects of any implication into s 198AHA(2) of an obligation to afford procedural fairness, but they address only one indicium that such an implication may be justified (affectation of interests, in [81]) and one possible indication of a breach (the absence of notice and an opportunity to be heard, in [80]).
77 Putting that issue to one side, despite the initial conduct allegation against the respondents (to which I have referred), there is then a second set of conduct allegations in respect of this procedural fairness allegation. For example, taking Mr Burke and Mr Bowles and the pre-September 2013 period again, at [82] it is alleged:
82. At all times from the Arrival Date on Nauru for the Second Applicant and each Group Member from 3 August 2013 until 18 September 2013, Mr Burke, and/or Mr Bowles or both:
(a) directed or authorised or caused an Applying Commonwealth Officer or a Requesting Commonwealth Officer (a Relevant Commonwealth Officer) who applied for the First Visa not to afford procedural fairness to the Second Applicant and each Group Member in relation to whether to apply for the First Visa for that person before applying for the Visa; or
(b) failed to direct or cause the Relevant Commonwealth Officer who applied for the First Visa to afford procedural fairness to the Second Applicant and each Group Member in relation to whether to apply for the First Visa for that person before applying for the Visa.
Particulars
For Mr Burke this is to be inferred from the matters alleged in paragraphs [60], [61], [68A], [73A] and [80].
For Mr Bowles this is to be inferred from the matters alleged in paragraphs [64] and [65] and the particulars subjoined thereto, [68A], [73A] and [80].
Further particulars will be provided following the completion of discovery.
78 There is then a conclusory pleading as to unlawfulness (again taking the pleading against Mr Burke and Mr Bowles as an example):
85. By acting or failing to act as alleged in [84], and by reason of the facts and matters in [80] to [81], Mr Morrison, and/or Mr Bowles or both acted beyond power.
Particulars
Mr Morrison, and/or Mr Bowles or both acted beyond power by reason of the denial of procedural fairness to the First Applicant, the Second Applicant and each Group Member.
79 As to the respondents’ mental state, the FASOC then alleges, collectively:
92. Each of:
(a) Mr Morrison;
(b) Mr Dutton;
(c) Mr Burke;
(d) Mr Bowles; and
(e) Mr Pezzullo,
recklessly disregarded the means of ascertaining the extent of his power to direct or authorise or cause or not prevent each Relevant Commonwealth Officer to apply for the First Visa or request the Subsequent Visas of the First Applicant and/or the Second Applicant and each Group Member in whose name an RPC Visa was granted during that Respondent’s term holding the public office pleaded above without affording procedural fairness to him or her.
Particulars
It is be inferred from the following that Mr Morrison, Mr Dutton, Mr Burke, Mr Bowles and Mr Pezzullo considered and disregarded the obligation to afford procedural fairness:
(a) the obligation to afford procedural fairness to a person whose rights or interests are apt to be affected in the exercise of public power is fundamental and well known amongst those who are responsible for the administration of Commonwealth laws. As stated by Mr Dutton in a public interview with Ray Hadley of Radio 2GB on 22 June 2017, “we need to afford people natural justice.”;
(b) the applications for the First Visa and the requests for the Subsequent Visas were, by reason of one or more of the Residence Condition, the Tent Conditions, the No Work Condition and the No Education Condition, plainly affect the rights or interests of the persons the subject of the applications and requests;
(c) for Mr Burke, Mr Dutton and Mr Morrison, during the period when each was the relevant Minister, each was responsible for administering, and did administer, the Australian Department, including with respect to the implementation of Australia’s obligations under the MOU and, in the case of Mr Morrison and Mr Dutton, also the implementation of Australia’s obligations under the Administrative Arrangements, which necessarily included giving consideration to and taking legal advice and briefings on matters concerning the proper implementation of those obligations in accordance with law;
(d) for Mr Bowles and Mr Pezzullo, during the period when each was the relevant Australian Secretary, each was responsible for implementing measures directed at ensuring that the Australian Department complied with the law, including with respect to the implementation of Australia’s obligations under the MOU and the Administrative Arrangements, which necessarily included giving consideration to and taking legal advice and briefings on matters concerning the proper implementation of those obligations in accordance with law; and
(e) the Australian Department was at relevant times the subject of numerous Court proceedings involving allegations of denials of procedural fairness in connection with administrative action taken or purported to be taken under the Migration Act (including Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; 257 CLR 42[;] Minister for Immigration and Border Protection v SZSSJ [[2016] HCA 29; 259 CLR 180 and] Minister for Immigration and Border Protection v SZTZI [2016] HCA 29; 259 CLR 180); the relevant Ministers and the relevant Australian Secretaries were ultimately responsible for giving instructions and necessarily required legal briefings in relation to such Court proceedings and thereby may be taken to have had an awareness of the requirements of procedural fairness. Submissions filed by the relevant Minister to the High Court of Australia in SZSSJ on 15 August 2016 included an acknowledgment that the ‘common law principle [of procedural fairness] operated only in the absence of contrary legislative intent’.
Further particulars will be provided following the completion of discovery.
MIPO 2
80 MIPO 2 relates to an absence of power to make such RPC visa applications. As senior counsel for the applicants frankly conceded, this pleading sets out (in particulars) a large number of possible sources of power and then proceeds to allege that none supported the officers’ conduct. However, on the strike out and summary judgments applications, the focus has been on s 198AHA(2), because that is the source of power the respondents have identified and relied upon. Taking the first period of time as an example, the absence of power pleading is:
96. From 3 August 2013 to 10 April 2014:
(a) each Applying Commonwealth Officer lacked lawful authority to apply for:
(i) the First Visa for the First Applicant; and
(ii) the First Visa for the Second Applicant; and
(iii) each First Visa for each Pre-Administrative Arrangement Group Member; and
(b) each Requesting Commonwealth Officer lacked lawful authority to request:
(i) each Subsequent Visa for the First Applicant; and
(ii) each Subsequent Visa for the Second Applicant; and
(iii) each Subsequent Visa for each Pre-Administrative Arrangement Group Member,
by reason of the following:
(c) there was no prerogative or non-statutory executive power for any Relevant Commonwealth Officer/s to apply for or request any of the Visas at any time;
(d) each Relevant Commonwealth Officer was not the officer specified by s 198AD of the Migration Act in respect of the First Applicant, the Second Applicant and each Visa for each Pre-Administrative Arrangement Group Member; and
(e) alternatively to (d) above, s 198AD(2) of the Migration Act did not authorise the making of an application or request for the Visas by any Relevant Commonwealth Officer/s;
(f) the application or request was not pursuant to s 198AHA of the Migration Act, which provision did not exist until amending legislation dated 30 June 2015;
Particulars
Section 198AHA was an amendment to the Migration Act by the Migration Amendment (Regional Processing Arrangements) Act 2015 (Cth) which received Royal Assent on 30 June 2015 and purported to operate retrospectively to 18 August 2012.
