Federal Court of Australia
Hassan (formerly described under the pseudonym AFX21) v Minister for Home Affairs [2024] FCA 527
ORDERS
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. At the applicant’s request, his name in this proceeding is no longer suppressed.
2. In place of the pseudonym, AFX21, the title of the applicant in the proceeding is amended to “Yasir Hassan (formerly described under the pseudonym AFX21)”.
3. The fifth further amended originating application, filed on 7 February 2023, be dismissed.
4. In the event that agreement between the parties as to the appropriate orders for costs is not reached:
(a) the parties are to agree a timetable by 4:00pm on Monday 3 June 2024 in which short submissions on, and any evidence with respect to, costs are to be filed and served; and
(b) subject to further order of the Court, any issue as to costs is to be determined on the papers.
5. Insofar as may be necessary, pursuant to rule 36.03(b) of the Federal Court Rules 2011 (Cth), the date by which any notice of appeal is to be filed be fixed as the date 28 days after final orders are made in respect of costs.
THE COURT NOTES THAT:
6. The parties are to use their best endeavours to agree costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
PERRY J:
1 The applicant, Mr Yasir Hassan, is a citizen of Somalia. On 18 December 2019, Mr Hassan was brought to Australia from Papua New Guinea (PNG) for treatment of mental health issues. The applicant was one of a cohort of critically ill individuals transferred from offshore immigration detention to Australia for urgent medical treatment. Those transferees are known colloquially as medevac transferees.
2 The first to fourth respondents are respectively: the Minister for Home Affairs; the Minister for Immigration, Citizenship and Multicultural Affairs; the Commonwealth; and the Secretary of the Department of Home Affairs.
3 On 21 January 2020, the applicant made a request for his removal from immigration detention in Australia to PNG under s 198(1) of the Migration Act 1958 (Cth). That section provides that an “officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed”. However, the applicant was removed to the United States of America only on 11 August 2021, over 500 days after his initial request. The applicant continues to reside in the United States.
4 By his fifth further amended originating application, the applicant seeks damages for an alleged breach of a purported duty of care owed to him by the respondents in failing to limit the duration of his detention to that required for the purpose of removal to PNG as soon as reasonably practicable from the time of his written requests of 21 January and 2 June 2020. The question is novel as the duty of care for which the applicant contends has not hitherto been recognised by any Australian court. The applicant also seeks aggravated and exemplary damages. Finally, while the applicant sought declaratory relief in his fifth further amended originating application, in oral submissions his counsel, Mr Gormley, confirmed that declarations were no longer sought: Transcript (T)-87–88.
5 For the reasons which follow, the application must be dismissed. In summary, first, no duty of care known to the common law of Australia is alleged and recognition of a duty to the effect pleaded would create incoherence with the operative provisions of the Migration Act. The claim, therefore, must fail at the threshold stage because no duty of care was owed by any of the respondents to the applicant in the terms alleged. Secondly, even if a duty of care as alleged was owed at common law by all or some of the respondents, the applicant has not established the factual allegations on the basis of which he contends that the respondents were in breach of their duty of care, save that it is agreed that no steps were taken to remove him between January 2020 and February 2021. In particular, the applicant has not proved that there was no system established by the respondents to administer requests by medevac transferees for their return to regional processing countries. To the contrary, the evidence establishes, on the balance of probabilities, that a system to administer requests for the return of such persons did exist between 18 December 2019 and 16 February 2021 (the relevant period). Thirdly and in any event, the applicant has not established that the respondents’ conduct caused the applicant to suffer any loss and damage of the kind alleged. Even if the applicant could establish that “but for” the respondents’ conduct the applicant would have been removed from Australia to PNG prior to 20 March 2020, in my view the respondents’ scope of liability would not extend to the harm so caused. In particular, the Court found that the PNG border restrictions in response to the COVID-19 pandemic limited the respondents’ capacity to remove the applicant from Australia after 20 March 2020 and were an intervening act which broke the chain of causation.
6 In so finding, I do not seek to deny or underplay the personal impact upon the applicant of spending over 500 days in immigration detention at (primarily) the Melbourne Immigration Transit Accommodation (MITA), Avon compound. The applicant has clearly endured a terrible ordeal which it is right to acknowledge. This is all the more so where the applicant has not committed any crime, was brought to Australia only for the temporary purpose of receiving medical treatment, and had mental health issues throughout the duration of his detention.
7 Finally, I note that the applicant was formerly known as AFX21, but has requested to have his name used in these proceedings: T-2.28–33. The respondent had no objection with that course: T-5.3–4. Section 91X of the Migration Act prohibits the Court from publishing a person’s name where a proceeding relates to a person in their capacity as an applicant for a protection visa or a protection-related bridging visa, or a person whose protection visa or protection-related bridging visa has been cancelled. This proceeding does not fall into any of those categories, even though the applicant has sought asylum and been recognised as a refugee in PNG. In circumstances where s 91X of the Migration Act does not apply to the applicant and the applicant has requested the use of his name in the proceeding in conjunction with his pseudonym, I am satisfied that it is appropriate that he be named in this judgment.
8 The following facts were agreed by the parties in their statement of agreed facts filed on 22 September 2023 (SAF) or were otherwise not in issue.
9 The applicant was born in Somalia in 1988 and obtained Somalian citizenship at birth.
10 On 13 September 2013, the applicant arrived at Christmas Island as an unauthorised maritime arrival. As an unauthorised maritime arrival seeking asylum, he was detained by an officer of the Department of Home Affairs under s 189(3) of the Migration Act. On 28 October 2013, the applicant was taken to Manus Island, PNG, under s 198AD of the Migration Act.
11 On 15 July 2014, a Direction was made under s 198AD(5) of the Migration Act which directed officers to take unauthorised maritime arrivals, who had previously been taken to PNG and brought to Australia as a transitory person for the temporary purpose of undertaking medical treatment, back to PNG when they no longer needed to be in Australia for medical treatment (the 2014 s 198AD(5) Direction).
12 On 23 October 2015, the Government of PNG recognised the applicant as a refugee.
13 The Secretary was notified on 15 November 2019 under then s 198E(2) of the Migration Act that the applicant was a “relevant transitory person”. On 22 November 2019, a Medical Officer of the Commonwealth (MOC) recommended the applicant’s transfer from PNG to Australia for treatment of his mental health issues. On 28 November 2019, the Minister for Immigration approved the applicant’s transfer from PNG to Australia under then s 198E of the Migration Act.
14 On 5 December 2019, the Migration Amendment (Repairing Medical Transfers) Act 2019 (Cth) repealed former ss 198C to 198J of the Migration Act. On the following day, an officer of the Department approved the applicant’s medical transfer to Australia for a temporary purpose under s 198B of the Migration Act. That provision confers power on an officer of the Department to bring transitory persons into Australia for a temporary purpose.
15 On 13 December 2019, the applicant signed an Agreement of Medical Transfer. At the same time, the applicant was given a Transfer Information Sheet and Property Management Information Sheet. The applicant was brought to Australia on 18 December 2019 under s 198B. On arrival at Brisbane airport, he was taken into immigration detention because he was an “unlawful non-citizen” under s 189(1) of the Migration Act, and subsequently received treatment for his mental health issues. As an unauthorised maritime arrival, he was barred from making a valid application for a visa by force of s 46A of the Migration Act, absent the exercise by the Minister of a non-compellable statutory discretion.
16 On 21 January 2020, the applicant attended an interview with United States authorities for potential resettlement in the United States under the US Refugee Admissions Program (USRAP).
17 On 21 January 2020 at 4.19pm, the applicant made a written request under s 198(1) of the Migration Act to be removed from Australia to PNG. It is agreed between the parties that, between that date and 16 February 2021, no steps were taken to give effect to the applicant’s request for removal from Australia while he remained in immigration detention. It is also accepted by the parties that the applicant continued to receive treatment for his mental health issues throughout this period.
18 I note that the applicant also requested removal to Somalia at an interview with Gary Jeffery, a Status Resolution Officer (SRO), on 10 February 2020. However, the applicant withdrew that request at a meeting with the VIC Removals Team on 19 February 2020 at the MITA.
19 On 23 March 2020, a State of Emergency was declared in PNG in response to COVID-19.
20 On 2 June 2020, the applicant made a further request under s 198(1) of the Migration Act to be removed to PNG. That request precipitated various chains of correspondence between the applicant and persons from the Department concerning his removal from Australia. In particular, on 9 June 2020, the Australian Border Force (ABF) sent a letter to the applicant in response to feedback provided regarding the applicant’s request for return to PNG. The applicant sent emails on 10 June 2020 addressed to “PNG High Commission” regarding his request to return to PNG and on 23 June 2020, to the PNG Immigration & Citizenship Service Authority addressed to “Mkitai” also regarding his request to return to PNG.
21 On 22 January 2021, the applicant filed the originating application in this proceeding seeking declaratory relief and a writ of habeas corpus for illegal detention arising from the Ministers’ alleged failure to comply with the duty to remove him as soon as reasonably practicable. He claimed that this duty had been triggered by ss 198AD(2) and 198(1) of the Migration Act. The applicant also sought interlocutory orders for his immediate release and mandamus for his return to PNG by an Amended Application for Interlocutory Relief, filed on 23 February 2021. The Minister for Immigration filed evidence relevant to the removal duties issue deposing (among other things) to the difficulties of returning the applicant to PNG because of the COVID-19 pandemic.
22 Between 5 April 2020 and 27 May 2021, the International Health and Medical Services (IHMS) assessed the applicant as Category 1 under Pre Transfer/Return Medical Assessment Criteria. I explain these criteria later below.
23 On 15 February 2021, the applicant told his SRO that he wanted to get out of detention, to go to the United States, to return to PNG, or to go into the Australian community. On 16 February 2021, the Department requested approval from PNG to return the applicant to PNG. PNG gave in principle endorsement for the Department to return the applicant there on 25 February 2021. On 2 March 2021, the Department sought clarification from PNG regarding quarantine and entry requirements for the applicant’s return. The Department also sought an opinion on 10 March 2021 from a MOC as to whether the temporary purpose for which the applicant was brought to Australia was complete.
24 On 12 March 2021, the Department proposed return of the applicant to PNG on 23 March 2021 and informed PNG that the applicant was assessed as fit for travel without a medical or security escort. In furtherance of his planned removal, on 18 March 2021, the applicant was transferred by a commercial flight from Victoria to Queensland where he was held in Operational Quarantine initially in the Brisbane Alternative Place of Detention (APOD) Meriton Hotel and later that day, in the Brisbane Immigration Transit Accommodation (BITA).
25 On 19 March 2021, the Department booked a room for the applicant at the Holiday Inn in Port Moresby from 23 March 2021 until 6 April 2021 for the purpose of hotel quarantine. On the same day, the Department booked an Air Niugini flight for the applicant departing from Brisbane and arriving in Port Moresby on 23 March 2021.
26 However, on 20 March 2021, PNG suggested to the Department that the applicant’s return be delayed, on account of the spike in COVID-19 cases in PNG and the announcement of PNG’s National Isolation Strategy. On 21 March 2021, the applicant underwent a COVID-19 PCR test, which produced a negative result. He was released on 24 March 2021 from Operational Quarantine and moved into general population at the BITA.
27 On 25 March 2021, a Direction was made under s 198AD(5) of the Migration Act which directed officers to take unauthorised maritime arrivals to PNG in prescribed circumstances, or, in any other case, directed officers to take an unauthorised maritime arrival to the Republic of Nauru (the 2021 s 198AD(5) Direction).
28 On 26 March 2021, the Department requested approval to remove the applicant to Nauru. Nauru approved that request on 29 March 2021. However, the applicant sought injunctive relief restraining his removal to that country. Thereafter, the respondents gave an undertaking to the Court not to take any steps to effectuate any removal to Nauru before the injunction application was determined.
29 On 20 April 2021, PNG’s Chief Migration Officer confirmed approval for the Department’s return of the applicant to PNG, subject to entry approval by the PNG State of Emergency Controller. On 21 April 2021, the Department proposed return of the applicant to PNG on 13 May 2021. On 3 June 2021, the PNG State of Emergency Controller approved the applicant’s entry to PNG. The Department subsequently undertook steps to arrange for the applicant’s removal as follows:
(1) The applicant attended a consultation with a Mental Health Nurse on 4 June 2021.
(2) On 9 June 2021, the Department obtained a Statement of Identity from PNG.
(3) On 9 June 2021, the Department booked a room for the applicant at the Holiday Inn in Port Moresby from 21 June 2021 until 5 July 2021 for the purpose of hotel quarantine.
(4) An IHMS registered nurse assessed the applicant as fit to travel on 11 June 2021.
(5) On 11 June 2021, the Department booked a Qantas flight for the applicant from Melbourne to Sydney on 21 June 2021.
(6) On 15 June 2021, the Department booked an Air Niugini flight for the applicant from Sydney to Port Moresby on 21 June 2021.
(7) On 15 June 2021, the Department obtained uplift approval from Qantas for the applicant’s flight to Sydney on 21 June 2021.
(8) On 16 June 2021, the Department obtained uplift approval from Air Niugini for the applicant’s flight to Port Moresby on 21 June 2021.
(9) On 16 June 2021, the Department arranged Serco escort services for the applicant’s flight from Melbourne to Sydney on 21 June 2021.
(10) On 16 June 2021, the Department arranged Serco escort services to transfer the applicant from the Sydney Domestic Airport Terminal to the Sydney International Airport on 21 June 2021.
30 On 17 June and again on 18 June 2021, the applicant refused to undertake COVID-19 tests. As a result, the Department cancelled arrangements for the planned removal on 21 June 2021.
