Li v Commonwealth of Australia

jurisdiction 10 The jurisdiction of this Court was engaged by the filing of an application on 13 May 2002 seeking injunctive relief against the Minister. The Court has jurisdiction to grant such relief pursuant to s 39B(1) of the Judiciary Act 1903 (Cth) ("Judiciary Act"). Section 39B(1) gives the Court jurisdiction in any matter in which a writ of mandamus or prohibition, or an injunction, is sought against an officer of the Commonwealth. 11 The applicant no longer pleads a case for injunctive relief against the Minister, although this does not necessarily mean that this Court lacks jurisdiction to deal with other issues arising in the case, even if the other issues, of themselves, do not raise any federal question. However, the applicant now pleads causes of action arising by virtue of

• what are said to be implied constitutional principles of "equality before the law" and "equality of access to the law" (ASC, pars 6, 14);
• misleading and deceptive conduct by each of the respondents in contravention of s 52 of the TP Act or, alternatively, s 42 of the Fair Trading Act 1987 (NSW) ("Fair Trading Act") (ASC, pars 15, 16). The Court has jurisdiction to address these claims by virtue of s 39B(1A)(b) of the Judiciary Act (matters arising under the Constitution or involving its interpretation) and s 39B(1A)(c) (matters arising under a law made by Parliament). 12 The applicant also pleads that the respondents owed the applicant a duty of care to ensure that he remained "free from violence or force otherwise than as permitted by the laws of the Commonwealth" and that that duty applied to the respondents by reason of the Commonwealth Places (Application of Laws) Act 1970 (Cth) ("Application of Laws Act"), s 4(1). Although the ASC does not expressly so allege, presumably the Application of Laws Act is invoked because the Centre and the Airport are "Commonwealth places" for the purposes of s 4(1). It may be that a claim of this nature attracts the jurisdiction of the Court under s 39B(1A)(c) of the Judiciary Act independently of any other "federal" issues in the case. 13 It should be noted that the Constitutional issues sought to be raised by the ASC have been the subject of notices under s 78B of the Judiciary Act.

the strike out applications 14 The respondents invoke Federal Court Rules ("FCR"), O 11 r 16. FCR, O 11 r 16(a) provides that where a pleading discloses no reasonable cause of action or other case appropriate to the nature of the pleadings, the Court may order that the whole or any part of the pleading be struck out. FCR, O 11 sub-rr 16(b) and (c) allow the Court to strike out a pleading that has a tendency to cause embarrassment or delay, or is otherwise an abuse of the Court's process. 15 It is necessary to bear in mind that FCR, O 11 r 2(a) provides that a pleading of a party must contain and contain only a statement in a summary form of the material facts on which the party relies. Moreover, a pleading must state all the material facts which are necessary to formulate a complete cause of action. Accordingly, if any one material fact is omitted the pleading is liable to be struck out: Philipps v Philipps (1878) 4 QBD 127; Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109, at 113, per Fisher J. 16 It is convenient first to address the strike out applications in relation to the particular paragraphs of the ASC that plead claims under the Constitution or the TP Act.