(g) if the MOU alone was a source of legal power to an officer of Australia, the MOU did not require nor authorise any Relevant Commonwealth Officer/s to apply for or request any RPC Visa;
(h) the application or request was not pursuant to the Administrative Arrangement because it was not in existence during this time period;
Particulars
The Applicants refer to and repeat the particulars subjoined to [56] and [57].
(i) the First Plaintiff and/or the Second Plaintiff and/or each Pre Administrative Arrangement Group Member who was also an Unauthorised Maritime Arrival Group Member and/or a Non-Excised Offshore Place Group Member was not an “offshore entry person” and was never a person who was eligible to be granted an RPC Visa by reason of the facts and matters in [13] and [31] and by reason of the following:
(i) the First Applicant arrived in Australia at a place other than one that was at any time a place within the meaning of an “excised offshore place” referred to in the definition of “offshore entry person” in the Migration Act; and/or
Particulars
A. “Offshore entry person” under Nauruan law had the meaning from Australian law prior to its repeal on 1 June 2013 in accordance with the principles derived from Interpretation Act 2011 (Nr) s 37 and R v Smith (1873) LR 8 QB 146 at 149 (applicable by operation of Custom and Adopted Laws Act 1971 (Nr) s 4).
B. The Immigration Regulations 2014 (Nr) refer to “offshore entry person”, not “unauthorised maritime arrival”, and only came into operation on 30 January 2014, after the term “offshore entry person” was repealed from the Migration Act on 1 June 2013; see Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (Cth), s 2 Item 2 and Schedule 1 Item 3.
(ii) the First Applicant and/or Second Applicant arrived in Australia after the term “offshore entry person” had been repealed from the Migration Act on 1 June 2013 and so was and/or were not “brought to Nauru” as “an offshore entry person within the meaning of the Migration Act 1958”.
Particulars
Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (Cth), s 2 Item 2 and Schedule 1 Item 3.
(iii) none of the Non-Excised Offshore Place Group Members was, at any time, “an offshore entry person within the meaning of the Migration Act 1958 of the Commonwealth of Australia” because each arrived in Australia at a place which was not at any time a place within the meaning of an “excised offshore place” referred to in the definition of “offshore entry person” in the Migration Act.;
(iv) none of the Unauthorised Maritime Arrival Group Members was, at any time, “an offshore entry person within the meaning of the Migration Act 1958 of the Commonwealth of Australia” because each arrived in Australia after the term “offshore entry person” had been repealed from the Migration Act on 1 June 2013 and so was not “brought to Nauru” as “an offshore entry person within the meaning of the Migration Act 1958”;
and/or
(j) there was no other legislative or other power for any Relevant Commonwealth Officer to apply for or request any of the Visas at any time.
81 As to the state of mind of the respondents, the FASOC then alleges, collectively:
99. Each of:
(a) Mr Morrison by reason of his acts or omissions alleged in [71], [74], [75], [77];
(b) Mr Dutton by reason of his acts or omissions alleged in [76] and [78];
(c) Mr Burke by reason of his acts or omissions alleged in [69];
(d) Mr Bowles by reason of his acts or omissions alleged in [69], [71] and [74]; and/or
(e) Mr Pezzullo by reason of his acts or omissions alleged in [75], [76], [77] and [78];
recklessly disregarded the means of ascertaining the extent of his power to perform that act or omission in relation to each of the Visas of:
(f) the First Applicant; and
(g) the Second Applicant; and
(h) each of the Group Members or one or more of:
(i) each Non-Excised Offshore Place Group Member; or
(ii) each Pre Administrative Arrangement Group Member; or
(iii) each Post Administrative Arrangement Group Member.
Particulars
It is to be inferred from the following that Mr Burke, Mr Dutton, Mr Morrison, Mr Bowles and Mr Pezzullo considered and disregarded whether the RPC Visa applications and requests were made without power:
(a) for Mr Burke, Mr Dutton and Mr Morrison, during the period when each was the relevant Minister, each was responsible for administering, and did administer, the Australian Department, including with respect to the implementation of Australia’s obligations under the MOU and, in the case of Mr Morrison and Mr Dutton, also the implementation of Australia’s obligations under the Administrative Arrangements, which necessarily involved giving consideration to and taking legal advice and briefings on matters concerning the proper implementation of those obligations in accordance with law;
(b) for Mr Bowles and Mr Pezzullo, during the period when each was the relevant Secretary, each was responsible for implementing measures directed at ensuring that the Australian Department complied with the law, including with respect to the implementation of Australia’s obligations under the MOU and the Administrative Arrangements, which necessarily involved giving consideration to and taking legal advice and briefings on matters concerning the proper implementation of those obligations in accordance with law;
(c) in circumstances where the transfer of asylum seekers from Australia to Nauru pursuant to the regional processing and resettlement partnership was a matter of substantial public interest and debate and involved a substantial expenditure of public money, it may be inferred that each of Mr Burke, Mr Morrison, Mr Dutton, Mr Bowles and Mr Pezzullo scrutinised the details of the RPC Visa application and request system;
(d) for Mr Burke and Mr Bowles, in particular, the fact that each of their time as the relevant Minister and Australian Secretary respectively was during the negotiation and finalisation by the governments of Australia and Nauru of the MOU and it may be inferred that each scrutinised the details of the scheme the subject of the MOU;
(e) for Mr Morrison and Mr Bowles, in particular, the fact that each of their time as the relevant Minister and Australian Secretary respectively was during the negotiation and finalisation by the governments of Australia and Nauru of the Administrative Arrangement (including clause 2.2.6 which provided for the lodging of RPC Visa applications pursuant to s 9(3) of the Nauruan Immigration Regulations 2013), and it may be inferred that each scrutinised the details of the scheme the subject of the Administrative Arrangement. Mr Bowles was the signatory on behalf of Australia to the Administrative Arrangement. According to a joint statement of Mr Morrison and Mr Adeang dated 11 April 2014, Mr Morrison met with Mr Adeang, the signatory for Nauru on the Administrative Arrangement, on the day prior to the signing for the purposes of the Joint Ministerial Forum to oversee implementation of the regional partnership between Australia and Nauru, which body provided ‘oversight of the implementation of the Nauru arrangement’;
(f) for Mr Burke and Mr Morrison, in particular, the directions made under s 198AD(5) of the Migration Act dated 29 July 2013 by Mr Burke (which revoked the previous direction relating only to ‘offshore entry persons’) and dated 29 May 2014 and 15 July 2014 by Mr Morrison. It is to be inferred that each of Mr Burke and Mr Morrison knew that unauthorised maritime arrivals were to be taken to Nauru, where the “offshore entry person” was not the criterion for being granted an RPC Visa, as the application for a Nauruan visa for the First Applicant stated in terms on eight occasions;
(g) for Mr Dutton and Mr Pezzullo, the fact that the Australian Department was at the relevant time the subject of a Court proceeding in Plaintiff M68/2015 v Minister for Immigration and Border Protection & Ors, which concerned the extent of the power to administer the arrangements with Nauru; the proceeding involved submissions by the Australian Department concerning the process relating to RPC visas.