31 On 8 July 2021, the applicant was approved for resettlement in the United States, and departed Australia for the United States on 11 August 2021, where he remains.
32 By a document filed on 26 September 2023, the parties agreed that there were ten outstanding issues raised by the dispute, namely:
(1) Did the respondents owe a duty of care to limit the duration of the applicant’s detention to that required for the purpose of removing the applicant to PNG as soon as reasonably practicable from the time of his written requests of 21 January and 2 June 2020 to be returned?
(2) Between 18 December 2019 and 16 February 2021, had the respondents established a system to administer requests for return to regional processing countries by medevac transferees such as the applicant?
(3) If the answer to issue two is “no”, was the failure to establish such a system in breach of the respondents’ (alleged) duty of care?
(4) Was the respondents’ failure to take steps to remove the applicant to PNG from the time of his requests for return to 16 February 2021 in breach of their duty of care?
(5) Did any breach of duty cause foreseeable harm to the applicant in the form of loss of freedom from 21 January 2020 to 17 June 2021 and/or mental distress and anxiety?
(6) Were the respondents’ attempts to remove the applicant to PNG between 16 February 2021 and 16 June 2021 frustrated by the applicant himself?
(7) Did the 2021 s 198AD(5) Direction give the respondents’ authority to take the applicant to Nauru?
(8) Do the civil liability laws of Victoria and/or Queensland apply to the applicant’s claim and, if so, to what effect?
(9) Is the applicant entitled to compensatory damages and, if so, in what amount?
(10) Is the applicant entitled to aggravated and exemplary damages, and if so, in what amount?
33 The parties now accept that, owing to subsequent developments in the evidence, issue seven no longer needs to be determined. Likewise, the parties no longer press issue six, as the applicant no longer maintains any claim for damages after he refused to cooperate with authorities on 17 June 2021. Nor do the respondents contend that the applicant frustrated the Department’s attempts to remove him prior to 17 June 2021. Those issues can therefore be put to one side.
34 The remaining eight issues fall into six general categories, which is how I have structured the balance of these reasons.
(1) Does a duty of care in the terms proposed by the applicant exist (issue one)?
(2) If such a duty of care exists, has the duty been breached (issues two, three and four)?
(3) Which law governs the dispute (issue eight)?
(4) Has the applicant established that the alleged breach caused loss or damage (issue five)?
(5) Does a statutory limit and/or bar apply to the applicant’s claim (issue eight)?
(6) What is the amount, if any, of damages for which the respondents severally or jointly are liable (issues nine and ten)?
35 Both parties relied on a significant volume of documentary evidence, in addition to the statement of agreed facts. However, no witnesses were required for cross-examination.
36 The applicant relied on the following affidavits, subject to certain limitations the subject of agreement between the parties or of rulings:
(1) six affidavits of the applicant, Mr Yasir Hassan, affirmed 22 January 2021, 13 February 2021, 14 February 2021, 29 March 2021, 21 June 2021 and 20 April 2023; and
(2) three affidavits of Ms Chloe Taylor, solicitor for the applicant, affirmed on 4 May 2022, 4 May 2022, and 16 May 2023.
37 In addition, the applicant read a number of affidavits which were originally filed, but ultimately not read, by the respondents. The respondents advised less than a week before commencement of the trial that they would not seek to read various affidavits filed by them, despite the affidavits having been included in the Court Book. Counsel for the applicant understandably explained at the commencement of the hearing that this forensic decision had caught the applicant by surprise, and had led to the unusual situation where the applicant read certain affidavits (or parts thereof) filed by the respondents (T-18.27–43). These were as follows:
(1) five affidavits of Ms Alana Sullivan, affirmed on 26 February 2021, 15 March 2021, 26 March 2021, 22 April 2021, and 22 August 2023 (excluding [5]–[11] and the heading above [5]). Ms Sullivan has been employed by the Department since November 2016 and is the First Assistant Secretary for the Integrity, Security and Assurance team in the Chief Operating Officer Group of the Department. From August 2020 to October 2022, Ms Sullivan was First Assistant Secretary, Regional Processing and Resettlement Taskforce within the National Resilience and Cyber Security Group of the Department. She was previously in senior roles relating to regional processing and resettlement from December 2016 and had responsibility for regional processing operations, program, policy, contracts, resettlement and returns.
(2) the affidavit of Mr Gregory Wood, affirmed on 1 March 2021. Mr Wood is employed by the Department as a SRO within the Status Resolution Network at the MITA detention facility; and
(3) the affidavit of Mr Gary Jeffery, affirmed on 28 July 2023. Mr Jeffery is also a SRO within the Status Resolution Network at the MITA detention facility. He was the SRO assigned to the applicant from the time of his arrival at the MITA until 12 March 2021.
38 In addition, the applicant tendered:
(1) Paragraphs 6 and 12 of the affidavit of Mr Cameron Retallick, affirmed on 25 August 2022 in relation to the proceeding NSD60/2021 which were provisionally received in evidence. Mr Retallick is an Australian Government Solicitor lawyer with conduct of the matter for the respondents;
(2) four documents referred to in the Notice to Produce called upon on 6 December 2023; and
(3) a bundle of relevant documents comprised of clinical records and mental health assessments.
39 In my view, the tender of paragraphs 6 and 12 of Mr Retallick’s affidavit should be refused on the basis that the applicant did not adequately explain their relevance.
40 No expert medical evidence was led.
41 The respondents relied upon the affidavits of a number of witnesses which were read, subject to certain limitations the subject of agreement between the parties or of rulings made at the hearing. That evidence was as follows.
42 First, the respondents read the affidavit of Mr Ashley Eastwood, affirmed on 28 July 2023. Mr Eastwood is a Complex Status Resolution Case Officer (Complex SRO) in the Immigration Integrity and Community Protection Division of the Status Resolution Branch within the Department. He was promoted to that role in June 2018 after working in the Status Resolution Branch as a SRO largely since July 2007.
43 Secondly, the respondents read the affidavit of Ms Jennifer Green affirmed on 28 July 2023 (Green affidavit). Ms Green is the Superintendent of Detention Operations Victoria and Tasmania in the Detention Operations branch of the ABF. The ABF is an agency within the portfolio of the Department. Detention Operations:
is responsible for the placement and movement of detainees within the Immigration Detention Network, in conjunction with the Departmental contractor, Serco Australia Pty Ltd (Serco), which provides facilities and detainee services, including the security, welfare, transport, escort and garrison services in the immigration detention facilities operated by the Department. The Department contracts health services to International Health Medical Services Pty Ltd (IHMS).
(Green affidavit at [3].)
44 Ms Green commenced her position in November 2018 and in that role was at all relevant times “responsible for overseeing the operational management of immigration detention facilities and Alternative Places of Detention (APODs) in Victoria, and the detainees within those facilities” (emphasis omitted). Her affidavit responded to certain paragraphs of the applicant’s affidavit affirmed on 20 April 2023.
45 Thirdly, the respondents read the affidavit of Ms Kate Kruse affirmed on 4 August 2023, who is an inspector in Detention Health Operations within the ABF. Ms Kruse has held this role since March 2020. She also held a variety of roles since commencing with the Department in 2008 including, relevantly, Border Force Supervisor in the Detention Health Operations section of the ABF between February 2016 and January 2020. She gave evidence about how Detention Health and IHMS operated between 2019 to 2021.
46 Finally, the respondents read the affidavit of Mr Jason Jackson, affirmed on 16 August 2023 who commenced his employment with the Department in July 2011. Mr Jackson has held the role of an Acting Inspector in Detention Governance, Strategy and Standards within the ABF since 27 July 2023. His substantive position is Border Force Supervisor (APS6), which he has held since 2016. As an Acting Inspector, his responsibilities included training, managing, and supporting staff within the immigration detention network, providing input into various briefs and reports, managing responses to external scrutiny bodies, providing procedural guidance on detention related matters, and interrogating and reporting on various departmental IT systems.
47 The respondents also tendered:
(1) a notice to admit, dated 23 June 2023;
(2) the respondents’ tender bundle, filed on 25 August 2023;
(3) an agreed position statement provided to the Court on 3 September 2021; and
(4) a letter from Mr Cameron Retallick of the Australian Government Solicitor to Ms Chloe Taylor of Hall & Wilcox requesting particulars, and an email from Ms Taylor to Mr Retallick in response.
4.3 Ruling on the admissibility of the Australian Human Rights Commission Report
48 At the hearing, I reserved my ruling on the admissibility of one piece of evidence. The Australian Human Rights Commission (AHRC) entitled “Inspection of Australia’s immigration detention facilities 2019 Report” (the AHRC Report) which was annexed to the affidavit of Ms Taylor affirmed on 4 May 2022. The applicant seeks to rely on this as evidence of the conditions in which he was detained, which in his submission is relevant to the question of whether any breach of duty caused foreseeable harm to him, and to the quantum of any damages to be awarded.
49 The respondents submit that the AHRC Report is not admissible to prove the truth of the contents of the AHRC Report by reason of the rule against hearsay evidence in s 59 of the Evidence Act 1995 (Cth) does not fall within the business record exemption under s 69 of the Evidence Act. Section 69 relevantly provides:
(1) This section applies to a document that:
(a) either:
(i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or
(ii) at any time was or formed part of such a record; and
(b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.
(2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made:
(a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or
(b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.
50 The term “business” is defined in the Evidence Act to include (among other things) a reference to a profession, calling, occupation, trade or undertaking, and an activity engaged in or carried on by the Crown in any of its capacities: see cl 1 of Part 2 of the Dictionary to the Evidence Act.
51 The core issue between the parties is whether the AHRC Report is a business record within the definition of s 69(1)(a)(i) of the Evidence Act. In short, I agree with the respondents that the report is not properly characterised as a business record, and therefore is not admissible for a hearsay purpose.
52 The authorities make clear that, where the function of an organisation is to produce certain publications or reports, the publication by the organisation of such a report is not properly a business record for the purposes of s 69 of the Evidence Act. For example, in Roach v Page (No 15) [2003] NSWSC 939 at [5]–[6] and [8], Sperling J, in holding that an extract from the Australian Mushroom Growers’ Association Journal did not satisfy s 69(1)(a)(i), reasoned that:
The records of a business are the documents (or other means of holding information) by which activities of the business are recorded. Business activities so recorded will typically include business operations so recorded, internal communications, and communications between the business and third parties.
On the other hand, where it is a function of a business to publish books, newspapers, magazines, journals (including specialised professional, trade or industry journals), such publications are not records of the business. They are the product of the business, not a record of its business activities. Similarly, publications kept by a business such as journals or manuals (say, for reference purposes) are not records of the business.
…
The approach may be tested in a commonsense way. It cannot have been intended that newspapers, magazines and journals (publication of any kind produced and/ or received in the course of a business undertaking) would be evidence of whatever was stated in them.
53 His Honour further explained in the subsequent decision of Roach v Page (No 27) [2003] NSWSC 1046 at [11] with respect to representations made on websites that:
The thinking behind [s 69] is clear enough. Things recorded or communicated in the course of the business and constituting or concerning business activities are likely to be correct. There is good reason for the courts to afford to such records the same kind of reliability as those engaged in business operations customarily do. The same is not true of publications made for wider dissemination, for entertainment, for advertising or for public relations purposes. Such publications are justifiably received with healthy scepticism.
54 Justice Middleton applied Sperling J’s analysis in Roach (No 15) in the decision of Hansen Beverage Co v Bickfords (Aust) Pty Ltd [2008] FCA 406; (2008) 75 IPR 505 at [133] in holding that “[t]he concept of a business record is an internal record, kept in an organised form accessible in the usual course of business, actually recording the business activities themselves and does not include the product of the business itself”. (I note that the decision in Hansen was overturned on appeal on an unrelated basis.) It is true that some doubt has been expressed in the authorities as to whether a strict dichotomy exists between “business records”, on the one hand, and reports which are a “product of the business” on the other: see, eg, Charan v Nationwide News Pty Ltd [2018] VSC 3 at [463] (J Forrest J). Nonetheless, there is little doubt that the publishing of certain reports, books, or journals, where an organisation exists to produce those documents, are not business records. Those documents are an aspect of the function of the business itself which are, in this case, provided pursuant to the AHRC reporting functions under the Australian Human Rights Commission Act 1986 (Cth). They are not a record of the AHRC’s activities. It follows that the AHRC Report on immigration detention facilities is not a business record for the purposes of s 69 of the Evidence Act and is inadmissible hearsay.
55 Ultimately, most of the topics relied upon by the applicant in the AHRC Report were the subject of direct evidence from witnesses in this proceeding in any event. In oral submissions, the respondents indicated that they objected to the report entering into evidence, not because they necessarily disagreed with any contents of the report, but rather because they had not checked the accuracy of the report. Further, as outlined below, the respondents accept the majority of the applicant’s evidence with respect to the conditions of his detention. In those circumstances, it seems unlikely that the AHRC Report would have played any significant role in the disposition of the issues.
5. DID THE RESPONDENTS OWE A DUTY OF CARE TO THE APPLICANT?
56 The first issue is whether the respondents owed a duty of care to limit the duration of the applicant’s detention to that required for the purpose of his removal to PNG as soon as reasonably practicable from the time of his written request of 21 January 2020. The relevant principles by which it is determined whether a duty of care exists were not in issue and may be summarised as follows.
57 First, as the applicant contends, the existence of a statutory duty does not necessarily preclude the existence of a common law duty of care. As Mason J held in Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 459:
it has been generally accepted that, unless the statute manifests a contrary intention, a public authority which enters upon an exercise of statutory power may place itself in a relationship to members of the public which imports a common law duty to take care.
(Emphasis added.)
58 Secondly, in order for a court to determine whether a duty of care co-exists with a statutory duty, the starting point is the statutory regime as a whole, “including powers which have not been exercised but are interconnected with powers which have been exercised”: Electricity Networks Corporation v Herridge Parties [2022] HCA 37; (2022) 276 CLR 271 at [26]. As the High Court explained in Herridge Parties at [20] (quoting with approval Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 at [146] (Gummow and Hayne JJ)):
The starting point for analysis of any common law duty of care that might be owed by any statutory authority must always be the particular statutory framework within which the statutory authority operates:
“The existence or otherwise of a common law duty of care allegedly owed by a statutory authority turns on a close examination of the terms, scope and purpose of the relevant statutory regime. The question is whether that regime erects or facilitates a relationship between the authority and a class of persons that, in all the circumstances, displays sufficient characteristics answering the criteria for intervention by the tort of negligence.”
(Emphasis in original.)
59 Where that question is answered in the affirmative, Gummow and Hayne JJ held in Graham Barclay Oysters at [147] that “the common law imposes a duty in tort which operates alongside the rights, duties and liabilities created by statute.” Conversely, their Honours explained at [147]–[148]:
In some instances, a statutory regime may itself, in express terms or by necessary implication, exclude the concurrent operation of a duty at common law. An example is provided by Sullivan v Moody [(2001) 207 CLR 562 at [62]]. The Court there said:
“The statutory scheme that formed the background to the activities of the present respondents was, relevantly, a scheme for the protection of children. It required the respondents to treat the interests of the children as paramount. Their professional or statutory responsibilities involved investigating and reporting upon, allegations that the children had suffered, and were under threat of, serious harm. It would be inconsistent with the proper and effective discharge of those responsibilities that they should be subjected to a legal duty, breach of which would sound in damages, to take care to protect persons who were suspected of being the sources of that harm.”
However, … the discernment of an affirmative legislative intent that a common law duty exists, is not, and has never been, a necessary pre-condition to the recognition of such a duty. This may be contrasted with the action for breach of statutory duty, the doctrinal basis of which is identified as legislative intention.
(Emphasis added.)
60 In other words, a duty of care will not be recognised if it would give rise to inconsistent obligations in the performance of a statutory function or competing claims upon the exercise of the power. Equally, a duty is unlikely to be found to exist where it would “cut across” the objects of the statute or potentially cause the persons in whom the powers are vested to adopt “a more cautious and defensive approach to their duties”: Cubillo v Commonwealth of Australia (No 2) [2000] FCA 1084; (2000) 103 FCR 1 at [1258] and [1237] (O’Loughlin J), quoting with approval Williams v Minister, Aboriginal Land Rights Act 1983 (1999) 25 Fam LR 86; [1999] NSWSC 843 at [775] (Abadee J).
61 Thirdly, “[r]easonable foreseeability of the class of injury is an essential condition of the existence of a legal obligation to take care for the benefit of another”, as well as being relevant to breach of the duty and remoteness of damage: Sydney Water Corporation v Turano [2009] HCA 42; (2009) 239 CLR 51 at [45]. However, reasonable foreseeability “is to be understood and applied with due regard to the consideration that, in the context of the issue as to duty of care, it is bound up with the question of whether it is reasonable to require a person to have in contemplation the risk of injury that has eventuated”: Turano at [45]. In line with this, reasonable foreseeability is not the only relevant condition. As Gummow and Hayne JJ held in Graham Barclay Oysters at [149]:
An evaluation of whether a relationship between a statutory authority and a class of persons imports a common law duty of care is necessarily a multi-faceted inquiry. Each of the salient features of the relationship must be considered. The focus of analysis is the relevant legislation and the positions occupied by the parties on the facts as found at trial. It ordinarily will be necessary to consider the degree and nature of control exercised by the authority over the risk of harm that eventuated; the degree of vulnerability of those who depend on the proper exercise by the authority of its powers; and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute.
(Citations omitted; emphasis added.)
62 Similarly, Gleeson CJ in Graham Barclay Oysters at [9] considered that, while reasonable foreseeability is “a necessary condition for the existence of a duty of care … it is not sufficient.” His Honour continued:
In the case of a governmental authority, it may be a very large step from foreseeability of harm to the imposition of a legal duty, breach of which sounds in damages, to take steps to prevent the occurrence of harm. And there may also be a large step from the existence of power to take action to the recognition of a duty to exercise the power. Issues as to the proper role of government in society, personal autonomy, and policies as to taxation and expenditure may intrude.
63 In the fourth place, the fact that mandamus will issue to compel the performance of a public duty does not mean that any duty of care exists. As Gleeson CJ observed in Graham Barclay Oysters at [9]:
Even where a statute confers a specific power upon a public authority in circumstances where mandamus will lie to vindicate a public duty to give proper consideration to whether to exercise the power, it does not follow that the public authority owes a duty to an individual, or a class of persons, in relation to the exercise of the power.
(Citations omitted.)
64 Similarly, McHugh J in Graham Barclay Oysters at [79] explained that:
Mandamus lies for breach of a duty owed to the public. Any person with a sufficient interest in the performance of the duty may bring an action for mandamus requiring that the public authority comply with the conduct that is the subject of the duty. But common law duties are owed to individuals. Unless the proper inference from the statute is that an individual has “a personal right to the due observance of the conduct, and consequently a personal right to sue for damages if he be injured by a contravention”, breach of the statutory duty does not sound in damages.
(Citations omitted; emphasis added.)
65 Fifthly, in Roads and Traffic Authority of NSW v Dederer [2007] HCA 43; (2007) 234 CLR 330 at [43], Gummow J (with Callinan and Heydon JJ relevantly agreeing at [270] and [283] respectively) observed that:
First, duties of care are not owed in the abstract. Rather, they are obligations of a particular scope, and that scope may be more or less expansive depending on the relationship in question. Secondly, whatever their scope, all duties of care are to be discharged by the exercise of reasonable care. They do not impose a more stringent or onerous burden.
(Emphasis added.)
66 Finally, as the High Court explained in Herridge Parties at [20], with respect to formulating a duty of care:
it is important to keep in mind the distinction between the existence and content of the duty (who owes the duty, whom do they owe the duty to, and what kind of risks of harm must they take reasonable care to minimise or avoid?) and questions of breach (what were the reasonable precautions required in the circumstances, and did the person discharge the duty?).
(Citations omitted.)
67 It follows that it is an error to conflate duty and breach. An example is the case of Turano. In that case, the water authority had laid a water main in a trench parallel to a public road. The disturbance to the soil affected the flow of drainage causing intermittent water-logging which, in turn, allowed the introduction of a pathogen affecting the root system of a nearby eucalyptus tree. A person sustained fatal injuries when the tree fell onto the car which he was driving. His widow, on her own behalf and on behalf of their two children who sustained injuries in the incident, brought proceedings in negligence.
68 The High Court in a unanimous judgment held that no legal duty of care was owed by the water authority because it was not reasonably foreseeable that the authority’s conduct in laying the water main would have the consequence of a tree’s collapse which resulted in injury to a road user: at [53]. However, in allowing the appeal, the Court also held at [48] that:
… when it came to considering the liability of Sydney Water, Beazley JA [in the Court of Appeal] stated the duty in absolute terms: not to compromise the integrity of the culvert drainage system. It was a duty called into existence because it was foreseeable that laying a water main in a trench that acted as a conduit for water could have “an effect on the surrounding area such as might cause harm”. Neither the formulation of the duty nor the anterior inquiry as to foreseeability addressed the risk of injury to Mrs Turano or a class of persons of which she was a member. In terms, it was a strict duty requiring that Sydney Water preserve the existing drainage in the vicinity of its installation in order to prevent a foreseeable risk of shortening the life of surrounding vegetation. Stated in this way the force of Sydney Water’s complaint, that the scope of the duty was derived by reasoning backwards from the events that occurred, can be seen. It was not a duty requiring Sydney Water to take reasonable care to avoid injury to road users in carrying out its works. The majority’s conclusion of breach was inevitable having regard to the formulation of the scope of the duty.
5.2.1 Relevant provisions for the bringing of transitory persons to Australia
69 Transitory persons may be brought to Australia for a temporary purpose as was the case with respect to the applicant. Specifically, s 198B of the Migration Act provides that:
(1) An officer may, for a temporary purpose, bring a transitory person to Australia from a country or place outside Australia.
(2) The power under subsection (1) includes the power to do any of the following things within or outside Australia:
(a) place the person on a vehicle or vessel;
(b) restrain the person on a vehicle or vessel;
(c) remove the person from a vehicle or vessel;
(d) use such force as is necessary and reasonable.
(3) In this section, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force.
(Emphasis in original.)
70 A “transitory person” is defined in s 5(1) (definition para (aa)) relevantly to include “a person who was taken to a regional processing country under section 198AD”. It was not in issue that PNG was a regional processing country under s 198AD or that the applicant was brought to Australia on 18 December 2019 in the exercise of that power. The power conferred by s 198B to bring a person to Australia is an exception to the general rule under s 42(1) of the Migration Act that a person cannot enter or remain in Australia without a visa: see s 42(2A)(ca); Plaintiff M96A/2016 v Commonwealth (2017) 261 CLR 582; [2017] HCA 16 at [13] (Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ).
5.2.2 Relevant provisions for the detention and removal of transitory persons in Australia
71 As the High Court joint judgment in Plaintiff M96A/2016 at [18] explained, the Migration Act has the effect that any transitory person brought to Australia for a temporary purpose must be kept in immigration detention whilst in Australia. Specifically, s 189(1) imposes an obligation on an officer who “knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non‑citizen” to detain that person. An unlawful non-citizen is a non-citizen who is in the migration zone (relevantly Australia) but does not hold a current visa: see the definitions of “lawful non-citizen” and “unlawful non-citizen” in ss 13 and 14 of the Migration Act respectively. It follows that the category of unlawful non-citizen is broader than and includes unauthorised maritime arrivals who have not been granted a visa: Plaintiff M96A/2016 at [16] (Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ).
72 Section 196(1) limits the duration for which an unlawful non-citizen may be held in immigration detention, providing that:
An unlawful non‑citizen detained under section 189 must be kept in immigration detention until:
(a) he or she is removed from Australia under section 198 or 199; or
(aa) an officer begins to deal with the non‑citizen under subsection 198AD(3); or
(b) he or she is deported under section 200; or
(c) he or she is granted a visa.
73 With respect to sub-s (aa), s 198AD(3) confers power on an officer to take steps to remove an unauthorised maritime arrival from Australia for the purposes of s 198AD(2). Section 198AD(2), in turn, provides that an officer “must, as soon as reasonably practicable, take an unauthorised maritime arrival to whom this section applies from Australia to a regional processing country.”
74 By virtue of s 198AH(1), the obligation under s 198AD(2) applies only to a person to whom ss 198AH(1A) or (1B) applies. Relevantly, s 198AH(1) and (1A) provide for the return of persons who no longer need to be in Australia for a temporary purpose. Those sections provide that:
(1) Section 198AD applies, subject to sections 198AE, 198AF and 198AG, to a transitory person if, and only if, the person is covered by subsection (1A) or (1B).
(1A) A transitory person is covered by this subsection if:
(a) the person is an unauthorised maritime arrival who is brought to Australia from a regional processing country under section 198B or repealed section 198C for a temporary purpose; and
(b) the person is detained under section 189; and
(c) the person no longer needs to be in Australia for the temporary purpose (whether or not the purpose has been achieved)
75 The scope of this section is further defined by s 198AH(2) as follows:
Subsection (1) of this section applies whether or not the transitory person has been assessed to be covered by the definition of refugee in Article 1A of the Refugees Convention as amended by the Refugees Protocol.
(Emphasis in original.)
76 However, s 198AD does not apply to an unauthorised maritime arrival if the Minister thinks it is in the public interest and determines, in writing, that s 198AD does not apply: s 198AE(1). It is common ground between the parties that, by reason of the Minister’s determination under s 198AE dated 28 July 2013 (2013 Exemption Instrument), s 198AD did not apply to the applicant from the date of his request for removal on 21 January 2020. In essence, that instrument provides that s 198AD does not apply where a person makes a request for removal to a country to which they have a right of entry.
77 Secondly, in circumstances where s 198AD does not apply, s 198 imposes a general duty on officers to remove unlawful non-citizens where they so request and a specific duty to remove those brought here for a temporary purpose where they no longer need to be here for that purpose. Those sub-sections provide that:
(1) An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed.
(1A) In the case of an unlawful non-citizen who has been brought to Australia under section 198B or repealed section 198C for a temporary purpose, an officer must remove the person as soon as reasonably practicable after the person no longer needs to be in Australia for that purpose (whether or not the purpose has been achieved).
78 The joint judgment in Plaintiff M96A/2016 at [14], explained that ss 198(1) and 198AD(2):
do not have concurrent operation because s 198AD applies to unauthorised maritime arrivals, and s 198(11) provides that s 198 does not apply to an unauthorised maritime arrival to whom s 198AD applies. In other words, the provisions of s 198 will only apply where s 198AD does not apply.
(Emphasis added.)
79 As earlier explained, it is common ground that it was the duty under s 198(1) which was engaged when the applicant requested removal on 21 January 2020. In this regard, the joint judgment in Plaintiff M96A/2016 at [16] proceeded in obiter dicta on the basis of a submission that “s 198(1), properly construed by reference to its consensual character, would not permit removal of an unlawful non-citizen to a place contrary to his or her wishes”.
80 The consequence of this statutory regime is, as explained in the joint judgment in Plaintiff M96A/2016 at [20], that:
In the case of a transitory person, therefore, the detention must continue until: (i) removal under s 198 (the first event); (ii) the beginning of the process of removal to a regional processing country under s 198AD (the second event); or (iii) the making by the Minister of a determination under s 46B(2), allowing an application for a visa, which is then made and granted. In the case of each of the first or second event, under ss 198 and 198AD, it is a condition that removal must occur as soon as reasonably practicable after the person no longer needs to be in Australia for the temporary purpose.
81 Thirdly, the purpose for the temporary detention in Australia of a transitory person is different from the temporary purpose for which a person can be brought to Australia. The purpose for which a transitory person is detained during medical treatment is “the purpose of subsequent removal from Australia”: Plaintiff M96A/2016 at [27] (Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ). Pursuant to the provisions set out above, that removal may occur relevantly as soon as reasonably practicable after the transitory person no longer needs to be in Australia for medical treatment, or as soon as reasonably practicable after asking the Minister to be removed: ibid. Nonetheless and significantly, even where there has been a failure to remove a person “as soon as reasonably practicable”, the person’s detention will remain lawful and the appropriate remedy for any such breach of the statutory duty is mandamus: Commonwealth v AJL20 [2021] HCA 21; (2021) 273 CLR 43 at [51]–[52] (Kiefel CJ, Gageler, Keane and Steward JJ).
82 Finally, the constitutionally permissible period of detention of an alien who does not have permission to remain in Australia comes to an end “when there is no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future”: NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; (2023) 97 ALJR 1005 at [55].
5.3 The applicant’s submissions on duty of care
83 First, as set out above, the parties agree that the 2013 Exemption Instrument operated such that s 198AD ceased to apply to the applicant from the date of his request for removal on 21 January 2020. As such, it is common ground that an officer was under a duty under s 198(1) of the Migration Act to remove the applicant as soon as reasonably practicable after the applicant’s request for removal on 21 January 2020.
84 The applicant contends that each of the respondents were also under a duty of care formulated in the following terms:
to limit the duration of the applicant’s detention to that required for the purpose of removal of the applicant to PNG as soon as reasonably practicable from the time of the applicant’s written requests of [21] January 2020 and 2 June 2020 to be returned.
(Second Further Amended Statement of Claim at [22].)
85 As the duty of care pleaded adopts the language of s 198(1) (“as soon as reasonably practicable” following a request), the applicant submits that the alleged statutory duty and the common law duty of care are concurrent. In other words, in the applicant’s submission, a breach of one duty would necessarily be a breach of the other. Furthermore, while mandamus is available to remedy a breach of the statutory duty (as confirmed by the High Court in AJL20), the applicant submits that mandamus does not provide an avenue for compensation for the harm caused while the applicant was detained for a period which was not necessary for the purpose of removal due to the respondents’ breach of the duty.
86 Secondly, the applicant submits that the statutory functions and powers of the respondents in relation to the applicant’s continued detention in Australia created a relationship which displays the “salient features” for the purposes of establishing the alleged duty of care. The applicant emphasised, in particular, the degree and nature of the respondents’ control and the degree of the applicant’s vulnerability to the proper exercise by the respondents of their powers: citing Graham Barclay Oysters at [149]–[150] (Gummow and Hayne JJ). The relevant salient features may be summarised as follows.
(1) There was a foreseeable risk of harm to the applicant from his continued detention, namely, loss of freedom, and resulting mental distress and anxiety.
(2) The parties were:
[in] a relationship of extreme control, both in the actual restraint inherent in the applicant’s detention and the applicant’s dependence on the respondent for his day to day existence in detention; and in the vulnerability of the applicant in his reliance on the respondents to comply with their statutory duties to remove him to PNG to end his detention.
This extreme control is inherent in the lawful and mandatory nature of the detention of the applicant as an ‘unlawful non-citizen’. The respondents similarly had control of the duration of the applicant’s detention in its statutory duties, and practical capacity, to effect the removal of the applicant.
(Applicant’s submissions on outstanding factual and legal issues (AS) [25]-[26].)
(3) The only control which the applicant had to end his detention was to request his removal (which he did repeatedly to no avail). His experience in detention, his “persistent but ineffective efforts to be returned, and his similarly ineffective complaints” to Australian public authorities including the police, the Commonwealth Ombudsman, the ABF, the PNG authorities and Serco, highlight the applicant’s vulnerability, dependence and reliance on the respondents.
(4) The respondents assumed responsibility for the applicant’s detention to end as soon as reasonably practicable after his requests for return pursuant to ss 198(1) and 198AD(2) of the Migration Act.
(5) Further, the applicant relied upon:
(a) the Agreement of Medical Transfer signed by the applicant on 13 December 2019; and
(b) the Transfer Information Sheet;
which were given to him before he was transferred to Australia and asserted that his stay in Australia and detention would be temporary.
87 In particular, the applicant submits that the Court should relevantly consider whether “the power vested by statute in a public authority… give it such a significant and special measure of control over the safety of the person or property of citizens as to impose upon the authority a duty of care”: Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512 at [102] (Gaudron, McHugh and Gummow JJ). As their Honours continued in Brodie, a measure of control of such a nature “may oblige the particular authority to exercise those powers to avert a danger to safety … In this regard, the factor of control is of fundamental importance”: ibid.
5.4 The applicant has not established that the respondents owe him a duty of care
88 The respondents’ submission that no duty of care exists is, with respect, plainly correct for the following reasons.
89 As the respondents submit, the duty of care which the applicant formulates is, with respect, misconceived as a matter of law. In Dederer at [49], Gummow J held that “while duties of care may vary in content or scope, they are all to be discharged by the exercise of reasonable care” (emphasis in original). The pleaded duty is not one to take reasonable care. Instead, the duty alleged is in absolute terms, requiring the respondents to “limit the duration of the applicant’s detention”, and is for a specified outcome, namely, the return of the applicant to PNG as soon as reasonably practicable. However, as earlier explained, it is well-established that it is an error to conflate these separate elements of a claim in negligence: see, eg, CAL No 14 Pty Ltd (t/as Tandara Motor Inn) v Motor Accidents Insurance Board [2009] HCA 47; (2009) 239 CLR 390 at [68] (Hayne J); Turano at [48] (French CJ, Gummow, Hayne, Crennan and Bell JJ); Herridge Parties at [20] (Kiefel CJ, Gageler, Gordon, Edelman and Steward JJ.). As Gummow and Hayne JJ held in Graham Barclay Oysters at [192]:
A duty of care that is formulated retrospectively as an obligation purely to avoid the particular act or omission said to have caused loss, or to avert the particular harm that in fact eventuated, is of its nature likely to obscure the proper inquiry as to breach. That inquiry involves identifying, with some precision, what a reasonable person in the position of the defendant would do by way of response to the reasonably foreseeable risk.
(Citations omitted.)
90 The fact that the duty of care is said to arise only once a request for removal is made does not, with respect, address these fundamental difficulties: cf applicant’s submissions in reply at [6].
91 In this regard, as the respondents submit, the pleaded duty of care is analogous to that pleaded in DIZ18 (by her litigation representative DJA18) v Minister for Home Affairs (No 2) [2022] FCA 898 which Wheelahan J held had not been properly pleaded. In that case, the duty of care alleged was said to be a “non-delegable duty of care to ensure that the Applicant received medical services adequate to treat medical conditions such as dehydration and infection/sepsis and, if necessary, transfer to a tertiary hospital with adequate paediatric care”: DIZ18 at [7]. Justice Wheelahan, however, held that no duty to take reasonable care was alleged; rather the pleaded duty in absolute terms to achieve a specified outcome “conflated duty and breach”, contrary to High Court authority: at [33](a).
92 It follows for this reason alone that the application must be dismissed.
93 Further, and in any event, the pleaded duty is inconsistent with the statutory regime which, as earlier held, is the starting point for analysis where it is alleged that a duty of care coexists with a statutory regime: see, eg, Cubillo at [1237] (O’Loughlin J). Rather in my view the Migration Act, by necessary implication, excludes the concurrent operation of a duty of care.
94 First, the pleaded duty would create an incoherence in the statutory regime because the applicant’s detention could be lawful under the Migration Act while being in breach of the duty of care. It was not in issue that the applicant’s detention was lawful pursuant to ss 189 and 196 of the Migration Act during the entirety of the relevant period. No claim was therefore made for mandamus; nor was a claim made for false imprisonment: see AJL20 at [49] (Kiefel CJ, Gageler, Keane and Steward JJ).
95 Despite being otherwise authorised (and required) by the Migration Act, on the applicant’s case his detention was nonetheless contrary to the law of negligence. Furthermore, as the applicant’s detention was lawful under the Migration Act, habeas corpus would not be available to seek his release: AJL20 at [61]–[63] (Kiefel CJ, Gageler, Keane and Steward JJ); cf AZC20 v Secretary, Dept of Home Affairs (No 2) [2023] FCA 1497 where Kennett J found the applicant’s detention exceeded the constitutional limitation. Equally, it must follow that, if the duty of care existed and there was an ongoing breach by reason of the person thereby “wrongfully” remaining in detention, the Court would be unable to grant injunctive relief to prevent the ongoing breach because it would require the Court to order release a person from immigration detention contrary to the statutory duty imposed on a Commonwealth officer to detain that person.
96 It follows, in my view, that the present is a case “where to find a duty of care would so cut across other legal principles as to impair their proper application and thus lead to the conclusion that there is no duty of care of the kind asserted”: Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 at [53].
97 Secondly, the common law duty for which the applicant contends would, as the respondents submit, place officers of the Commonwealth in an invidious position: they may either be in breach of their obligation under s 189 to detain a person who they reasonably suspect is an unlawful non-citizen; or they may risk the Commonwealth incurring civil liability by reference to an uncertain obligation to “limit the duration of detention” to “that required for the purpose of removal”. Yet, as the High Court held in Sullivan v Moody at [55], “[a] duty of the kind alleged should not be found if that duty would not be compatible with other duties which the respondents owed.” This may also give rise to the concern, as explained above, that to impose a duty of care in the terms alleged may cause officers charged with the authority and duty to detain under s 189 to adopt “a more cautious and defensive approach to their duties”: Cubillo at [1258] (O’Loughlin J).
98 Thirdly, the pleaded duty would “cut across” the objects of the Migration Act, and in particular s 198. It is well-established that “[a]s a sovereign nation, Australia has the sole right to decide which non-citizens shall be permitted to enter and remain in this country”: see, eg, Falzon v Minister for Immigration and Border Protection [2018] HCA 2; (2018) 262 CLR 333 at [92] (Nettle J); see also Robtelmes v Brenan (1906) 4 CLR 395 at 400 (Griffiths CJ). This sovereign right is given effect through the mechanisms created by the Migration Act for controlling those aliens to whom permission to enter is granted and, as an aspect of this, providing for detention of aliens to prevent their unauthorised entry into the Australian community or to facilitate removal. Indeed, French J in WAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1625 at [56] observed “[t]he removal obligation for which s 198 provides does not seem to have been enacted for any purpose protective of the rights of detainees. Rather it facilitates the expeditious removal from Australia of unlawful non-citizens”. It follows that no duty on officers to take care for the benefit of non-citizens related to non-performance of the duty to remove in s 198(1) can be implied consistently with the purpose of that statutory duty.
99 This view receives some support from the decision in AS v Minister for Immigration and Border Protection [2016] VSCA 206; (2016) 312 FLR 67. In that case, the Victorian Court of Appeal considered whether s 4AA of the Migration Act (“detention of minors a last resort”) gave rise to an independent and actionable statutory duty. That question is, of course, different from the question as to whether a duty of care exists because it is necessary to establish an intention by the Parliament that the statutory duty be actionable. Nonetheless, the posited duty of care in this case is difficult to reconcile with the finding by the Court of Appeal that the “statute discloses an intention not to permit any person … to challenge or otherwise call into question the decision, the making or not making of which is said to be capable of founding the claimed private statutory cause of action”: at [33] (Warren CJ, Osborn and Beach JJA) (emphasis added).
100 Fourthly, the potential indeterminacy of any liability arising from the pleaded duty of care weighs against the existence of the duty. Indeed, in Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552, Gaudron, McHugh, Gummow and Hayne JJ one of those reasons which persuaded their Honours that the relevant duty did not exist was that if the relevant duty of care existed in relation to the appellants, then the respondents must owe a similar duty to “the many thousands, perhaps hundreds of thousands, of persons” within a similar class: at [67]. Similarly and salient to this case, in W v Home Office [1997] Imm AR 302; [1997] EWCA Civ 1052, the English Court of Appeal noted that it was “less likely that a duty of care will be imposed on a person exercising his public duty” where the recognition of the duty of care “would [be] likely to lead to the bringing of a substantial number of cases, and a diversion of the public servants concerned away from their duties contrary to the general public’s interest”. I consider that if I recognised the existence of the pleaded duty, there is a real risk that a substantial number of other cases would be brought arising from a similar duty of care. This is because this application was brought as the “lead or test case” for a cohort of four applicants and no doubt would set a precedent for many other individuals.
101 Finally, as pleaded, the applicant alleged that a duty of care was owed by each of the four respondents, being the Minister for Home Affairs, the Minister for Immigration, the Commonwealth, and the Secretary of the Department. However, the duty in s 198(1) to remove as soon as reasonably practicable is imposed on an “officer” as defined in s 5 of the Migration Act which does not include the relevant Ministers. It follows that the respondents correctly raised the question as to the basis on which the applicant contended that a duty of care was owed by each of the respondents.
102 Ultimately, the applicant sought to impose vicarious liability only on the Commonwealth and the respondents accepted that if the duty of care existed on the relevant officers that vicarious liability could be appropriately imposed on the Commonwealth. However, the issue remains in respect of the Ministers and the Secretary of the Department. The applicant seeks to impose liability on the respondents on the basis that the Ministers are responsible for the administration of the Migration Act and the Secretary has the rights, duties and powers of an employer of the officers under the Public Services Act 1999 (Cth): see ss s 7 (definition of “Agency Head” para (a)) and 20(1). I do not accept that these bases would be sufficient to create relationships between the applicant and the Ministers, and the Secretary, which would give rise to a duty of care.
6. DID THE RESPONDENTS BREACH ANY DUTY OF CARE?
103 As indicated above, the next substantive question is whether the respondents breached any purported duty of care owed to the applicant. The applicant specifically alleges that the respondents breached their duty of care towards the applicant in two ways:
(1) the failure to establish a system for the administration of requests for return by medevac transferees brought to Australia under s 198B of the Migration Act from regional processing countries (agreed issues two and three); and/or
(2) the failure to take steps to remove the applicant to PNG (issue four).
104 As I have found that no duty of care exists, it is not strictly necessary to address this issue. Moreover, because that duty is not pleaded in a form that is cognisable to Australian law, it is not possible to determine in the alternative whether any breach of that duty did in fact occur: there is, in other words, no duty known to the law against which any breach could be assessed.
105 Nonetheless, as trial judge, it is appropriate for me to make certain factual findings relevant to the pleaded breaches of the duty of care. In this regard, two factual issues arise with respect to the two breaches of the alleged duty of care identified above:
(1) whether, between 18 December 2019 and 16 February 2021, the respondents had established a system to administer requests for return to regional processing countries by medevac transferees, such as the applicant (the returns policy); and
(2) whether the respondents failed to take steps to remove the applicant to PNG from his request to return (first made on 21 January 2020) until 16 February 2021.
106 The second of those factual issues can be dealt with shortly. It is now agreed between the parties that, between 21 January 2020 and 16 February 2021, “no steps had been taken to give effect to the removal of the applicant from Australia while he remained in immigration detention”: SAF [52]. It is also agreed that the respondents took steps to remove the applicant from Australia between 16 February 2021 and 17 June 2021 albeit that, in the applicant’s submission, those steps were taken belatedly following the commencement of these proceedings: AS at [27].
107 The first factual issue, which is contested by the parties, is more complex and requires a close analysis of the evidence.
6.1 Did the respondents, between 18 December 2019 and 16 February 2021, establish a system to administer requests for return to regional processing countries by medevac transferees, such as the applicant?
6.1.1 The applicant’s submissions
108 The applicant’s submissions on this issue reduce to three core propositions.
109 First, whilst the applicant accepts that he bears the onus of proof in relation to proving the non-existence of any system to administer requests, he submits that the onus of proof which he bears in relation to this issue is slight. In support of this proposition, the applicant relies upon the principle that “only comparatively slight evidence is required for the plaintiffs to discharge their onus in … [a] case where the facts are peculiarly within the knowledge of the defendant”: Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corp (1985) 1 NSWLR 561 at 565 (Hunt J). Thus, the applicant submits that, as the existence of any returns policy was a matter peculiarly within the respondents’ knowledge, he need adduce only “slight evidence” to discharge the evidential onus.
110 Secondly, the applicant submits that the evidence is sufficient to satisfy his onus of proof on this issue. In his submission, it can be inferred that any returns policy had been suspended by January 2020. That evidence includes, amongst other things, the facts that:
(1) between 21 January 2020 and 16 February 2021, no steps were taken to give effect to the removal of the applicant from Australia (SAF [52]);
(2) this failure occurred despite the applicant twice requesting removal from Australia (on 21 January 2020 and 2 June 2020) under s 198(1) of the Migration Act;
(3) there is no evidence specifically indicating that the applicant was unfit to travel during the relevant period, nor that PNG specifically refused to accept the applicant during that time; and
(4) there is no evidence explaining the failure to take any steps to remove the applicant to PNG until 16 February 2021.
(AS at [32]–[38].)
111 Thirdly, the applicant submits that the respondents have not provided any evidence which suggests the existence of any returns policy during the relevant period.
112 By contrast, the respondents submit that the evidence clearly establishes the existence of a system during the relevant period.
6.1.2 The applicant has failed to establish that no system existed for the administration of requests for return
113 As a preliminary point, first, it is important to emphasise the specific nature of the breach alleged by the applicant. Paragraph 22 of the Second Further Amended Statement of Claim pleads that the respondents breached their duty of care by their “failure to establish a system for the administration of requests of return by those brought to Australia under s 198B Migration Act 1958 (Cth) from regional processing countries for a temporary purpose” (emphasis added). The claim, therefore, is that no system existed at all, and not that the respondents had an inadequate, deficient, or unreasonable system. As such, the sole issue raised is whether there was any system at all to administer requests for return between 18 December 2019 (being the date of the applicant’s arrival in Australia) and 16 February 2021.
114 I interpose that, in written submissions, the applicant raised for the first time the question of whether a system existed, but had been suspended by the respondents: AS at [33]. However, as the respondents submit, the applicant did not plead that the system to administer returns to regional processing countries was suspended at the time of his requests for return, but rather that no system had been established: Second Further Amended Statement of Claim at [23]. In all of the circumstances, I agree with the respondents that the applicant ought not to be permitted to raise this issue. In my view, to permit it to be raised at such a late stage of the proceeding would be unfair to the respondents and contrary to the overarching principle in s 37M of the Federal Court of Australia Act 1975 (Cth). In particular, that submission raises an entirely new issue which is substantively different from that originally pleaded. That submission was also made only in written submissions dated 6 October 2023 after the filing of evidence by the parties; nor was this identified as an issue in the agreed list of outstanding factual and legal issues and template for submissions filed by the applicant on 26 September 2023.
115 Secondly, there is a question about whether “only comparatively slight evidence is required” for the applicant to discharge his onus on this issue in the circumstances of this case. In this regard, Dixon CJ noted in Hampton Court Ltd v Crooks [1957] HCA 28; (1957) 97 CLR 367 at 371–372:
[A] plaintiff is not relieved of the necessity of offering some evidence of negligence by the fact that the material circumstances are peculiarly within the knowledge of the defendant; all that it means is that slight evidence may be enough unless explained away by the defendant and that the evidence should be weighed according to the power of the party to produce it, in accordance with the often repeated observation of Lord Mansfield in Blatch v. Archer …
(Citing Blatch v Archer (1774) 1 Cowp 63 at 65 (Lord Mansfield CJ); see also CQR17 v Minister for Immigration and Border Protection [2019] FCAFC 61; (2019) 269 FCR 367 at [32]–[33] (Jagot J).)
116 In this instance, I accept that the knowledge of whether the Department did have a returns system was a matter peculiarly within that Department’s knowledge. As the applicant submits, all of the relevant information pertaining to that issue is information which was in the respondents’ knowledge and possession. However, a complexity arises in circumstances where the applicant relies upon the affidavit evidence filed, but not read, by the respondents. This is because here, the applicant has himself read and relies upon a significant body of affidavit evidence from Departmental employees and officers concerning the existence of disputed facts. The affidavits read by the applicant are now the applicant’s evidence.
117 Nonetheless, even assuming in the applicant’s favour that he only has a slight evidential burden, the totality of the evidence establishes that the respondents did have a system to administer requests for return to regional processing countries during the relevant period. As such, the applicant has not discharged his burden, slight though it may be, to prove the non-existence of any returns system.
118 In summary, the evidence discloses that the respondents had a threefold system in place for returning medical detainees. The first part of the system was a medical component, in which the health of detainees would be assessed, and a determination made as to whether they were fit to transfer to a regional processing country or were not fit to transfer. The second part of the system took place after a medical detainee requested removal. Following that request, status resolution officers — who were the direct point of contact for detainees whilst in detention — would refer the request to the Regional Processing and Resettlement Taskforce. The third part of that process then involved the Resettlement Taskforce who, it can be inferred, were responsible for undertaking the process of arranging the actual removal of the detainee. The following evidence supports the existence of a system to this effect.
119 First, there is ample evidence to indicate that the respondents had a process for assessing whether a detainee was medically fit for removal. That system was described in the affidavit of Kate Kruse who is an inspector with Detention Health Operations within the ABF. Specifically, Ms Kruse explained at [8] that:
Whether a person who has been brought to Australia for a temporary medical purpose can be returned to a regional processing country depended on the Pre Transfer / Return Medical Assessment (PTMA) Criteria (PTMA Criteria).
(Emphasis omitted.)
120 The Pre-Transfer and Return Medical Assessment Criteria (pre-transfer or PTRMA criteria) were in place prior to 2019, and relevantly applied between 2019 and 2021. The pre-transfer criteria were as follows:
PTRMA Category | PTRMA Criteria |
0 | Detainee fit for return to RPC Accompanying family, no medical treatment scheduled or pre-approved |
1 | Detainee fit for transfer / return to an RPC Detainees with confirmed appointments for specialist treatment/investigation/review beyond 2 calendar weeks Detainees who have completed or been offered but not consented to their first round of immunisations Babies > 3 months of age Transferees (either accompanying family member or transferee in Australia for scheduled medical treatment) whose condition is at the stage that it can be treated adequately on Nauru or Manus |
2 | Detainee not fit for transfer / return to an RPC short term Detainees undergoing acute investigations under Category 1 on TB spreadsheet (ie under investigation for TB). Note this must be actively managed and should be removed as a condition after 6 weeks. Detainees with confirmed appointments for specialist treatment/investigation/review within the next 2 calendar weeks Detainees with a high risk pregnancy or gestation over 27 weeks Detainees with an acute mental health problem requiring weekly psychiatrist, inpatient management, or is not manageable in an RPC* Babies < 3 months * These cases must be reviewed by the IHMS Director, Mental Health |
3 | Detainees not fit for transfer / return to a RPC long term Detainees with a complex medical issue or severe physical disability that cannot be managed or supported at an RPC e.g. a child with severe cerebral palsy Detainees with a very complex and chronic mental health condition that cannot be adequately managed by the mental health team at RPC* * These cases must be reviewed by the IHMS Director, Mental Health |
4 | Detainees cannot be transferred to an RPC* Detainees with a medical condition that is not accepted by RPC Governments** * At this stage this category only includes Detainees diagnosed with a blood borne virus or who are Category 2 and 3 on the TB spreadsheet ie they are receiving treatment for active TB ** This criterion does not apply where the condition has been diagnosed in a RPC host country and the person is a medical Transferee. Such cases should be referred to Detention Health Services Branch for review. |
121 Ms Kruse explained that medical testing before removal essentially involved a two-step process:
(1) Members of Detention Health Operations would refer certain detainees to the IHMS; and
(2) the IHMS would then be responsible for determining the category of the pre-transfer criteria into which a detainee fell, determining their expected return timeframe, and providing comments by way of explanation.
122 The IHMS is a health services provider contracted by the Commonwealth to provide medical services to persons within Australia’s immigration detention network. Detention Health, in turn, operates as a liaison between IHMS and other areas of the Department.
123 Ms Kruse explained that Detention Health is “a conduit for information”. The kind of information sought by Detention Health from IHMS regarding transitory persons who came to Australia for medical treatment included:
(1) health summaries or updates;
(2) information relevant for possible placement in community detention;
(3) Ombudsman reports; and
(4) updated pre-transfer/return medical assessment (PTMA) categories.
124 Ms Kruse explained that before 2019, IHMS was contracted to review every medical transferee on a weekly basis. However, over time, weekly inspections of all such persons were regarded as no longer feasible, given the number of people in Australia for a temporary medical purpose. Instead, Detention Health Operations would request that IHMS review certain transferees’ cases each week (being the first step in the process identified above). Ms Kruse indicated that how Detention Health selected the transferees who should be reviewed was the subject of discussions within Detention Health in which Ms Kruse usually participated. Detention Health adopted a flexible approach in putting forward cases for review. Ms Kruse did not recall there being any “formal Departmental policy” regarding this process. While preparing her affidavit, Ms Kruse located a Standard Operating Procedure – Pre Transfer Medical Assessment Reports dated 2014. However, Ms Kruse had not been previously aware of the 2014 report and had not had regard to it when putting cases forward for review. In those circumstances, the evidence does not establish that the operation procedure described in the 2014 report was in place or being observed at the relevant time.
125 Ms Kruse also explained that people were selected for review by Detention Health according to a range of factors, such as the length of time since a transferee’s last review, whether there were particular cohorts of people about whom Detention Health had been asked for information, whether a SRO had asked about a particular case, and whether information was needed to progress people to community detention.
126 In December 2019, Ms Kruse created new step-by-step guides for recording information regarding transferees in the Compliance, Case Management and Detention (CCMD) portal. Importantly, Ms Kruse explained that “[t]hose in Detention Health are instructed to follow these guides”: at [19].
127 Ms Kruse also explained that (at [14]):
To obtain an IHMS review of a person’s PTMA category number, Detention Health sent a spreadsheet to IHMS with the names of certain transitory persons in Australia for medical treatment and asked IHMS to fill in or update the PTMA categories and ERT. Once returned from IHMS, Detention Health then copied that PTMA and ERT information into the Compliance, Case Management and Detention (CCMD) portal which is a Departmental system for reporting and recording information.
(Emphasis omitted.)
128 In turn the process of obtaining and reporting PTMA and expected return timeframe (ERT) information had been in place well before 2019. Its purpose “was to track the medical treatment of transitory persons who came to Australia for medical treatment, so that they could be quickly moved back offshore once treatment was complete”: at [24]. The process of inputting information into the CCMD from the circulated spreadsheet commenced at some time during 2019 and continued on a weekly basis throughout the relevant time.
129 In addition to this weekly reporting, Ms Kruse explained that there were times when the Resettlement Taskforce came to Detention Health and asked for the IHMS to provide a health summary for a particular transitory person to address whether their medical treatment had been completed. That information, in turn, would be sent by the Resettlement Taskforce to the Commonwealth Chief Medical Officer for review and to form a view on whether the temporary purpose had been completed.
130 Secondly, once a person requested removal, status resolution officers, being persons who liaised directly with detainees, would refer the request to the Resettlement Taskforce to action the request. This system is described by Gary Jeffery (who was the SRO assigned to the applicant from the time of his arrival at the MITA until 12 March 2021) in his affidavit as follows (at [12]–[13]):
If a detainee requested to go back to PNG or Nauru, SROs (including myself) were required to refer that request to Sharon Edgerton’s team in the Regional Processing and Resettlement area. It was the responsibility of Ms Edgerton’s team to deal with that request and Status Resolution was not privy to that process. Once the referral had been made (in this instance by Ashley Eastwood), there was nothing further for me to do in relation to the request.
If a detainee ever asked for an update on their request for return to a regional processing country, I would simply advise the detainee that their request had been referred to the relevant area and that I would share any further information as and when it became available. I understood that this was in accordance with what SROs were meant to say, given that responsibility lay with the Regional Processing and Resettlement area.
131 I interpose that Sharon Edgerton was a member of Alana Sullivan’s team, both of whom worked for the Resettlement Taskforce: affidavit of Alana Sullivan dated 22 August 2023 at [1]–[4].
132 The system described by Mr Jeffery is confirmed in the email correspondence between Mr Jeffery and other departmental officers following the applicant’s request for removal, dated 21 January 2020. Specifically, the applicant’s request for removal was referred to persons within the Resettlement Taskforce team, consistently with the system of removal to which Mr Jeffery deposed in his affidavit.
133 Thirdly, there is no direct evidence deposing to the steps taken by the Resettlement Taskforce’s system. This unsatisfactory state of affairs was brought about by the respondents’ last-minute decision not to read certain affidavits. Nevertheless, I consider that there is sufficient evidence to infer that such a system existed for the following reasons:
(1) In an email from Ms Edgerton dated 22 January 2020 to Kui Grindlay, Assistant Director, MITA Status Resolution, and copied among others to Mr Jeffrey, Ms Edgerton states that she had “asked for the usual preliminary health and legal barrier checks to be conducted” in relation to the applicant’s request to return to PNG. She also states that the “same checks have been requested” for another “client” who was “also interested in return” (emphasis added). I consider that the term “usual” presupposes that there was a system of legal checks in place prior to the correspondence.
(2) The evidence of Mr Jeffery and Ms Kruse supports the inference that a system was in existence. In particular, Mr Jeffery’s system of referring clients to the Resettlement Taskforce presupposes that the Resettlement Taskforce has a system for handling such referrals. Otherwise, why would any such policy of referring detainees to the Taskforce exist? The more natural inference to draw is that requests for removal were referred to the Taskforce for some form of process to take place, namely, the process for organising the detainee’s removal.
134 It is important to emphasise the seriousness of the applicant’s allegation in assessing whether he has discharged his burden of proof. If the respondents had failed to establish a system to remove detainees, it would place the respondents in breach of their obligation to effectuate the removal of detainees upon request: see s 198 of the Migration Act. Relevantly, in arriving at a state of satisfaction in civil proceedings that a case has been proved on the balance of probabilities, s 140(2) of the Evidence Act provides that:
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
(Emphasis added.)
135 The considerations which s 140(2) of the Evidence Act now requires a court to take into account align with Dixon J’s consideration in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 of how the civil standard of proof at common law operates: see, eg, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; (2007) 162 FCR 466 at [31]. Thus, in an oft-quoted passage at 362 from Briginshaw, Dixon J observed that:
reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.
136 In other words, as explained by Barwick CJ, Kitto, Taylor, Menzies and Windeyer JJ the “degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved”: Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517 at 521. This principle, as Flick and Perry JJ observed in Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 226 FCR 555 at [99], “is ultimately founded upon principles of fairness and common sense”.
137 I consider that there is an inherent improbability in the applicant’s claim that no system to arrange for that removal occurred. This is because it would mean that the respondents set up a program to assist certain detainees to come to Australia to obtain medical treatment, but did not set up a countervailing system of processing requests for return such that they would be in breach of their obligations under the Migration Act. Therefore, this factor points against the finding the applicant seeks to have the Court make.
138 Finally, the fact that the respondents did not call Ms Sullivan may lead to the inference that her evidence could not have assisted the respondents: Jones v Dunkel (1959) 101 CLR 298 at 308 (Kitto J), 312 (Menzies J) and 320–1 (Windeyer J). However, while the principle may make certain evidence, or the inferences which may be drawn from the evidence, more probable, it does not permit any further inference that the untendered evidence would have been damaging to the party who might have been expected to tender the evidence; nor can the failure to lead the evidence fill gaps in the evidence, or convert conjecture and suspicion into inference: Jones v Dunkel; Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121 at [53] (Gleeson CJ and McHugh J). Therefore, I do not draw any further inferences from the respondents’ decision not to call Ms Sullivan.
139 Fourthly, the applicant submits that the Court should find that the reason why no steps were taken to remove him from Australia between 21 January 2020 and 16 February 2021 is because the respondents did not have any transferee return system during this period. With respect, I do not accept that submission.
140 The principal difficulty with the applicant’s contention is that there is simply no evidence indicating that the respondents had a policy not to return medical detainees. Rather, the better inference from the evidence is that the reason why no steps were taken to remove the applicant were the difficulties caused by the COVID-19 pandemic. Specifically, after the applicant’s request for transfer on 21 January 2020, governments around the world, including Australia and PNG, implemented urgent responses to the COVID-19 pandemic. Thus, on 25 February 2020, the PNG Government announced various new policies in response, including a new Points of Entry policy and from 20 March 2020 onwards, introduced travel restrictions which had the consequence of creating logistical impediments to the applicant’s entry into that country.
141 The third dispute between the parties concerns which law applies to the applicant’s claim. That question is raised by issue eight, being whether the civil liability laws of Victoria apply to the applicant’s claim. For reasons that will become clear, it is necessary to address this issue before addressing the remaining matters in dispute.
142 This issue turns on one central question: whether, as the applicant submits, the applicable law is the common law of Australia unmodified by statute or whether, as the respondents submit, the civil liability laws of Victoria apply. I interpose that both parties accepted that Queensland law was not the operative law to this dispute, and that issue can therefore be put to the side.
143 In broad terms and applying the common law rules for choice of law, both parties accept that the relevant law which applies is that of the place of the commission of the tort: John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503 at [17] and [102] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
144 Both parties likewise accept that the purported breach was an omission, being the respondents’ alleged failure to establish a system for the administration of requests for return to regional processing countries by medevac transferees, and the failure to take steps to remove the applicant. In circumstances of an omission, it is not strictly appropriate to look to the place of the failure to act — “[i]t makes no sense to speak of the place of an omission”: Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538 at 567 (Mason CJ, Deane, Dawson and Gaudron JJ). Rather, the appropriate approach is to identify “the place of the act or acts of the defendant in the context of which the omission assumes significance and to identify that place as the place of the ‘cause of complaint’”: Voth at 567 (emphasis added).
145 The applicant submits that the place in which the omission assumed significance is Australia-at-large, and that the applicable law to the dispute is therefore the common law of Australia, unaffected by State or Territory statute law. In his submission, the breach of the duty of care occasioned by the failure to act assumed significance throughout Australia because any officer had a mandatory obligation to keep the applicant in detention under the Migration Act, and that obligation existed irrespective of the State or Territory in which the applicant was detained.
146 The respondent contends that the tort alleged is based entirely on the applicant’s continued detention, which overwhelmingly occurred in Victoria, and that the laws of Victoria, therefore apply.
147 The respondents’ submission that the applicable law is Victorian law, and that Victorian civil liability law therefore applies is, in my view, plainly correct.
148 First, as I explain below, s 80 of the Judiciary Act 1903 (Cth) directs the Court to apply the common law, including common law principles of choice of law, as modified by State or Territory statute law applicable to the place where the Court is exercising federal jurisdiction: Blunden v Commonwealth [2003] HCA 73; (2003) 218 CLR 330 at [18] (Gleeson CJ, Gummow, Hayne and Heydon JJ). Specifically, s 80 provides that:
So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters.
149 In turn, s 79 of the Judiciary Act relevantly provides that:
(1) The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.
…
(3) This subsection covers a law of a State or Territory that would be applicable to the suit if it did not involve federal jurisdiction, including, for example, a law doing any of the following:
(a) limiting the period for bringing the suit to recover the amount;
(b) requiring prior notice to be given to the person against whom the suit is brought;
(c) barring the suit on the grounds that the person bringing the suit has charged someone else for the amount.
150 Section 79, being a law of the Commonwealth, is itself expressly subject to s 80 of the Judiciary Act: Blunden at [18], citing with approval Gaudron J in Commonwealth v Mewett (1997) 191 CLR 471 at 522.
151 This Court sat in New South Wales. Accordingly New South Wales choice of law principles are picked up and applied by ss 79 and 80 of the Judiciary Act: see, eg, Pfeiffer at [58] and [103] (Gleeson CJ, Guadron, McHugh, Gummow and Hayne JJ) and Blunden at [45] (Gleeson CJ, Gummow, Hayne and Heydon JJ).
152 Applying common law choice of law principles in New South Wales, the appropriate approach is to look at where the omission “assumes significance” for the reasons identified in Voth at 567 above. That is, one must “ask the question, where in substance did this cause of action arise”: Distillers Co (Biochemicals) Ltd v Thompson [1971] AC 458 at 468 quoted in Amaca Pty Ltd v Frost [2006] NSWCA 173; (2006) 67 NSWLR 635 at [15] (Spigelman CJ, Santow JA agreeing at [133], McColl JA agreeing at [134]).
153 In this case, the place where the omission assumed significance was Victoria. It is there that the applicant was detained for the duration of the purported breach. Furthermore, while the applicant claims damages for mental distress and anxiety, and detention from the time of his first request for removal to the date of his removal from Australia, he was predominantly detained in Victoria over that period, with brief periods of detention in other States to facilitate his intended removal to PNG. It is not to the point, with respect, that the Migration Act makes no distinction between detention in different States or Territories in terms of the obligation on officers to detain. The critical fact is that that obligation assumed significance in Victoria as it is there that compliance with the obligation resulted in the applicant being predominantly detained in Victoria.
154 Secondly, an argument that the applicable law of the tort is the common law of Australia in an unmodified sense was rejected by the High Court in Blunden. In that case, the applicant instituted proceedings against the Commonwealth in the Supreme Court of the Australian Capital Territory seeking damages in negligence for injuries allegedly suffered as a result of a collision between two ships of the Royal Australian Navy on the high seas. The action was commenced some 34 years after the collision and the question was whether the limitations laws of the Territory applied. The plaintiff submitted that they did not. Rather, based upon his construction of s 80 of the Judiciary Act, the plaintiff submitted that the Australian common law applied “in its pristine form, without modification by any applicable statute”: Blunden at [27] (Gleeson CJ, Gummow, Hayne and Heydon JJ), see also at [30]. That contention was rejected by the High Court.
155 In this regard, as earlier mentioned, their Honours held that the application of the common law rules for choice of law in a case exercising federal jurisdiction (as here and in Blunden) is directed by s 80 of the Judiciary Act: Blunden at [18] (Gleeson CJ, Gummow, Hayne and Heydon JJ), citing with approval Gaudron J in Mewett at 522. Their Honours in Blunden further explained that, to this proposition, two further points should be added (at [18]):
The first is that the application of any rules of the common law will, in terms of s 80, be subject to any modification, in the present case, by the statute law in force in the Territory. The second is that, if there is no common law choice of rule relevant to the issue in the litigation, but the common law rule as to the absence of time bars is modified by Territory law, then s 80 applies that modification, and this furnishes the limitation law which governs the action.
156 Thus, the High Court held (at [40]) with respect to the body of law by which the action in that case was to be decided, that:
Here there is no “law area” to be found on the high seas which can provide the lex loci delicti. The question then becomes whether there is any other legal system which has a better claim than the forum which is to be treated by the forum as the body of law by which the action is to be decided. The phrase “body of law”, in this context, identifies the statute law in force in some other State or Territory. This is because the issue removed into this Court has been limited to the liability of the Commonwealth in respect of certain negligent acts or omissions, and the Commonwealth can, in this case, be sued in the Supreme Court of any State or Territory or in any other court of competent jurisdiction in any State or Territory.
(Emphasis added.)
157 The second proposition identified by Gleeson CJ, Gummow, Hayne and Heydon JJ at [18] — that where there is no common law choice of law rule relevant to the issues in litigation — has no application to the present case. Unlike Blunden, there is an applicable choice of law rule for this claim which requires the Court to determine “where in substance did this cause of action arise”. However, Blunden illustrates that, even if there was no applicable choice of law rule, it would not mean that the common law applied without legislative modification. To the contrary, in such a case, the statute law of the place where the Court was exercising federal jurisdiction would apply as surrogate Commonwealth law directly by operation of s 80 of the Judiciary Act: Blunden at [45].
158 In Martens v Stokes [2012] QCA 36; [2013] 1 Qd R 136, the Queensland Court of Appeal unanimously rejected a similar argument that the common law of Australia simpliciter governed a dispute. In that case, the appellant sought damages for injuries arising from alleged deficiencies in an Australian Federal Police investigation. The appellant contended, on appeal, that the applicable lex loci delicti was the common law of Australia. That submission was made on the basis that “some of the acts or omissions [had] occurred in parts of Australia other than Queensland – for example, failure to make relevant inquiries of a federal agency based in Canberra”: at [54]. In rejecting that argument, the Court of Appeal held (at [57] (Margaret Wilson AJA, Margaret McMurdo P agreeing at [1] and White JA agreeing at [2]) that:
In submitting that the lex loci delicti was the common law of Australia, he must be taken as identifying the place of the tort as Australia. His submission as to the applicable law should not be accepted. The common law of Australia includes the choice of law rules. In the case of an intranational tort, the locus delicti is not Australia, but the State or Territory where the tort occurred.
(Emphasis in original.)
159 That analysis is equally applicable to the present case. For the reasons outlined above, New South Wales choice of law principles are picked up and applied by ss 79 and 80 of the Judiciary Act. This in turn directs attention to the fact that the substance of the cause of action arose and assumed significance in Victoria. That is the proper law of the tort, and the civil liability laws of Victoria therefore apply.
160 The consequences of those laws applying to the dispute are explained below.
8. DID ANY BREACH OF DUTY CAUSE THE APPLICANT HARM?
161 The fourth issue between the parties concerns whether any breach of the duty of care caused foreseeable harm to the applicant in the form of loss of freedom from 21 January 2020 to 17 June 2021 and/or mental distress and anxiety (issue five of the agreed issues). In other words, was any breach of duty causative of the damage alleged by the applicant.
162 The applicant pleaded causation in two ways. First, the applicant contends that he suffered this harm because he:
[L]ost a chance to be returned to PNG prior to the suspension by PNG of international flights between 24 March 2020 to about 2 June 2020; and of medevac returns from Australia from 20 March 2021 to 20 April 2021, each suspension due to spikes in Covid 19 infections in PNG.
(Second Further Amended Statement of Claim at [27])
163 Second, the applicant pleaded that “[b]y reason of the breaches of duty the applicant’s detention was extended resulting in the foreseeable harm to the applicant”: Second Further Amended Statement of Claim at [24].
8.1 Relevant statutory provisions concerning causation
164 At common law, establishing negligence required a determination of causation which involved two questions: “a question of historical fact as to how particular harm occurred; and a normative question as to whether legal responsibility for that particular harm occurring in that way should be attributed to a particular person”: Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 at [11].
165 Civil liability statutes, “which [are] substantially replicated in each … Australia State”, “now [require] that the two questions be kept distinct”: Wallace v Kam at [12]. In circumstances where the applicable law is the law of Victoria, the relevant law determining causation is s 51 of the Wrongs Act 1958 (Vic). Section 51(1) provides:
A determination that negligence caused particular harm comprises the following elements—
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation); and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
(Emphasis in original.)
166 I outline the relevant legal principles concerning those statutory provisions in greater detail below. For present purposes, it suffices to note that the factual causation element turns upon an application of the “but for” test of causation: Wallace v Kam at [16], namely:
[A] determination in accordance with s 5D(1)(a) [the substantial replica of s 51(1)(a) of the Wrongs Act] that negligence was a necessary condition of the occurrence of harm is nothing more or less than a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absent the negligence.
167 The second element, the scope of liability, involves answering a “normative question”, being whether it is “appropriate” for the negligent person’s liability to extend to the harm: Wallace v Kam at [22]. The answer to that question turns, amongst other things, on the foreseeability of the harm suffered at the time of the breach: Wallace v Kam at [24].
8.2 The parties’ submissions on causation
168 The applicant claims harm on two bases arising from his detention: (1) deprivation of liberty; and (2) mental distress and anxiety.
169 As to the first basis, the applicant submits that the respondents’ breach of their duty of care both factually caused that loss of liberty, and that harm in those terms was a foreseeable consequence of that negligent act. With respect to factual causation, the applicant contends that, but for the alleged tortious breach (being the failure to take steps to remove the applicant to PNG when requested), the applicant would have been removed to PNG prior to the outbreak of the COVID-19 pandemic. With respect to scope of liability issues, the applicant contends that the loss of liberty resulting from the breaches was foreseeable, in light of the statutory scheme under which the applicant was detained. In particular, the applicant contends that his detention was foreseeable in circumstances where the continued detention of the applicant as an unlawful non-citizen in the migration zone was required by the Migration Act: see ss 14, 189(1), 196.
170 As to the second claim, the applicant submits that the respondents’ negligence factually caused or worsened his mental distress and anxiety. He submits that the Court can be satisfied of this issue in the absence of expert evidence, relying, by way of example, on AZC20 v Minister for Home Affairs [2021] FCA 1234 at [167] (Rangiah J). He likewise submits that it was reasonably foreseeable that he would experience mental distress and anxiety as a consequence of his extended detention on four bases:
(1) The applicant was brought to Australia for treatment of his mental ill-health.
(2) The applicant made known his distress at being detained at least at the time of his removal request, and throughout his detention, to IHMS and to an IHMS psychiatrist.
(3) The applicant demonstrated his distress at his continued detention in refusing to take meals from the detention centre mess for a period. The applicant was transparent to Serco about the limited nature of his “hunger strike”.
(4) The applicant’s distress was increasingly evident as his detention wore on, despite his efforts for it to end by being returned to PNG. The applicant even contemplated removal to his country of origin, Somalia, from which the PNG authorities had recognised the applicant to be a refugee.
171 The respondents submit that there are three reasons why the applicant cannot demonstrate causation with respect to both types of claimed harm.
172 First, the respondents submit that the applicant cannot satisfy the “but for” test. In the respondents’ submission, two particular facts outlined above are salient in this respect:
(1) the applicant requested removal only on 21 January 2020; and
(2) PNG prohibited travel into the country, subject to some exceptions not presently relevant, on 20 March 2020, meaning there was only a two-month window in which the applicant could have been returned to PNG.
173 In light of those facts, the respondents submit that it could not be concluded, on the balance of probabilities, that had the process of removing the applicant commenced on 21 January 2020, he would have been removed to PNG by 20 March 2020. That is particularly so, in the applicant’s submission, in light of the general uncertainties occasioned by the outbreak of the COVID-19 pandemic.
174 Secondly, the respondents submit that the applicant has impermissibly pleaded damage in the form of loss of a chance. Specifically, at [27] of the Second Further Amended Statement of Claim, the applicant claims that “[b]v reason of the breaches of the duty the applicant lost a chance to be returned to PNG”. In the respondents’ submission, loss of chance is not cognisable in a negligence case such as the present: citing Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537.
175 Thirdly, even if factual causation was established, the respondents submit that it is not “appropriate for the scope of the negligent person’s liability to extend to the harm so caused”: s 51(1)(b) of the Wrongs Act. In the respondents’ submission, that is because any damage sustained by its wrongdoing is too remote, and was not reasonably foreseeable. In particular, the respondents submit that it was not reasonably foreseeable that a failure to take steps to return the applicant in January and February 2020 would cause the applicant to be detained for a further year. In the respondents’ submission, that detention was caused by the COVID-19 pandemic and the PNG Government’s border closures in response to the pandemic. Both events were entirely outside of the control of the respondents, and, in their submission, were not reasonably foreseeable at the time of the breach.
8.3 The applicant has not established causation
176 Even if a breach of the alleged duty of care could be established, I am not satisfied that any such breach caused the applicant damage in the relevant sense for the following reasons.
177 I will address this issue in terms of the two limbs of s 51(1) of the Wrongs Act. In short, my view is that neither factual causation, nor the scope of legal liability, has been established.
178 In relation to the first form of causation identified, being that the respondents’ negligence meant that the applicant “lost a chance to be returned to PNG”, that framing of the case, with respect, is not correct in law. As the High Court held in Tabet, the standard for assessing causation in negligence is not a loss of chance but the balance of probabilities: cf a claim for economic loss. As Hayne and Bell JJ explained in Tabet at [66], “[w]hat must be demonstrated (in the sense that the tribunal of fact must be persuaded that it is more probable than not) is that a difference has been brought about and that the defendant's negligence was a cause of that difference”: (emphasis added). In Tabet, their Honours continued to state that (at [68]–[69]):
… to accept that the appellant's loss of a chance of a better medical outcome was a form of actionable damage would shift the balance hitherto struck in the law of negligence between the competing interests of claimants and defendants. That step should not be taken. The respondent should not be held liable where what is said to have been lost was the possibility (as distinct from probability) that the brain damage suffered by the appellant would have been less severe than it was.
It may be that other cases in which it might be said that, as a result of medical negligence, a patient has lost “the chance of a better medical outcome” (for example, a diminution in life expectancy) differ from the present case in significant respects. These are not matters that need be further examined in this case. It need only be observed that the language of loss of chance should not be permitted to obscure the need to identify whether a plaintiff has proved that the defendant's negligence was more probably than not a cause of damage (in the sense of detrimental difference). The language of possibilities (language that underlies the notion of loss of chance) should not be permitted to obscure the need to consider whether the possible adverse outcome has in fact come home, or will more probably than not do so.
(Emphasis added; citations omitted.)
See also Tabet at [46], [58]–[59] (Gummow ACJ), [101] (Crennan J), [143], [152] (Kiefel J).
179 The appropriate standard to apply here is whether the respondents’ purported negligence, on the balance of probabilities, was the cause of the damage suffered by the applicant. The language of loss of chance is not apt to answer that question.
180 The second form of causation pleaded by the applicant appears to engage with the “but for” test. However, I consider that there is considerable force in the respondents’ submission that the applicant cannot establish, on the balance of probabilities, that if the Department had commenced taking steps to remove the applicant on 21 January 2020, he would have been removed from Australia to PNG prior to the PNG Government introducing border restrictions on 20 March 2020. If one accepts, notwithstanding the evidential difficulties, that the applicant would have been removed to PNG prior to 20 March 2020 then, applying the rudimentary “but for” test, it would be open to find that, “but for” the alleged breach of the respondents, the applicant would not have been detained in Australia relevantly from the date of any such removal to 17 June 2021. The critical issue that the applicant faces is in satisfying me that it is appropriate for the scope of the respondents’ liability to extend to the harm so caused.
181 Proceeding on the assumption that the applicant would have established factual causation, as outlined above, s 51(1)(b) of the Wrongs Act provides that a determination that negligence caused a particular harm requires satisfaction that “it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused”. That element involves a determination as to which consequences of the tort the respondent is answerable for, and which damage is too remote. For the purposes of determining the scope of liability, s 51(4) provides that “the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”
182 With respect to the New South Wales equivalent of this provision, the High Court in Wallace v Kam held at [23]–[24]:
In a novel case, however, s 5D(4) makes it incumbent on a court answering the normative question posed by s 5D(1)(b) explicitly to consider and to explain in terms of legal policy whether or not, and if so why, responsibility for the harm should be imposed on the negligent party. What is required in such a case is the identification and articulation of an evaluative judgment by reference to “the purposes and policy of the relevant part of the law”. Language of “directness”, “reality”, “effectiveness” or “proximity” will rarely be adequate to that task. Resort to “common sense” will ordinarily be of limited utility unless the perceptions or experience informing the sense that is common can be unpacked and explained.
A limiting principle of the common law is that the scope of liability in negligence normally does not extend beyond liability for the occurrence of such harm the risk of which it was the duty of the negligent party to exercise reasonable care and skill to avoid. Thus, liability for breach of a duty to exercise reasonable care and skill to avoid foreseeable harm does not extend beyond harm that was foreseeable at the time of breach. In a similar way, “a person under a duty to take reasonable care to provide information on which someone else will decide upon a course of action is, if negligent, not generally regarded as responsible for all the consequences of that course of action” but “only for the consequences of the information being wrong”. A useful example, often repeated, is that of a mountaineer who is negligently advised by a doctor that his knee is fit to make a difficult climb and who then makes the climb, which he would not have made if properly advised about his knee, only to be injured in an avalanche. His injury is a “foreseeable consequence of mountaineering but has nothing to do with his knee”.
(Emphasis added; citations omitted.)
183 Thus, as the High Court makes clear in Wallace v Kam, a person will only be rendered liable for the harm that was foreseeable at the time of breach. Conversely, a person will not be rendered liable in negligence for harm which is not reasonably foreseeable. To those general principles, the following should be added.
184 First, it is well-settled that, to establish liability, a tortfeasor must only establish that the class of injury (as opposed to the specific injury in question) is foreseeable: Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112 at 120–121. Here, the question which arises is whether it was reasonably foreseeable that the respondents’ purportedly negligent omission would result in the applicant’s loss of freedom, and his mental distress and anxiety for the period that he was detained.
185 Secondly, it is also now well-settled that a respondent “may be liable even though he or she could not envisage the precise set of circumstances which produced harm of the foreseeable kind”: RP Balkin and JL Davis, Law of Torts (LexisNexis Butterworths, 2013, Fifth Edition) at 323. It is not necessary that the precise manner in which harm was sustained is foreseeable: Chapman at 120. Ordinarily, where the damage that occurs is of a class, kind or category that is foreseeable, the fact that the “precise concatenation of circumstances which led up to the accident” was not envisaged will not dispose of a claim: NSW Land and Housing Corp v Watkins [2002] NSWCA 19; (2002) Aust Torts Reports 81-641 at [90] (Heydon JA, with Hodgson JA agreeing at [130]), quoting with approval Harvey v Singer Manufacturing Co Ltd 1960 SC 155 at 172 (Lord Mackintosh).
186 Thirdly, in some circumstances, an intervening event may be regarded as the true cause or proper cause of any harm. In those circumstances, the relevant causal chain will be broken, and the defendant will not be responsible for the ensuing consequences: Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522 at 528; Chapman at 122. Whether the causal chain has been broken is a question of fact and degree, to be decided on the facts of each case.
187 I accept that it was reasonably foreseeable that a failure to take steps to remove the applicant from Australia would result in the applicant’s loss of freedom, and consequent mental distress and anxiety. However, there are three reasons why I do not consider that the respondents’ liability would extend to the harm so caused.
188 First, the PNG border restrictions in response to the COVID-19 pandemic were an intervening act which broke the chain of causation. I consider that these border restrictions limited the respondents’ capacity to remove the applicant from Australia after 20 March 2020. This is demonstrated through the following events:
(1) On 20 March 2020, the PNG Government published a gazette which declared that “[n]o person may enter the territory of [PNG]” except for individuals within specified exceptions.
(2) On or before 30 March 2020, the PNG Emergency Controller issued National Emergency Order No. 1 which ordered that “[n]o person is permitted to board an aircraft or vessel bound for PNG unless: listed in schedule 2 of this Order; or provided an exemption in writing by the Emergency Controller”.
(3) On 7 April 2020, National Emergency Order No. 7 came into effect and the Emergency Controller ordered that “[n]o person, including PNG Citizens and Permanent Residents are allowed to enter PNG, except by aircraft, and unless authorised by the Emergency Controller”, there was also an order in the same terms as made by 30 March 2020, identified above.
(4) On 9 April 2020, National Emergency Order No. 12 amended Order No. 7 to repeal the above orders and replace them with orders concerning quarantining international travellers.
(5) On 17 June 2020, the Emergency Controller ordered that “[n]o person is permitted to board an aircraft bound for PNG unless provided an exemption in writing by the Controller or his delegate”. Various measures of a similar kind were in place until 18 March 2021.
(6) Between 16 February 2021 and 20 March 2021, the Department took steps to return the applicant to PNG until the PNG Government suggested that the applicant’s return be delayed on account of the spike in COVID-19 cases in PNG.
(7) Between 21 April 2021 and 17 June 2021, the Department took steps to return the applicant to PNG until the applicant refused to undertake a PCR COVID-19 test.
189 The periods of time identified at (6) and (7) are relevant to the scope of liability because, while the applicant does not claim that the respondents breached the alleged duty of care after 16 February 2021, the harm claimed encompasses the period up until 17 June 2021. Further, while the applicant submits that the respondents could have sought an exemption for the applicant from the Emergency Controller, there is no evidence to suggest that this exemption would have been granted. Indeed, the evidence available is that when the respondents sought to arrange the applicant’s return to PNG in March 2021, the PNG Government sought to delay this process due to COVID-19.
190 Therefore, I am satisfied that even if the respondents had complied with the alleged duty of care after 20 March 2020, but for the COVID-19 pandemic and border restrictions by PNG, the applicant would have been removed from Australia and would not have been detained until 17 June 2021. As the respondents submit, I do not consider that the COVID-19 pandemic was reasonably foreseeable, nor were the unprecedented events which arose in response to it.
191 Secondly and relatedly, I do not consider that responsibility for the harm should be imposed on the respondents after 20 March 2020. This is because the type of harm (being relevantly the applicant’s loss of liberty) was one which was ongoing and could have been remedied if the applicant had been returned to PNG. However, after 20 March 2020, the respondents were not in a position to remedy any breach due to the COVID-19 pandemic. Indeed, this issue is particularly evident with regard to the period between 16 February 2021 and 17 June 2021 where the respondents were taking active steps to return the applicant to PNG. As a matter of legal policy, I do not consider that the respondents should be held responsible for this type of harm in those circumstances.
192 Thirdly, the harm pleaded by the applicant was for the period of detention from 21 January 2020 to 17 June 2021. The applicant did not plead, as an alternative, the period of time from the date of potential removal (assuming it could be proved that this would have occurred prior to 20 March 2020) until 20 March 2020. In circumstances where the applicant has not pleaded or produced evidence in respect of this specific period, I have not considered this narrower period of time for the purposes of the latter issues.
9. DOES A STATUTORY LIMIT AND/OR BAR APPLY TO THE APPLICANT’S CLAIM?
193 The fifth dispute between the parties concerns whether the Wrongs Act limits any damages which the applicant could otherwise claim. This dispute is reflected in the latter part of issue eight, being whether the civil liability laws of Victoria apply to the applicant’s claim, and if so to what effect.
194 In essence, the respondents submit that two aspects of the applicant’s claim are limited by the Wrongs Act, those being that:
(1) the applicant’s general claim for damages is capped by s 28G of the Wrongs Act; and
(2) the applicant’s claim for mental distress and suffering is barred by s 28LE of the Wrongs Act.
195 First, the question whether s 28G of the Wrongs Act applies hinges upon satisfaction of two statutory criteria: (1) the applicant seeks “an award of personal damages”, and Part VB applies to the claim; and (2) the applicant seeks a claim for non-economic loss, and that his damages are therefore capped by s 28G of the Wrongs Act.
196 With respect to the first component of that claim, Part VB of the Wrongs Act applies to “an award of personal injury damages” (subject to specified exceptions not presently relevant in s 28C). On the respondents’ submission, the applicant claims “personal injury damages” within the meaning of ss 28B and 28C of the Wrongs Act. Personal injury damages mean “damages that relate to the death of or injury to a person caused by the fault of another person”: s 28B. Injury, in turn, is defined in s 28B to mean:
personal or bodily injury and includes—
(a) pre-natal injury; and
(b) psychological or psychiatric injury; and
(c) disease; and
(d) aggravation, acceleration or recurrence of an injury or disease;
(Emphasis added.)
197 The respondents submit that the applicant’s claim for damages associated with “mental distress and anxiety” and “mental suffering” are a “psychological or psychiatric injury”, and are therefore personal injury damages such that Part VB of the Wrongs Act applies to the claim. That being so, the respondents submit that s 28G of the Wrongs Act applies to the claim. That provision provides:
The maximum amount of damages that may be awarded to a claimant for non-economic loss is $577 050.
198 Non-economic loss is defined in s 28B to mean:
any one or more of the following—
(a) pain and suffering;
(b) loss of amenities of life;
(c) loss of enjoyment of life;
199 In the respondents’ submission, the applicant’s claim for damages in relation to mental distress and anxiety are in respect of injuries for pain and suffering. Accordingly, the respondents submit that the applicant is seeking personal injury damages for non-economic loss and s 28G provides a maximum amount of damages which would be available to the applicant, at least with respect to his claim for pain and suffering.
200 The second of those claims, that the applicant’s claim for mental distress and suffering is barred by s 28LE of the Wrongs Act, is said to flow from Part VBA of the Wrongs Act. Part VBA applies to “claims for the recovery of damages for non-economic loss” subject to specified exceptions: s 28LC. Section 28LB defines non-economic loss in the same manner as s 28B above. Section 28LE then provides:
A person is not entitled to recover damages for non-economic loss in any proceeding in a court in respect of an injury to a person caused by the fault of another person unless the person injured has suffered significant injury.
201 The term “significant injury” is defined in s 28LF of the Wrongs Act. Section 28FL(2) of the Wrongs Act relevantly provides that a psychiatric injury will only be a significant injury if the impairment has been assessed by an approved medical practitioner. The applicant has not adduced evidence of that kind. Accordingly, in the respondents’ submission, s 28LE has the effect of stripping out any claim for damages which is attributable to the applicant’s mental distress and suffering: citing Monaghan v Australian Capital Territory [No 2] [2016] ACTSC 352; (2016) 315 FLR 305 at [206]–[213] (Mossop AsJ).
202 In summary, the applicant submits that neither of these contentions should be accepted for the following reasons:
(1) Damages are sought for mental suffering, distress and anxiety, and not for a “psychological or psychiatric injury”: see the definition of an injury in s 28B (Part VB) and s 28LB (Part VBA).
(2) The applicant’s claim does not “relate to the… injury to a person”, and instead relates to a loss of freedom, meaning that it is not a claim for “personal injury damages” to which Part VB applies: ss 28B and 28C.
(3) Similarly, the applicant’s claim is not “in respect of an injury to a person” for the purposes of the statutory bar in s 28LE (Part VBA).
203 As such, the applicant submits that neither s 28G of the Wrongs Act (Part VB) capping the quantum of damages, nor the limitation on claiming non-economic loss in s 28LE (Part VBA), applies to his claim. The applicant submits that it is well-established in Australian law that anxiety and distress are not recognised as a personal injury: citing Bulsey v Queensland [2015] QCA 187 at [85] (Fraser JA).
204 The central issue raised by this question is whether the harm claimed by the applicant (being loss of freedom, and consequent metal distress and anxiety) “relate to the… injury to a person” (Part VB) and/or is “in respect of an injury to a person” (Part VBA). In circumstances where the claim must fail in any event for the reasons earlier held, and given the question of law is a serious one, I consider that it is preferable for this question to be resolved in a matter where it truly arises.
205 The sixth and final issue concerns the quantum of damages able to be claimed by the applicant, had he been successful in establishing the elements of his negligence claim.
206 The applicant seeks the following damages:
(1) $7,000 per day for the period 21 January 2020 to 17 June 2021, being 512 days and totalling $3,584,000;
(2) $750,000 in aggravated damages; and
(3) $500,000 in exemplary damages.
207 In view of my findings on the preceding issues, it is difficult to reach any conclusion on the question of damages, including the claim for aggravated and exemplary damages, that might have been awarded if the applicant had succeeded in establishing the existence of a duty of care known to the law and the elements of his cause of action. Notwithstanding these difficulties, however, I consider it appropriate to make the following observations regarding the applicant’s claim for compensatory damages.
208 First, I accept the respondents’ submissions that the applicant would have remained in immigration detention following his request to return on 21 January 2020, while arrangements would have been made for the applicant’s removal. Accordingly, the period of detention in purported breach of the duty of care would not encompass the total 512 days in respect of which damages are claimed.
209 Secondly, I do not accept that damages in relation to a loss of freedom should be awarded on a “per day” basis, contrary to the applicant’s submissions. As Spigelman CJ held in Ruddock v Taylor [2003] NSWCA 262; (2003) 58 NSWLR 269 at [49]:
Damages for false imprisonment cannot be computed on the basis that there is some kind of applicable daily rate. A substantial proportion of the ultimate award must be given for what has been described as the initial shock of being arrested. (Thompson; Hsu v Commissioner of Police of the Metropolis [1998] QB 498 at 515.) As the term of imprisonment extends the effect upon the person falsely imprisoned does progressively diminish.
210 Thirdly, I consider that a total of $3,584,000 for general damages is disproportionate and out of alignment with previous awards.
211 The applicant submits that this daily rate is appropriate, as it is between the daily rate of $5,000 in Stradford (A Pseudonym) v Judge Vasta [2023] FCA 1020 (being an award of $35,000 of compensatory damages for seven days of false imprisonment) and $12,500 per day purportedly awarded in MZZHL v Commonwealth of Australia [2021] FCA 600. The rate cited by the applicant as underpinning the award of damages in MZZHL, with respect, appears to be based on a miscalculation. The applicant in that case was awarded $350,000 which on a daily rate of $12,500 would be for 28 days of detention. However, the applicant in MZZHL was detained for approximately 2-years. Accordingly, MZZHL does not support the sum of damages claimed by the applicant in this proceeding. Further, in neither case was the award for damages calculated on a daily rate basis.
212 In contrast, the respondent relies on the following authorities as guidance for appropriate awards:
Authority | Period in detention | Damages award |
Okwume v Commonwealth of Australia [2016] FCA 1252 | Less than 18 hours | $2,000 |
Goldie v Commonwealth [No 2] [2004] GCA 156; (2004) 81 ALD 422 | 3 days | $22,000 |
Ruddock* * An appeal to the High Court on liability was allowed: [2005] HCA 48; (2005) 222 CLR 612. | Two periods of 161 and 155 days (316 days in total) | $116,000 |
Burgess v Commonwealth of Australia [2020] FCA 670; (2020) 276 FCR 548 | 615 days | Nominal damages, but Besanko J would have otherwise awarded $125,000 |
MZZHL* * Noting that this award was set aside on appeal, but not on the basis of error as to quantum: [2021] FCAFC 191; (2021) 289 FCR 135 | 2 years | $350,000 |
Guo v Commonwealth of Australia [2017] FCA 1355; (2017) 258 FCR 31 | Two periods of 940 and 93 days (1,033 days in total) | Nominal damages, but Jagot J would have otherwise awarded $380,000 |
Fernando v Commonwealth of Australia [2014] FCAFC 181; (2014) 231 FCR 251 | 1,203 days | Primary judge awarded nominal damages, but would have otherwise awarded $265,000 Justices Besanko and Robertson concluded on appeal that the “assessment seems to us to be low, but not so low as to indicate error”: at [113]. |
213 Assuming in the applicant’s favour that I had found that the statutory limit on compensatory damages did not apply, I consider that an award in the range of $100,000 to $150,000 would have been appropriate. This falls in the range of the $116,000 awarded by the New South Wales Court of Appeal in Ruddock for 316 days of false imprisonment, and the $125,000 which would have been awarded by Besanko J for 615 days imprisonment in Burgess.
214 For these reasons, the application is dismissed. The parties wish to be heard on costs. I have therefore reserved costs pending the making of submissions by the parties in the event that agreement on costs cannot be reached.
I certify that the preceding two hundred and fourteen (214) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perry. |
Associate:
