Federal Court of Australia

Plaintiff S30/2025 v Commonwealth of Australia (Separate Question) [2026] FCA 228

ORDERS

THE COURT ORDERS THAT:

1.    The plaintiff’s interlocutory application dated 22 October 2025 be dismissed.

2.    The plaintiff pay the defendant’s costs of the application.

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

REASONS FOR JUDGMENT

THAWLEY J:

Introduction

1    The plaintiff applies under r 30.01 of the Federal Court Rules 2011 (Cth) for the determination of a separate question arising out of his claim that the imposition and enforcement of certain visa conditions, later held to be invalid, constituted the tort of false imprisonment. The proceeding in which the application is brought was originally before the High Court in its original jurisdiction but was remitted to this Court by orders made on 19 May 2025.

2    The plaintiff is a member of the cohort of persons affected by the decisions of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 280 CLR 137 and YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40; 419 ALR 457. In NZYQ, the High Court decided that that the detention of unlawful non-citizens for whom there was no real prospect of removal from Australia was illegal. Following NZYQ, the Commonwealth Parliament passed legislation providing for the imposition and enforcement of certain conditions on the visas of the cohort of persons affected by the decision in NZYQ. Those conditions included conditions 8617, 8618, 8620 (Curfew Condition) and condition 8621 (Monitoring Condition). In YBFZ, the High Court held that the regulations authorising the Curfew Condition and the Monitoring Condition were invalid.

3    There are two aspects to the plaintiff’s claim against the Commonwealth:

(a)    From 14 December 2019 to 9 November 2023, the plaintiff was held in detention as an unlawful non-citizen with no real prospect of removal from Australia. The plaintiff claims that he was falsely imprisoned during this period (NZYQ Claim).

(b)    From 20 November 2023 to 6 November 2024, the plaintiff held a visa subject to the Curfew Condition and the Monitoring Condition and those conditions were enforced until 7 November 2024. The plaintiff claims that the imposition or enforcement of the Curfew Condition and the Monitoring Condition on the Plaintiff’s visa during this period give rise to the torts of false imprisonment, battery and assault (YBFZ Claim).

4    By his application, the plaintiff seeks that an aspect of the false imprisonment part of the YBFZ Claim be determined as a separate question. The proposed separate question is as follows:

Did:

a.    the presence of the monitoring device on the Plaintiff’s ankle in pursuance of the ‘Monitoring Condition’; and

b.    the restrictions imposed on the Plaintiff in pursuance of the ‘Curfew Condition’,

amount to, separately or in combination, a restraint on the Plaintiff's liberty comprising an intentional tort that sounds in damages?

5    The plaintiff’s application is brought in the context of the pending decision of the High Court in Abdel-Hady v Commonwealth of Australia (No S65 of 2021). One issue in Abdel-Hady is whether there is a defence to the tort of false imprisonment based on statutory authority even where the statutory authority is later held to be invalid. The claim in Abdel-Hady arises out of the same circumstances as the plaintiff’s NZYQ Claim. The plaintiff accepts that the decision in Abdel-Hady will be relevant, if not determinative, of his NZYQ Claim. I made orders on 15 September 2025 that this proceeding be stayed temporarily pending the decision in Abdel-Hady, without prejudice to this application for the hearing of a separate question.

Resolution

6    There are three reasons why the Court should not order the determination of the proposed separate question.

Answering the question has no real utility

7    The proposed question is framed at a high level of generality. It asks whether the curfew and monitoring arrangements “amount to … a restraint on liberty comprising an intentional tort that sounds in damages”, without identifying the particular tort (or torts) said to be engaged, or the elements that must be established for liability. Even if the question were answered favourably to the plaintiff, in the sense that the conditions were capable, as a matter of characterisation, of amounting to a restraint on liberty sufficient to comprise an intentional tort, that would not resolve liability on any pleaded cause of action. For instance, it would not resolve whether the plaintiff consented to any restraint on liberty or whether any restraint on liberty would justify a substantial damages award.

8    The plaintiff submits that the question is directed to a “novel defence” put forward by the defendant. However, the defendant denies that the conditions imposed a restraint on liberty sufficient to found claims in tort. That is not, of itself, a discrete defence apt for separate determination. It is a contest about whether an element (or elements) of liability is made out in the plaintiff’s circumstances.

9    The determination of the proposed question would not determine the YBFZ Claim. The consequence of ordering the separate question would be to hear one aspect of the YBFZ Claim, without the answer being likely to dispose of that claim or the NZYQ Claim. Then a further hearing would have to be held to determine the balance of the YBFZ Claim and the NZYQ Claim, assuming the NZYQ Claim were to proceed in light of what happens in Abdel-Hady.

The question cannot be answered without a substantial factual inquiry

10    The proposed question is a question of mixed fact and law. Ordering its separate determination would require precision in both the formulation of the question and the identification of the facts upon which it is to be decided – see: Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at [53].

11    The plaintiff submits that the question can be determined “promptly” and without significant factual controversy, relying on matters said to be admitted and on the High Court’s statements in YBFZ. I do not accept this submission.

12    First, the admissions to which the plaintiff points are directed to the existence and general operation of the conditions. They do not supply the facts required to decide whether, and in what way, the conditions operated as a restraint on the plaintiff’s liberty for the purposes of the pleaded torts. That inquiry is necessarily fact-specific.

13    Secondly, the statements made in YBFZ were made in a different proceeding for a different purpose (constitutional validity). They do not supply evidence capable of determining contested facts in this proceeding. In particular, they do not address the plaintiff’s personal circumstances and how the conditions were implemented and experienced in practice.

14    Unless the parties were able to agree a sufficiently comprehensive set of facts (which is unlikely), answering the proposed question would require evidence and findings about matters such as: the way the conditions were communicated and enforced in the plaintiff’s case; the practical extent of the restrictions on his movement; the operation and consequences of the monitoring device; and the plaintiff’s response to, and compliance with, the conditions over time. That is the kind of factual inquiry Bass warns may render a separate determination unproductive.

Fragmentation and inefficiency

15    The discretion under r 30.01 must be exercised in a way that best promotes the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth). The starting point is that issues of law and fact should be determined together. A separate question is warranted where it will resolve the proceeding, or at least substantially narrow the issues for trial, without undue overlap or delay. There are other contexts where separate questions are particularly useful, such as in certain insurance or commercial litigation, but these may put to one side for present purposes – see: Peros v Blackburn [2024] FCA 177 at [31] (Derrington J).

16    The proposed question would not resolve the proceeding or any substantial part of it. It would, however, generate a substantial evidentiary and forensic contest on matters overlapping with the balance of the YBFZ Claim, and potentially the NZYQ claim.

17    The likely effect would be fragmentation: two sets of evidence and submissions and two hearings dealing with overlapping subject matter. Adopting the plaintiff’s proposed course is likely to increase, rather than reduce, the time and cost of the proceeding. It is also likely to cause delay.

Related proceedings

18    The plaintiff submits that an answer to the separate question may assist in resolving other claims said to be brought by many individuals. I do not accept that this point supplies a reason to order the question.

19    The proposed question is not framed by reference to a discrete claim for relief in this proceeding; and, more importantly, the answer would turn on the plaintiff’s particular circumstances and the practical operation of the conditions in his case. Those matters may differ materially from person to person. No answer to the question proposed by the plaintiff could provide a dispositive ruling for other proceedings. In any event, those other proceedings may well be further advanced than these proceedings.

Conclusion

20    It follows that resolution of the separate question does not obviously assist in the resolution of this proceeding or the claims of other persons. The plaintiff’s application must be dismissed with costs.

Associate:

Dated:    9 March 2026