Cherkupalli v Commonwealth of Australia

The defendant's position 7The defendant objects to paragraphs 12 - 22 inclusive of the proposed amended statement of claim and to particulars of exemplary and/or aggravated damages A5(s) to (v) inclusive and (ai). Those paragraphs and particulars are as follows: "Detention from 26 November 2004 to when decision on student visa application ought to have been made 12 On or about 9 September 2004 the Plaintiff made a valid application to the Defendant and/or department for a student visa (the "student visa application"). 13 After the Defendant and/or department received the student visa application the Defendant was: (a) required to consider it and make a decision pursuant to s.47 of Act in respect of the granting of it; and (b) required to make such decision promptly. 14 Prior to 18 November 2005 the Defendant and/or department did not make a lawful decision in respect of the student visa application and on 18 November 2005 the Defendant's and/or department's unlawful decision in respect of the student visa application made on 22 December 2004 was set aside by orders of the Federal Magistrates Court of Australia and was void ab initio and of no legal effect, and was vitiated by jurisdictional error. Particulars Consent orders entered in the Federal Magistrates Court of Australia on 18 November 2005. 15 On remittal [sic] to the Defendant and/or department as a consequence of the matters referred to in paragraph 14 above the defendant made a decision in respect of the student visa application on 29 October 2007 granting the visa. 16 During the Plaintiff's detention that commenced on 26 November 2004 a decision by the Defendant and/or department in respect of the student visa application granting the visa would have caused the Plaintiff to be released from the detention that commenced on 26 November 2004. 17 At all material times the Defendant and/or department was obligated by the Act as the decision maker in respect of the student visa application to: (a) make a lawful decision in respect of it; and (b) to make a lawful decision in respect of it promptly. 18 The Defendant and/or the department contrary to that statutory duty did not in respect of the student visa application: (a) make a lawful decision in respect of it; and (b) make a lawful decision in respect of it promptly. Particulars In respect of (a) the Plaintiff relies on paragraph 14 and in respect of (b) the Plaintiff relies on paragraph 15. 19 By reason of the Defendant's and/or department's conduct referred to in paragraph 18 above the Plaintiff on the remitted student visa application was: (a) not granted a student visa during his detention which would have caused him to be released from that detention; and (b) not granted a student visa until after his release from detention. 20 If, which is denied the Plaintiff had been otherwise lawfully detained commencing on 26 November 2004, the legal operation and effect of the matters referred to in paragraphs 12 to 19 above is that the Plaintiff would have been released from detention at the time the Defendant and/department should have made a prompt lawful decision in respect of the student visa granting that visa, and the Plaintiff says that such a prompt lawful decision should have been made by December 2004. Unlawful detention 21 As a result of the pleadings above the detention of the Plaintiff in the period 26 November 2004 to 19 April 2006 or alternatively December 2004 until 19 April 2006 was unlawful and constituted false imprisonment. 22 By reason of the Defendant's and/or the department's unlawful detention and false imprisonment the Plaintiff suffered injury, loss and damage. Particulars The Plaintiff relies on the statement of particulars filed in these proceedings and as amended from time to time and particulars provided to the Defendant from time to time." 8The particulars to which the defendant takes exception are the following: "Student Visa Application, proceedings in the Federal Magistrates Court and subsequent administrative delay (s) the Defendant's decision to cancel the Plaintiff's Student Visa application did not accord with the procedural fairness requirements of the Act as the Plaintiff was not given the opportunity to comment on allegations of substantial Visa non-compliance; (t) the decision was vitiated by jurisdictional error and was set aside in the Federal magistrate's Court on 18 December 2005 (including with the consent of the Defendant); (u) the Defendant and/or the Department withdrew from the proceedings because it was recognised that there was a denial of procedural fairness; (v) following the Orders in the Federal Magistrates Court the Plaintiff was not allocated a case manager;

Release from Detention (ai) on being released from detention on 19 April 2006 the Defendant did not provide properly (or at all) for the Plaintiff's needs after detention which forced the Plaintiff to live on the streets for approximately one week due to the fact that his detention since 26 November 2004 has resulted in the loss of his pre-26 November 2004 living arrangements and community support. The Plaintiff was provided with no resources from the Defendant and no guidance as to accessing resources." 9The defendant's objection to those portions of the proposed amended statement of claim is based upon three grounds. First, that the paragraphs and the particulars do not raise or identify a cause of action known to the law. Secondly, that the application has been made after inappropriate and unacceptable delay. Thirdly, and in a related sense, that the defendant has suffered prejudice having regard to the antiquity of the facts that give rise to the proposed amendments. No cause of action known to the law 10The defendant submitted that no private right of action would arise from a failure to grant the plaintiff a student visa promptly as alleged or indeed at all. That decision depended upon the satisfaction of the decision maker concerning whether an applicant for a visa meets the requirements prescribed by the Migration Act 1958 and the Migration Regulations. The defendant contended that the existence of a statutory regime that provided mechanisms for review of a decision to not grant a student visa exhibited a legislative intention to exclude any private right of action for damages. 