asc, par 6 17 The applicant pleads that the respondents owed the applicant a duty of care and "a general duty to have proper access to and the benefit of the criminal and civil laws of the Commonwealth and…New South Wales" on the basis of the implied constitutional principles of equality before the law and equal access to the law. The applicant is said to have been removed from Australia in breach of that duty. Since the applicant was removed pursuant to s 198(5) of the Migration Act, par 6 is presumably intended to allege that s 198(5) is invalid because it breaches of the implied constitutional principles identified in the ASC. 18 Paragraph 6 of the ASC, although not easy to follow, apparently has its genesis in the dissenting judgment of Deane and Toohey JJ in Leeth v Commonwealth (1992) 174 CLR 455. That case concerned a challenge to the validity of federal legislation which provided for variations in the minimum term of imprisonment that could be imposed on a federal offender depending on the State in which he or she was tried. The High Court, by majority, rejected the challenge (Mason CJ, Brennan, Dawson and McHugh JJ; Deane, Toohey and Gaudron JJ dissenting). In their dissenting judgment, Deane and Toohey JJ expressed the view (at 485) that the Constitution implicitly adopts a "doctrine of legal equality". The doctrine was said (at 485) to have "two distinct but related aspects. The first is the subjection of all persons to the law: 'every man, whatever be his rank or condition, is subject to the ordinary law…and amendable to the jurisdiction of the ordinary tribunals'. The second involves the underlying or inherent theoretical equality of all persons under the law and before the courts." (Footnotes omitted.) 19 In Kruger v Commonwealth (1997) 190 CLR 1, Gummow J pointed out (at 153) that no such doctrine was accepted by any other member of the Court in Leeth v Commonwealth, including Gaudron J (who also dissented), and that the decision of the majority in the case is inconsistent with the recognition of any general constitutional doctrine of legal equality. In Kruger itself, a majority of the Court rejected the contention that the Constitution contains an implicit guarantee of legal equality before and under the law: see at 44-45, per Brennan CJ; at 68, per Dawson J; at 143-144, per McHugh J; at 153-155, per Gummow J; cf at 112-114, per Gaudron J. 20 Paragraph 6 of the ASC fails to plead a reasonable cause of action because it does not specifically allege that the applicant's removal from Australia was unlawful. It may be that such an allegation is implicit in the allegation that the applicant was removed from Australia in breach of a duty founded on the constitutional principle of equality before the law and equal access to the law. Nonetheless, it seems to me that an essential step in the applicant's claim is that he was unlawfully removed from Australia. That allegation should be explicitly made and justified by pleading material facts. 21 The difficulty confronting the applicant then becomes apparent. An allegation that the applicant's removal from Australia was unlawful would have to overcome the obstacle created by s 198(5) of the Migration Act. To suggest that s 198(5) infringes an implied constitutional right to equality would be inconsistent with settled authority. No such right is recognised in Australia. 22 In any event, the implied doctrine of legal equality propounded by Deane and Toohey JJ in Leeth v Commonwealth would not assist the applicant. Their Honours qualified the scope of that doctrine in Leeth v Commonwealth as follows (at 488-489): "The doctrine of legal equality is not infringed by a law which discriminates between people on grounds which are reasonably capable of being seen as providing a rational and relevant basis for the discriminatory treatment. In one sense, almost all laws discriminate against some people since almost all laws operate to punish, penalize or advantage some, but not all, persons by reference to whether their commands are breached or observed. While such laws discriminate against those whom they punish or penalize or do not advantage, they do not infringe the doctrine of the equality of all persons under the law and before the courts. To the contrary, they assume that underlying legal equality in that they discriminate by reference to relevant differences. … Even where a law does infringe the doctrine of legal equality, the nature of the particular grant of legislative power may be such as to rebut the assumption that such discrimination was unauthorised by the relevant provision of the Constitution…[A] legislative power to make special laws with respect to a particular class of persons, such as aliens (Constitution, s 51(xix) or persons of a particular race (s 51(xxvi)), necessarily authorizes discriminatory treatment of members of that class to the extent which is reasonably capable of being seen as appropriate and adapted to the circumstance of that membership." There is nothing in their Honours' reasoning, even if it represented the law, to support the proposition that a statute requiring the removal from Australia of unlawful non-citizens in detention violates an implied constitutional principle of equality. 23 Paragraph 6 of the ASC fails to disclose any reasonable cause of action and is embarrassing. It must be struck out. I find it difficult to see how the applicant could successfully replead the substance of par 6.

