Federal Court of Australia

Abela v Minister for Home Affairs [2021] FCA 96

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth) the proceedings against the first, second and third respondents be summarily dismissed.

2.    The applicant pay the costs of the first, second and third respondents to be agreed or taxed.

3.    The respondents’ application for costs on an indemnity basis is refused.

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

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth) the proceedings against the first, second and third respondents be summarily dismissed.

2.    The applicant pay the costs of the first, second and third respondents to be agreed or taxed.

3.    The respondents’ application for costs on an indemnity basis is refused.

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

REASONS FOR JUDGMENT

ABRAHAM J

1    The respondents sought by way of interlocutory applications filed in VID167 of 2020 on 19 August 2020 and in VID436 of 2020 on 26 August 2020, that each matter be summarily dismissed. In the alternative, the respondents sought that the applicant’s originating application and statement of claim filed in each proceeding be struck out.

2    Although separate proceedings, both applications were heard on the same day. Nonetheless, it is important to remember that each matter is separate and is to be considered accordingly.

3    That said, as explained in more detail below, the pleadings in each proceeding and the argument based thereupon, suffer from the same defects.

4    First, the originating applications and statements of claim consist primarily of broad conclusory assertions which reflect the applicant’s many and various complaints about the conduct of various parties whilst he has been in immigration detention. Proper causes of action are not identified, and the pleadings do not fulfil the basic function of identifying the issues between the parties. Rather, as drafted, the pleadings call for “review of the failure and conduct” of the applicant’s many complaints and grievances since his visa was cancelled. In each case the pleadings and affidavits in support can be properly characterised as reflecting a plea for a general review into the conduct of authorities in relation to him since the revocation of his visa.

5    Second, the applicant’s claims as pleaded generally appear to be untethered to the jurisdiction of this Court. This Court’s jurisdiction is vested in it by the laws of Parliament: s 19 Federal Court of Australia Act 1976 (Cth) (FCA Act). The applicant has not identified a “migration decision” as defined in the Migration Act 1958 (Cth) which is challenged, nor does he seek a review of any decision under an enactment to which the Administrative Decisions (Judicial Review) Act 1977 (Cth) applies, nor is it apparent that the pleadings disclose any matter within the jurisdiction of the Federal Court under s 39B of the Judiciary Act 1903 (Cth). That said, putting the issue of jurisdiction to one side, assessing the claims in each proceeding in so far as they can be ascertained, the respondents have established that there is no reasonable prospect of success such that each proceeding ought to be summarily dismissed. They do not disclose a cause of action which has any reasonable prospect of success. If that had not been so, given the state of the pleadings I would have granted the alternate relief and struck out the pleadings in each.

6    During these proceedings reference has also been made to previous proceedings brought by the applicant, VID852 of 2018, which have since been resolved with a settlement deed reflecting the basis thereof. Although the applicant objected to this material, the respondents contended that those proceedings bear some relevance as certain claims made in the present proceedings appear to be claims previously made and which have been the subject of a release. As explained below, those proceedings are relevant for that purpose.

7    For completeness I observe that the applicant currently has other proceedings in relation to his detention in which he is represented by pro bono counsel.

Relevant principles

8    An application for summary judgment is directed to the underlying prospects of success of the proceedings, whereas a strike out application is directed to the sufficiency of the pleadings or equivalent documentation: Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at [23].

9    Where the evidence shows that a person may have a reasonable cause of action or a reasonable prospect of success, but the person’s pleading does not disclose that to be the case, the Court may be empowered to strike out the pleading under r 16.21 of the Federal Court Rules 2011 (Cth) (Rules), but is not empowered to summarily dismiss the proceeding under s 31A of the FCA Act: Spencer at [23] citing White Industries Australia Ltd v Federal Commissioner of Taxation [2007] FCA 511; (2007) 160 FCR 298 at [47].

Summary judgment

10    Section 31A of the FCA Act relevantly provides:

(2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a) the first party is defending the proceeding or that part of the proceeding; and

(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a) hopeless; or

(b) bound to fail;

for it to have no reasonable prospect of success.

11    The power to dismiss an action summarily is not to be exercised lightly: Spencer at [60] and see [24], although it does not require that the proceedings to be seen as “frivolous”, “untenable” or “groundless”: Spencer at [24], [53]-[60]. The critical question is whether the moving party has persuaded the court that the opposing party has no reasonable prospect of success: Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) [2011] FCA 1126; (2011) 203 FCR 293 at [17].

12    The meaning of reasonable prospect of success in this provision was considered in Spencer with the plurality, Hayne, Crennan, Kiefel and Bell JJ observing at [59]-[60]:

[59]     In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word "reasonable", in the phrase "no reasonable prospect", be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a "frivolous", "untenable", "groundless" or "faulty" claim.

[60]     Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success…

13    The inquiry required under s 31A is “not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail”: Spencer at [52].

14    The assessment of whether a proceeding has no reasonable prospects of success necessitates the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 at [28].

15    Rule 26.01 provides for circumstances in which a party can make an application to the Court for summary judgment which relevantly includes where no reasonable cause of action is disclosed: r 26.01(c); the applicant has no reasonable prospects of successfully prosecuting the proceeding: r 26.01(a); and where proceedings are vexatious or an abuse of process: r 26.01(b).

Strike out application

16    An application for the striking out of pleadings may be made on one or more of the grounds in r 16.21, which relevantly include that the pleading: contains frivolous or vexatious material: r 16.21(b); is evasive or ambiguous: r 16.21(c); is likely to cause prejudice, embarrassment or delay in the proceeding: r 16.21(d); fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading: r 16.21(e); or is otherwise an abuse of the process of the Court: r 16.21(f).

17    Rule 16.21 is critically concerned with the sufficiency of the pleadings. The requirements for a pleading were described in Wride v Schulze [2004] FCAFC 216 at [25] (Wride v Schulze) as follows:

[T]he pleadings must disclose a reasonable cause of action against the party against whom the cause of action is brought and must state all material facts necessary to establish that cause of action and the relief sought. A “reasonable cause of action” for this purpose means one which has some chance of success if regard is had only to the allegations and the pleadings relied on by the applicant.

18    A pleading will be insufficiently specific where it is cast at such a high level of generality that it fails to inform the respondents of the case they have to meet: Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees’ Association of Western Australia (1987) 13 FCR 413, 417-418; Pharm-a-Care Laboratories Pty Ltd v Commonwealth (No 3) [2010] FCA 361; (2010) 267 ALR 494 at [98]-[99]. Pleadings must fulfil the basic function of identifying the issues between the parties, disclosing an arguable cause of action or defence, and ensuring that parties are apprised of the case to be met: Plaintiff M83A-2019 v Morrison (No 2) [2020] FCA 1198 at [50] (Plaintiff M83A-2019 v Morrison).

19    A pleading is embarrassing where it is unintelligible, ambiguous, vague or too general, such that the opposite party does not know what is alleged against him or her: Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803 at [8]. A pleading may be considered to be embarrassing if it suffers from narrative, prolixity or irrelevancies to the extent it is not a pleading to which the other party can reasonably be expected to plead to: Fuller v Toms [2012] FCA 27; (2012) 247 FCR 440 at [80], [84] (Fuller v Toms). A party cannot be expected to respond to mere context, commentary, history, narrative material or material of a general evidentiary nature: Fuller v Toms at [83].

