Federal Court of Australia

FKCV v Commonwealth of Australia [2025] FCA 1073

ORDERS

THE COURT ORDERS THAT:

1.    The time for the applicant to file and serve any reply, as required by Order 4 of the orders made on 4 June 2025, be further extended to 4.00pm on 5 September 2025.

2.    Following the filing of the reply in compliance with Order 1, the proceeding be temporarily stayed until the High Court of Australia proceeding of Abdel-Hady v Minister for Home Affairs (No S65 of 2021) is determined and the reasons have been published.

3.    The respondent notify the Court within 7 days of the judgment being handed down in Abdel-Hady.

4.    The parties have liberty to apply.

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

REASONS FOR JUDGMENT

STELLIOS J:

1    The applicant in this proceeding seeks (a) a declaration that his immigration detention during the period from around 6 February 2023 until his release on 3 June 2025 was unlawful, and (b) damages for the period of unlawful detention. The applicant’s statement of claim was accepted for filing on 20 June 2025 and the respondent’s defence was filed on 22 August 2025. A reply is outstanding. However, the parties have agreed to extend the filing date for the reply to 5 September 2025. No further timetabling orders have been made to progress the proceeding to hearing.

2    In its defence, the respondent admits that: (a) the applicant was detained between 27 February 2023 and 3 June 2025 (detention period) by officers of the respondent under the Migration Act 1958 (Cth) for the sole purpose of his removal from Australia, and (b) during that detention period, there was no real prospect of the applicant’s removal from Australia becoming practicable in the reasonably foreseeable future.

3    The respondent also admits that, by reason of those matters, the applicant’s detention during the detention period was not authorised by the Migration Act. That concession follows from the High Court of Australia’s decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 280 CLR 137; [2023] HCA 37.

4    The respondent also admits that the applicant’s immigration detention during the detention period was a deprivation of the applicant’s liberty for the purposes of the tort of false imprisonment. However, the respondent pleads in its defence that, during the period from 27 February 2023 until the date of the High Court’s orders in NZYQ, that is, 8 November 2023 (first period), the relevant Commonwealth officers detaining the applicant were under a duty to keep the applicant in immigration detention because of the High Court’s decision in Al-Kateb v Godwin (2004) 219 CLR 562 that ss 189(1) and 196(1) of the Migration Act validly authorised and required the applicant’s detention even in circumstances where there was no real prospect of removal becoming practicable in the foreseeable future.

5    Consequently, it is pleaded in defence that the relevant Commonwealth officers (and the respondent itself either vicariously or to the extent that it might be directly liable), have a defence at common law, the effect of which is that they are not liable to the applicant for the tort of false imprisonment during the first period. I will refer to that as the lawful justification defence. The respondent does not rely upon the lawful justification defence in relation to the remaining period of detention from 9 November 2025 to 3 June 2025 (second period).

6    The parties agree that the availability of the lawful justification defence is to be considered by the High Court in Abdel-Hady v Minister for Home Affairs (No S65 of 2021), and that the High Court’s determination of that issue will be applicable to the applicant’s circumstances. That case has been ordered to be heard by the High Court in the November 2025 sitting period.

7    In that context, the respondent now seeks orders to adjourn the proceeding until the judgment of the High Court in Abdel-Hady, and that the respondent notify the Court within 7 days of the judgment being handed down by the High Court. The applicant opposes those orders and, instead, seeks timetabling for the filing of evidence and for the attendance at mediation by 30 January 2026.

SUBMISSIONS

8    At a case management hearing held on 3 September 2025, the parties relied on written submissions, supplemented by oral argument, in support of their respective positions.

9    Relying on BLD15 v Minister for Immigration and Border Protection (2017) 245 FCR 1; [2017] FCA 72; BOE21 v Commonwealth of Australia [2024] FCA 709; and AJQ24 v Commonwealth of Australia [2025] FCA 676, the respondent made the following submissions in support of a stay:

(1)    Any mediation and determination of these proceedings will be affected by the outcome in Abdel-Hady as the question of the availability of the lawful justification defence, which is the only defence relied upon by the respondent, will be determined by the High Court’s decision. There is no reason to doubt that the High Court will determine the question as it is the only question before the High Court.

(2)    The delay in mediation and the hearing of this matter while awaiting the High Court’s decision would not be unreasonably lengthy given that Abdel-Hady will be heard by the High Court in November and the applicant is not in immigration detention.

(3)    It would not be an appropriate use of the Court’s resources to proceed to hear and determine this proceeding where the lawful justification defence will have significant impact on the respondent’s liability. There would be considerable inefficiency in preparation of evidence in the event that the High Court were to determine that the lawful justification defence were available.

(4)    Because compensation for false imprisonment is not calculated on a “per day” basis, instead quantified on the basis that the initial shock, humiliation and distress of the first point of unlawful detention being significant, the proof of damages, particularly for the first period, is likely to be significantly affected if the High Court were to determine that the lawful justification defence were available.