ASC, par 14 24 Paragraph 14.1 of the ASC pleads that, in breach of the general duty of care alleged in par 6, the Commonwealth and the Minister denied the applicant redress available under the laws of the Commonwealth and New South Wales. This is said to constitute a denial of the applicant's fundamental rights to equality before the law and equal access to the law. Paragraph 14.2 alleges that the removal of the applicant from Australia on 30 May 2002 effectively denied him redress provided by the law, in that he was prevented from pursuing litigation in Australia "efficiently, efficaciously and in a timely manner". 25 Once again, it is not easy to discern what par 14 of the ASC is intended to convey. Paragraph 14.1 appears to repeat the allegation in par 6 that the Commonwealth and Mr Ruddock owed the applicant a duty of care flowing from the implied constitutional principle of equality before the law. Paragraph 14.1 also seems to suggest, although not explicitly, that the applicant has a right of "redress" which also flows from the implied constitutional principle. Paragraph 14.2 alleges that the applicant's removal from Australia on 30 May 2002 denied him his right of "redress". Like par 6 of the ASC, this would seem to imply that the applicant's removal from Australia was unlawful and that it was the unlawful removal that effectively prevented him from exercising certain rights, such as giving evidence in chief in person in connection with his claim for compensation (see par 14.2(b)). 26 In my opinion, par 14 of the ASC, like par 6, does not disclose a reasonable cause of action. Paragraph 14 does not specifically allege that the applicant's removal from Australia on 30 May 2002 was unlawful, although this seems to be the assumption on which the paragraph rests. Moreover, par 14 does not expressly identify the "rights" of which the applicant is said to be deprived, nor the source of those rights. Unless these matters are addressed, and material facts pleaded, it is difficult to make sense of the pleading. 27 As with par 6 of the ASC, if these defects in the pleading are cured, the applicant still faces the difficulty that his removal from Australia on 30 May 2002 appears to have been authorised, if not compelled by s 198(5) of the Migration Act. To the extent that the applicant seeks to overcome s 198(5) by relying on the implied constitutional principle of equality, the attempt is doomed to failure. 28 In my opinion, par 14 fails to disclose a reasonable cause of action and is embarrassing. It must be struck out. Once again, it is difficult to see how the applicant could successfully replead the substance of par 14 of the ASC.

ASC pars 15 and 16 29 Insofar as I can follow par 15, it alleges that ACM, as agent for the Commonwealth and Mr Ruddock, presented a document to the applicant on 3 April 2002 and represented to him that the document was an authority for his doctor to receive medical information. This representation is said to have been false because the document was in truth an authority to release medical information to ACM itself. It is then said that by signing the document, the applicant placed himself in a position of disadvantage in relation to the proper prosecution of his remedies at law generally. 30 Although par 15 appears to plead that ACM made representations as the "agent and contractor" for the Commonwealth and Mr Ruddock, it pleads (in par 15.5) that ACM's "conduct and misrepresentation aided and abetted by [the Commonwealth and Mr Ruddock]" constituted misleading and deceptive conduct in contravention of s 52 of the TP Act and s 42 of the Fair Trading Act. 31 Paragraph 16 is particularly confused, but it seems to plead that the servants and agents of all the respondents threatened to administer drugs to the applicant at unspecified times. This conduct is said to be misleading and deceptive because it was contrary to ACM's written guidelines. 32 It is not clear whether par 15 is intended to allege misleading and deceptive conduct on the part of the Commonwealth and Mr Ruddock. If the allegations are intended to be made against the Commonwealth, they encounter the difficulty that the Commonwealth is not a corporation for the purposes of s 52(1) of the TP Act: Corrections Corporation of Australia Pty Ltd v Commonwealth (2000) 104 FCR 448, at 449, per Finkelstein J. The TP Act binds the Commonwealth insofar as it carries on business: s 2A. But there is no allegation here that the Commonwealth carried on a business. Nor is there any allegation that the representations were made in trade or commerce, a pleading that is essential if s 52(1) of the TP Act is to be invoked. I should add that Corrections Corporation v Commonwealth holds that the Commonwealth does not carry on business by conducting a detention centre (at 452, per Finkelstein J). Any attempt to replead par 15 will have to confront the holding in that case. 33 So far as Mr Ruddock is concerned, par 15 contains no statement of the material facts by which it is alleged that ACM made representations as his agent. Nor is there any allegation that Mr Ruddock, assuming he is bound by the Fair Trading Act, was acting in trade or commerce when making or authorising the making of any of the representations. For these reasons, par 15 fails to disclose any reasonable cause of action against him. 34 Insofar as par 15 is intended to plead a case of accessorial liability against the Commonwealth or Mr Ruddock, it pleads no material facts capable of establishing that either of them aided or abetted the contravention by ACM: see s 75B(1) of the TP Act. 35 For these reasons, par 15 of the ASC must be struck out as against the Commonwealth and Mr Ruddock. 36 Paragraph 15 is also apparently intended to plead a case of misleading and deceptive conduct against ACM and to claim damages against it by reason of the breach, although no reference is made in the ASC to s 82 of the TP Act. Paragraph 15 is deficient in pleading the case against ACM because it does not plead that any misrepresentation by ACM was made in trade or commerce, as is required for a contravention of s 52 of the TP Act. This is not a pure formality, since the representation is said to relate to an authorisation for the release of medical information in connection with the applicant's foreshadowed removal from Australia. 37 It is necessary for a claim for damages under s 82 of the TP Act to allege that the applicant suffered loss or damage by the conduct of the respondent in contravention of another provision of the Act. Paragraph 15.5 of the ASC alleges that the applicant suffered loss and damage by reason of the "conduct and misrepresentation of [ACM]". The particulars to par 15.5 are particularly difficult to understand. Insofar as I can follow them, they do not seem to me capable of establishing that the misrepresentation alleged caused or contributed to any loss or damage to the applicant. If the applicant is to plead a case against ACM, it will be necessary for him to allege material facts capable of establishing that he suffered loss or damage in consequence of ACM's conduct in contravention of s 52 of the TP Act. 38 In my opinion, par 15 fails to disclose any reasonable cause of action against ACM and must be struck out. 39 Paragraph 16 fails to plead material facts sufficient to establish a case against any of the respondents. It, too, must be struck out.

