Federal Court of Australia

Director-General of Security v AIX20 [2024] FCA 88

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal filed on 15 November 2023 be dismissed.

2.    The application for a stay of proceeding VID711/2022 be dismissed.

3.    The applicant pay the respondent’s costs, to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

MORTIMER CJ:

1    The applicant in this proceeding, the Director-General of Security, seeks leave to appeal from orders of the primary judge in AIX20 v Director-General of Security [2023] FCA 1344, refusing an application for summary dismissal of both of the causes of action brought in VID711/2022 by the respondent to this application, identified by the pseudonym of AIX20. The Director-General also sought a stay of proceeding VID711/2022 if leave to appeal was granted.

2    For the reasons below, the application for leave to appeal must be dismissed. So too must the stay application.

Introduction

3    The respondent to this application challenges the validity of, and seeks damages in negligence in relation to, two adverse security assessments (ASA) made in 2019 and 2020 by the Director-General, as well as a decision of the Director-General on 19 March 2021 not to act on a recommendation of the Independent Reviewer of Adverse Security Assessments. The Minister for Home Affairs had cancelled the respondent’s temporary protection visa in 2019 on the basis of the first ASA, although the respondent had resided in the Australian community under his visa and without incident for seven years prior to 2019. The second ASA resulted in the respondent continuing to be detained, despite a recommendation by the Reviewer (after the second ASA) that he was not “directly or indirectly” a risk to security within the meaning of s 4 of the Australian Security Intelligence Organisation Act 1979 (Cth), that the second ASA was “not a proportionate response to the material [the Australian Security Intelligence Organisation] has relied on in furnishing the ASA” and that the second ASA was “not an appropriate outcome”. The Director-General did not accept this recommendation. The respondent was detained for approximately two and a half years.

4    After the Director-General made a third assessment in August 2022, described as a “non-prejudicial security assessment”, the visa cancellation was revoked by the Minister. The respondent was granted a bridging visa and released from detention. The third assessment was furnished only 25 days before a trial challenging the validity of the first and second ASAs by way of judicial review was due to commence in this Court.

5    In the proceeding, the respondent contends:

There had been no change in any relevant facts since the Director-General had furnished the First ASA or the Second ASA, or made the 19 March 2021 Decision (PJ [6], [21]), nor any explanation of any new fact or basis on which it was admitted that there was no basis for an adverse security assessment. Following his release from immigration detention, AIX20 commenced the proceeding below claiming, inter alia, that the Director-General owed him a duty to take reasonable care in the exercise of his powers under ss 17(1) and 37 of the ASIO Act and that the Director-General had breached that duty by furnishing the First ASA and the Second ASA and making the 19 March 2021 Decision.

(Bold in original.)

6    On 3 October 2023, the Director-General brought an interlocutory application in proceeding VID711/2022 seeking:

(a)    an order pursuant to r 30.01 of the Federal Court Rules 2011 (Cth) that certain questions be heard separately;

(b)    alternatively, an order pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) and/or r 26.01 of the Rules that the proceeding (alternatively, the claim for damages for negligence) be dismissed on the ground that the applicant has no reasonable prospect of successfully prosecuting the proceeding (alternatively, the claim for damages for negligence).

7    The primary judge dismissed the Director-General’s interlocutory application by way of judgment and orders on 3 November 2023.

8    On 15 November 2023, the Director-General filed an application for leave to appeal from the primary judge’s orders, leave to appeal being required because of the general prohibition in s 24(1A) of the FCA Act on appeals from interlocutory decisions. No leave to appeal was sought from the primary judge’s orders dismissing the application for separate questions.

9    The grounds for the application for leave to appeal are:

1.     The Primary Judge erred in declining to make an order pursuant to s 31A of the Act and/or r 26.01 of the Federal Court Rules 2011 (Cth) that the proceeding be dismissed on the ground that AIX20 has no reasonable prospect of successfully prosecuting the proceeding.

2.     Alternatively, the Primary Judge erred in declining to make an order pursuant to s 31A of the Act and/or r 26.01 of the Federal Court Rules 2011 (Cth) that the claim for damages for negligence be dismissed on the ground that AIX20 has no reasonable prospect of successfully prosecuting that claim.

3.     The Primary Judge's decision is attended with sufficient doubt to warrant the grant of leave and substantial injustice would result from a refusal of leave to appeal.

4.     If leave was granted and the appeal allowed, the proceeding could be disposed of on a final basis. Pursuant to s 37M of the Act, this would facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible by avoiding the need for the parties to run complex, costly and potentially unnecessary processes and/or hearings regarding:

a.     public interest immunity claims asserted by the Applicant that will likely be challenged by AIX20 and may require resolution of competing positions on any appointment of special counsel or amicus curiae;

b.     consideration and resolution of competing positions of any novel procedures involving the appointment of special counsel or amicus curiae in relation to the running of any final hearing;

c.     subject to the resolution of public interest immunity claims, general discovery between the parties; and

d.     the final hearing for liability in negligence, damages and jurisdictional error.

10    The Director-General read the affidavit of Mr Anthony Giugni affirmed on 23 November 2023, and the respondent read the affidavit of Mr Walid Babakarkhil affirmed on 2 February 2024.

11    On this application, the Director-General contended the primary judge erred in refusing summary dismissal of both the negligence claim and the judicial review application; alternatively, his Honour erred in refusing summary dismissal of the negligence claim. Whichever alternative contention is considered, I consider leave to appeal should be refused.

Consideration

12    The principles governing the grant or refusal of leave to appeal under s 24(1A) are well established and were not in dispute. As is generally the case, it is their application to the primary judge’s reasoning, and the consequences of his Honour’s decision, where the dispute lies.

13    Nevertheless, it is worth repeating that it is well established that the policy behind s 24(1A) is one aimed at the restraint of appeals from interlocutory decisions unless sufficient justification is shown. The Court has a wide discretion about when such justification is present, but nevertheless I respectfully agree with the observations of French J (as his Honour then was) in Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572; 104 FCR 564 at [42] that:

The time and resources of the Court and the parties should not lightly be taken up with appeals about decisions in connection with proceedings which do not finally determine the rights of the parties.

14    Given the time and resources that have been applied to this leave to appeal application since it was filed, there is some irony in the Director-General’s application, in that a significant plank of the argument turns on the considerable time and resources that are likely to be employed if the primary judge’s orders are not disturbed. Absent this application, the Director-General would have been able to focus on meeting the timetable set out in the primary judge’s case management orders of 14 December 2023 in respect of the discovery process, and the (I infer) more limited resources of the respondent to this application would not have been diverted to defending the primary judge’s orders and reasons.

15    It is also worth emphasising that although the factors of (a) attended by sufficient doubt to warrant the grant of leave, and (b) substantial injustice, are not statutory factors, they have been accepted as expressing the principal considerations which are likely, in most cases, to govern the exercise of discretion under s 24(1A). As McKerracher J observed in Bux Global Ltd v Hooke [2018] FCA 882 at [26], by reference to Neimann v Electronic Industries Ltd [1978] VR 431, it is generally appropriate for a court to be satisfied that both factors warrant the grant of leave, not just that an order may be attended by error. Plainly enough, error may ultimately be corrected by an exercise of a party’s right to appeal after final judgment. In my opinion, that is because of the policy to which French J referred, and the legislative preference, evidenced by a prohibition subject only to a grant of leave, that after a primary decision on an interlocutory application (including a summary dismissal application), considerations of finality and the effective and efficient administration of justice favour proceedings continuing to trial. This does not mean the discretion is narrow or highly constrained. Rather, it recognises the policy underlying the terms of the statute.

Whether orders attended with sufficient doubt to warrant the grant of leave

16    On the summary dismissal application as it related to the negligence allegations, the primary judge found (at [38]-[39]):

In my view, the allegation that the applicant was owed a duty of care by the Director-General is sufficiently arguable for the matter to go to trial. Neither party cited any authority on whether a duty of care is capable of arising under the ASIO Act in like circumstances. While I accept the respondent’s submission that novelty of a duty of care does not of itself immunise a claim from summary dismissal, it is nevertheless difficult in such a case to reach a conclusion that the applicant has no reasonable prospect of successfully establishing the existence of a duty of care. It was common ground between the parties that the question of duty of care is to be determined prospectively. In the present case, determination of whether a duty of care was owed depends not only on a consideration of the relevant statutory provisions (and the statutory scheme) under which the Director-General furnished the adverse security assessments to the Department of Home Affairs, but also on the factual circumstances as they existed at the time the duty of care is alleged to have arisen. The factual circumstances include that the applicant had been granted, and held, a temporary protection visa, and that the likely effect of the Director-General furnishing an adverse security assessment to the Department of Home Affairs would be that the applicant would have his visa cancelled and be detained in immigration detention. Many of the Director-General’s submissions focussed on Sullivan v Moody. However, it is notable that, in the key passage relied on by the Director-General (at [60]), the High Court stated that if a suggested duty of care would give rise to inconsistent obligations, that would “ordinarily” be a reason for denying that the duty exists. However, the High Court did not rule out the possibility that a duty of care may exist. Further, it is notable that in the course of submissions, the parties cited cases from the highest courts of the United Kingdom and Canada. This underlines the point that it is difficult to determine the question of duty of care in this case on a summary basis.

In light of these matters, I am not satisfied that the applicant has no reasonable prospect of establishing the alleged duty of care.

17    Dealing next with the judicial review application, the primary judge set out the Director-General’s submissions that there is no reasonable prospect of declaratory relief being granted because the relief lacks utility, given that the cancellation of the respondent’s temporary protection visa has been revoked and the first and second ASAs have been superseded by the non-prejudicial security assessment.

18    The primary judge found in relation to judicial review (at [43]):

I am not satisfied that the applicant has no reasonable prospect of obtaining the declaratory relief that he seeks, if he is successful in establishing that the First ASA, the Second ASA and/or the 19 March 2021 Decision are affected by jurisdictional error. I consider it at least arguable that, if the applicant establishes jurisdictional error, there would be utility in making a declaration of invalidity. For example, it may be that in some circumstances, for example, a job application or a visa application to travel to a foreign country, the applicant is required to disclose that he has been the subject of an adverse security assessment, and he would wish to be in a position also to disclose that a Court has declared the adverse security assessment to be invalid. Further, notwithstanding the concession made by the Minister for Home Affairs and the Director-General as to the proper construction of s 501(6)(g), it may be that there is still utility in having a declaration of invalidity in relation to the security assessments to put the matter beyond doubt. I am therefore not satisfied that there is no reasonable prospect of a declaration being made in the event that the applicant were successful in establishing jurisdictional error in relation to the First ASA, the Second ASA and/or the 19 March 2021 Decision.

19    It followed that the application for summary dismissal was to be dismissed (at [44]).

20    The Director-General submits there is sufficient doubt about the primary’s judge’s characterisation of the negligence claim as ‘sufficiently arguable’ to justify the grant of leave to appeal. The Director-General submits the negligence claim has no real prospects of success and the primary judge was wrong to conclude otherwise. The Director-General submits that the novel duty alleged would result in ASIO and the Director-General “holding fundamentally inconsistent obligations”. Relying on the principles in Sullivan v Moody [2001] HCA 59; 207 CLR 562 regarding public authorities or their officers charged with investigative duties, and Cran v New South Wales [2004] NSWCA 92; 62 NSWLR 95 regarding police officers, the Director-General submits that the novel duty alleged is analogous to those circumstances, and points to examples of summary dismissals of negligence claims in relation to the police and other investigatory bodies. The Director-General submitted that the Australian position in relation to police investigation cases is “well settled”, as is that in the United Kingdom, and that it is only Canadian law that suggests a duty may be owed, turning on “the distinct, proximity-based Canadian test”, which no longer reflects the approach in Australian law to whether a common law duty of care is owed.

