Federal Court of Australia

AJQ24 v Commonwealth of Australia [2025] FCA 676

ORDERS

THE COURT ORDERS THAT:

1.    The hearing of the separate question listed on 25 and 26 June 2025 be vacated.

2.    The respondent pay the applicant’s costs thrown away as a result of the adjournment of the hearing of the separate question, on a party-party basis, including, in the event that the hearing of the separate question does not ultimately proceed, the applicant’s costs of and incidental to agreeing, and preparing for the hearing of, the separate question.

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

REASONS FOR JUDGMENT

MCDONALD J:

1    The applicant in these proceedings seeks (among other things) damages for false imprisonment in respect of the period between 13 April 2018 and 11 November 2023, during which he was detained in immigration detention. The final hearing of a separate question that has been agreed between the parties is currently listed on 25 and 26 June 2025. The separate question relates to part only of the period during which the applicant was imprisoned, being the period between 21 May 2021 and 11 November 2023, and concerns the legal issue of whether the respondent, the Commonwealth of Australia (Commonwealth), has a defence to the tort of false imprisonment in relation to that period. The facts relevant to the determination of the separate question are agreed between the parties.

2    The Commonwealth, by interlocutory application dated 19 June 2025, has applied for an adjournment of the hearing of the separate question, on the basis that the same question is now to be considered by a Full Court of the High Court in Abdel-Hady v Minister for Home Affairs (High Court of Australia action S65/2021) (Abdel-Hady). The applicant informed the Court that he was “ready, willing and desirous of proceeding” with the hearing of the separate question, but acknowledged the force of the considerations relied on by the Commonwealth in support of an adjournment.

3    The prospect that a legal question relevant to a proceeding may soon be affected by the decision of a superior court will not always, or even ordinarily, justify the adjournment of a hearing in the proceeding: see, eg, Meggitt Overseas Ltd v Grdovic (1998) 43 NSWLR 527 (Meggitt) at 534 (Mason P; Sheller and Beazley JJA agreeing). However, it may be appropriate to grant such an adjournment where the question for determination in the proceeding will directly depend on a decision on a particular question of law before an appellate court: see, eg, Geelong Football Club Ltd v Clifford [2002] VSCA 212 at [6]-[7]; Meggitt at 534-5. The degree of certainty that the appellate court’s decision will decide the issues, and the extent of the expected delay and the consequences for the party opposing the adjournment, are relevant to the exercise of the Court’s discretion: City of Sydney Council v Satara [2007] NSWCA 148 at [32].

4    The Commonwealth relies on an affidavit of Louise Buchanan, an AGS lawyer, dated 19 June 2025. On the basis of that affidavit, I accept that the separate question in these proceedings is substantially identical to the question that is to be considered by the High Court in Abdel-Hady.

5    In the present proceedings, the applicant alleges, and the Commonwealth now accepts, that the applicant’s detention in the period from 21 May 2021 until his release on 11 November 2023 was not authorised by s 189 or s 196 of the Migration Act 1958 (Cth). In relation to the applicant in Abdel-Hady, the Federal Circuit and Family Court of Australia (Division 2) has made declarations by consent that, throughout the period between 28 July 2022 and 13 February 2024, there was no real prospect of removal of the applicant from Australia becoming practicable in the reasonably foreseeable future, and that the detention of the applicant in that period was not authorised by s 189 or s 196 of the Migration Act.

6    The issue in both Abdel-Hady and these proceedings is whether the Commonwealth has a defence to the tort of false imprisonment in respect of periods during which:

(a)    there was no real prospect of the person in question being removed from Australia in the reasonably foreseeable future; but

(b)    they were detained by officers of the Commonwealth on the basis that, as an unlawful non-citizen, ss 189 and 196 of the Migration Act required and authorised their continuing detention.

7    The assumption on which officers of the Commonwealth proceeded, that ss 189 and 196 authorised and required the continuing detention of an unlawful non-citizen, even if there was no real prospect that they could be removed from Australia in the foreseeable future, was in accordance with the High Court’s decision in Al-Kateb v Godwin (2004) 219 CLR 562; [2024] HCA 37 (Al-Kateb). However, on 8 November 2023, that decision was overruled by NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 97 ALJR 1005; [2023] HCA 37 (NZYQ).

8    In the present proceedings, the Commonwealth contends that it has available a defence of “lawful justification”, even though it accepts that, in accordance with the decision in NZYQ, the detention of the applicant in the circumstances was not actually authorised by s 189 or s 196 of the Migration Act. The defence of lawful justification is said to apply because, by reason of the decision in Al-Kateb, and for so long as that decision had not been overruled, officers of the executive were (so the Commonwealth submits) under a “duty” to give effect to the rule of law and thus to treat the invalid ss 189 and 196 as valid laws of the Commonwealth.

9    The Commonwealth relies upon what it contends is an analogous application of the defence of justification in Queensland v Stradford (a pseudonym) (2025) 99 ALJR 396; [2025] HCA 3: see, in particular, at 408 [13], [14], 433 [149]-[150] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ), 458 [264], 472 [320], [322] (Edelman J). Consideration of the written submissions filed by the Commonwealth in the High Court in Abdel-Hady on 18 June 2025 satisfies me that the defence on which the Commonwealth proposes to rely in Abdel-Hady is substantially the same as the defence relied on by the Commonwealth in the present case, which is the subject of the separate question.

10    On 18 June 2025, Gageler CJ made orders for the filing of pleadings and the preparation of a special case in Abdel-Hady, to enable a Full Court of the High Court to consider the lawful justification defence. The High Court’s decision as to whether the defence is available, as contended for by the Commonwealth, will affect claims brought by various applicants who were detained consistently with what Al-Kateb had held the law to authorise and require. I accept the Commonwealth’s submission that Abdel-Hady is properly considered a “test case” and is being treated as such by the parties and the High Court. I also accept that the separate question can properly be described as depending on a “limited” question of law.

11    I accept that the making of orders that contemplate the preparation of a special case for hearing by the High Court indicates that it is expected that a Full Court of the High Court will determine this issue in the coming months and the matter is not likely to be remitted to another court. Abdel-Hady is a proceeding in the original jurisdiction of the High Court and its determination in that Court is not subject to a grant of special leave. Except in the unlikely event that Abdel-Hady is discontinued or does not proceed to a final hearing for some other reason, the High Court’s decision will authoritatively determine the separate question for determination in the present proceedings.

12    It is not certain whether this Court, if it were to hear the separate question, would deliver judgment before the hearing and determination of the High Court in Abdel-Hady. If the High Court delivered its judgment first, this Court would be bound to apply the decision of the High Court. In that case, the cost of the hearing and the resources of this Court spent in preparing the judgment would have been wasted. If this Court delivered its decision first, and the High Court then delivered judgment and reached the same conclusion, there would be no real benefit to the applicant in having had a decision from this Court ahead of the authoritative determination of the issue by the High Court. If this Court delivered its decision first, then the High Court delivered judgment and reached a different conclusion, it is to be expected that the unsuccessful party in this Court would appeal and the Full Court would be bound to give effect to the conclusion of the High Court. In each situation, the costs of the hearing and the resources of this Court would effectively be wasted. It is highly unlikely that the present proceedings, and any appeal from them, could or would be determined so expeditiously that they could overtake Abdel-Hady and become the vehicle for the authoritative determination of the issue by the High Court.

13    A similar situation recently arose in BOE21 v Commonwealth [2024] FCA 709 (BOE21), a case in which a challenge was made to the validity of certain visa conditions that applied to persons who had been released from detention following the High Court’s decision in NZYQ. The same issue was to be determined by the High Court in YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 99 ALJR 1; [2024] HCA 40 (YBFZ). Chief Justice Mortimer adjourned the proceedings in this Court in which challenges raising that issue were advanced, pending the determination of the High Court. Among other things, her Honour said (at [37]):

… There is insufficient justification for the use of the Court’s time and resources, and the parties’ time and resources, in examining a significant constitutional and legal issue in circumstances where that issue is to be determined by the High Court in a matter of months. …

14    These observations also apply to the present situation, although the precise timing of the High Court hearing and decision in Abdel-Hady is still uncertain at this stage. I am conscious that, in this case, unlike in BOE21, the hearing date for the separate question was imminent and the parties have already filed written submissions and will have undertaken substantial preparation for the hearing. However, to the extent that that involves any detriment to the applicant, it can be addressed by an order that the Commonwealth pay the costs thrown away as a result of the adjournment. As I have already explained, assuming Abdel-Hady proceeds to judgment, the decision in that case is almost certain to conclusively determine the issue that is the subject of the separate question in these proceedings.

15    I note that there were other circumstances in BOE21 which weighed against awaiting the outcome in YBFZ, but which are not present in this case. In particular, the applicant in BOE21 was ostensibly subject to visa conditions, which they contended were constitutionally impermissible and invalid, and which the High Court in YBFZ ultimately held to be constitutionally impermissible. In the present case, the determination of the separate question is relevant only to whether the applicant has an entitlement to a declaration and damages, and the quantum of damages will not be determined by the hearing of the separate question itself in any event. The balance of considerations would be quite different if, for example, the applicant were being held in immigration detention and if the lawfulness of his continuing detention depended on the answer given to the separate question.

16    Also relevant to the exercise of discretion in this case is the fact that the determination of the separate question will not wholly determine the proceedings, or even the whole of the applicant’s claim for damages for false imprisonment. There are other procedural steps that can be taken, in the period before the High Court’s determination of the special case in Abdel-Hady, to progress the remaining issues in these proceedings towards a final hearing. This means that the period of the adjournment pending the decision of the High Court need not be wasted, as far as the present proceedings as a whole are concerned.

17    In all the circumstances, I am satisfied that it is appropriate to order that the hearing of the separate question be vacated. I do so with the expectation that, once the outcome of Abdel-Hady is known, the parties will be in a position to agree on the answer to the separate question and no contested hearing of the separate question will be necessary. In the unlikely event that it becomes apparent that the special case in Abdel-Hady will not to be heard by the High Court for any reason, the Commonwealth should inform this Court as soon as possible and, if appropriate, the hearing of the separate question in these proceedings can be relisted for hearing.

18    The Commonwealth has indicated that it consents to an order that it pay the applicant’s costs thrown away as a result of the adjournment of the hearing of the separate question. That is an appropriate order to make in the circumstances. The applicant seeks that those costs be payable on an indemnity basis. It is unfortunate that the application has had to be made so close to the hearing date, but I accept that that is largely a consequence of the timing of developments in the Abdel-Hady proceeding. The agreement of the parties in Abdel-Hady to proceed by way of a special case was not reached until after the hearing of the separate question in these proceedings had been listed, and the Commonwealth could not be certain that Abdel-Hady would proceed in that way in the High Court until 18 June 2025, which was the day before the Commonwealth’s application for an adjournment was filed.

19    In the circumstances, it is appropriate that the Commonwealth pay the applicant’s costs thrown away on a party-party basis. If, as is expected, the separate question is wholly resolved by the decision of the High Court in Abdel-Hady, then the costs thrown away will include the costs associated with agreeing, and preparing for the hearing on, the separate question.

Associate:

Dated:    23 June 2025