Claims for Relief 40 I have set out earlier (see [6] above) the relief claimed in the ASC. Given that pars 6 and 14 are to be struck out, subject to one qualification, there is no foundation for the order sought in par 2 or the declarations in pars 3 and 4. Given that pars 15 and 16 are to be struck out, there is no foundation for any claim for damages under s 82 of the TP Act. 41 The qualification is that par 2 of the orders sought by the applicant might be supported by par 5 of the ASC. However, for reasons I shall explain, par 5 cannot survive scrutiny. Accordingly, pars 2, 3 and 4 of the relief claimed by the applicant must be struck out.

Balance of the ASC 42 The balance of the ASC essentially pleads that ACM and the Commonwealth owed a duty of care to the applicant which they breached, thereby causing him to suffer injury, both physical and psychological. There is no doubt that such a case is capable of being pleaded in a manner that could withstand challenge. There are, however, serious defects in the current pleading, leaving to one side the paragraphs with which I have already dealt. 43 Several paragraphs or sub-paragraphs of the ASC are liable to be struck out. Paragraph 5 asserts that each of the respondents had "a duty of care and responsibility" to investigate adequately "any claims" made by the applicant of assault or mistreatment while in detention. The ASC does not identify the source of any such duty and does not plead material facts that would be capable of supporting such a duty under the general law. In the absence of a statute imposing a duty of investigation, it is difficult to see how a common law duty to that effect could arise in the circumstances of the present case. In any event, the ASC does not plead that the applicant made particular complaints or that any of the respondents failed to investigate them. Paragraph 5 must be struck out and, to the extent that par 2 of the relief claimed in the ASC is dependent on par 5, it too must fall. 44 The ASC pleads that the respondents were under a duty of care to ensure that the applicant had access to a qualified interpreter at all material times (par 2(d)). Once again the source of the alleged duty is not identified and material facts to support the existence of a common law duty to that effect are not pleaded. The ASC alleges that the applicant was denied access to an interpreter "at all material times" (par 7.1(c)) and that the lack of an interpreter "at key material times"…did or may have caused him undue stress, worry, emotional impact and harm" (par 9). The pleading does not specify the occasions on which the applicant was denied an interpreter, nor the persons or organisations responsible for refusing him assistance. Indeed, it is not clear whether par 9 complains of the absence of an interpreter at the hospital where the applicant was being treated, at the Centre or elsewhere; nor is it clear whether the applicant sought an interpreter and was denied one, or whether he complains that an interpreter should have been provided without any request having been made. 45 Paragraph 7 of the ASC is apparently intended to make the critical allegations of breach of duty against the respondents. But par 7 runs together allegations about several different events, without identifying which respondent is said to be responsible for the particular conduct or omission (as the case may be). Paragraph 7.1(a), for example, alleges, inter alia, that the applicant was threatened with the use of syringes at the Airport, but does not identify who made the threats and whether the threats were made by persons acting with the authority, or as agents of the Commonwealth. Paragraph 7.1(b) alleges that the applicant was denied proper or adequate medical attention, but does not specify who is said to have refused him the required attention. Paragraph 7.1(d) is drafted (so it would seem) on the false assumption that each of the respondents was bound by the International Covenant on Civil and Political Rights and for that reason alone is liable to be struck out. 46 Paragraph 10 says that the delay in the applicant receiving proper medical attention prior to his medical treatment and after his operation "did [sic] or may have caused him undue stress, worry, anxiety and emotional upset". No facts are pleaded to show that either ACM or the Commonwealth was responsible for any delay or indeed that any delay actually occurred. 47 I am conscious that the power to strike out a statement of claim should be applied sparingly and only in a clear case: Brambles Holdings Ltd v Trade Practices Commission (1979) 28 ALR 191, at 193, per Bowen CJ. In my opinion, however, it would be unfair to the respondents to require them to plead to the remnants of the ASC after the paragraphs to which I have referred have been struck out. It does not seem to me that the paragraphs in the ASC that could survive scrutiny plead a coherent case to which each of the respondents can fairly be expected to respond. 48 I should add that one of the questions I would have put to the applicant's solicitor at the hearing, had he been able to assist the Court, was whether he wished to contend that the balance of the ASC, after the particular paragraphs I have referred to have been struck out, disclose a reasonable cause of action and are not embarrassing. Because the solicitor appearing at the hearing was unable to assist the Court, no argument to this effect was advanced on the applicant's behalf. 49 The ASC should be struck out. The applicant should have an opportunity to replead his case in proper form, with due regard to the requirements of the FCR. However, as I shall explain, I think that the appropriate course is to require the applicant to seek leave to file a further amended statement of claim.