Further particulars will be provided following the completion of discovery.
MIPO 3
82 Again assuming against MIPO 2, MIPO 3 concerns an alleged limit on the visa application authority relating to human rights standards in cl 17 of the MOU. As I explain below there is in this section of the FASOC a problematic pleading about unlawful detention at [107]. Moving beyond [107], by reference back to the general conduct allegations earlier in the pleading, the FASOC then alleges a further conduct allegation against the respondents:
108. By the operation of the Residence Condition on each RPC Visa in or including the name of the First Applicant, the Second Applicant and each Group Member, each of:
(a) Mr Morrison by reason of his acts or omissions alleged in [71], [74], [75], [77];
(b) Mr Dutton by reason of his acts or omissions alleged in [76] and [78];
(c) Mr Bowles by reason of his acts or omissions alleged in [69], [71] and [74];
(d) Mr Pezzullo by reason of his acts or omissions alleged in [75], [76], [77] and [78]-
caused, for the duration of each RPC Visa in respect of which that Respondent authorised or directed or caused, or failed to prevent an application, request or grant for that RPC Visa (as the case may be), the First Applicant and/or the Second Applicant and each Group Member to be detained from his or her Arrival Date on Nauru until the earlier of his or her Last RPC Visa Date and 5 October 2015.
Particulars
The Applicants refer to and repeat the allegations at [50] to [54] and the particulars subjoined to [107].
83 The FASOC then alleges unlawfulness in the following way (taking one of the allegations as an example):
111. Each of the Tent Conditions, alternatively one or more of the Tent Conditions together, was in breach of:
(a) the relevant human rights standard alleged in [106(a)]; and/or
(b) the relevant human rights standard alleged in [106(b)] until whichever is sooner of 5 October 2015 and the last RPC Visa date for each of the First Applicant, the Second Applicant and each Group Member; and/or
(c) the relevant human rights standard alleged in [106(c)] until whichever is sooner of 5 October 2015 and the last RPC Visa date for each of the First Applicant, the Second Applicant and each Group Member.
Particulars
The Applicants refer to and repeat the allegations at [50] to [54].
112. The Residence Condition with each of the Tent Conditions, alternatively one or more of the Tent Conditions together, was in breach of the relevant human rights standard alleged in [106(a)].
113. By reason of the facts and matters alleged in [107] to [112] or each or any of those allegations, each of Mr Morrison, Mr Dutton, Mr Bowles and/or Mr Pezzullo acted contrary to law.
Particulars
The Applicants refer to and repeat the allegations at [58] to [59].
84 The FASOC then makes the mental state allegations collectively against all individual respondents:
114. Each of:
(a) Mr Morrison; and/or
(b) Mr Dutton; or
(c) both Mr Morrison and Mr Dutton;
further or alternatively,
(d) Mr Bowles; and/or
(e) Mr Pezzullo-; or
(f) both Mr Bowles and Mr Pezzullo-
recklessly disregarded the means of ascertaining the extent of his power during the time each acted as alleged in [108]:
A. to direct or authorise or cause each of the Visas to be applied for or requested in the name of each of the First Applicant, the Second Applicant and each Group Member;
B. to prevent each of the Visas to be applied for or requested for each of the First Applicant, the Second Applicant and each Group Member,
so as to avoid the First Applicant and/or the Second Applicant and each Group Member being exposed to the Unlawful Detention and/or the detention and/or each of the Tent Conditions.
Particulars
A. The empowering law referred to is either or a combination of the MOU and s 198AHA of the Migration Act and executive power under s 61 of the Constitution.
B. In respect of Mr Bowles and Mr Pezzullo only, the empowering law includes Public Service Act 1999 (Cth) s 57, especially subsection (2)(c).
Compliance with the law required the implementation of measures directed at ensuring that the First Applicant, the Second Applicant and each Group Member not be exposed to:
a. the Unlawful Detention; and/or
b. the Residence Condition; and/or
c. each of the Tent Conditions alternatively one or more the Tent Conditions,
insofar as those conditions do not treat the First Applicant, the Second Applicant and each Group Member “with dignity and respect and in accordance with relevant human rights standards”.
It is be inferred from the following that Mr Dutton, Mr Morrison, Mr Bowles and/or Mr Pezzullo were aware of the obligation in cl 17 of the MOU to treat the First Applicant, the Second Applicant and each Group Member “with dignity and respect and in accordance with relevant human rights standards”:
(a) for Mr Morrison, he recited part of this clause when discussing the situation for asylum seekers on Nauru in public comments at a press conference on 1 November 2013;
(b) for Mr Dutton, he recited part of this clause in an interview with ABC’s 7.30 Report on 11 August 2016 and NPR on 14 September 2016;
(c) part of this clause was referred to in a submission from the Australian Department administered by Mr Morrison dated 27 October 2014 to the Australian Human Rights Commission’s inquiry entitled ‘The Forgotten Children: National Inquiry into Children in Immigration Detention’ delivered in November 2014, as recited at p 46 of the resulting report;
(d) part of this clause was referred to in an official statement in ‘response to Amnesty International report on Nauru’ from the Australian Department administered by Mr Dutton dated 17 October 2016;
(e) for Mr Morrison and Mr Dutton, during the period when each was the relevant Minister, they were each responsible for administering, and did administer, the Australian Department, including with respect to the implementation of the MOU, which necessarily involved giving consideration to, and taking legal advice and briefings, on matters concerning the obligations arising from the MOU including cl 17;
(f) for Mr Bowles and Mr Pezzullo, during the period when each was the relevant Secretary, they were each responsible for implementing measures directed at ensuring that the Australian Department complied with the law, including with respect to the implementation of the MOU, which necessarily involved giving consideration to, and taking legal advice and briefings concerning the obligations arising from the MOU including cl 17;
(g) for Mr Bowles, in particular, the fact that his time as the relevant Australian Secretary was during the negotiation and finalisation by the governments of Australia and Nauru of the MOU including cl 17;
(h) for Mr Morrison and Mr Bowles, the fact that each of their time as the relevant Minister and Australian Secretary respectively was during the negotiation and finalisation by the governments of Australia and Nauru of the Administrative Arrangement under the MOU. Mr Bowles was the signatory on behalf of Australia to the Administrative Arrangement. According to a joint statement of Mr Morrison and Mr Adeang dated 11 April 2014, Mr Morrison met with Mr Adeang, the signatory for Nauru on the Administrative Arrangement, on the day prior to the signing for the purposes of the Joint Ministerial Forum to oversee implementation of the regional partnership between Australia and Nauru, which body provided ‘oversight of the implementation of the Nauru arrangement’;