11The defendant relied upon what was said by Gray ACJ in the Federal Court in Scott v Pedler [2003] FCA 650; (2003) 74 ALD 424 at [45] and [60] as follows: "[45] It follows that a person seeking either DSP or special benefit could not do so by suing in a court for a declaration of entitlement or an injunction compelling payment. The court would not be able to make such orders, because it could not substitute its own views as to entitlements for the statutory requirement of satisfaction by the Secretary or the delegate. It is possible to envisage cases in which the evidence could establish that the Secretary or a delegate had in fact reached a state of satisfaction. In such a case, the court might make a declaration of entitlement. This appears to have been the basis on which Heerey J made a declaration in favour of Mr Scott in an appeal from a decision of the AAT, affirming a decision to reject a claim for DSP by Mr Scott. The only issue appears to have been whether payments of DSP should have been made from an earlier date than they were, on the basis that Mr Scott had made a proper claim on the earlier date. Once this issue was determined in Mr Scott's favour, his Honour found that there was no other issue to be determined, and a declaration of entitlement from the earlier date was appropriate. See Scott v Secretary, Department of Social Security [1999] FCA 1774 (1999) 57 ALD 627. A declaration that the Secretary or delegate had in fact reached a state of satisfaction is not the kind of declaration sought in the present case. A court could not, by injunction, compel the Secretary or delegate to reach the required state of satisfaction, but only to consider a proper claim, if that had not been done. Again, that is not the order sought in the present case.

[60] On the basis of these authorities, it is apparent that two matters need to be considered before it can be held that the respondents, or any of them, owed a duty of care to the applicants, in respect of the exercise or non-exercise of the respondents' statutory functions. The first matter is the relationship between the applicants and the respondents. The enquiry must be as to whether, on ordinary common law principles, that relationship was such as to give rise to a duty of care. The second area of enquiry concerns the statutory regime pursuant to which the respondents were obliged to exercise their functions. If that statutory regime discloses a legislative intention to exclude a common law duty of care, either by expressly excluding such a duty or by being of its nature incompatible with such a duty, then there can be no common law duty." 12The following portion of paragraph 65 should also be noted: "[65] ... I have mentioned this system of administrative decision-making, with three levels of merits review, earlier in these reasons for judgment. It is a powerful indication that the legislature did not intend that the correctness of a particular decision should be challenged collaterally in proceedings in a court, such as proceedings for damages for negligence in the exercise of the statutory function. Coupled with the adoption of the satisfaction of the decision-maker as the foundation for a decision to make payments of pensions or other benefits, the system of administrative decision-making with merits review appears to be fatal to the notion that there should be a duty of care..." 13The defendant also referred to Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 424-426, Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1, and Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562. 14The defendant submitted that the proposed amendments did not disclose an arguable cause of action and ought not to be permitted. They were in fact no more than a reconfiguration, in the form of a pleading, of similar matters that had been included in the original statement of claim as particulars of exemplary and/or aggravated damages. The amendments were not proposed for what was described as "a proper purpose". 15Although not specifically addressed in these terms, I take the defendant's submissions to include a contention that the plaintiff's application to amend his statement of claim in the ways opposed by the defendant is in effect futile and that it should be refused on that basis alone. 16The defendant also contended with respect to proposed particular (ai) that no cause of action is pleaded based upon the release of the plaintiff from detention on 19 April 2006. It is not alleged that there was any duty of care owed by the defendant to the plaintiff following his release. It is not alleged that the defendant had a duty to provide for his needs after his release from detention, or that it knew, or should have known that he would "live on the streets for approximately one week". It is the detention of which the plaintiff complains, not the circumstances or consequences following his release. Accordingly, anything that may have occurred to the plaintiff after release is not relevant to his cause of action or damages. 17In those circumstances the defendant submitted that particular (ai) should not be allowed. The same principles should apply in relation to an amendment of particulars as apply to the amendment of substantive parts of the pleadings. Delay 18The incident alleged to give rise to the cause of action occurred on 9 September 2004. The proceedings were commenced as earlier indicated. The defendant complains that the plaintiff has attended to the prosecution of the proceedings with less than commendable alacrity. The defendant has formally submitted that the plaintiff has not been "timely" in the conduct of the proceedings generally and has consistently failed to comply with the Court's directions. The defendant submits in these circumstances that there is no basis upon which the plaintiff can expect, or should be afforded, any further indulgences. Prejudice 19The defendant further submits that it will be prejudiced if the plaintiff's application is allowed. That submission is founded upon evidence suggesting that critical witnesses, who have been identified by the defendant as potentially significant from its perspective in defending the proposed amended claim, have either left the employment of the defendant and cannot be found or, alternatively, will or may be difficult to locate. The evidence led in support of this aspect of the defendant's position is in the first instance contained in an affidavit of Katherine Hooper made on 11 July 2012. Ms Hooper is a senior associate employed by the solicitor for the defendant with the supervised care and conduct of the matter on its behalf. The relevant portions of that affidavit are as follows: "7 I have undertaken a review of what material I do have, in order to ascertain the identity of individuals who may be able to give evidence relevant to the plaintiff's allegations concerning the manner of processing of his student visa application, following the orders of the Federal Magistrates Court dated 18 November 2005 and sealed on 24 November 2005. 