the position of the third respondent 50 Since I have formed the view that the ASC should be struck out, it is not necessary to address separately the propriety of the joinder of Mr Ruddock as a respondent. It is enough to say that the ASC does not plead a sustainable case against Mr Ruddock in his personal capacity and I find it hard to see how he could be a proper party to the proceedings. For that matter, it is not easy to see how the Minister in his capacity as an officer of the Commonwealth is a proper party to an action for damages for personal injury brought by a person who has been injured while in detention as an unlawful non-citizen. That, however, is an issue that can be addressed, if necessary, if and when the applicant seeks to file a further amended statement of claim.

transfer of proceedings 51 Since I have concluded that the ASC should be struck out, I think it is premature to deal finally with the question of transfer of the proceedings to another court. Whether the proceedings should be transferred is likely to depend on the issues raised by a properly pleaded further amended statement of claim. 52 If the claim is confined to an action for damages for personal injuries by reason of breach of duty, and does not include any claim for relief under the TP Act, it would seem that the only available power to transfer the proceedings would be that conferred by s 5(4) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). Relevantly, that power is confined to a transfer of the proceedings to the Supreme Court of New South Wales. That is so notwithstanding that on the evidence (as distinct from unexplained dollar figures inserted in the ASC), there is nothing to indicate that the applicant's claim would exceed the jurisdictional limit of the District Court of New South Wales: District Court Act 1973 (NSW), s 44(1)(a)(ii) ($750,000); cf s 44(1)(e) (excepting from the jurisdictional limit proceedings transferred from the Supreme Court pursuant to s 143). 53 If, however, any amended statement of claim raises a matter for determination under Div 1 of Part V of the TP Act (which includes s 52), this Court has power to transfer that matter and any other matter for determination in the proceedings to either the District Court or the Supreme Court pursuant to s 86A of the TP Act. In this connection, I note that s 7(1) of the Application of Laws Act invests the several courts of each State with federal jurisdiction in all matters arising under the applied provisions as having effect in or in relation to a Commonwealth place.

