Submissions
79 The respondents submitted that this originating application, which again seeks review of the "failure and conduct" of the respondents, suffers the same deficiencies as identified in relation to the VID167 documentation. The applicant identifies "grounds of application", which refer to a number of legislative provisions, but there is no identification of how they relate to the preceding paragraphs and nor is any such relation evident on the face of the paragraphs. The applicant identifies the orders that he seeks, but it is not apparent how, if at all, there is any basis in the originating application or the statement of claim for the orders that are sought.
80 The respondents submitted that the applicant's statement of claim is equally unclear. The applicant asserts facts which relate to some, but not all of the alleged "failure and conduct" of the respondents identified in the originating application. The respondents submitted that as with VID167, although paragraphs of the statement of claim use words which have legal meaning, those paragraphs are bare conclusory allegations which do no more than assert a complaint and, on occasion, employs legal terms in so doing. It was submitted that the statement of claim fails to identify with clarity any specific cause of action, let alone the elements thereof or the material facts that would satisfy the pleading requirements of any cause of action. The respondents submitted that the matters listed under "The applicant claims" are largely not prayers for relief at all. The only substantive relief sought is "damages", which is different relief from that sought in the originating application.
81 The respondents submitted that the proceedings should be summarily dismissed. In the alternative, the respondents submitted that the pleadings ought to be struck out.
82 As a preliminary matter, the respondents again submitted that it is not apparent from the originating application or statement of claim that at least many of the matters contained therein are matters within this Court's jurisdiction or, so far as any "migration decision" is impugned, that the limitations on this Court's jurisdiction pursuant to s 476A(1) of the Migration Act are adhered to. Nonetheless, leaving that to one side, the respondents submitted that so far as one can discern the substance of the claims from those documents, those claims have no reasonable prospect of success.
83 The respondents submitted that in relation to a large number of the final orders sought in the originating application, it is plain that the Court could never grant relief in the open-ended form of the orders sought and it is not apparent what cause of action could possibly justify relief in even a narrower form. The respondents submitted that while the originating application does refer to a number of pieces of legislation, none of those references are sufficiently particularised so as to disclose a cause of action. The respondents submitted:
On p 3 at [4], the originating application identifies the Privacy Act 1988 (Cth). However, it is not apparent what, if any, relief is sought from this Court - or could be sought from this Court - under that Act.
On p 4 at [14], the originating application identifies Div 137 of the Criminal Code (Cth). However, it is not apparent what, if any, civil relief is sought by the applicant from this Court - or could be sought from this Court - in relation to the alleged contravention of the criminal provisions in that Division. The same point may be made about the reference on p 5 at [15] to s 307B of the Crimes Act 1900 (Cth) (which it is assumed should refer to the Crimes Act 1900 (NSW)).
On p 6 at [16], the originating application refers to the Australian Border Force Act but does not identify any provision of that Act. The bolded and italicised expressions are simply definitions which may be found in s 4 of that Act. While those definitions are relevant to the substantive operation of some provisions of that Act, it is not apparent how any supports a claim to relief by the applicant in this Court.
On p 5 at [17], the originating application refers to ss 3B, 306L, 487X, 487ZB and 493 of the Migration Act. However these provisions cannot assist the applicant in this matter:
Section 3B provides that, if the Act would otherwise result in an acquisition of property, and any provision would be invalid, apart from s 3B, because a particular person had not been compensated, then the Commonwealth must pay the person compensation. This provision simply ensures that any provision in the Act is not invalid under s 51(xxxi) of the Constitution. It does not give rise to a standalone cause of action.
Section 306L operates in a division that concerns documents relating to clients of inactive migration agents and deceased migration agents (see s 306A). The applicant's case does not concern such matters.
Section 487X operates where authorised officers have seized property pursuant to a warrant and s 487ZB operates where authorised officers have disposed of that property under s 487ZA. There has been no such seizure or disposal of property in the applicant's pleaded case.
Section 493 is a provision allowing attribution of knowledge of directors, employees, or agents to a body corporate. It does not give rise to a standalone cause of action.