8 My review indicates that there may be a number of potential witnesses who, if possible, should be located and contacted, with a view to ascertaining whether they have any recollection of relevant events and are otherwise able to give evidence relevant to the plaintiff's allegations. 9 On 18 June 2012, I sought instructions from Mr Bajpe of DIAC concerning the location of and contact details of any potential witnesses. 10 On 5 July 2012, I was informed by Mr Bajpe and verily believe that three potential witnesses, namely Mira Marchi...June Lee and Sothy Seam are no longer with DIAC. Those persons appear based on the material available to me, and instructions provided to me, to have had involvement in the student visa application and/or its subsequent processing. In my opinion, their evidence would be potentially important in the proper consideration of the plaintiff's claim and in the proper presentation of the defendant's case at any trial. 11 I am informed that Mr Bajpe has made inquiries of DIAC's Human Resources area to ascertain the date on which the abovenamed three persons left DIAC and whether they will agree to being contacted in relation to these proceedings. I am informed that DIAC's Human Resources area will not provide contact details for these three persons directly to Mr Bajpe on the basis that it may breach their privacy." 20Ms Hooper subsequently deposed in a later affidavit to the fact that at least one of the people named in her affidavit as a potential witness continues to be employed by the Department. 21The defendant also submitted that the allegations in proposed paragraphs 12 to 22 were not maintainable as they were time barred by operation of s 14 of the Limitation Act 1969. That contention potentially attracts the provisions of s 65 of the Civil Procedure Act 2005, which is in these terms: "65 Amendment of originating process after expiry of limitation period (1) This section applies to any proceedings commenced before the expiration of any relevant limitation period for the commencement of the proceedings. (2) At any time after the expiration of the relevant limitation period, the plaintiff in any such proceedings may, with the leave of the court under section 64 (1) (b), amend the originating process so as: (a) to enable the plaintiff to maintain the proceedings in a capacity in which he or she has, since the proceedings were commenced, become entitled to bring and maintain the proceedings, or (b) to correct a mistake in the name of a party to the proceedings, whether or not the effect of the amendment is to substitute a new party, being a mistake that, in the court's opinion, is neither misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party, or (c) to add or substitute a new cause of action, together with a claim for relief on the new cause of action, being a new cause of action that, in the court's opinion, arises from the same (or substantially the same) facts as those giving rise to an existing cause of action and claim for relief set out in the originating process. (3) Unless the court otherwise orders, an amendment made under this section is taken to have had effect as from the date on which the proceedings were commenced. (4) This section does not limit the powers of the court under section 64. (5) This section has effect despite anything to the contrary in the Limitation Act 1969. (6) In this section, originating process, in relation to any proceedings, includes any pleading subsequently filed in the proceedings." 22The defendant's submissions on this issue were as follows. 23Proposed paragraphs 13 to 21 contain new allegations. They do not arise from the same, or substantially the same, facts as those giving rise to the existing cause of action (s 65(2)(c)), as there had never previously been any allegation relating to the failure to grant a student visa. Rather, the allegations related to the alleged improper detention of the plaintiff following the cancellation of his Bridging "C" Visa with a "no work" condition. 24On the plaintiff's proposed pleading, the limitation period would have expired six years from the requirement "to make such decision promptly" with respect to his student visa application of 9 September 2004: s14 of the Limitation Act. Under s 11(3)(ii) the limitation period would have been suspended whilst the plaintiff was in detention from 26 November 2004 until 19 April 2006: s 52(1)(d) of the Limitation Act. Nevertheless this would still mean that proceedings should have been commenced in February 2012. 25The defendant submitted that if the Court were to accept the proposition that the proposed amendment fell within s 65(2)(c), which the defendant does not accept or concede, the Court would be required to consider the potential prejudice to the defendant in this context as well. It is now approaching two years since the filing of the original statement of claim, relating originally to an incident on 26 November 2004. The matter has been before the Court for directions on numerous occasions since then. 26The Court is required to take into account its lists and the general desirability of efficiency in the conduct of litigation: AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175. There is no suggestion that the plaintiff has only recently become aware of material that has provoked the proposed amendment nor is any adequate explanation given for it: AON Risk Services. The plaintiff has had adequate opportunity to plead and prepare his case and it would be inappropriate to permit him to amend further: AON Risk Services.