20    Although r 16.21 is directed to “pleadings”, which is defined in the Dictionary to the Rules so as not to include an originating application, r 6.01 provides a similar power applicable to any “document filed in a proceeding”. That includes an originating application. Where a document contains a matter that is scandalous, vexatious or oppressive, the Court is empowered to order that the document be removed from the file or that the matter be struck from the document. To the extent that an originating application is drafted in such a way that it does not disclose a reasonable cause of action, or is insufficiently specific and thereby oppressive, it would attract the operation of this rule.

21    Rules 16.02 and 16.21 must be interpreted and applied in light of s 37M of the FCA Act, which provides that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: Chandrasekaran v Commonwealth of Australia (No 3) [2020] FCA 1629 at [101].

Unrepresented litigant

22    It is timely to recall the duties of the Court owed to an unrepresented litigant. These have been conveniently summarised by Perry J in Simjanovska v Department of Human Services [2019] FCA 499 at [21]-[22]:

[21]….These duties are only to ensure that the unrepresented litigant is aware of her or his rights in respect of court procedure and evidence. The judicial officer is not required to endeavour to place the unrepresented litigant in a better position than a represented litigant; indeed, such an approach would be inappropriate because all parties are entitled to procedural fairness. As the New South Wales Court of Appeal held in Hamod v New South Wales [2011] NSWCA 375 (Hamod):

309    Courts have an overriding duty to ensure that a trial is fair: Dietrich v R [1992] HCA 57; 177 CLR 292. This entails ensuring that the trial is conducted fairly and in accordance with law: MacPherson v The Queen [1981] HCA 46; 147 CLR 512 per Gibbs CJ and Wilson J at [16] 525. The duty reposes in the individual judicial officer hearing a case. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented: R v Zorad (1990) 19 NSWLR 91 at 94-95. In MacPherson Mason J, at [31] 534, noted that:

“A trial in which a judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as ‘fair’.”

310    However, the court’s duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. For this reason, the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just: Tomasevic v Travaglini [2007] VSC 337; 17 VR 100 at [95]; Barghouthi v Transfield Pty Ltd [2002] FCA 666; 122 FCR 19, 23; NAGA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 944, [11]; Nagy v Ryan [2003] SASC 37, [52]-[53].

311    Insofar as the duty relates specifically to an unrepresented party, it has been said that a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. …

312    Although the duty of a trial judge to assist an unrepresented litigant is cast in active terms, it does not extend to advising the accused as to how his or her rights should be exercised: R v Gidley (1984) 3 NSWLR 168. Rather, the judge has to put the unrepresented litigant in the position of being able to make an effective choice, a duty which applies notwithstanding the adversarial character of a criminal trial: McPherson per Mason J at 534. The duty is the same in a civil proceeding, with such modifications as are called for to take account of civil procedures. However, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant: Bhagwanani v Martin (1999) 204 LSJS 449; [1999] SASC 406; Clark v State of New South Wales (No 2) [2006] NSWSC 914.

313    The touchstone at all times remains that of fairness. … (emphasis added)

[22]    This statement was approved, for example, by the Full Court of the Federal Court in SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 at [37] (Robertson J) (with whom Allsop CJ agreed at [47], and Mortimer J agreed at [56]) and in AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68; (2016) 241 FCR 30 at [39] (the Court).

The applications

23    It is appropriate at the outset to make four observations.

24    First, although the applicant submitted that the respondents’ notices of objection and applications for summary dismissal and strike out of the pleadings should themselves be summarily dismissed or alternatively struck out, that submission is misconceived. Those applications should be determined on their merits.

25    Second, and aligned with that above, the applicant’s submission that the respondents’ applications are an abuse of process, defamatory, biased, prejudiced, malicious and like allegations, is without foundation. The respondents have not acted improperly in bringing these applications merely because the applicant does not agree with the respondents’ submissions. The applicant has not provided any proper basis for such allegations.

26    Similarly, the applicant’s new allegation in his reply submission that the respondents are in contempt of court, which appears to be based on matters such as the respondents’ submissions in relation to jurisdiction, the Minister’s general administration of the Migration Act and the Minister’s alleged treatment of asylum seekers, is without proper foundation. Reliance on the passages from the reasons of another case, Minister for Immigration and Border Protection v ARJ17 [2018] FCAFC 98 unrelated to this and was not concerned with any question of contempt does not assist. The decisions of AFX17 v Minister for Home Affairs [2020] FCA 807 and AFX17 v Minister for Home Affairs (No 2) [2020] FCA 858 on which the applicant also relies, involved the question of non-compliance with orders of this Court which is far removed from the issues in this case. Media articles relied on by the applicant also do not assist him. There is nothing in the pleadings in either matter or in the submissions of the applicant or the material on which he relies that would provide a basis for an allegation of contempt of court. That said, the nature of the submission and material relied on reflects the general nature of the applicant’s claims and that in reality, they are directed to a general review of his immigration detention.

27    Third, as noted above, the respondents submitted each proceeding should be summarily dismissed due to the deficiencies in the pleadings, as neither discloses any cause of action with a reasonable prospect of success. Although, in those applications the respondents raised as a preliminary matter that this Court lacked jurisdiction in relation to each of the proceedings, the respondents also submitted that in any event, leaving aside the issue of jurisdiction, the relief sought does not have any reasonable prospects of success. Detailed submissions were directed to establishing that latter aspect. The applicant’s written submissions and affidavits filed in reply have some common content in relation to each proceeding, with overlap in the submissions made. Despite the approach of the respondent, the applicant primarily, although perhaps not solely, concentrated on what appears to be the issue of jurisdiction. It was to that which the oral submission was also, to a large extent, focussed.

28    Fourth, the respondents also submitted its applications for summary dismissal of the claims were also supported by case management considerations. They submitted, that in the circumstances of this case any attempt to replead would be fruitless and adopting an approach which permitted him to do so would, in effect, delay the inevitable. The respondents submitted that they have already incurred costs and to add to these by a continuation of the proceedings, particularly where there may be no realistic prospect of recovering costs from the applicant, would be to compound the inefficiency and unfairness to the respondents. The respondents alternatively submitted, each originating application and statement of claim should be struck out and in circumstances where there is nothing to suggest that any of the claims which the applicant seeks to make have a reasonable prospect of success, it would be fruitless to grant leave to replead. If such leave were granted it submitted that it should be strictly limited to specific claims that the applicant is able to precisely articulate and persuade the Court have a reasonable prospect of success.

VID167 of 2020

29    In these proceedings the applicant filed an originating application for judicial review and a statement of claim on 5 June 2019. The originating application applies to the Court to review the “failure and conduct” of the respondents with respect to 49 matters, in relation to the applicant’s medical diagnoses, medical equipment, medical treatment, transfers, accommodation, health risks, appropriate food for his medical conditions, false and misleading information, refusal to show or supply documents, work health and safety, hygiene restrictions, bias, prejudice and conflict of interest, confidentiality and privacy, powers, chain of command, directions, officer(s), legal authority, obligations and interference, and welfare, safety, security and risk.

30    The applicant relied on three affidavits in support of his application, and in resistance to the respondents’ interlocutory application:

(1)    an affidavit dated 2 March 2020 (First Abela Affidavit), which was 103 pages with a further 294 pages of annexures attached thereto;

(2)    an affidavit dated 26 July 2020 (Second Abela Affidavit), which was 16 pages with a further 84 pages of annexures attached thereto; and

(3)    an affidavit filed on 27 August 2020 (Third Abela Affidavit) which appears to be legal submissions in response to the respondents’ objection to competency.

31    The applicant also filed submissions dated 17 September 2020 which stated that it was:

…in support of the Reply and Affidavit filed in VID167 of 2020 on 27/08/2020. By the Reply and Affidavit, the Applicant seeks summary dismissal of the Respondents INTERLOCUTORY APPLICATION, AFFIDAVIT and NOTICE OF OBJECTION TO COMPETENCY. Alternatively, the Applicant seeks the Respondents INTERLOCUTORY APPLICATION, AFFIDAVIT and NOTICE OF OBJECTION TO COMPETENCY filed in VID167 of 2020 be struck out.

32    The respondents relied on the affidavit of Andrew Vicendese dated 19 August 2020, and filed written submissions in support of this application dated 4 September 2020, in chief and on 25 September 2020 in reply.

33    The affidavit of Mr Vicendese annexed two categories of documents: first, an open letter sent to the applicant which explained the basis of the interlocutory applications; and second, documents in relation to the previously settled proceedings referred to above at [6] being the statement of claim and deed of settlement. The applicant objected to the admission of the documents. He claimed a denial of procedural fairness in respect to the letter and submitted that the previous proceedings were irrelevant, save for establishing this Court has jurisdiction to hear the current matters. The affidavit and annexures were admitted, although the documents in relation to the previous proceedings are only relevant in the VID436 proceedings.

34    The letter explained to the applicant in clear language the basis for the applications and why the respondents said they would succeed in establishing those bases. In that context, the letter also set out a position that if the applicant discontinued the proceedings by 28 August 2020, the respondents would agree to the discontinuance on the basis that each party bear their own costs of the application, and if not the letter would be relied on in relation to the issues of costs at the hearing. The primary basis of the applicant’s assertion of procedural fairness is that the letter was sent only shortly before the application was filed on 26 August 2020. However, the offer as to costs was open until 28 August 2020. I note the applicant does not suggest that he would have taken up the offer if he had more time to do so.

35    The relevance of the previous proceedings is clear; if claims in these proceedings are the same as those previously settled, those allegations would be barred from further agitation. This material is relevant to the claims made in VID436. Contrary to the applicant’s contention, those proceedings are not relevant to establish that this Court has jurisdiction in these current proceedings. Whether the Court has jurisdiction is dependent on the nature of the allegations in the proceedings before it. Those previous proceedings concerned a challenge to whether a Controlled Items Policy was authorised by provisions of the Migration Act, which was a matter arising under the Migration Act and within the conferral of jurisdiction on this Court pursuant to s 39B(1A) of the Judiciary Act. As the respondents submitted, the other allegations in that proceeding involved the question whether the taking of items was authorised by that policy, and therefore the whole of the proceeding formed part of that matter. As is apparent from the conclusion below, that is to be contrasted with these proceedings where the applicant does not identify any proper basis in the present case that would provide a foundation for jurisdiction.

Submissions

36    The respondents addressed the originating application and the statement of claim. Each are lengthy documents, the former being 21 pages, the latter, 13 pages. The respondents submitted that the applicant does not identify: any specific decision made by any specific government official under any Act that he seeks to challenge on the basis that it exceeds the power conferred on that government official; any specific conduct or lack of conduct of a specific government official under an Act that he seeks to challenge on the basis that that person has not complied with a specific legal obligation; any legal obligation on a government official or any other person with which they have failed to comply; or any legal prohibition which has been contravened. It submitted that the applicant has not identified any basis for the relief sought in the statement of claim, which is different from that sought in the originating application. It submitted that the applicant has not identified how, if at all, there is any basis in the originating application or the statement of claim for the orders that are sought. Further, it submitted the statement of claim contains paragraphs which are bare conclusory allegations which do no more than assert a complaint. Although on occasion the statement of claim employs the use of legal terms, including negligence, breach of contractual obligations, a lack of “legal authority” for certain conduct, breach of obligations of confidence, bias, prejudice and conflict of interest, causing “medical injury” and interference to property without “lawful justification”, denial of property, various forms of harm and damages, negligence and breach of contract, these are also bare conclusory assertions. It was submitted that the statement of claim fails to identify with clarity any specific cause of action, let alone the elements thereof or the material facts that would satisfy the pleading requirements of any cause of action.

37    The respondents submitted that while summary dismissal might not ordinarily be made in respect to an unrepresented applicant, the originating application, statement of claim, reply documents and affidavits, are lengthy, are very difficult to follow and do not clearly articulate the claims which are being made. In that context, given the scope of the factual allegations made in the materials, and the time taken to attempt to respond to them, in the present application there is a real benefit in summary determination, and it submitted, it is appropriate to do so.

38    The respondents submitted the above formed sufficient basis for the originating application and statement of claim at least to be struck out.

39    The respondents also submitted that the proceedings should be summarily dismissed. The respondents submitted that it is not apparent from the originating application or statement of claim that the applicant challenges any decision under the Migration Act or otherwise, which might attract the jurisdiction of this Court. Nonetheless, the respondents addressed the substance of the application, and submitted that “doing the best one can, none of the relief which the applicant seeks has any reasonable prospect of success”.

40    It submitted that a large number of the final orders sought in the originating application are such that the Court could never grant relief in the open-ended form they are sought. Conversely, it submitted that it is unclear what cause of action could justify such relief, even if in a narrower form than many of the orders sought. It submitted that there are further, more particular, difficulties with some of those orders sought (including lack of a claim to which it could relate and the power to make the orders sought), and identified prayers 4, 5, 6, 12 and 13, 14, 16, 20. In relation to prayers 21–23, so far as these seek an order for release from detention, this Court is expressly precluded from granting such relief by s 196 of the Migration Act: AFF20 v Minister for Home Affairs [2020] FCA 546.

41    As to the statement of claim, it submitted that the Court is expressly precluded from granting the relief in prayers A–C, and that the statement of claim does not articulate a cause of action with a reasonable prospect of success entitling the applicant to damages, being the only other substantive relief sought.

42    As noted above, the applicant’s submissions and associated documents sought that the respondents’ interlocutory application, notice of objection to competency and affidavit be summarily dismissed or struck out. The documents referred to various cases (at least one without any reference to the name of the case), which he said supported that this Court had jurisdiction. The applicant submitted that respondents have been unsuccessful in striking out claims in other cases, and that this shows the Court has jurisdiction. The applicant contended that the respondents’ application is made in bad faith and is biased, and in disregard of certain specified rules. He also made a general submission that the Court has jurisdiction in relation to the common law duty of care and recites passages from cases and other documents to submit that this Court has jurisdiction in relation to medical issues. In relation to the Third Abela Affidavit, the applicant’s primary submission appears to be that because the respondents have failed in other cases to establish that the Court has no jurisdiction, the Court should reject the respondents’ submissions in relation to jurisdiction (see at [5]–[98]).

Consideration

43    For the reasons that follow the respondents’ submission should be accepted.

The pleadings

44    The breadth of the complaints in the applicant’s originating application which seeks review of the “failure and conduct” of the respondents’ conduct in relation to very many matters is plain from the description of the application above at [29].

45    As the respondents correctly submitted, the application is for a judicial review, yet no decision(s) are identified from which such a review could be sought. The originating application does not identify any specific decision made by any specific government official under any Act that he seeks to challenge on the basis that it exceeds the power conferred on that government official, or any specific conduct or lack of conduct of a specific government official under an Act that he seeks to challenge on the basis that the person has not complied with a specific legal obligation or any legal obligation on a government official or any other person with which they have failed to comply or any legal prohibition which has been contravened.

46    Although there is reference to some legislative provisions in the originating application, there is no identification as to how they relate to any claim. The originating application does not identify any specific causeof action or any basis for the relief sought. The relief sought in the originating application does not accord in many respects to the statement of claim, which asserts some facts which relate to some, but not all the allegations in the originating application.

47    The deficiencies in the originating application are not rectified in the statement of claim. To the contrary, as the respondents correctly contended, the pleading makes various complaints about how the applicant claims he has been treated in detention, and makes allegations using legal terms as described above at [36], but these are bare conclusory statements.

48    The statement of claim consists primarily of the applicant’s conclusionary assertions. Although it may be accepted that not all conclusionary pleadings will be struck out as being deficient: Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees’ Association of Western Australia (1987) 13 FCR 413 at 418, these assertions are of such a high level of generality that they do not put the respondents in a position where they know the case they have to meet.

49    The applicant’s affidavits are extensive and do not assist in identifying the claims and bases thereof. The First Abela Affidavit refers, inter alia, to very many complaints the applicant has, and has made, during his detention as to his conditions and treatment by various parties. This spans from 2012 until the filing of the affidavit. The annexures to the affidavit are primarily, although not solely, copies of his complaints and various replies and related documents. The affidavit, as with the pleadings, consists primarily of conclusory assertions. Those assertions are premised on the basis that the applicant has an entitlement to certain matters. The extent of his complaints and dissatisfaction with the responses is evident, but does not however assist in identifying any claim. The Second Abela Affidavit largely deposes to complaints made to Serco about alleged policy breaches in relation to the coronavirus and Serco’s responses to those complaints which has little, if any, relevance to any of the complaints made in the originating application or statement of claim. The Third Abela Affidavit largely contains extracts from judgments.

50    Again, although the applicant employs legal terms and recites lists of Commonwealth legislation which he alleges to be breached in the pleadings and affidavits, the statement of claim fails to identify with clarity any specific cause of action, or the elements or the material facts thereof necessary to satisfy the pleading requirements of any cause of action. Proper causes of action are not identified. Moreover, the statement of claim does not identify any basis for the relief sought, which, as noted above is different to that sought in the originating application.

51    The pleadings, as drafted, in reality call for a review of the conduct of various organisations towards the applicant in relation to a variety of matters which have occurred during his immigration detention since 2012. This is also reflected by the affidavits relied on by the applicant, in particular, the First Abela Affidavit.

52    Against that background, I turn to the application for summary dismissal.

Summary dismissal

53    The respondents contended that the appropriate course is for the matter be summarily dismissed. This inquiry is directed to the underlying prospects of success.

54    Given the state of the pleadings it is difficult to ascertain the applicant’s claims, but in so far as they are comprehensible, they have no reasonable prospect of success.

55    It is not apparent from the applicant’s claims how they attract the jurisdiction of this Court.

56    Neither the originating application nor the statement of claim tethers the applicant’s very many complaints to the jurisdiction of this Court, but rather asserts there is jurisdiction by referring to Commonwealth legislation in the manner described above at [36]. As noted earlier the applicant’s submission focussed on the issue of jurisdiction, but did so without addressing the pleadings in this case and the complaints made about them. In so far as the applicant in his reply submissions cited various cases to submit the Court does have jurisdiction, a consideration of those authorities does not support his submission. Rather, they reflect that each case was dependent on the particular issues that arose for consideration, and the manner in which they did so.

57    The applicant’s submission that because the respondents have failed in other cases to establish that the Court has no jurisdiction this Court should reject the respondents’ submissions in relation to jurisdiction, is not accepted. As submitted by the respondents, consideration of those cases reflect that they do not assist the applicant. Minister for Immigration and Border Protection v ARJ17 [2017] FCAFC 125; (2017) 250 FCR 474 concerned whether the Federal Court had jurisdiction to determine a claim that s 252 of the Migration Act conferred no authority to confiscate mobile phones and sim cards of persons who were detained in an immigration detention centre. In this proceeding the applicant does not challenge any decision under the Migration Act. Plaintiff S99/2016 v Minster for Immigration and Border Protection [2016] FCA 483; (2016) 243 FCR 17 concerned whether s 474 of the Migration Act precluded the issue of injunctive relief in other than judicial review proceedings. The case did not concern whether the Court otherwise had jurisdiction. DCQ18 v Minister for Home Affairs [2018] FCA 918 and FJG18 v Minister for Immigration and Border Protection, Citizenship and Multicultural Affairs [2018] FCA 1585 concerned applications for interlocutory injunctions to require applicants to be transferred to Australia for medical treatment. No question was raised about the Court’s jurisdiction to hear the application in either proceeding. CCA19 v Minister for Home Affairs [2019] FCA 939 also concerned such an application for an interlocutory injunction to require the applicant to be transferred to Australia for medical treatment. An issue was raised about whether s 494AB of the Migration Act excluded the Court’s jurisdiction but that issue was not determined.

58    As explained above at [45]-[46], these proceedings are to be contrasted with the VID852, which concerned a challenge to whether the Controlled Items Policy was authorised by the Migration Act, and therefore as the other allegations in those proceeding involved the question whether the taking of items was authorised by that policy, the whole of the proceeding formed part of that matter. By contrast, the applicant in this case has not identified any migration decision that would provide a foundation for jurisdiction.

59    That the originating application and statement of claim use words that by themselves have legal meaning, and may list legislation alleged to have been breached, does not of itself provide a proper basis of an action or jurisdiction to bring the proceedings. As explained above, this is in a context where the relevance of the legislation listed is not identified or linked to the claims. Rather the use of the legislation is as part of the applicant’s conclusory assertions as to his claims.

60    The respondents correctly submitted that:

[I]t is not apparent from the originating application or statement of claim that the applicant challenges any decision under the Migration Act 1958 (Cth) or otherwise which might attract the jurisdiction of this Court, whether under s 39B of the Judiciary Act 1903 (Cth) or s 8 of the Administrative Decisions Judicial Review Act 1977 (Cth). So far as the applicant claims damages for common law causes of action against the Commonwealth, such as negligence, breach of confidence and trespass to goods, this Court does not per se have jurisdiction under s 39B of the Judiciary Act in relation to such causes of action. The Court would have jurisdiction in relation to such a claim only so far as it forms part of the same matter in respect of which the Court otherwise has jurisdiction, eg a challenge to a “migration decision” under the Migration Act. It is not apparent that that is so. Nor, so far as any “migration decision” is impugned, is it apparent that the limitations on this Court’s jurisdiction pursuant to s 476A(1) of the Migration Act are adhered to.

61    As explained above, the pleadings and the affidavits in support, reflect a plea for a general review into the conduct of authorities in relation to him since the revocation of his visa. The applicant may have many grievances and complaints, but it does not follow that this Court has jurisdiction to hear them, and the originating application and statement of claim, as drafted, do not provide a basis to do so.

62    Significantly, leaving aside the issue of jurisdiction, as the respondents have demonstrated, the relief sought does not have any reasonable prospects of success.

63    As noted above, the relief sought in the originating application does not always accord with that in the statement of claim and includes orders which could not be made by this Court.

64    As to the final orders sought in the originating application, as the respondents correctly submitted, the Court could not give relief in the open ended form sought, and it is not apparent what basis of a cause of action could justify even a narrower form of such orders.

65    The orders sought include that the Minister, the Commonwealth, the Secretary of the Department of Home Affairs and their department, officers delegates or agents cease the harassment, assaults, threatening, intimidating, victimising and provoking the applicant (prayers 1, 11), to restrict them from releasing information to the media (prayer 2), to order they not to discriminate against the applicant (prayers 8, 9) and to not write false and misleading information about the applicant’s history (prayer 18). In so far as these are reflected in the statement of claim it is in the form of general assertions that those matters had occurred.

66    As the respondents identified, there are additional issues with some of the orders sought. For example, it is not apparent the Court has power to make orders to direct the placement of the applicant’s detention or to direct that he be accommodated in a single room (prayers 5, 6), that certain food be supplied (prayer 7), to provide certain documentation (prayer 14), to prevent certain persons from giving orders to staff of the detention centre regarding the applicant (prayer 16), and to permit the applicant’s family be able to provide supplies (prayer 20). In addition, prayer 4 seeks an order preventing use of his “spent convictions”, yet such use is permitted for the purpose of making decisions under that the Migration Act: see Div 6 of Pt VIIC and s 85ZZH(d) of the Crimes Act 1914 (Cth). In relation to prayers 21–23, in so far as these seek an order for release from detention, this Court is precluded from granting such relief by s 196 of the Migration Act: AFF20 v Minister for Home Affairs [2020] FCA 546 at [12].

67    In addition, in relation to the statement of claim, there are four substantive bases for relief sought. In prayers A-C the applicant seeks an order for release from detention, which as the respondents submitted and is explained above, this Court is precluded from granting.

68    The only other substantive relief sought is damages. As the respondents submitted, the statement of claim as drafted does not articulate a cause of action entitling the applicant to damages that has a reasonable prospect of success. The respondents addressed each of the paragraphs.

Paragraph 17 asserts negligence in connection with a failure to provide adequate medical care or treatment. This Court would have no jurisdiction in relation to such a claim.

Paragraphs 37–38 assert the provision of false and misleading information to the Australian Human Rights Commissioner. It is not apparent how that could give rise to a claim for damages by the applicant.

Paragraph 43 asserts a breach of the contractual obligations between the Commonwealth and Serco. It is not apparent how that could give rise to a claim for damages by the applicant, who is not a party to the contract.

Paragraphs 46–56 and 72 assert “breach of confidence” in a number of respects. None could properly give rise to an action for breach of confidence.

Paragraph 57 asserts that the Commonwealth and the Minister were “biased, prejudiced and acted in a manner of conflict of interest”. This does not give rise to a cause of action for damages. In any event, it is not apparent how the matters referred to — the allegations in paragraphs 42–45, concerning Serco’s conduct — could support the allegation in paragraph 57. The same point may be made about paragraphs 77 and 78.

Paragraph 58 asserts a trespass to the person, by reason of the matters in paragraphs 18, 20 and 22. These allegations involve Serco refusing to allow the applicant to have possession of certain property, namely the applicant’s blood sugar level testing kit. That could not give rise to a cause of action for trespass to the person, ie battery, which requires a direct physical contact with the plaintiff. [Carter v Walker (2010) 32 VR 1 (CA) at [215] (the Court)].

Paragraphs 59–61 appear to assert a trespass to goods, and conversion and detinue, in relation to his blood sugar level testing kit, the subject of the allegations paragraphs 18, 20 and 22. Of itself, that is not a matter in respect of which this Court has jurisdiction. In any event, the complaint is, in part, out of time. So far as the claim concerns the period prior to 2 May 2013 while the applicant was detained in Victoria, the claim is barred by the six-year Victorian limitation period [Limitation of Actions Act 1958 (Vic), s 5(1)(a)].

Paragraphs 62–69, 73–75 appear to assert that various actions caused injury to the applicant. No cause of action is articulated. So far as what is implicitly asserted is negligence, that is not of itself a matter in respect of which this Court has jurisdiction. In any event, if those paragraphs refer to an action in negligence for damages for personal injury they may also be time barred [Limitation of Actions Act 1958 (Vic), s 5(1A); Limitation Act 2005 (WA), s 14(1)].

69    In the circumstances of this case, I accept the respondents’ submission that those flaws in the relief sought do exist.

70    The affidavits filed by the applicant in support of these proceedings are described above at [30]. As explained, these documents do not assist in identifying claims or the basis for them. Nor, given the state of the pleadings, have the affidavits advanced the applicant’s case on this application by providing a basis for such claims to have a reasonable prospect of success. As explained above, the First Abela Affidavit spans from 2012 until the filing of the affidavit and consists primarily of conclusory assertions, premised on an entitlement to matters. As noted above the annexures include the various complaints made and responses received. Despite the breadth of the assertions in the pleadings, it is unclear how some of the material provided could be relevant. The Second Abela Affidavit, which appears primarily to be complaints relating to the coronavirus and Serco’s conduct, and which do not appear to be related to the pleadings but are general complaints about the detention centre, do not assist. The applicant’s oral submissions also included general complaints. The affidavits reflect the breadth of his complaints and that the applicant is really seeking a review of the complaints he has made and the responses received spanning his time in immigration detention.

71    Mindful of the care that must be taken before ordering that a matter be summarily dismissed, and the difficulties faced by an unrepresented applicant nonetheless, the respondents have established that course should be taken in this case. The claims as pleaded, as best as they can be ascertained, the respondents have established that there is no reasonable prospect of success.

72    Had I not considered that summary dismissal was appropriate in this case, I would have granted the respondents’ application that the pleadings be struck out.

73    For those reasons identified in [43]-[51] above, the pleadings do not fulfil the basic function of identifying the issues between the parties: Plaintiff M83A-2019 v Morrison at [50]. They do not identify or disclose a reasonable cause of action, nor state the material facts necessary to establish the cause and relief sought: Wride v Schulze at [25]. The pleading is embarrassing within the meaning of r 16.21.

VID436 of 2020

74    In these proceedings the applicant filed an originating application for judicial review and a statement of claim on 24 June 2020. The originating application in these proceedings also seeks review of the “failure and conduct” of the respondents, but in this instance, in relation to 20 property related matters. This includes, in relation to specified items of the applicant’s personal property, the asserted failure of the respondents to refer a matter to the police for criminal investigation, breach of privacy, asserted risk factors to the applicant and his family due to media segments, supply of false, misleading, malicious and vexatious information to the applicant, the authority of tampering, taking, removing, stealing and reproducing the applicant’s personal property, “breaches and violations of Legislations and Commonwealth Laws in Annexure 18” to his affidavit (which is an extract from the Commonwealth’s contract with Serco, which sets out inter alia that provider is required to comply with all Commonwealth, State and Territory laws, and including a lengthy list legislation, government policies, Department specific policies and International treaties, charters, covenants and agreements which are specified).

75    The applicant also relied on three affidavits in support of this application and resistance of the respondents’ interlocutory applications:

(1)    an affidavit dated 24 June 2020 (First Abela Affidavit), which was 19 pages with a further 129 pages of annexures attached thereto;

(2)    an affidavit dated 28 July 2020 (Second Abela Affidavit), which was 66 pages with a further 221 pages of annexures attached thereto; and

(3)    an affidavit dated 7 September 2020 and filed on the 8 September 2020 (Third Abela Affidavit) which appears to be legal submissions in response to the respondents’ objection to competency.

76    The applicant also filed submission dated 16 October 2020 which stated that it:

The Applicant makes these submissions in support of the Reply and Affidavit filed in VID436 of 2020 on 08/09/2020. By the Reply and Affidavit, the Applicant seeks summary dismissal of the Respondents INTERLOCUTORY APPLICATION, AFFIDAVIT and NOTICE OF OBJECTION TO COMPETENCY. Alternatively, the Applicant seeks the Respondents INTERLOCUTORY APPLICATION, AFFIDAVIT and NOTICE OF OBJECTION TO COMPETENCY filed in VID436 of 2020 be struck out.

77    The respondents again read the affidavit of Andrew Vicendese dated 19 August 2020, and filed written submissions in support of the application dated 4 September 2020, in chief and on 23 October 2020 in reply.

78    For the reasons given above at [33], the affidavit of Mr Vicendese, which is to the same effect but in relation to these proceedings, is relevant.

Submissions

79    The respondents submitted that this originating application, which again seeks review of the “failure and conduct” of the respondents, suffers the same deficiencies as identified in relation to the VID167 documentation. The applicant identifies “grounds of application”, which refer to a number of legislative provisions, but there is no identification of how they relate to the preceding paragraphs and nor is any such relation evident on the face of the paragraphs. The applicant identifies the orders that he seeks, but it is not apparent how, if at all, there is any basis in the originating application or the statement of claim for the orders that are sought.

80    The respondents submitted that the applicant’s statement of claim is equally unclear. The applicant asserts facts which relate to some, but not all of the alleged “failure and conduct” of the respondents identified in the originating application. The respondents submitted that as with VID167, although paragraphs of the statement of claim use words which have legal meaning, those paragraphs are bare conclusory allegations which do no more than assert a complaint and, on occasion, employs legal terms in so doing. It was submitted that the statement of claim fails to identify with clarity any specific cause of action, let alone the elements thereof or the material facts that would satisfy the pleading requirements of any cause of action. The respondents submitted that the matters listed under “The applicant claims” are largely not prayers for relief at all. The only substantive relief sought is “damages”, which is different relief from that sought in the originating application.

81    The respondents submitted that the proceedings should be summarily dismissed. In the alternative, the respondents submitted that the pleadings ought to be struck out.

82    As a preliminary matter, the respondents again submitted that it is not apparent from the originating application or statement of claim that at least many of the matters contained therein are matters within this Court’s jurisdiction or, so far as any “migration decision” is impugned, that the limitations on this Court’s jurisdiction pursuant to s 476A(1) of the Migration Act are adhered to. Nonetheless, leaving that to one side, the respondents submitted that so far as one can discern the substance of the claims from those documents, those claims have no reasonable prospect of success.

83    The respondents submitted that in relation to a large number of the final orders sought in the originating application, it is plain that the Court could never grant relief in the open-ended form of the orders sought and it is not apparent what cause of action could possibly justify relief in even a narrower form. The respondents submitted that while the originating application does refer to a number of pieces of legislation, none of those references are sufficiently particularised so as to disclose a cause of action. The respondents submitted:

On p 3 at [4], the originating application identifies the Privacy Act 1988 (Cth). However, it is not apparent what, if any, relief is sought from this Court — or could be sought from this Court — under that Act.

On p 4 at [14], the originating application identifies Div 137 of the Criminal Code (Cth). However, it is not apparent what, if any, civil relief is sought by the applicant from this Court — or could be sought from this Court — in relation to the alleged contravention of the criminal provisions in that Division. The same point may be made about the reference on p 5 at [15] to s 307B of the Crimes Act 1900 (Cth) (which it is assumed should refer to the Crimes Act 1900 (NSW)).

On p 6 at [16], the originating application refers to the Australian Border Force Act but does not identify any provision of that Act. The bolded and italicised expressions are simply definitions which may be found in s 4 of that Act. While those definitions are relevant to the substantive operation of some provisions of that Act, it is not apparent how any supports a claim to relief by the applicant in this Court.

On p 5 at [17], the originating application refers to ss 3B, 306L, 487X, 487ZB and 493 of the Migration Act. However these provisions cannot assist the applicant in this matter:

Section 3B provides that, if the Act would otherwise result in an acquisition of property, and any provision would be invalid, apart from s 3B, because a particular person had not been compensated, then the Commonwealth must pay the person compensation. This provision simply ensures that any provision in the Act is not invalid under s 51(xxxi) of the Constitution. It does not give rise to a standalone cause of action.

Section 306L operates in a division that concerns documents relating to clients of inactive migration agents and deceased migration agents (see s 306A). The applicant’s case does not concern such matters.

Section 487X operates where authorised officers have seized property pursuant to a warrant and s 487ZB operates where authorised officers have disposed of that property under s 487ZA. There has been no such seizure or disposal of property in the applicant’s pleaded case.

Section 493 is a provision allowing attribution of knowledge of directors, employees, or agents to a body corporate. It does not give rise to a standalone cause of action.

On p 5 at [19], the originating application refers to s 61 of the Constitution and the implied freedom of political communication, however the meaning of this paragraph is unintelligible.

84    In relation to the statement of claim, the respondents submitted that the only substantive relief sought is damages but the pleading does not articulate a cause of action entitling the applicant to damages that has a reasonable prospect of success, and submitted:

Paragraphs 5–28, 38–41 and 51–53 allege trespass to, and conversion and detinue of, various goods of the applicant, including a conspiracy to between the Commonwealth and Serco to steal or tamper with those goods. This Court has no jurisdiction in respect of such a claim for damages. Further, if the USB pleaded at [8] is the same item of property that was subject of an earlier proceeding (VID852/2018) (which it seems to be), then the applicant has released the respondents from any claims relating to that item as a part of the settlement of that earlier proceeding and is barred from raising them in this proceeding (see in particular Amended Statement of Claim at [9]-[34] and Deed of Settlement at [2.4] and [3.2], both attached to these submissions).

Paragraphs 29–31 and 42–44 allege negligence on the part of the respondents, because they relied on verbal communication by Serco and responded with false, misleading, malicious and vexatious information to the applicant (see also paragraph 15). It could not possibly constitute negligence on the part of the Commonwealth to rely on a verbal communication to it by its contractor Serco. Further, the Court has no jurisdiction in respect of a claim for damages for negligence.

Paragraphs 32–33 and 45–46 assert a failure on the part of the respondents to refer the matter of alleged damage, theft, tampering and manipulation of personal property to the right authority for criminal investigation. It is not apparent to what cause of action this alleged failure could give rise.

Paragraphs 34 and 47 allege a failure by the respondents to monitor Serco’s contractual obligations. It is not apparent to what cause of action on the part of the applicant any such failure could give rise.

Paragraphs 35, 48 and 56 asserts a breach of confidentiality and privacy of the applicant and his family members, by reason of the matters in paragraphs 19, 20, 21 and 22. This apparently arises from the allegation that a Verbatim disc of the applicant’s was lost by Serco (paragraph 7) and, conversely, a USB was placed in his in-trust property (paragraph 8). The applicant’s evidence demonstrates that the Verbatim disc was released to the applicant on his request but not processed correctly in Serco property records: Fourth Abela Affidavit [46]. There are no particulars in relation to the USB allegation, other than on an unspecified date Serco officers are alleged to have taken a USB and copied confidential information about the applicant, including information about the applicant’s family and legal proceedings: see Fourth Abela Affidavit at [85]. If that allegation is the same allegation that was made by the applicant in an earlier proceeding (VID852/2018) (which it seems to be), that allegation was, as with the allegation at [45.1] above, resolved in the settlement of that proceeding and cannot be re-agitated here (see Amended Statement of Claim at [7], [9]-[13], [15]-[18], [20]-[21], [26]-[30] and Deed of Settlement at [2.4] and [3.2], both attached to these submissions).

The assertion in paragraphs 36, 49 and 55 of a generalised failure on the part of the respondents to comply with “legislations, Commonwealth laws and or policies” does not give rise to a cause of action.

The assertion in paragraphs 37 and 50 of a breach of an unspecified contract does not give rise to a cause of action, in circumstances where there is no contract alleged between any respondent and the applicant. To the extent that a breach of the contract between Serco and the Commonwealth is alleged, that cannot give rise to a right to claim damages on the part of the applicant.

Paragraphs 54 alleges that the respondents deliberately acted in a biased and prejudiced way, and in conflict of interest. That does not give rise to any cause of action for damages on the part of the applicant.

Paragraphs 58–60 allege “mental anguish and physical harm”, though it is not apparent from what. In any event, these matters do not articulate any cause of action.

85    The respondents submitted that the affidavits did not cure the deficiencies.

86    The applicant took issue with the respondents’ submission, in part claiming that the respondents had not articulated the section of the Migration Act the respondents were relying on. The applicant’s submission refers generally to legislation and to lengthy extracts from judgments, articles and reports, in asserting that there is jurisdiction and that he has a basis for his claims. For example, the applicant submitted, inter alia:

9. The applicants Originating application and statement of claim filed in the Federal Court of Australia in VID436 of 2020 includes “matters” that arise in the statutes listed are those which confer jurisdiction upon the Federal Court in addition to the general jurisdiction vested under the Constitution through section 39B of the Judiciary Act 1903.

9.1 Judiciary Act 1903 (Cth):

9.2 Administrative Decisions (Judicial Review) Act 1977 (Cth):

9.3 Australian Human Rights Commission Act 1986:

9.4 Australian Postal Corporation Act 1989:

9.5 Charter of the United Nations Act 1945:

9.6 Copyright Act 1968:

9.7 Corporations Act 2001:

9.8 Crimes Act 1914:

9.9 Criminal Code Act 1995:

10. Customs Act 1901:

10.1 Defence Service Homes Act 1918:

10.2 Disability Discrimination Act 1992:

10.3 Extradition Act 1988 (Cth): 10.4 Federal Court of Australia Act 1976 (Cth):

10.5 Freedom of Information Act 1982:

10.6 Independent Contractors Act 2006:

10.7 Migration Act 1958 (Cth):

10.8 Migration Litigation Reform Act 2005 (Cth):

10.9 Privacy Act 1988:

10.10 Proceeds of Crime Act 2002:

10.11 Public Interest Disclosure Act 2013:

10.12 Safety, Rehabilitation and Compensation Act 1988:

10.13 Security of Critical Infrastructure Act 2018:

10.14 Work Health and Safety Act 2011:

10.15 Transport Safety Investigation Act 2003:

10.16 Public Service Act

10.17 ADMINISTRATIVE LAW:

10.18 Common Law:

10. The case involves “Matters” under the Federal Court Rules 2011 - Rule 9.01 “Multiple causes of action”.

11. The applicant submits, and replies the case includes “Matters” arising under the common law duty of care.

87    The applicant submitted that, because the Court had jurisdiction in VID852, it must have jurisdiction in the present case. The applicant submitted, inter alia, that Lee J found the Federal Court has jurisdiction in VID852, and that this establishes that the Federal Court has jurisdiction in this matter. As the respondent submitted, it is not apparent to what decision of Lee J the applicant refers. That said, the position in VID852 was quite different.

88    The applicant also claimed a breach of contractual agreement and obligations in relation to the contract between the Commonwealth and Serco in relation to the provision of immigration detention services, and quotes verbatim what appear to be extracts from such a contract. The applicant also explained that his case is about his treatment during the course of immigration detention and he will submit more documents relating to his personal property that has been “damaged, stolen and missing” during his detention and quotes a substantial amount of text from what appears to be a United Nations Report.

89    In reply, the respondents submitted that the applicant has not addressed why those specific matters he identified in his submission are not foreclosed by the settlement deed in VID852. In any event, the position in VID852 was different from these proceedings for the reasons given above at [58].

90    The respondents submitted that although the applicant refers to the “common law”, “administrative law”, pieces of legislation, a number of statutory and constitutional provisions, he does not explain, and it is not otherwise apparent, how any of those provisions have any relationship to the applicant’s proceeding or the present interlocutory application. The respondents submitted that it cannot be expected to trawl through all the legislation to determine whether a possible claim arises. In respect to the extracts from the contract, the respondents submitted that regardless of the content of those extracts, the applicant is not a party to that contract and cannot seek relief in respect of it. In respect to the reliance on the United Nations Report, the respondents submitted that neither that submission nor that material identifies what the applicant’s legal claims are, why the Court has jurisdiction in respect of them, or provides any basis to support a conclusion that the applicant advances an identifiable legal claim with any prospect of success.

91    The applicant submitted that the respondents have engaged in “unlawful and illegal actions and conduct upon” the applicant, and identifies a list of legislation: AS [8]. However, he does not identify how he relies on any of the legislation that he identifies. It is not for the respondents to trawl through that legislation to determine whether the applicant could possibly have a claim arising under any of those individual acts.

Consideration

92    For the reasons that follow he respondents’ submission should be accepted.

The pleadings

93    The breadth of the complaints in this originating application is evident from the description above at [74].

94    The statement of claim also makes various complaints about how the applicant contends he has been treated while in immigration detention, including allegations of: damage, theft, tampering and manipulating of personal property belonging to the applicant, and trespass to goods; failure and neglect of duty of care to the applicant; absence of lawful authority under the Australian Border Force Act 2015 (Cth) to investigate a criminal matter; failure to refer the matter of the alleged damage, theft, tampering and manipulating of personal property belonging to the applicant to the right authority for criminal investigation; failure by the Commonwealth to monitor Serco’s contractual obligations; failure and neglect by the Commonwealth to consider confidential, private, personal and sensitive documentation and information on Verbatim Disc FA 18/06/00414; failure to consider “alleged legislations, Commonwealth law and or policy”; breach of contract; conversion and detinue; various forms of harm; bias, prejudice and conflict of interest; and breach of confidence.

95    In these proceedings, as with VID167, the applicant submitted that his originating application and statement of claim in this matter include matters that arise under 16 identified statutes as well as “Administrative Law” and “Common Law”. The submission recited above at [86] is reflective of the nature of the applicant’s submission as to the application of legislation to these proceedings. Simply listing legislation does not identify a cause of action. As the respondents submitted, it cannot be expected to trawl through the sixteen pieces of legislation to determine if there is a possible claim under some provision in some Act. Where there has been reference to a provision, as the respondents correctly explains in [83]-[84] above, those provisions have no relevance to these proceedings. They do not identify a cause of action.

96    Again, nothing contained in the affidavits assist in identifying the claims or the bases thereof.

97    Against that background I turn to the application for summary dismissal.

Summary dismissal

98    Again, in the context of the pleadings, it is difficult to ascertain the applicant’s claims, but so far as they are comprehensible, they have no reasonable prospect of success.

99    There does appear to be some overlap between these proceedings and VID852, however, given the state of the pleadings it is difficult to ascertain to what extent. The applicant accepted during the hearing the USB referred to in these proceedings is the same as in VID852. The identity of the Verbatim disc is less clear. That said, in relation to both the USB and the Verbatim disc, in these proceedings, the applicant asserts breach of confidentiality and privacy to himself and his family members. It is alleged that on an unspecified date Serco officers took a USB and copied confidential information about the applicant, including information about the applicant’s family and legal proceedings: see Second Abela Affidavit at [85]. That allegation does appear to be the same allegation that was made by the applicant in VID852 which was resolved in the settlement of that proceeding and cannot be re-agitated by virtue of the deed of settlement. This would also include the claims of trespass, conversion and detinue, and conspiracy to steal or tamper with goods, in so far as the claim relates to this USB. The Verbatim disc appears to relate to the same allegations. As the respondents submitted, the applicant’s evidence, in so far as it relates to the disc, appears to be that it was released to the applicant on his request but not processed correctly in Serco property records.

100    As to the issue of jurisdiction, for the same reasons as given in relation to VID167 at [54]-[57], the applicant has not linked the claims to the jurisdiction of this Court. The applicant relied in large part on the same cases as addressed at [58] and lists of legislation. The example of the submission recited above at [86], does not without more, establish jurisdiction. The applicant’s assertion that his case is the same as those he recites passages from, is misplaced. The submission does not address the pleadings in this case.

101    Even leaving aside any issue of jurisdiction, and looking at the claims as best as can be understood, I accept the respondents’ submissions at outlined above at [79]-[84] properly characterise the issues that arise from the orders sought in the proceedings. Again, mindful of the care that must be taken before ordering that a matter be summarily dismissed, and the difficulties faced by an unrepresented applicant nonetheless, the respondents have established that course should be taken in this case. The claims as pleaded, as best as they can be ascertained, the respondents have established that there is no reasonable prospect of success.

102    Had I not considered that summary dismissal was appropriate in this case, I would have granted the respondents’ application that the pleadings be struck out. For the reasons given above at [94]-[96], these pleadings suffer from the same deficiencies as those in VID167.

Conclusion

103    In respect to each of the proceedings, I am satisfied there is nothing to suggest that any of the claims which the applicant seeks to make have a reasonable prospect of success. I am satisfied that this case is a matter in which it is appropriate to order it be summarily dismissed.

104    Even if I had found that not to be the case, considering the state of the pleadings and the material put before the court, I would have granted the respondents’ interlocutory application that the pleadings be struck out and that it would be fruitless to grant leave to replead. The pleadings in these proceedings suffer from the same deficiencies as in VID167. For the reasons explained above at [93]-[96], these pleadings fail with any clarity to identify any specific cause(s) of action, or the elements or material facts thereof necessary to satisfy the requirements of any cause of action. They do not fulfil the basic function of a pleading. They are embarrassing within the meaning of r 16.21.

Costs

105    The respondent submitted that in these circumstances that costs should follow the event in each proceedings. The respondents further sought such costs on an indemnity basis contending inter alia, that given the matters above, the proceedings should never have been brought. The respondents put the applicant on notice by the letters sent to him dated 19 August 2020 and 26 August 2020 annexed to the affidavit of Mr Vicendese in each proceedings, that the proceedings had no reasonable prospects of success and were defectively pleaded, made a “walk away” offer for the discontinuance of the proceedings (in place of the ordinary rule by which discontinuance would require the applicant to pay the respondents’ costs), and put the applicant on notice that they may seek indemnity costs.

106    The principles in relation to the award of indemnity costs are well established. The Court has a broad discretion to order costs: s 43 FCA Act. Costs ordinarily follow the event and are awarded on a party–party basis unless there are particular or special circumstances which would warrant the Court making a special costs order, including an order that costs be assessed on an indemnity basis: Colgate-Palmolive Company v Cussons Pty Limited [1993] FCA 801; (1993) 46 FCR 225 at 232-234.

107    In Colgate-Palmolive at 233 the Court, having referred to the principles, provided examples of the circumstances which may warrant the exercise of the discretion to award indemnity costs which include: evidence of a particular misconduct that causes loss of time to the court and the other parties; the fact that the proceedings were commenced for some ulterior motive; the fact the proceedings were commenced in willful disregard of known facts or clearly established law; the making of allegations that ought never to have been made, or the undue prolongation of a case by groundless contentions; an imprudent refusal of an offer to compromise; or an award of costs on an indemnity basis against a contemnor. The list was not intended to be exhaustive and nor are the categories of cases in which the discretion may be exercised to award indemnity costs closed.

108    I am mindful of the fact that the applicant is unrepresented. In Ogawa v The University of Melbourne (No 2) [2004] FCA 1275, Kenny J observed at [42]:

Generally speaking, courts are more reluctant to make orders for indemnity costs against litigants in person than against legally represented litigants, although, in an appropriate case, they will make such an order. In Bhagat v Royal and Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159 at [13] Hodgson CJ in Eq observed:

… I accept that a court does have to make allowances for the position of litigants in person, and to try to ensure that such a litigant does not lose out because of lack of expertise; although there is a limit to what the Court can do in that regard, while still remaining an impartial determinant of a dispute. The Court may in those circumstances refrain from making orders against litigants in person for conduct that might be considered as justifying orders for costs against represented litigants. By the same token, litigants in person can cause great hardship and expense to other parties, through making allegations and claims that lawyers would recognise as allegations and claims that could not reasonably or even properly be made, and through making proceedings much longer and much more expensive than they would otherwise be, by not focusing accurately on the real issues in the case. Conduct of that nature by legally represented parties would often lead to orders for indemnity costs. Litigants in person may escape the consequence of indemnity costs, but I do not think that the circumstance that a party is a litigant in person is a ground for displacing the ordinary result that costs follow the event.

As a Full Court of this Court (constituted by O’Loughlin, Whitlam and Marshall JJ) observed in Bhagat v Global Custodians Ltd [2002] FCA 223 at [57], the Chief Judge did not say that litigants in person always escape the consequence of indemnity costs. Indeed, the Full Court in that case declined (at [60]) to interfere with the decision of the trial Judge to order indemnity costs against the unrepresented litigant.

109    There is strength in the respondents’ submission. However, in the circumstances of this case, including that the applicant is unrepresented and in detention, I do not propose to accede to the application that costs be awarded on an indemnity basis. The applicant has filed other claims which do not suffer the defects of these. He has had no legal assistance in relation to these matters, unlike another proceeding currently before the Court. In relation to each proceeding the applicant is to pay the respondents’ party-party costs to be agreed or taxed.

Associate:

Dated:    12 February 2021