(i) for Mr Dutton and Mr Pezzullo, the fact that the Australian Department was at the relevant time the subject of a court proceeding in Plaintiff M68/2015 v Minister for Immigration and Border Protection & Ors, which concerned the extent of the power to administer the arrangements with Nauru. The proceeding involved submissions by the Australian Department concerning the process relating to RPC visas;
Further, it is to be inferred from the following that Mr Dutton, Mr Morrison, Mr Bowles and/or Mr Pezzullo recklessly disregarded whether the obligation to treat the First Applicant, the Second Applicant and each Group Member “with dignity and respect and in accordance with relevant human rights standards” was being complied with during their respective time as relevant Minister or relevant Australian Secretary:
(j) the participation by each of Mr Morrison and Mr Dutton jointly leading regular meetings of the Joint Ministerial Forum to oversee implementation of regional partnership between Australia and Nauru, at which conditions at the RPCs were discussed. The role of this Forum was described by Mr Morrison in a press release issued on 11 April 2014, being the date on which the Administrative Arrangement was signed by Mr Bowles;
(k) the fact that the failure to treat persons detained at the relevant times in the RPCs in accordance with relevant human rights standards was the subject of consistent monitoring and widespread reporting by various human rights organisations and other bodies, including as set out in the particulars below;
(l) in respect of Mr Bowles and Mr Morrison, the matters set out in the report of the Australian office of the UN High Commissioner for Refugees from its monitoring visit to Nauru dated 26 November 2013 which concluded that, viewed as a whole, UNHCR considers that the conditions at the RPC, coupled with the protracted period spent there by some asylum-seekers, raise serious issues about their compatibility with international human rights law, including the prohibition against torture and cruel, inhuman or degrading treatment (article 7, ICCPR), the right to humane conditions in detention (article 10, ICCPR) and the right to family life and privacy (article 17, ICCPR). Mr Morrison gave a response to the report at a press conference on 29 November 2013 and 13 December 2013 on the basis that he had ‘reviewed’ it;
(m) for Mr Morrison, Mr Dutton and Mr Pezzullo:
(i) the Australian Human Rights Commission’s report entitled ‘The Forgotten Children: National Inquiry into Children in Immigration Detention’ delivered in November 2014 following an inquiry conducted by the Australian Human Rights Commission Part 1.4 and chapter 5, in particular, identified breaches of the Convention on the Rights of the Child; p 36 and chapter 12 concerned relevant child human rights being breached on Nauru. Mr Morrison referred to the inquiry in February 2014 in a radio interview with Ray Hadley, 2GB The Ray Hadley Morning Show “Asylum seeker allegations, Operation Sovereign Borders, children in immigration detention, Australians fighting in Syria” Mr Morrison relevantly said: “they will make recommendations in relation to the various international conventions how they see that applying and that’s their view and that has to be treated with respect and considered”. Mr Pezzullo wrote a lengthy letter in response to the draft report to the Human Rights Commissioner on 27 October and 10 November 2014, including in respect of domestic and international law breaches;
(ii) the progress report delivered on 28 November 2014 and the final report delivered on 9 February 2015 of the ‘Moss Review into recent allegations relating to conditions and circumstances at the RPC in Nauru’. Mr Dutton acknowledged detailed knowledge of the content of the report in a press release dated 9 May 2015 and 16 December 2016 as well as the joint media conference between Mr Dutton and Mr Pezzullo on 20 March 2015;
(n) for Mr Dutton and Mr Pezzullo:
(i) the Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez (Addendum) dated 5 March 2015 in which at [19] that ‘the Rapporteur concludes that there is substance in the allegations presented in the initial communication, reiterated above, and thus, that the Government of Australia, by failing to provide adequate detention conditions; end the practice of detention of children; and put a stop to the escalating violence and tension at the Regional Processing Centre, has violated the right of the asylum seekers, including children, to be free from torture or cruel, inhuman or degrading treatment, as provided by articles 1 and 16 of the CAT.’;
(ii) the Amnesty International and Human Rights Watch ‘joint press release’ titled ‘Australia: Appalling abuse, neglect of refugees on Nauru’ published on 3 August 2016, which concluded that ‘By forcibly transferring refugees and people seeking asylum to Nauru, detaining them for prolonged periods in inhuman conditions, denying them appropriate medical care, and in other ways structuring its operations so that many experience a serious degradation of their mental health, the Australian government has violated the rights to be free from torture and other ill-treatment, and from arbitrary detention, as well as other fundamental protections.’ Page 98 of the document released by the Department of Home Affairs under the Freedom of Information Act 1982 shows that the press release was received by the Australian Department on 4 August 2016 and was subsequently the subject of an annotation “1. COO / DepSec” and an annotation “Urgent advice on allegations – are any news to us?” by Mr Pezzullo.
Further particulars will be provided following the completion of discovery.
MIPO 4
85 Again assuming against MIPO 2, MIPO 4 concerns an alleged limit on the visa application authority relating to human rights standards in cl 17 of the MOU, but specifically those standards applicable to children. Again there is a further conduct allegation:
120. By operation of the Residence Condition on each RPC Visa in or including the name of the Second Applicant and each Child Group Member, each of:
(a) Mr Morrison by reason of his acts or omissions alleged in [71], [74], [75], [77];
(b) Mr Dutton by reason of his acts or omissions alleged in [76] and [78];
(c) Mr Bowles by reason of his acts or omissions alleged in [69], [71] and [74];
(d) Mr Pezzullo by reason of his acts or omissions alleged in [75], [76], [77] and [78]-
caused, for the duration of each RPC Visa in respect of which that Respondent authorised or directed or caused, or failed to prevent an application, request or grant for that RPC Visa (as the case may be), the Second Applicant and each Child Group Member to be deprived of his or her liberty as a first and only resort until the earlier for that person of:
(e) 5 October 2015; or
(f) on or about the Last RPC Visa Date; or
(g) the date each last departed Nauru (the First Resort Detention).
Particulars
For Mr Morrison this is to be inferred from the matters alleged in [60], [62], [68A] and [73A].
For Mr Dutton this is to be inferred from the matters alleged in [60], [63], [68A] and [73A].
For Mr Bowles this is to be inferred from the matters alleged in [64] and [65] and the particulars subjoined thereto, [68A] and [73A].
For Mr Pezzullo this is to be inferred from the matters alleged in [64] and [66] and the particulars subjoined thereto, [68A] and [73A].
Further particulars will be provided following the completion of discovery.
The First Resort Detention was in breach of the relevant human rights standard in [119(a)].
86 After the conduct allegation against the respondents, there is a generalised unlawfulness allegation:
123. By reason of the facts and matters alleged in [107] to [111], including the paragraphs referred to therein, each of Mr Morrison, Mr Dutton, Mr Bowles and Mr Pezzullo acted contrary to law.