The plaintiff's position No cause of action known to the law 27It is fair to say that the plaintiff did not come to terms with the defendant's contentions in this respect. His response to the proposition that the proposed amendments did not plead a viable cause of action was to suggest that the paragraphs concerned were to be construed as particulars of damages. This emerges from the following exchange during the course of the proceedings: "HIS HONOUR: The fault may be entirely mine. What do you say squarely about the proposition that nothing pleaded in paragraphs 12 to 22 gives rise to a cause of action known to the law? MORRISON: Whether or not it is a cause of action per se is not the question. What is there in paragraphs 12 to 22 is a description of the manner in which he was dealt with whilst in unlawful detention. They are particulars of the manner of his unlawful detention and the way in which his application were dealt with. I am struggling to find anywhere where it is said that that manner of itself and standing alone would give rise to a cause of action. What flows from paragraph 11 and then 12 really goes to the manner in which an unlawful detention was maintained. HIS HONOUR: Do I take it that your contention is that nothing in paragraph 12 to 22 is any more or less than particulars of circumstances upon the basis of which damages may be assessed? MORRISON: Exactly, that is as I apprehend the situation. It does not of itself create a cause of action. That applies whether we are talking about the visa applications or whether we are dealing with the manner in which he is put out on the street at the end." 28If that accurately describes the position, the plaintiff's application then becomes one to amend the particulars of the case he has otherwise indicated he proposes to plead in the amended statement of claim, rather than one to amend a substantive pleading as part of the proposed amended statement of claim. Delay 29The plaintiff disputes that there has been any relevant delay. He points to the fact that the defendant would not appear to have been particularly concerned about the rate of progress of the matter prior to this application. The case does not seem to be one in which the plaintiff has been significantly late, or in which the plaintiff has constantly defaulted in complying with the Court's directions. Prejudice 30The plaintiff argued that the defendant bore the evidentiary onus of establishing prejudice. He drew upon what was said in the context of a limitation extension application in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 547 and 566-7 as follows: "...There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant. Where prejudice is alleged by reason of the effluxion of time, the position is as stated by Gowans J in Cowie v State Electricity Commission of Victoria in a passage which was endorsed by Gibbs J in Campbell v United Pacific Transport Pty Ltd: "It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice.

4. It is always open to a proposed defendant, resisting an application for extension of time, to call evidence of any specific detriment it would suffer if an order were made. The appellant did so in the present case. If any such evidence is called, a court must consider it carefully in exercising its residual discretion. If a defendant does not call evidence, or calls evidence which is unpersuasive or insignificant, provided it is reasonable to infer that some evidence was available to it in the circumstances the defendant cannot complain if the court concludes that no particular prejudice, over and beyond the generalities, could have been established by it. This is simply another way of saying that, because a prospective defendant has an interest in keeping the limitation bar in place and in resisting an extension that lifts it, it may be inferred that he or she would ordinarily place before a court evidence of specific prejudice pertinent to the exercise of the court's discretion. If the prospective defendant does not do so, he or she cannot justly complain if the court infers, and then holds, that the defendant has failed to demonstrate such prejudice. This is not to shift the burden in the application from the applicant to the defendant. It is simply to recognise that the burden of persuading a court on the particular issue of specific prejudice lies on the party making any such suggestion. This is what is meant by the "evidentiary onus" resting on a proposed defendant in relation to such an issue. The Court of Appeal held, and the appellant accepted, that it bore such an 'evidentiary onus'." 31The plaintiff contended that the evidence of a solicitor retained by the defendant upon the basis of information and belief was inadequate to establish the existence of any relevant prejudice. The fact that the two people who formerly worked for the Department have not yet been located was no evidence that the defendant had suffered any prejudice. The plaintiff contended that that was so unless there were first some indication of what the substance of their evidence might be, as opposed to mere speculation that they might be relevant because they were employed in the Department at the time, and secondly unless it can be established on the balance of probabilities that searches for these potential witnesses have been exhaustively conducted which supports the contention that they are unlikely to be found. The plaintiff submitted that neither of these matters had been satisfactorily addressed. In particular, Ms Hooper's unadorned opinion that the nominated witnesses' evidence "would be potentially important" was said to be wholly inadequate as evidence of any relevant prejudice to the defendant that would follow if the amendments were allowed.