repleading 54 In my opinion, the applicant should be given a further opportunity to plead his case. I have little doubt that if, for example, the applicant's core claim is for damages for personal injuries arising out of what are said to be breaches of duty by ACM and the Commonwealth, that claim is capable of being pleaded in a manner that complies with the rules of pleading. (Of course, I make no comment on whether the applicant will be able to establish at a hearing that the ACM and the Commonwealth did indeed breach any duties they may have owed the applicant.) 55 Because of what I regard as egregious deficiencies in the current pleading, I think the appropriate course is that the applicant should be required to seek leave to file any further amended statement of claim. Any application for leave should be accompanied by a draft amended statement of claim and should be filed and served within 28 days. In the absence of such application being filed, the respondents will be at liberty to seek summary dismissal of the proceedings.

costs 56 Mr Markus, who appeared for the Commonwealth and Mr Ruddock, applied for an order for the costs of the motion filed on their behalf on an indemnity basis. Mr Markus pointed out that on 4 July 2002, prior to the filing of the ASC on 15 August 2002, the Minister's solicitors wrote to the applicant's solicitors identifying a number of deficiencies in the then current statement of claim. The deficiencies so identified included the incorrect joinder of the Minister as a party rather than the Commonwealth; "confusion" in the then pleadings between the position of ACM and the Minister; and "vague and imprecise" allegations that made it impossible (so it was said) to understand the basis for the course of action alleged. The letter warned that if the applicant persisted in his intention to join Mr Ruddock personally as a party to the proceedings, costs on an indemnity basis would be sought. 57 Directions were made on 5 July 2002 requiring the applicant to file an amended statement of claim within 21 days. In fact the ASC was not filed until the next directions hearing on 15 August 2002. The Commonwealth's legal representative (who, at that time, did not appear for Mr Ruddock) therefore had insufficient opportunity to consider the ASC fully before that directions hearing. Nonetheless, the Commonwealth's representative indicated that an application was likely to be made to strike out the ASC. Further directions were made providing for the filing of a motion seeking that or other appropriate relief. In the event, the Commonwealth's motion was filed on 30 August 2002, together with submissions arguing for an order striking out the ASC. Despite the filing of these documents, the applicant's representatives persisted in attempting to uphold the ASC. 58 Mr Markus says that these circumstances are sufficiently unusual to displace the general principle that costs should be ordered on a party and party basis. He says that had the applicant filed the ASC in a timely fashion prior to the directions hearing on 15 August 2002, the Commonwealth would have had the opportunity to point to the defects in the ASC prior to filing a motion. Mr Markus further submits that the representatives of the Commonwealth and Mr Ruddock acted appropriately in filing the strike out motion and supporting submissions in accordance with directions given on 15 August 2002, notwithstanding that no further letter warning of an application for indemnity costs was sent. 59 The applicant's solicitor put no submissions in opposition to Mr Markus's application for costs on an indemnity basis. 60 The principles relating to an award of costs on an indemnity basis are set out by Shephard J in Colgate-Palmolive Company v Cussons (1993) 46 FCR 225. It is not necessary to repeat them. In this case, I think that the claim for indemnity costs of the motion would have been very strong had the Commonwealth's solicitors advised the applicant's solicitors in writing of the defects in the ASC and of their intention of seeking indemnity costs of any motion before the motion was filed. While it is understandable that the Commonwealth's solicitors chose to file the motion and written submissions at the same time, the applicant was not expressly put on notice that a failure to withdraw the ASC would lead to an application for indemnity costs. I do not think that, in the absence of such express notice, the applicant should be liable to pay all the costs of the motion on an indemnity basis. 61 Nonetheless, the applicant should pay the Commonwealth's costs (including those of Mr Ruddock) of the hearing on 8 October 2002 on an indemnity basis. As I have noted, the solicitor appearing for the applicant was unable to assist the Court in any way. The hearing was quite unnecessary and could have been avoided if the other parties had received timely notice that the applicant's representative would not be able to address any argument or answer any questions. 62 ACM sought costs of its motion on the usual basis only. An order to that effect should be made. I certify that the preceding sixty (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice SACKVILLE.

Solicitor for the Applicant: Mr A Wei appeared on behalf of Duker & Associates

Solicitor for the First and Third Respondent: Mr A Markus appeared on behalf of Australian Government Solicitor Counsel for the Second Respondent: Mr M Barko Solicitor for the Second Respondent:

McLachlan Chilton Date of Hearing: 8 October 2002

Date of Judgment: 10 October 2002