Halyday v Commonwealth [2025] FCA 330

1. This is an interlocutory application by the respondent, the Commonwealth of Australia, for summary judgment of the whole or part of this proceeding under s 31A of the Federal Court Act 1976 (Cth) (FCA Act) and r 26.01 Federal Court Rules 2011 (Cth) (Rules). In the alternative, the Commonwealth seeks an order that the pleadings be wholly struck out, or wholly set aside, under r 16.21 and r 13.01(1)(a) of the Rules, respectively.
2. The applicant, Ms Sharyn Halyday, commenced this proceeding on 18 March 2024, filing an originating application (OA), statement of claim (SOC) and concise statement (CS). The central thrust of the case she brings is that the Commonwealth, by reason of its failure to administer migration laws properly, breached a duty of care and is liable in tort for negligence in allowing her former domestic partner, whom she refers to as N5, to obtain a visa to come to Australia, and to retain a visa so as to be able to stay here. She contends that this enabled him to do harm to her and to their child. She seeks damages totalling more than $4.5 million.
3. Ms Halyday also makes allegations against a range of other people, some of whom are officers of the Commonwealth, but many of whom are not. None of these people are named, and none of them are parties to this proceeding.
4. There are two central difficulties with Ms Halyday's case as set out in the OA, SOC and CS. First, with respect to her primary claim of negligence, there is no articulated basis on which a duty of care by the Commonwealth is owed to her. Second, with respect to claims made about other persons, no basis for the Commonwealth's liability is identified. In those circumstances, and for the following more detailed reasons, I consider it appropriate to give summary judgment in favour of the Commonwealth for the entire proceeding upon the basis that no viable cause of action is disclosed. It is therefore not necessary or appropriate to determine whether any of the alternative relief sought should have been granted.

The applicant's process filed to bring this proceeding

1. A number of observations need to be made about the requirements for an OA, SOC and CS in the Rules and more generally in the Court's ordinary practice and procedure, before turning in more detail to the substance of what Ms Halyday alleges, to the principles in relation to summary judgment, and to the competing arguments as to the relief sought.
2. Rule 8.03(1) requires an OA to state the relief claimed and if made under a provision of an Act, that Act and that provision. An OA is not a pleading document setting out material facts for an opposing party to admit or deny, with many cases in this Court not requiring pleadings of that kind because the dispute is not factual in nature, or is in a very narrow compass. Rather, it is meant to spell out concisely what is sought and in broad terms the basis for seeking it. It is usually a short document, often with only a small number of operative paragraphs, even in large and complicated cases.
3. Ms Halyday's OA instead runs to 32 paragraphs. It makes a number of general and conclusory allegations and concludes at [32] with a claim for interlocutory relief by the Commonwealth paying to her immediately of $4,524,520. In the course of the first 30 paragraphs, allegations are made which refer to conduct by a range of mostly New South Wales government bodies or employees, as well as private solicitors, and also to negligence on the part of the Commonwealth in relation to migration decisions concerning N5. The conduct complained of apparently arose prior to, during, or in the context of, contested family law proceedings between Ms Halyday and N5.
4. In amongst that narrative is a reference to N5 not lawfully being in Australia, and the Department of Immigration having a duty to act in relation to N5 and apparently in a way that did not allow him to remain in Australia so as to be able to cause detriment to her or her child. This is characterised as giving rise to a duty of care towards her and her child, and negligence. It is therefore apparent that the substance of the Ms Halyday's claim against the Commonwealth is for common law damages. I return to the nature of her case below.
5. Were this proceeding to continue, the OA would need to be amended by Ms Halyday so that it fulfilled its proper function of succinctly identifying the relief sought and the general basis for granting that relief.
6. Rule 8.05(1) provides that an OA seeking relief that includes damages must be accompanied by an SOC unless a practice note issued by the Chief Justice make provision for an "alternative accompanying document" (which can extend to such things as a CS in certain types of proceedings, not including common law damages claims). There is no such practice note that I am aware of, and accordingly Ms Halyday was required to proceed by way of an SOC and not by way of a CS.
7. In any event, the CS that Ms Halyday has filed contains factual and related allegations of a kind that are wholly unsuited for that mode of advancing her case, assuming there was a cause of action that she could advance, but in any event appears to cover much of the same general territory of the SOC. If this proceeding was to go to trial, I would not permit it to be brought by way of the CS, but rather would have struck it out in its entirely because it was manifestly not appropriate for the kind of case that she apparently wishes to bring. That was for an SOC if there was a cause of action identified.
8. Part 16 of the Rules deals with pleadings other than an alternative accompanying document: see r 16.01A. It therefore deals with the requirements of an SOC. Rule 16.02 describes what such a pleading, and thus an SOC, must and must not contain and in particular paragraph (1)(d) requires that it state the material facts. Any respondent is then required to admit or deny the asserted fact, or indicate that the asserted fact is not known so cannot be admitted or denied (in which case it is taken to be denied): see r 16.07. That then enables the case to proceed to the evidence phase, knowing what must be proved, as admitted facts do not ordinarily require evidence. There are numerous other requirements for a properly pleaded SOC, but this aspect is fundamental. I make these points because Ms Halyday's SOC simply does not comply with r 16.02(1)(d), making it impossible for the Commonwealth to plead a defence to it in its current form. It would be impossible for this proceeding to continue unless the manifest defects in the SOC were rectified by a proper pleading of the material facts upon which Ms Halyday relies, in a form that permits them to be pleaded to.
9. The defects identified above mean that the Commonwealth's interlocutory application has to succeed in some way, and the issue for adjudication is whether that success should be manifested, in one of the following cascading outcomes:

(a) the entire proceeding being the subject of summary judgment in favour of the Commonwealth, which has the same effect as if the proceeding had gone to trial, and wholly failed, and been wholly dismissed; or

(b) some of the entire proceeding being the subject of summary judgment in favour of the Commonwealth, which has the same effect as if the proceeding had gone to trial, and some of it wholly failed, and been partially dismissed; or

(c) some or all of the OA and SOC being set aside or struck out, without leave to re-plead; or

(d) some or all of the OA and SOC being set aside or struck out, with leave to re-plead (such re-pleading being opposed by the Commonwealth).

1. The proper way to determine this application is to consider first the question of summary judgment. As I find that wholly succeeds, there is no point in proceeding further to consider the alternative relief sought by the Commonwealth.
2. Section 31A(2) and (3) of the FCA Act provide:

(2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a) the first party is defending the proceeding or that part of the proceeding; and

(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a) hopeless; or

(b) bound to fail;

for it to have no reasonable prospect of success.

1. Section 31A is intended to relax the stringency of the common law test for summary dismissal as described in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125. It follows that if the higher General Steel threshold of a case being hopeless or bound to fail, then an application for summary judgment must succeed. The exemplar of that point being reached is a case for which no cause of action is established.
2. It is convenient to reproduce what I said about the summary dismissal power in s 31A, which is largely although not entirely reflected in r 26.01 of the Rules, and how that power has been interpreted, in Tran v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1628 at [2]- [3]:

The Minister's application for the appellant's appeal to be summarily dismissed under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) requires the Court to be satisfied that the appellant has no reasonable prospects of successfully prosecuting it, a familiar phrase that is best taken as it is without further gloss: Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118 at [58]. Certainty of failure is not required, so that the bar is lower under the Act than previously existed at common law, as typified by General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 .

The authorities dealing with s 31A are well known and the principles well established: see Spencer at [49]-[60], especially at [52]-[53]; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60; 167 FCR 372 at [121] -[132] ; see also the helpful summary of Spencer and a number of the other key cases by Perry J in Riva NSW Pty Ltd v Official Trustee in Bankruptcy [2017] FCA 188 at [44] -[50]. Among the key points to be derived from Spencer in particular is that caution is required. That is especially so in cases where evidence can have a material bearing on the allegations relied upon, and where questions of fact and degree are important. Neither of those are common features of judicial review proceedings at either the trial or appeal stage. The power is clearly exercisable when the pleading discloses no reasonable cause of action and the deficiency is incurable, such as by re-pleading: Spencer at [22]. A failure to re-plead a reasonable cause of action despite an opportunity to do so may properly suggest that none exists, but the existence of one and the pleading of one remain distinct concepts: Spencer at [23].