On p 5 at [19], the originating application refers to s 61 of the Constitution and the implied freedom of political communication, however the meaning of this paragraph is unintelligible.
84 In relation to the statement of claim, the respondents submitted that the only substantive relief sought is damages but the pleading does not articulate a cause of action entitling the applicant to damages that has a reasonable prospect of success, and submitted:
Paragraphs 5-28, 38-41 and 51-53 allege trespass to, and conversion and detinue of, various goods of the applicant, including a conspiracy to between the Commonwealth and Serco to steal or tamper with those goods. This Court has no jurisdiction in respect of such a claim for damages. Further, if the USB pleaded at [8] is the same item of property that was subject of an earlier proceeding (VID852/2018) (which it seems to be), then the applicant has released the respondents from any claims relating to that item as a part of the settlement of that earlier proceeding and is barred from raising them in this proceeding (see in particular Amended Statement of Claim at [9]-[34] and Deed of Settlement at [2.4] and [3.2], both attached to these submissions).
Paragraphs 29-31 and 42-44 allege negligence on the part of the respondents, because they relied on verbal communication by Serco and responded with false, misleading, malicious and vexatious information to the applicant (see also paragraph 15). It could not possibly constitute negligence on the part of the Commonwealth to rely on a verbal communication to it by its contractor Serco. Further, the Court has no jurisdiction in respect of a claim for damages for negligence.
Paragraphs 32-33 and 45-46 assert a failure on the part of the respondents to refer the matter of alleged damage, theft, tampering and manipulation of personal property to the right authority for criminal investigation. It is not apparent to what cause of action this alleged failure could give rise.
Paragraphs 34 and 47 allege a failure by the respondents to monitor Serco's contractual obligations. It is not apparent to what cause of action on the part of the applicant any such failure could give rise.
Paragraphs 35, 48 and 56 asserts a breach of confidentiality and privacy of the applicant and his family members, by reason of the matters in paragraphs 19, 20, 21 and 22. This apparently arises from the allegation that a Verbatim disc of the applicant's was lost by Serco (paragraph 7) and, conversely, a USB was placed in his in-trust property (paragraph 8). The applicant's evidence demonstrates that the Verbatim disc was released to the applicant on his request but not processed correctly in Serco property records: Fourth Abela Affidavit [46]. There are no particulars in relation to the USB allegation, other than on an unspecified date Serco officers are alleged to have taken a USB and copied confidential information about the applicant, including information about the applicant's family and legal proceedings: see Fourth Abela Affidavit at [85]. If that allegation is the same allegation that was made by the applicant in an earlier proceeding (VID852/2018) (which it seems to be), that allegation was, as with the allegation at [45.1] above, resolved in the settlement of that proceeding and cannot be re-agitated here (see Amended Statement of Claim at [7], [9]-[13], [15]-[18], [20]-[21], [26]-[30] and Deed of Settlement at [2.4] and [3.2], both attached to these submissions).
The assertion in paragraphs 36, 49 and 55 of a generalised failure on the part of the respondents to comply with "legislations, Commonwealth laws and or policies" does not give rise to a cause of action.
The assertion in paragraphs 37 and 50 of a breach of an unspecified contract does not give rise to a cause of action, in circumstances where there is no contract alleged between any respondent and the applicant. To the extent that a breach of the contract between Serco and the Commonwealth is alleged, that cannot give rise to a right to claim damages on the part of the applicant.
Paragraphs 54 alleges that the respondents deliberately acted in a biased and prejudiced way, and in conflict of interest. That does not give rise to any cause of action for damages on the part of the applicant.
Paragraphs 58-60 allege "mental anguish and physical harm", though it is not apparent from what. In any event, these matters do not articulate any cause of action.
85 The respondents submitted that the affidavits did not cure the deficiencies.
86 The applicant took issue with the respondents' submission, in part claiming that the respondents had not articulated the section of the Migration Act the respondents were relying on. The applicant's submission refers generally to legislation and to lengthy extracts from judgments, articles and reports, in asserting that there is jurisdiction and that he has a basis for his claims. For example, the applicant submitted, inter alia:
9. The applicants Originating application and statement of claim filed in the Federal Court of Australia in VID436 of 2020 includes "matters" that arise in the statutes listed are those which confer jurisdiction upon the Federal Court in addition to the general jurisdiction vested under the Constitution through section 39B of the Judiciary Act 1903.
9.1 Judiciary Act 1903 (Cth):
9.2 Administrative Decisions (Judicial Review) Act 1977 (Cth):
9.3 Australian Human Rights Commission Act 1986:
9.4 Australian Postal Corporation Act 1989:
9.5 Charter of the United Nations Act 1945:
9.6 Copyright Act 1968:
9.7 Corporations Act 2001:
9.8 Crimes Act 1914:
9.9 Criminal Code Act 1995:
10. Customs Act 1901:
10.1 Defence Service Homes Act 1918:
10.2 Disability Discrimination Act 1992:
10.3 Extradition Act 1988 (Cth): 10.4 Federal Court of Australia Act 1976 (Cth):
10.5 Freedom of Information Act 1982:
10.6 Independent Contractors Act 2006:
10.7 Migration Act 1958 (Cth):
10.8 Migration Litigation Reform Act 2005 (Cth):
10.9 Privacy Act 1988:
10.10 Proceeds of Crime Act 2002:
10.11 Public Interest Disclosure Act 2013:
10.12 Safety, Rehabilitation and Compensation Act 1988:
10.13 Security of Critical Infrastructure Act 2018:
10.14 Work Health and Safety Act 2011:
10.15 Transport Safety Investigation Act 2003:
10.16 Public Service Act
10.17 ADMINISTRATIVE LAW:
10.18 Common Law:
10. The case involves "Matters" under the Federal Court Rules 2011 - Rule 9.01 "Multiple causes of action".
11. The applicant submits, and replies the case includes "Matters" arising under the common law duty of care.
87 The applicant submitted that, because the Court had jurisdiction in VID852, it must have jurisdiction in the present case. The applicant submitted, inter alia, that Lee J found the Federal Court has jurisdiction in VID852, and that this establishes that the Federal Court has jurisdiction in this matter. As the respondent submitted, it is not apparent to what decision of Lee J the applicant refers. That said, the position in VID852 was quite different.
88 The applicant also claimed a breach of contractual agreement and obligations in relation to the contract between the Commonwealth and Serco in relation to the provision of immigration detention services, and quotes verbatim what appear to be extracts from such a contract. The applicant also explained that his case is about his treatment during the course of immigration detention and he will submit more documents relating to his personal property that has been "damaged, stolen and missing" during his detention and quotes a substantial amount of text from what appears to be a United Nations Report.
89 In reply, the respondents submitted that the applicant has not addressed why those specific matters he identified in his submission are not foreclosed by the settlement deed in VID852. In any event, the position in VID852 was different from these proceedings for the reasons given above at [58].
90 The respondents submitted that although the applicant refers to the "common law", "administrative law", pieces of legislation, a number of statutory and constitutional provisions, he does not explain, and it is not otherwise apparent, how any of those provisions have any relationship to the applicant's proceeding or the present interlocutory application. The respondents submitted that it cannot be expected to trawl through all the legislation to determine whether a possible claim arises. In respect to the extracts from the contract, the respondents submitted that regardless of the content of those extracts, the applicant is not a party to that contract and cannot seek relief in respect of it. In respect to the reliance on the United Nations Report, the respondents submitted that neither that submission nor that material identifies what the applicant's legal claims are, why the Court has jurisdiction in respect of them, or provides any basis to support a conclusion that the applicant advances an identifiable legal claim with any prospect of success.
91 The applicant submitted that the respondents have engaged in "unlawful and illegal actions and conduct upon" the applicant, and identifies a list of legislation: AS [8]. However, he does not identify how he relies on any of the legislation that he identifies. It is not for the respondents to trawl through that legislation to determine whether the applicant could possibly have a claim arising under any of those individual acts.