124. Each of:
(a) Mr Morrison; and/or
(b) Mr Dutton; or
(c) both Mr Morrison and Mr Dutton;
further or alternatively,
(d) Mr Bowles; and/or
(e) Mr Pezzullo-; or
(f) both Mr Bowles and Mr Pezzullo
recklessly disregarded the means of ascertaining the extent of his power to direct or authorise or cause the implementation of measures directed at ensuring compliance with the law, specifically s 198AHA of the Migration Act and/or the executive power under s 61 of the Constitution, so as to prevent the Second Applicant and each Child Group Member from the First Resort Detention and/or the Education Prohibition.
Particulars
A. The empowering law referred to is either or a combination of the MOU and s 198AHA of the Migration Act and executive power under s 61 of the Constitution.
B. In respect of Mr Bowles and Mr Pezzullo only, the empowering law includes Public Service Act 1999 (Cth) s 57, especially subsection (2)(c).
C. Compliance with the law required the implementation of measures directed at ensuring that the Second Applicant and each Group Member not be exposed to:
a. the First Resort Detention; and/or
b. the Education Prohibition;
insofar as they do not treat the Second Applicant and all Child Group Members “with dignity and respect and in accordance with relevant human rights standards”.
D. Such measures included:
a. not directing or authorising or causing each the RPC Visas to be applied for or requested for each of the Second Applicant and each Child Group Member;
b. not preventing each the RPC Visas to be applied for or requested for each of the Second Applicant and each Child Group Member.
The Applicants refer to and repeats the particulars subjoined to [114] above.
The irredeemable flaw in these pleadings
88 Those drafting pleadings are expected to know and understand the basic rules of pleading, and the distinction between material facts and particulars is one such rule. The distinction remains clear in r 16.02(1) and r 16.41, and is entrenched in authorities from all superior courts.
89 Those drafting pleadings can also be expected to know and understand the importance of rules such as r 16.42, reflecting the gravity of allegations such as misfeasance. While r 16.42 does not expressly refer to misfeasance in public office, the conduct to which it does refer bears the same character. There can be no doubt that this cause of action requires a high degree of specificity about the alleged state of mind of each of the individual respondents. As the authorities above reveal, in modern case management the Court looks to the substance of a party’s complaints about a pleading, measured against the basic functions the pleading is intended to serve, and considered in the context of the nature and gravity of the allegations made. Those approaches are reflected in the observations of Drummond J in Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] FCA 499; [1999] ATPR 41-691 at 42,827-42,829, and von Doussa J in Beach Petroleum NL v Johnson [1991] FCA 839; 105 ALR 456 at 466. Flexibility in the Court’s approach does not equate to tolerance of pleadings which fail to fulfil those basic functions.
90 And in some cases, this being one, these failures in the pleadings may well disclose the absence of a cause of action with any reasonable prospects of success. It is not always the case that the two propositions will go hand in hand, but in cases such as the present, they do.
91 Although the respondents are correct that failures to plead necessary or sufficient material facts cannot be cured by the insertion of particulars and such a pleading will remain non-complaint with the Rules, if all that has occurred is that the pleader has included material facts under a heading of “Particulars”, but nevertheless in substance they constitute material facts, then it would be a triumph of form over substance if that became the basis for a pleading being struck out without leave to re-plead, or of a successful summary judgment application. I raised this point with the respondents’ counsel during oral argument and quite properly no submissions were pressed that the form of the FASOC, in its divisions between pleading and particulars, offered a sufficient ground for the orders sought. The respondents contended the flaws were more fundamental than that, and they are correct.
92 Accordingly, in considering the mental state pleadings in the FASOC, which are extracted at [79], [81], [84] and [87] above, I have assumed, in the applicants’ favour, that what is set out under “particulars” may include material facts and should be considered on that basis.
93 First, the formulation used in each principal allegation is that each of the respondents “recklessly disregarded the means of ascertaining the extent of his power”, a formulation which is taken from the reasons of the plurality in Mengel (at 347):
The cases do not establish that misfeasance in public office is constituted simply by an act of a public officer which he or she knows is beyond power and which results in damage. Nor is that required by policy or by principle. Policy and principle both suggest that liability should be more closely confined. So far as policy is concerned, it is to be borne in mind that, although the tort is the tort of a public officer, he or she is liable personally and, unless there is de facto authority, there will ordinarily only be personal liability. And principle suggests that misfeasance in public office is a counterpart to, and should be confined in the same way as, those torts which impose liability on private individuals for the intentional infliction of harm. For present purposes, we include in that concept acts which are calculated in the ordinary course to cause harm, as in Wilkinson v Downton, or which are done with reckless indifference to the harm that is likely to ensue, as is the case where a person, having recklessly ignored the means of ascertaining the existence of a contract, acts in a way that procures its breach.
It may be that analogy with the torts which impose liability on private individuals for the intentional infliction of harm would dictate the conclusion that, provided there is damage, liability for misfeasance in public office should rest on intentional infliction of harm, in the sense that that is the actuating motive, or on an act which the public officer knows is beyond power and which is calculated in the ordinary course to cause harm. However, it is sufficient for present purposes to proceed on the basis accepted as sufficient in Bourgoin, namely, that liability requires an act which the public officer knows is beyond power and which involves a foreseeable risk of harm.
If misfeasance in public office is viewed as a counterpart to the torts imposing liability on private individuals for the intentional infliction of harm, there is much to be said for the view that, just as with the tort of inducing a breach of contract, misfeasance in public office is not confined to actual knowledge but extends to the situation in which a public officer recklessly disregards the means of ascertaining the extent of his or her power. However, that is not what was put in this case. The argument was that it is sufficient that the officer concerned ought to have known that he or she lacked power.
(Footnotes omitted.)
94 The applicants submit:
Accordingly, the FASOC alleges the lesser “recklessness” state of mind endorsed by the majority in Mengel. The Applicants do not allege actual knowledge of unlawfulness on the part of the individual Respondents. This distinction is significant for the purposes of any consideration of the adequacy of the pleas concerning the individual Respondents’ states of mind with respect to the alleged unlawfulness: cf the assertion at RS [15] to the effect that reckless indifference and knowledge are “sufficiently equivalent” – the legal consequences of each may be the same, but the forensic foundations and thus proofs required are not.
(Original emphasis.)
95 The respondents submit that this argument misunderstands the passage in Mengel which I have extracted at [93] above. I agree. There is no “lesser” recklessness identified by the plurality in Mengel. The question confronting the Court in Mengel was whether a state of mind distinct from actual knowledge of the absence of power could suffice for misfeasance. Brennan and Deane JJ were clearly of the view that reckless indifference was sufficiently close to actual knowledge or intention, in the sense their Honours explained (and to which I have referred above).
96 In Three Rivers at 224, in explaining the concept of “malice” in the tort, Lord Hutton equated reckless indifference to wilful blindness, albeit in this passage, as to likelihood of injury rather than unlawfulness. However the point to be emphasised is that in no case has it been suggested that there are two kinds of reckless indifference – a “greater” one and a “lesser” one, which can be more easily proven. There is only one form of reckless indifference available as the mental element in the tort of misfeasance, “reckless indifference” being a phrase well understood in the law, and (as Lord Hutton did) generally equated with wilful blindness. That is the only alternative mental state to actual malice, or a conscious exceeding of power.
97 The Full Court in Fernando indirectly suggested (at [108]) that in Mengel, the plurality’s nomination of reckless indifference as sufficient was “tentative”. Whether or not that is the appropriate characterisation, as the respondents submitted it is clear from the passage extracted at [93] above, and earlier passages in the plurality’s reasons (especially at 342) that the plurality is drawing a comparison with developments in the “economic torts”, and the development of the mental element in that context as incorporating constructive knowledge of the terms of a contract and reckless disregard of those contractual terms – whether after inquiry, or by reason of there being no inquiry.
98 The footnoted reference given by the plurality in Mengel is to Lord Denning’s judgment in Emerald Construction Co Ltd v Lowthian [1966] 1 WLR 691 at 700-701. Lowthian concerned “labour only” subcontracting, where an employer alleged the union officials (Lowthian and others) were attempting to have the subcontract terminated, so that union labour could be employed directly, and were doing so by putting pressure on the subcontractor to terminate the contact with the employer. Lord Denning said:
Such being the facts, how stands the law? This “labour only” subcontract was disliked intensely by this trade union and its officers. But nevertheless it was a perfectly lawful contract. The parties to it had a right to have their contractual relations preserved inviolate without unlawful interference by others: see Quinn v. Leathem, by Lord Macnaghten. If the officers of the trade union, knowing of the contract, deliberately sought to procure a breach of it, they would do wrong: see Lumley v. Gye. Even if they did not know of the actual terms of the contract, but had the means of knowledge—which they deliberately disregarded—that would be enough. Like the man who turns a blind eye. So here, if the officers deliberately sought to get this contract terminated, heedless of its terms, regardless whether it was terminated by breach or not, they would do wrong. For it is unlawful for a third person to procure a breach of contract knowingly, or recklessly, indifferent whether it is a breach or not. Some would go further and hold that it is unlawful for a third person deliberately and directly to interfere with the execution of a contract, even though he does not cause any breach. The point was left open by Lord Reid in J. T. Stratford & Son Ltd. v. Lindley. It is unnecessary to pursue this today. Suffice it that if the intention of the defendants was to get this contract terminated at all events, breach or no breach, they were prima facie in the wrong.
(Emphasis added; footnotes omitted.)
99 No second, “lesser” kind of reckless indifference is articulated in these passages, nor should the plurality’s reasons in Mengel be seen as creating one, especially given this case is identified as the source of the phrase used in Mengel. Reckless indifference equates to wilful blindness, and the deliberate character of the mental state remains the core element of the tort.
100 The applicants did not point in their submissions to any case since Mengel which has identified, let alone endorsed a second, “lesser” form of reckless indifference as a state of mind sufficient to make out the mental element of the tort of misfeasance in public office.
101 Fernando was a misfeasance case put primarily on the basis of reckless indifference, rather than actual knowledge of excess of power, with an intent to harm a person: at [112]. At [115], the Court described what Mr Fernando had to prove in the following way:
In the context of the present case this required him to establish that the Acting Minister knowingly acted in excess of his power in the knowledge that the cancellation of Mr Fernando’s visa would cause him injury or would be likely to do so or that the Acting Minister acted with reckless indifference to the possibility that he lacked power to make the cancellation decision when he did.
(Emphasis added.)
102 That kind of description was repeated by the Full Court at [121], where Mr Fernando’s contention was described again:
[H]e contended that the Acting Minister proceeded to make the decision with reckless disregard to the question of whether or not he had the necessary jurisdiction to do so.
(Emphasis added.)
103 This is the language of wilful blindness, not any “lesser” mental state.
104 I accept that in McKellar, Weinberg J used the phrase on which the applicants rely. At [257], his Honour said:
At the very least, it must be pleaded that the minister has recklessly disregarded the means of ascertaining the extent of his or her power — see Mengel at CLR 347, and not that he has merely acted with “reckless indifference” to the applicants, as pleaded. Mere negligence in failing to appreciate that the minister is exceeding his powers is not sufficient for this tort.
105 That finding was made after a finding in [256] to the effect that “it is not sufficient to plead that the minister ought to have known that he was exceeding his powers or contravening designated Commonwealth laws”. The distinction his Honour was drawing was the same as the one drawn in Mengel. His Honour was not suggesting there was some lesser kind of deliberateness which could satisfy the mental element of the tort.
106 A further, and additional, submission made by the applicants, at least in relation to MIPO 1 and MIPO 2, is that the individual respondents:
(a) “considered the obligation to afford procedural fairness to the Applicants and the Group Members and decided not to afford it to them”; and
(b) “were reckless as to whether it was lawful to cause, direct, authorise or fail to prevent Commonwealth officers applying or requesting RPC visas in circumstances where there was no statutory or executive power to do so”.
107 These contentions appear to refer to the allegations in the particulars of each of the mental state pleadings for these MIPOs (see [79] and [81] above) that the respondents “considered and disregarded” the unlawfulness of the conduct, whether their own (in directing etc) or that of the Commonwealth officers (in, for example, not affording procedural fairness). Those pleadings appear to read as an allegation that the respondents “considered and disregarded” the potential or prospective unlawfulness of the conduct. I accept the respondents’ submission that these kinds of allegations do not reach the level of misfeasance: even if made out, they could not satisfy the element of reckless indifference or wilful blindness.
108 Even assuming the propositions currently in the particulars could be reframed as part of the pleading itself, and using as an example MIPO 2 as described at [99] of the FASOC (see [81] above), the highest the pleading reaches is the following kind of propositional steps. While there are numerous permutations throughout the pleadings, none in my opinion are so variable that the following example (Mr Burke and the initial RPC visa) is not fairly representative. The steps are:
(a) Mr Burke was the responsible Minister from 1 July 2013 to 18 September 2013.
(b) Mr Burke’s responsibilities included administration of the Department.
(c) The administration of the Department included implementation of Australia’s obligations under the MOU and the Administrative Arrangements.
(d) From these facts it can be inferred Mr Burke “authorised or directed or caused” relevant Commonwealth officers to apply for the RPC visas (or failed to prevent them from doing so).
(e) Such directions were an incident of Mr Burke’s public office as a Minister.
(f) There was no lawful authority for a Commonwealth officer to apply for an RPC visa (for the various reasons set out at [96]-[98] of the FASOC).
(g) By reason of Mr Burke’s directions etc to those Commonwealth officers, he “recklessly disregarded the means of ascertaining the extent of his power” to give those directions etc.
(h) The reckless disregard is to be inferred:
(i) from his position as the responsible Minister, which “necessarily involved giving consideration to and taking legal advice and briefings on matters concerning the proper implementation of those obligations in accordance with law”;
(ii) from the “substantial expenditure of public money” on the regional processing, from which it can be inferred Mr Burke “scrutinised the details of the RPC visa application and request system”;
(iii) from Mr Burke’s involvement in the negotiation of the regional processing arrangements, from which it can be inferred Mr Burke “scrutinised the details of the scheme”; and
(iv) from Mr Burke’s role in giving directions under s 198AD(5) of the Act concerning the taking of offshore entry persons to Nauru.
109 Thus, and continuing to take Mr Burke as the example, the most that is pleaded as relevant to Mr Burke’s state of mind when giving directions etc to the Commonwealth officers is that Mr Burke received legal advice, and scrutinised the details of the regional processing scheme, including the RPC visa aspects. Those allegations of fact go no further than describing what would be expected of a responsible Minister involved in the implementation of a policy such as this.
110 Without suggesting this would be sufficient, as I pointed out to the applicants’ counsel during oral argument, there is not even an allegation that legal advice was ignored. Of course, as senior counsel properly responded, the applicants have no factual basis for such an allegation. That is why there must be summary judgment for the respondents.
111 Other difficulties are also revealed. There is no pleaded connection between the state of mind the individual respondents are said to have had, and the identified unlawfulness. In other words: what is it that the individual respondents shut their eyes to? If, for example, the individual respondents are said to have shut their eyes to the (assumed) fact that s 198AHA did not authorise Commonwealth officers to apply for an RPC visa for each of the applicants, then the material facts which support that conclusory contention needed to be set out.
112 In a practical sense, in the context of what are on any view legally complicated propositions about unlawfulness, it is difficult to see what material facts could be pleaded, other than material facts connected with the provision of legal advice to the individual respondents, and the contents of that advice. It is difficult to see how else, at a practical and realistic level, the individual respondents could have acquired knowledge of the supposed unlawfulness of their proposed conduct (or that of their officers). There was no court decision which made out such unlawfulness. There was no clear and unequivocal statutory prohibition, of which they could be assumed to be aware.
113 If there was a basis for such a pleading, it could have been pleaded that the individual respondents were given specific legal advice that s 198AHA could not and did not authorise Commonwealth officers to apply for RPC visas and therefore (and the “therefore” is important, given it is not the officers themselves who are accused of misfeasance) the individual respondents could not lawfully direct the officers to apply for such visas, even though the Administrative Arrangements contemplated that process would occur. It would probably have been necessary to plead that there was no reasonable and rational legal view to the contrary of that advice. It would probably have been necessary to plead that each of the individual respondents was personally given, or informed of, that negative legal advice and its unequivocal nature. It would then probably have been necessary to plead that each of the individual respondents, having been so informed, consciously decided to ignore that advice. It may have been feasible, if there was a basis, to plead that the individual respondents, having been warned that the visa application process had no lawful basis in s 198AHA, expressly instructed their legal advisers not to provide them with any legal advice, and made it clear they were going to direct the officers to apply for visas, irrespective of whether s 198AHA authorised the applications or not – that they did not care at all whether the process was lawful. These are all hypothetical examples, but it is appropriate to set them out in order to demonstrate how far short of such allegations the applicants’ pleadings fall.
114 As I have noted, senior counsel for the applicants quite properly accepted no such allegations could be made, because the applicants presently have no factual basis for them. The applicants have no factual material, he conceded, on which to ground such allegations. They hope to find a basis in discovered material. A pleading of this cause of action cannot be permitted to remain on the Court’s record when it is based only on such an aspiration.
115 Finally, in terms of flaws in the applicants’ case on the critical state of mind element in misfeasance, the authorities are clear that misfeasance will not be established where there is an alternate hypothesis consistent with an honest exercise of power. As the extract at [57] above indicates, and as might be expected for a tort dependent on establishing a deliberate state of mind in a respondent, there is no difficulty in framing a case in misfeasance by reference to inferences, provided a sufficient factual basis for the inferences is pleaded. While in Three Rivers Lord Millett described what is necessary for the tort to be proved at trial, he also made the point that the pleading must identify the primary facts to be proved. This basic level of symmetry between pleading and proof is fundamental. Without it, there is nothing but baseless speculation.
116 The same point was made by the Full Court in Fernando at [126]. As the stepping through of the FASOC example at [108] above indicates, and not unlike the situation in Polar Aviation (No 4) (see [114]) it appears that the highest the applicants can put their case of misfeasance is that the requisite state of mind for each of the individual respondents can be inferred from the fact (assuming it to be proved) that the conduct of the Commonwealth officers was beyond power. That falls far short of what must be pleaded and proved. At this level, the allegations are also consistent with an honest motivation on behalf of the individual respondents: see Polar Aviation (No 4) at [116]. There is nothing pleaded which, to use Lord Millett’s phrase, “tilts the balance” towards dishonesty.
Strike out and leave to re-plead
117 For the same reasons, it is appropriate to strike out the entirety of the FASOC. Although I have not accepted and determined all of the respondents’ other criticisms about the FASOC, there are two additional reasons I consider an order striking out the entirety of the FASOC is appropriate. These additional matters were of some weight in persuading me that it would not be appropriate to allow the applicants leave to re-plead their case, although leave to re-plead would not in any event have been appropriate given my principal findings above.
118 First, it is apparent from the principles and authorities to which I have referred above that proof a respondent held the requisite state of mind is integral not only to completing the cause of action, but to the nature of the tort of misfeasance itself. It is a tort that has dishonesty, and deliberate abuse of power, as its abiding characteristics. If, as I have found, on the allegations contained in the pleading the applicants have no reasonable prospects of success in establishing the requisite state of mind, then this is a fatal flaw in the entire pleading, and there is no basis on which it should be permitted to remain on the Court’s record.
119 Second, the FASOC is so confusing, and confused, that it can properly be described as embarrassing. There are a range of disconnections, omissions, and failures to adhere to a rational reasoning process which means that the respondents and the Court are left to guess what is meant by many parts of it. To give some of the more obvious examples:
(a) The allegations are so disjointed that it not possible to understand how different parts of the pleading fit together. An example is [59], now said by the applicants to be the central pleading for MIPO 3 and 4. This bare allegation appears early in the pleading, and disconnected from MIPO 3 and 4. Yet it is said to be the linchpin.
(b) On MIPO 1, there is no allegation that the applicants were required to be afforded procedural fairness before the RPC visa application was lodged, there is no allegation of to what exercise of power the obligation attaches (a matter which is not so self-evident it could be omitted, as it might in more straightforward circumstances), and there is no allegation about the content of the procedural fairness obligation. These are basic aspects of the unlawfulness element for MIPO 1, and are simply missing.