21    In relation to judicial review, the Director-General submitted the respondent “could be in no better position than he currently is, living freely in the Australian community” and that the declarations sought would have no impact on his legal rights or interests. The primary judge’s reasoning at [43] is described as relying “solely on speculation” as to possible scenarios where the declarations sought may have utility, such as job or visa applications or a ruling to put “beyond doubt” a hypothesised construction of s 501(6)(g) of the Migration Act 1958 (Cth). The Director-General submits that the disclaimer by the Director-General (to the Court, by way of agreement to notes in Court orders) of any such construction of s 501(6)(g) is sufficient. Senior counsel submitted that where the “non-prejudicial security assessment” is now the operative security assessment in relation to the respondent, it was improbable and unrealistic that the first and second ASAs could have any likely effect on the interests of the respondent in the future. He distinguished situations like Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564 where, in senior counsel for the Director-General’s words, “there has been a public traducing of reputation such that a public declaration can vindicate that”.

My conclusion

22    The primary judge recognised, as the Director-General submits, that a claim of a novel cause of action does not immunise a party from summary dismissal of that claim. Observations in authorities such as Perera v Genworth Financial Mortgage Insurance Pty Ltd [2017] NSWCA 19; 94 NSWLR 83 at [32] do not convey any wider proposition. What observations in cases like Minister for the Environment v Sharma [2022] FCAFC 35; 291 FCR 311 recognise however (see especially at [4], [211]-[213], [246] (Allsop CJ); [352]-[356], [362], [546], [580], [603], [633] (Beach J); [777] and [783] (Wheelahan J)) is that the common law is organic and developing. The proposition that a cause of action in negligence (see especially the observations of Beach J at [546] in Sharma) in a particular situation, or in respect of particular statutory powers (as here), has not yet been recognised does not foreclose the development of the common law in a way that might vindicate the arguments being made.

23    In State of New South Wales v Spearpoint [2009] NSWCA 233 at [31], Beazley JA said:

An application for summary dismissal is an extreme measure. It forever shuts a plaintiff out of an alleged claim. There is no case in Australia which says that a police officer is immune from suit in the sense that a police officer never can owe a duty of care. Although, as Allsop ACJ indicated during the course of argument, the cases may be rare where a duty of care is found, it was not established on this case that there could be no duty of care owed.

24    And see Fuller-Wilson v State of New South Wales [2018] NSWCA 218 at [12]:

[T]he primary judge was correct to conclude that the pleaded case would be dismissed in accordance with current authority. However, it is open to the appellants to argue, on reasonable grounds, that the common law in Australia should recognise a wider scope of liability. In that circumstance the better view is that the proceedings should not have been summarily dismissed.

25    Consistently with opinions of this kind, the primary judge has done no more than conclude that the respondent’s framing of a duty of care owed by the Director-General in the making of security assessments under the ASIO Act was sufficiently arguable to survive a summary dismissal application. In circumstances where there has been no consideration of this legislative scheme in that common law context, especially given that exercises of power under this scheme may result – as they did here – in the deprivation of liberty of an individual for substantial periods of time, there was no error in his Honour’s conclusion that this issue is best determined after a full trial.

26    On the leave application, both parties’ submissions descended into considerable detail, including by reference to Australian and comparative authorities, about why no such duty should be recognised, or why it should. Those will be matters for trial, and I say no more about them. The points made on each side of the Bar table were cogently made. This is a situation where the respondent’s allegations of a novel duty have been carefully framed, with a close eye to existing authorities and the development of the law that would be required. They are not mere assertions, and they are properly pleaded; the Director-General did not suggest otherwise. Cf Knowles v Commonwealth of Australia [2022] FCA 741 at [243]-[244], [271]-[272]. I also accept the respondent’s submissions that at this point in the proceeding, it is not possible to say that factual matters will play no role in determining whether such a duty of care exists. The factual context may be relevant: see Sharma at [19]-[42], [207] (Allsop CJ); [777] (Wheelahan J).

27    As to the judicial review application, his Honour took what I consider to be an orthodox approach to the question of utility. The grant of declaratory relief is a discretionary power, to be exercised by the Court upon full consideration of all the circumstances of the case. The Director-General’s submissions at least implicitly accepted that the judicial review grounds, in terms of the invalidity of the first and second ASAs, had good prospects of success. That is why there was the focus on relief by the Director-General, rather than on invalidity. The respondent will, at the appropriate time, have an opportunity to adduce evidence about how he contends his interests have been affected, or may be affected in the future, by the first and second ASAs, notwithstanding the subsequent change of opinion by the Director-General. The primary judge provided what I consider with respect to be sensible examples of how an individual’s interests might be affected. The respondent was not required to go into evidence on such matters at this point in the proceeding, in order to rebut the Director-General’s interlocutory application. The Director-General bore the onus of proof.

28    To mention such possibilities is not “speculation” in the sense that term was employed by senior counsel for the Director-General. Judges engaging in “speculation” in terms of fact finding might properly be the subject of criticism after a full trial, and completion of the forensic process of adducing evidence, where the ordinary principles about drawing of inferences could not be called in aid. At this point in a proceeding, it is difficult to see what else the primary judge could do but consider reasonable factual examples of how the first and second ASAs might affect the respondent’s interests. He was invited to do that by the character of the Director-General’s challenge to utility. There was no error in the approach his Honour took, nor in the conclusion that the Director-General had not discharged the burden of proving there was no reasonable prospect of the Court granting declaratory relief on the judicial review application.

Substantial injustice or prejudice

29    The Director-General submits that there would be a “substantial saving of time and resources” for the Court, the Director-General and the Commonwealth if leave is granted and the Director-General succeeds on appeal. The Director-General points to the inevitable public interest immunity (PII) claims that will be made during the discovery process in proceeding VID711/2022, which will need to be heard and decided by another Judge. The Director-General also submits that the respondent’s “novel approach to PII issues”, involving appointment of a special counsel or amicus curiae, would “represent a stark departure from an orthodox approach” and would result in significant expenditure of costs and resources. The Director-General further submits that even if only the duty of care question were resolved adversely to the respondent to this application, a pure judicial review proceeding would “generate significant efficiencies” and result in a “material shortening of the trial”. In relation to costs of a trial if the respondent is unsuccessful, the Director-General submits that “there is, in reality, no prospect that any costs would be recoverable” and that “the diversion of ASIO’s resources will be irremediable”.

My conclusion

30    The Court’s consideration of whether substantial injustice or substantial prejudice would arise for the moving party on the leave application if leave is not granted may be informed in some circumstances by probative evidence; or the proposition may be self-evident. Either way, there should be a reasonable likelihood of the moving party’s interests being affected in a way that the Court considers is sufficiently prejudicial to justify departure from the prohibition on appeals contained in s 24(1A).

31    While incurring further costs in the course of a proceeding that runs to trial might in some circumstances reach this threshold, as McKerracher J acknowledged in Bux Global at [46], incurring costs is a “normal” prejudice inherent in litigation. The Court is likely to need to be persuaded there is something that can properly be described as ‘unjust’ or ‘unfair’, or out of the ordinary run of what occurs in litigation.

32    There are no such factors present here, as I explain below.

33    The primary judge highlighted the likely PII claims to be made during discovery (at [11]):

Discovery in the proceeding has not yet taken place. An issue that has been canvassed at several case management hearings is that the Director-General is likely to claim public interest immunity over some or many of the relevant documents. The applicant proposes to establish the following structure to seek to persuade the Court not to uphold any such public interest immunity claims. The proposed structure is (in outline): (a) separate counsel would be briefed by the applicant (in addition to his present counsel); (b) the separate counsel would be available to receive confidential documents and would undertake not to disclose these documents to the applicant, his current lawyers or in Court (unless the Court hearing were subject to appropriate confidentiality orders); (c) the separate counsel would represent the applicant (eg, tender documents, cross-examine, make submissions) in relation to the documents; and (d) the applicant would consent to this structure (i.e. to the separate counsel not disclosing the documents to him). The applicant has indicated that, should there be public interest immunity claims over relevant documents, he will put forward this structure and seek to persuade the Court to permit access to the documents on a confidential basis in accordance with this structure. The Director-General has reserved his position in relation to the applicant’s proposal regarding separate counsel.

34    Mr Giugni deposed, and senior counsel emphasised in submissions, that claims of PII were likely to be made during the discovery process over a “substantial number of documents”, in circumstances where the respondent’s legal representatives have foreshadowed an application for the use of a “special counsel” process.

35    As the primary judge’s reasons disclose, there has been no interlocutory application for the use of such a process, although correspondence and proposals have been exchanged. The Court has made no order authorising a special counsel process. The Court will need to be persuaded such a process is appropriate in all the circumstances. On this application, there was too much emphasis on the spectre of such a process as a plank of the substantial injustice argument, because at the moment it is nothing more than speculation whether the Court will accept any such proposal put on behalf of the respondent, in circumstances where the Director-General has not agreed to it.

36    The Director-General is a well-resourced government litigant. No private interests are at stake here. What is at stake is scrutiny of exercises of public power that resulted in the respondent being deprived of his liberty for two and a half years, in circumstances where ultimately the asserted justification for that deprivation of liberty was not maintained. The Director-General acts under a legislative scheme that centres on national security, and therefore challenges to the exercise of public power under that scheme are likely to involve claims of PII. It is reasonable to surmise the Director-General will approach any litigation challenging exercises of power under this legislative scheme with that expectation. The more complex and lengthy the exercises of public power by the Director-General, the more complex and lengthy the likely documentation, and therefore the more complex and lengthy any discovery process will be, and the more complex any PII claims might be. All that is a consequence which the Director-General ought reasonably anticipate when these powers are exercised and then challenged. Absent any other kinds of prejudice established by evidence in a particular case (for example, concerning the interest of witnesses or some such matter), and absent any conclusions that the causes of action brought are so hopeless or ill-formulated that they should not be permitted to continue (cf Knowles), in circumstances such as the present, there is nothing unjust or unfair about a proceeding which involves the Director-General as a government litigant working through the ordinary steps of a proceeding towards trial.

37    Further, the parties’ submissions on the leave application proceeded on an estimated duration of five days for the trial if both causes of action proceed, or likely two days if only the judicial review proceeds. A five day trial cannot readily be described as some kind of unjust burden on a government litigant. That is especially so where both parties are capably represented and the Court can expect, as there has been to date, appropriate levels of cooperation between them as to the conduct of the trial, and a focus on restricting the use of court time to matters that are truly in dispute between the parties. The trial is listed for December 2024, and in that sense first instance finality to this proceeding can reasonably be apprehended at this point. The circumstances which prompted my observations in Knowles at [29] do not exist here.

38    Finally, senior counsel for the respondent invited the Court to place little weight on the Director-General’s contention that if the Director-General successfully defends the proceeding there is no real prospect of recovering costs from the respondent. I accept that submission. Failure by a government party to recover costs from an impecunious person who has been deprived of their liberty is not apt to be described as an “injustice”, even if there is a successful defence of the exercise of public power. Impecuniosity is one of the likely characteristics of the group of people generally subject to executive detention. Where it defends exercises of public power affecting liberty, a government party acting reasonably might well anticipate there is a real prospect that the costs of that defence are likely to be borne by the public purse. For not dissimilar observations see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v MB [2021] FCAFC 194 at [29]-[33], Stewart J; NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134 at [172], Madgwick J. Such an outcome may in many circumstances simply be the costs to the public purse overall of the administration of justice and the enforcement of the rule of law.

Stay of proceedings

39    Senior counsel for the Director-General accepted that the associated application for a stay was dependent on the success of the leave to appeal application. Since the leave to appeal application has not been successful, there is no need to consider whether a stay should be granted.

Conclusion

40    The application for leave by the Director-General is dismissed, as is the stay application. The Director-General did not submit costs should not follow the event. In my opinion, they should, and the respondent should have an order for costs on this application.

Associate:

Dated:    15 February 2024