Consideration 32In my view, the defendant's first proposition is a complete answer to this application. The proposed pleading does not disclose a cause of action known to the law. The application to amend is futile. 33Section 47 of the Migration Act is at the heart of the plaintiff's proposed amendments. It is in these terms: "Consideration of valid visa application (1) The Minister is to consider a valid application for a visa. (2) The requirement to consider an application for a visa continues until: (a) the application is withdrawn; or (b) the Minister grants or refuses to grant the visa; or (c) the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration). (3) To avoid doubt, the Minister is not to consider an application that is not a valid application. (4) To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa." 34There is first no statutory obligation upon the Minister to make a decision under s 47 "promptly". Secondly, it does not appear to me, on ordinary common law principles, that there existed any relationship between the plaintiff and the Minister such as to give rise to a duty of care. Moreover, the Act contemplates a system of merits review, of which the plaintiff appears successfully to have taken advantage. This provides an indication that that the legislature did not intend that the correctness of the Minister's particular decision, as opposed to the validity of his decision at an administrative level, should be amenable to challenge in proceedings such as these, claiming damages for negligence in the exercise of the Minister's statutory function. 35At a different level, the proposed pleading itself falls short of actually adumbrating a case founded upon the existence, and the breach, of a duty of care strictly so called. The proposed amendments instead appear to emphasise that because the Minister's decision concerning the plaintiff's student visa application was "set aside by orders of the Federal Magistrates Court of Australia and was void ab initio and of no legal effect, and was vitiated by jurisdictional error", the defendant somehow acted contrary to "that statutory duty". The source of the alleged duty referred to is neither identified nor explained. Its scope and content are not defined. The principal allegation that the defendant "was obligated by the Act as decision maker in respect of the student visa application to...make a lawful decision and ...promptly" is wholly unparticularised and unexplained. 36Nor in my view can the paragraphs be saved by treating them as particulars of the manner in which the plaintiff was detained. The plaintiff's cause of action is pleaded as an unlawful detention on and from 26 November 2004 until 19 April 2006. The plaintiff contends that he was unlawfully detained throughout that period regardless of the status of his application for a student visa or the Minister's handling of it. The plaintiff either will or will not ultimately establish that case. In the meantime, the defendant makes no challenge to the form of the pleading that articulates it. However, the fact that the plaintiff may have been released during his period of detention if his application for a student visa had been successful does not in my view reliably inform the question of how he is said to have been illegally detained in the first place or throughout his period in detention. If I correctly perceive the plaintiff's argument, he proposes to contend that his allegedly unlawful detention would have been foreshortened if he had been granted a student visa during his time in detention, and that as a consequence he should be entitled to aggravated or exemplary damages because there was arguably more than one invalid reason for his continued incarceration. That proposition necessarily anticipates a case based upon the plaintiff's ability to establish wrongful conduct by the Minister sounding in damages for failing to issue him with a student visa. That amounts to a re-agitation the cause of action that I have already determined he does not have. 37Particulars (s) to (v) fare no better. They also purport to be particulars of the cause of action that I have determined the plaintiff does not have. 38Particular (ai) must also be rejected. The plaintiff has not pleaded that the defendant owed him a duty or was in some other respect liable for his care following release. The particular is without a pleaded case to support it and should not be permitted. 39I would not otherwise have considered that the plaintiff's application was defeated by any delay on his part that disentitled him to the relief sought. Nor am I satisfied that there is yet established on the evidence before me any prejudice to the defendant of a kind that would alone or in combination with any other factors defeat the plaintiff's application for leave to amend. The question of whether or not the plaintiff's claim is barred by operation of a provision of the Limitation Act does not in these circumstances arise.

Conclusion 40It follows in my view that the plaintiff's application to amend the statement of claim in the respects opposed by the defendant should be dismissed. The plaintiff should have leave, if leave be necessary having regard to the defendant's consent, to file an amended statement of claim within 14 days. The costs of this application should be the plaintiff's costs in the proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 August 2012