10    Relying on the principles for temporary stays derived from Sterling Pharmaceuticals Pty Ltd v Boots Company (Australia) Pty Ltd (1992) 34 FCR 287 at 291 (Lockhart J), and restated by Perry J in ResMed Ltd v Australian Manufacturing Workers’ Union (No 2) (2015) 243 FCR 366; [2015] FCA 537 at [34]–[35], the applicant resisted the application for an adjournment for the following reasons:

(1)    The applicant “is entitled to have his action … tried in the ordinary course … subject only to an exercise of a judicial discretion on proper grounds as part of the court’s inherent powers”, and it is a “grave matter” to restrain that right (relying on Rochford v John Fairfax & Sons Ltd [1972] 1 NSWLR 16 at 19 (Sugerman ACJ, with whom Holmes and Mason JJA agreed)).

(2)    The respondent has not discharged its burden to establish a basis to override that fundamental entitlement:

(a)    the respondent is seeking in effect to stay any steps being taken to progress the matter to hearing and, accordingly, the authorities relied on by the respondent are of no assistance;

(b)    it has not demonstrated by evidence that the cost and time spent on the matter will be wasted to any significant degree if the matter progresses;

(c)    the possible outcome in Abdel-Hady simply informs the parties’ positions in any mediation — any expectation by the respondent that it might do better after Abdel-Hady is no reason for an adjournment;

(d)    any answers given in Abdel-Hady will not be dispositive;

(e)    the High Court proceeding has not been listed and the parties cannot speculate about when it might be decided;

(f)    if not progressed at all in the interim, the applicant’s case will be significantly delayed well into 2026; and

(g)    the Commonwealth has not undertaken that it will not remove the applicant to Nauru (or otherwise) pending the determination of this proceeding. If he is removed, there is a real likelihood his ability to participate in the proceeding may be compromised.

Disposition

11    The question before me is whether I should adjourn the proceeding or, alternatively, further timetable the proceeding through to mediation by the end of January 2026. I am not faced with the question of whether I should adjourn the hearing of the question that will be considered by the High Court. Accordingly, the circumstances are not the same as those presented to the Court in BLD15, BOE21 or AJQ24.

12    Nor are the circumstances akin to those before Lockhart J in Sterling Pharmaceuticals or Perry J in ResMed. In the former case, his Honour was considering whether a proceeding in the Court should be stayed in circumstances where a foreign court would resolve similar claims to those to be determined in the forum proceeding. In the latter case, her Honour was considering a stay application in circumstances where the Fair Work Commission’s impending determination of applications might alter the rights in dispute before the Court. Neither circumstance is analogous to the question before me.

13    Nonetheless, the statements of principle and observations in those authorities have assisted in my determination of the question before me.

14    As Perry J said in ResMed, “[i]t is well established that the Court has an extensive jurisdiction to stay proceedings in the interests of justice as a matter of judicial discretion” (at [34]). If the proceeding had reached a point where the question of whether the lawful justification defence is available in relation to the first period had been listed for hearing, I would have for the following reasons stayed the proceeding until that question were considered and determined by the High Court:

(1)    The determination of the applicant’s unlawful detention claim in relation to the first period will turn on that question, and no other liability dispute arises on the pleadings;

(2)    There is no dispute between the parties that the High Court will consider that question in Abdel-Hady (see BLD15 at [12]; AJQ24 at [3]);

(3)    The case will be listed for hearing in the first two weeks of November which is now only two months away (see BOE21 at [37]); and

(4)    The applicant is not in detention (see BLD15 at [8]; BOE21 at [37]; AJQ24 at [15]).

15    In those circumstances, while there would be a delay in determining the applicant’s claims, there would be “insufficient justification for the use of the Court’s time and resources, and the parties’ time and resources” (BOE21 at [37]) for the Court to hear and determine the question of whether the lawful justification defence is available.

16    However, that is not the question before me. The question, then, is whether it makes a difference that the proceeding is at an earlier stage and could be progressed in the meantime through the further timetabling orders sought by the applicant for the filing of evidence and the holding of a mediation (cf AJQ24 at [15]).

17    For the following reasons, and having regard to the overarching purpose of the civil practice and procedure provisions in s 37M of the Federal Court of Australia Act 1976 (Cth), I am satisfied by the respondent’s arguments that a stay should be granted in the interests of justice:

(1)    First, it is likely that any evidence to be filed by the parties would be affected by the High Court’s decision and reasons for judgment in Abdel-Hady. That is particularly the case if the High Court were to determine that a defence of lawful justification is available. Of course, there is the possibility of filing supplementary evidence following the High Court’s decision. However, that would necessarily involve delay and comes at an efficiency cost of time and resources.

(2)    Secondly, even if I were of the view that the filing of evidence could be timetabled without undue consequences to the resources of the parties and the Court, it is difficult to see how the mediation could be usefully run without the parties knowing their respective legal rights and duties. The prospect of wasting the time and resources of the parties (and potentially a Registrar of the Court) is not an appealing one.

(3)    Thirdly, while I acknowledge that there will be a delay in progressing the proceeding to hearing, that consequence for the applicant is somewhat mitigated by the proximity of this application to the High Court hearing and the fact that delay might follow in any event, should the High Court determine that the lawful justification defence is available and the parties have to amend their pleadings and file additional evidence.

(4)    Fourthly, the applicant’s argument that there is no undertaking in relation to removal to Nauru equally applies whether or not the timetabling orders are made.

18    While the respondent sought an adjournment of the proceeding, I consider that a temporary stay of the proceeding is appropriate.

19    The parties were also in agreement at the case management hearing that an order should be made to extend time for the filing of a reply in order to close the pleadings. I will make that order.

Associate:

Dated:    4 September 2025