(c) There are some pleadings which plead a conclusion or assertion that has no rational connection to the remainder of the pleaded circumstances. The pleading about unlawful detention in [107] is an example. This paragraph asserts that by operation of the so-called “residence condition” on the applicants’ RPC visas (whereby they were required, it is alleged, to reside at an RPC), Mr Morrison, Mr Dutton, Mr Bowles and Mr Pezzullo directed or caused the applicants to be detained unlawfully. The “unlawful detention” then becomes a defined term upon which other allegations are built in the rest of the pleading. However, it is not apparent at all why the pleader alleges the detention in the RPC is unlawful. The RPC visa itself is not alleged to be unlawful – it being a visa granted under Nauruan law. No rational connection is revealed between the asserted excess of power in Australian officials (and their responsible Minister or Secretary) applying for the visa and the unlawfulness of the applicants’ detention in Nauru, pursuant to a visa granted under Nauruan law.
(d) MIPO 3 and 4 are, with respect, somewhat impenetrable. How these allegations have been explained in the applicants’ submissions does not reflect the text of the FASOC. There are real difficulties understanding the critical issue of the time at which the misfeasance is said to have occurred. As pleaded, it appears that the factual failures of the Nauruan authorities to meet the alleged human rights standards over several years after the grant of the first RPC visa are what is said to constitute the unlawfulness for the purposes of the tort. Of course, that conduct was not only not the conduct of the individual respondents, it was not even the conduct of the Commonwealth officers who applied for the visa: rather, it was the conduct of unidentified Nauruan individuals, who (it is assumed) were responsible for the conditions in which the applicants were kept on Nauru. Yet in argument the Court was informed that the unlawfulness lay in the limits imposed by the terms of s 198AHA on the Commonwealth officers’ authority to apply for visas with the conditions attached to those visas. However, once this argument was unpicked a little more, it was apparent that this argument could not be discerned in the pleadings as they stood. By the end of three days of argument, the Court was no clearer on precisely how the MIPO 3 and 4 arguments were put than had been the case at the separate question hearing.
(e) Contrary to the applicants’ submission, there is a connection which needs to be drawn in the pleadings between the alleged unlawful exercise of public power (or unlawful performance of a public function) and the state of mind said to satisfy the mental element of misfeasance. That is: the pleading must identify what abuse of power a respondent has intentionally engaged in, or has been recklessly indifferent about. Otherwise the intentional aspect of this tort has nothing to operate on. The FASOC fails to make this critical connection. Instead, to varying degrees in each of the four MIPOs, it alleges a series of possibilities about where the alleged unlawfulness might lie in relation to the application for RPC visas, and then simply makes a bare assertion, in relation to each MIPO, that the individual respondents recklessly disregarded the means of ascertaining their power. But the subject of the respondents’ reckless disregard remains elusive.
120 An observation made by Gleeson CJ in Trau v University of Sydney (1989) 34 IR 466 at 475 is apposite to repeat:
Even under the modern system of pleading, considerations of form and substance are often closely intertwined. If one sees that a plaintiff’s lawyers are experiencing extreme difficulty in formulating with clarity and particularity their client’s cause of action then that is often a very good indication that there is no cause of action.
Conclusion
121 Given I have found in favour of the respondents under s 31A, and found that judgment should be entered, the question of whether leave should be granted to re-plead does not arise. Even if it had, I would not have been inclined to grant leave. That is because, as the applicants’ senior counsel frankly admitted, the applicants currently have no factual basis at all to allege the requisite state of mind. They are doing no more than speculating. As senior counsel properly and frankly conceded in oral argument, in response to an observation from the Court that the applicants had not pleaded that the individual respondents had ignored legal advice they had been provided:
[O]f course we can’t plead that because that’s a secret. How on earth would we know whether advice had been proffered but not looked at? … it may not be until you get someone in the witness box, you can actually ascertain whether they read an advice or not.
122 In the context of any proceeding, let alone one making the grave allegation of misfeasance in public office against Commonwealth Ministers and Departmental Secretaries, the hope that a basis for a cause of action might emerge in the witness box will be unlikely ever to justify permitting applicants to re-plead their case, and proceed to trial so as to keep the possibility of that moment in the witness box alive.
123 This is not a pleading composed by a self-represented litigant, where more latitude might be given to its contents. This is a pleading composed by experienced counsel, instructed by an experienced firm of solicitors. The evidence demonstrates the respondents have explained the defects they saw in the pleading, which at least to some extent reflects the findings the Court has made. The applicants have not substantively altered what is pleaded. What was added, as I explain above, did not improve, or provide, the basis for the allegations made. The document remains so defective that it should not remain on the Court’s record as a set of allegations which the respondents are required to answer or address.
124 None of the matters canvassed in these reasons cast doubt on, or reject, the allegations in the pleadings that the applicants and group members have suffered damage by reason of their time on Nauru. Those consequential allegations are not relevant to the reasons for which summary judgment is entered against the respondents, and the reasons for which the FASOC is struck out. The dismissal of this case is not a dismissal of those allegations of damage per se: it is a dismissal of the allegations that any damage suffered was caused by the respondents’ alleged misfeasance in public office, as articulated in the pleading.
125 The Court’s conclusions might be contended to place an unreasonable onus on the applicants to plead facts that they cannot know, because of what was described by the applicants as the “information asymmetry” between them and the respondents, relying on the use by Beach J of that phrase in Webster (Trustee) v Murray Goulburn Co-Operative Co Limited (No 2) [2017] FCA 1260. In circumstances such as those which give rise to a proceeding of this kind, that imbalance or asymmetry is real, and can be acknowledged: cf Jenkings v Northern Territory of Australia (No 2) [2018] FCA 1706 at [49]. If this had been a judicial review proceeding, or even perhaps a negligence proceeding, the imbalance may well have explained some omissions of specific factual allegations in a pleading, or levels of generality which might appear at first glance impermissible.
126 The difficulty in applying such an argument to the FASOC as it stands lies in the seriousness of an allegation of misfeasance in public office, and in the elements which must be proven (and therefore alleged) to establish the tort. As I have attempted to explain, the absence of any information capable of providing a probative basis for alleging the requisite state(s) of mind for misfeasance in each of the individual respondents is a flaw which cannot be answered by the aspirational contention that something may emerge during discovery.
127 Accordingly, the orders sought by the respondents will be made. The parties will be given an opportunity to attempt to agree on appropriate orders for costs, failing which submissions and any affidavit material, together with competing proposed orders, can be filed.
I certify that the preceding one hundred and twenty-seven (127) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mortimer. |
Associate:
SCHEDULE OF PARTIES
VID 816 of 2019 | |
MARTIN BOWLES | |
Fifth Respondent: | MICHAEL PEZZULLO |
Sixth Respondent: | COMMONWEALTH OF AUSTRALIA |