1. For present purposes, with considerable reservations that this does not go considerably further than what can be proved, I will proceed upon the basis that what has been alleged is both accurate and sufficiently known by the Commonwealth, treating all of that as having been properly pleaded, which it definitely has not been.
2. For the purposes of determining this interlocutory application, I will therefore take Ms Halyday'scase at its highest and assume that any relevant factual assertions made can be proven. That then obviates the need to consider in any detail the conduct that N5 is said to have engaged in (which is described in general and conclusory terms), or the conduct that others beyond any Commonwealth employees have engaged in (which suffers from similar vices of impression and conclusory expression). It is also unnecessary to delve into the detail of what precisely the Commonwealth, through its employees, knew or had been told about what N5 had done.
3. Ms Halyday seeks damages for the costs of treatment for trauma (for her and her child), a loss of capacity to earn, and legal costs for proceedings in family law proceedings in the Federal Circuit and Family Court of Australia against N5. She also seeks orders that his visa be cancelled, that the Commonwealth provide her child a written apology, that the assets of N5 and his immigration sponsors be frozen and that the Commonwealth recover what are described as taxpayer funded monies from his immigration sponsor's assets. Much of the collateral relief beyond damages is most unlikely to be able to be granted.
4. On a generous reading, Ms Halyday's primary claim appears to be that the Commonwealth owed both her and her child a duty of care, which it breached in granting N5 a visa, failing to revoke it and failing to remove him from Australia, in circumstances where she alleges he caused herself and her child harm. In particular, Ms Halyday's claim seems directed to visas granted to N5 in January 2013 and December 2014.
5. There is then a collection of other complaints that are more difficult to understand due to the way they have been described.
6. First, a number of allegations about unprofessional conduct or worse by various solicitors who had represented her N5 in family law proceedings in the Federal Circuit and Family Court, or were otherwise involved. None of these people are party to the proceedings. The complaints are directed primarily to:

(a) a children's lawyer who had been involved in the family law proceedings between the applicant and her former partner (referred to only as Solicitor 1 in the pleadings), who is alleged to have been corrupt, fraudulent and abusive to Ms Halyday; and

(b) a mediator involved in the same proceedings (referred to as M9), who is alleged to have been hostile and rude to the Ms Halyday.

1. It appears that these allegations are primarily relevant to Ms Halyday's claim against the Commonwealth, the contention being that that legal proceeding, and the distress caused to her by people involved in it, would have been avoided had N5 been removed from the country. She also seeks to have the family dispute resolution accreditation for Solicitor 1 and M9 to be cancelled, that M9 be removed from office, and that the "practicing licence" or "registration as a Children's Lawyer" of Solicitor 1 be cancelled.
2. Second, there is a separate claim of misfeasance in public office by several people who are not party to this proceeding: Solicitor 1; M9; an unnamed Department of Immigration employee who granted her former partner a visa; another unnamed Department of Immigration employee who refused to provide her with communications (it is not clear which) and refund her (it is not clear what for); and several unnamed Department of Home Affairs employees who refused to revoke N5's visa and refused to pay damages for not revoking N5's visa. This claim only appears in the CS, and if it was to be maintained, would need to be pleaded in an amended SOC. There is no apparent remedy sought with respect to it.
3. Third, there are then allegations that appear related to passport applications Ms Halyday made for passports for herself and her son, though this can only really be guessed at and inferred from some of the facts pleaded and the remedy sought. She seeks an order that the Commonwealth had breached her right to a refund under the Australian Passports Act 2005 (Cth) and the Australian Passports Determination 2015 (Cth), and that her records be corrected so "we may apply for passports without fear". This is expressed at points in the pleadings as related to the primary claim that the Commonwealth breached a duty of care that it owed her, and I take it as such.
4. Fourth, there is Ms Halyday's claim that the Australian Federal Police and the Australian Capital Territory failed to investigate visa fraud, fraud against the Commonwealth and breaches by N5 of orders made in the family law proceedings. She seeks orders that these alleged crimes be investigated by the Australian Federal Police. She also seeks "an investigation into the perpetrator and those public officials who harms us and conducted crimes against the commonwealth": [43] of the statement of claim.
5. Fifth, the applicant seeks an order that "it is a breach of Human Rights not to have CCV [coercive control violence] laws criminalized consistently in Federal law in each state and territory of Australia as it is not enforceable at the moment as a working instrument to protect people." In the CS, she seeks an order that the Commonwealth criminalise coercive control violence in all States and Territories, relief that no court could ever provide.
6. The foregoing may not capture every complaint that is made, but it captures the substance of the complaints made and apparently relied upon to ground Ms Halyday's claim from the Commonwealth of over $4.5 million.

1. It is readily apparent that Ms Halyday does not rely upon any established category of duty of care. Certainly, none is identified. She therefore relies upon a novel duty of care. To establish a novel duty of care owed by a public authority, regard must be had to the following questions outlined by McHugh J in Crimmins v Stevedoring Committee [1999] HCA 59; 200 CLR 1 at [93]:
   1. Was it reasonably foreseeable that an act or omission of the defendant, including a failure to exercise its statutory powers, would result in injury to the plaintiff or his or her interests? If no, then there is no duty.
   2. By reason of the defendant's statutory or assumed obligations or control, did the defendant have the power to protect a specific class including the plaintiff (rather than the public at large) from a risk of harm? If no, then there is no duty.
   3. Was the plaintiff or were the plaintiff 's interests vulnerable in the sense that the plaintiff could not reasonably be expected to adequately safeguard himself or herself or those interests from harm? If no, then there is no duty.
   4. Did the defendant know, or ought the defendant to have known, of the risk of harm to the specific class including the plaintiff if it did not exercise its powers? If no, then there is no duty.
   5. Would such a duty impose liability with respect to the defendant's exercise of ''core policy-making'' or ''quasi-legislative'' functions? If yes, then there is no duty.
   6. Are there any other supervening reasons in policy to deny the existence of a duty of care (eg, the imposition of a duty is inconsistent with the statutory scheme, or the case is concerned with pure economic loss and the application of principles in that field deny the existence of a duty)? If yes, then there is no duty.

The duty alleged does not cohere to the statutory framework of granting and revoking visas

1. In the present case, the incoherence between the duty alleged and the statutory scheme in the Migration Act 1958 (Cth) is a complete reason to not finding the existence of such a duty: see similarly, Perera v Genworth Financial Mortgage Insurance Pty Ltd (t/as Genworth) [2017] NSWCA 9; 94 NSWLR 83 at [39]- [60] (Leeming JA, Macfarlan and Simpson JJA agreeing). Importantly, Leeming JA noted at [40] that a duty to take reasonable care does not arise merely because act or omissions may foreseeably cause harm, quoting to the following passage from Sullivan v Moody [2001] HCA 59; 207 CLR 562 at [42]:

... But the fact that it is foreseeable, in the sense of being a real and not far-fetched possibility, that a careless act or omission on the part of one person may cause harm to another does not mean that the first person is subject to a legal liability to compensate the second by way of damages for negligence if there is such carelessness, and harm results. If it were otherwise, at least two consequences would follow. First, the law would subject citizens to an intolerable burden of potential liability, and constrain their freedom of action in a gross manner. Secondly, the tort of negligence would subvert many other principles of law, and statutory provisions, which strike a balance of rights and obligations, duties and freedoms. A defendant will only be liable, in negligence, for failure to take reasonable care to prevent a certain kind of foreseeable harm to a plaintiff, in circumstances where the law imposes a duty to take such care.

1. Properly considered, Ms Halyday's case does not seem to arise any higher than a correlation of the kind identified by Leeming JA, and in the prior authority his Honour considers. If there is to be a duty of care of the kind she relies upon, it must be found consistent with the statutory framework for making visa decisions in the Migration Act and related regulations.
2. The substance of the statutory framework for the granting and revoking of visas has not relevantly changed since the time visas were granted to the applicant's partner in January 2013 and December 2014. Section 65 requires the relevant Minister or Ministers allocated responsibility for the administration of the Migration Act, mostly via delegates, to grant a visa if satisfied that, among other things, the applicable criteria for that visa are met and the grant is not prevented by s 501.
3. Section 501(1) provides that the Minister may refuse a grant of a visa if the visa applicant does not satisfy him that the applicant passes the character test. Section 501(2) provides that the Minister may cancel a visa that has been granted to a person if the Minister reasonably suspects that the visa holder does not pass the character test, and the holder does not satisfy the Minister that they do pass the character test. Natural justice principles apply to decisions under both (2) and (3). Section 501(3) empowers the Minister to cancel or revoke a visa, where the Minister reasonably suspects that a person does not pass the character test, and where satisfied that doing so is in the national interest. Natural justice principles are dispensed with for such decisions.
4. Failing the character test is defined in s 501(6), and includes persons:

(a) with a substantial criminal record;

(b) who have been convicted of immigration detention offences;

(c) with associations with persons suspected of engaging in criminal conduct;

(d) who are not of good character, having regard to their past and present criminal or general conduct; and

(e) who pose significant risk of particular types of future conduct.

1. Section 501(1), (2) and (3) contain no compulsions to take certain action if a visa holder or applicant does not meet the character test. Rather, the powers granted are subject to Ministerial discretion. Implicit in that statutory framework is recognition that there will be cases where a person will not pass the character test, but it will nonetheless be appropriate in the circumstances that they be granted a visa, or that they retain it.
2. A duty imposed on the Minister that, on allegations that a person is not of good character raised by a member of the public, a visa not be granted or be revoked, would not cohere to that statutory framework. Moreover, it would be directly inconsistent with the duty to afford natural justice to visa holders and applicants for decisions under s 501(1) and (2).
3. Ms Halyday also attempts to rely on the Public Governance and Accountability Act 2013 (Cth) (Public Governance Act) as the basis for the duty of care alleged. While the only reference she makes to a provision of that Act is to s 23, which relates to the power of governmental authorities to enter into contracts and other arrangements, it appears she is attempting to rely on s 25, which provides:

(1) An official of a Commonwealth entity must exercise his or her powers, perform his or her functions and discharge his or her duties with the degree of care and diligence that a reasonable person would exercise if the person:

(a) were an official of a Commonwealth entity in the Commonwealth entity's circumstances; and

(b) occupied the position held by, and had the same responsibilities within the Commonwealth entity as, the official.

(2) The rules may prescribe circumstances in which the requirements of subsection (1) are taken to be met.

1. There is real difficulty in relying on the Public Governance Act as a basis of the duty alleged, as any duty applies only to officials in the exercise of their duties within a Commonwealth entity. The standard of care is of a reasonable person in the position of the relevant official, and is impacted by the statutory framework that governs their decision-making. The content of that duty would therefore also need to cohere with the statutory framework of the Migration Act, already discussed. Reliance in an action against the Commonwealth on this provision would also require Ms Halyday to establish the legal and factual basis of liability for the Commonwealth for any breach of the duty by officials. None is alleged in the pleadings. It is also doubted whether this provision creates a private right of damages at all. As Perry J pointed out in EOX17 v Commonwealth [2018] FCA 1656 at [44]:

...[a]ny claim relying upon the Public Governance Act depends upon the applicant establishing that this Act is intended, as a matter of statutory construction, to confer a private right of action for damages: O'Connor v S. P. Bray Ltd [1937] HCA 18; (1937) 56 CLR 464 at 477-478 (Dixon J); Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 424 (Brennan CJ, Dawson and Toohey JJ). However no such intention can be discerned from the provisions of the Public Governance Act. Section 23 authorises the Secretary as the relevant accountable authority of the non-corporate Commonwealth entity to enter into arrangements, such as contracts, which may in turn provide for the making of payments to individuals. However, the section has nothing to say in terms of conferring private rights to compensation for breaches of duty. Nor does s 25 or any other provision confer a private right of action: see by analogy Deputy Commissioner of Taxation v Frangieh (No 3) [2017] NSWSC 252; (2017) 321 FLR 1 at [672] (Harrison AsJ); Shamir v Commonwealth of Australia (Australian Taxation Office) [2015] FCA 1463 at [11] (Pagone J).

1. There is no identified cause of action for negligence by the Commonwealth. Accordingly, that aspect of Ms Halyday's proceeding must be summarily dismissed.

1. Ms Halyday also makes allegations and complaints against individuals who are not parties to this proceeding, and for whom the pleading defects identified earlier in these reasons apply. This includes individual but unnamed court staff at the Federal Circuit and Family Court, Solicitor 1, another private solicitor referred to as Solicitor 2, M9, the NSW Office of the Legal Services Commissioner, the Victims Services Commissioner of NSW and two federal ministers. For that reason alone, those aspects of the proceeding must be summarily dismissed.
2. In any event, none of those complaints identify, in any proper way, any basis for liability by any of those individuals. For completeness, I should add that this Court has no jurisdiction to order the investigation of crimes by the Australian Federal Police, to order the Commonwealth or State or Territory governments to criminalise coercive control violence, or to make a declaration that it is contrary to human rights in general not to criminalise such conduct. There is no identified proper basis for the Court to order the Commonwealth to make apologies or to alter its records.
3. There are many other defects in the allegations made against these individuals, none of which need to be spelt out. The written submissions for the Commonwealth identify many such defects.
4. I am therefore satisfied that there should be summary dismissal of the balance of the claims made by Ms Halyday.

1. This proceeding goes further than what is required by s 31A, because, although expressly not required by subs (3), it is hopeless and is bound to fail. Necessarily, it therefore has no reasonable prospect of success. None of these central failings can be remedied by re-pleading, noting that Ms Halyday has had the benefit of assistance from an experienced and capable barrister of some seniority acting pro bono. It follows that summary judgment must be entered in favour of the Commonwealth, with costs.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich.