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[2014] VSC 593
Supreme Court of Victoria
2014-11-28
KAYE J
Original judgment source is linked above.
PRACTICE AND PROCEDURE Group proceeding Plaintiff asylum seeker in detention on Christmas Island Claim for damages in tort alleging injuries due to lack of reasonable health care in detention Application to strike out parts of Amended Statement of Claim Rule 23.02 of the Supreme Court (General Civil Procedure) Rules 2005 Whether claim properly pleaded - Application that proceeding not continue as group proceeding Whether group sufficiently defined Whether any substantial common questions of fact or law Supreme Court Act 1986 (Vic) Part 4A ss 33C, , .
1 The plaintiff, who is a minor, is an asylum seeker. She has been detained as an "unlawful non-citizen" pursuant to s 189(3) of the Migration Act 1958 (Cth). Initially, she was detained on Christmas Island until 19 August 2014, and thereafter, she has been detained, first, at the Wickam Point Place of Detention in the Northern Territory, and, subsequently, at the Bladen Alternative Place of Detention in the Northern Territory.
2 The first defendant is the Minister for Immigration and Border Protection, and the second defendant is the Commonwealth of Australia. The proceedings are brought pursuant to Part 4A of the Supreme Court Act 1986 (Vic) on behalf of all persons who were detained on Christmas Island between 27 August 2011 and 26 August 2014, and who, it is alleged, suffered injury as a result of the failure of the defendants to provide them, or their parents, with reasonable health care.
3 The defendants have applied by summons to have a number of paragraphs of the plaintiff's amended statement of claim struck out. The defendants have also applied for an order that the proceeding not continue as a group proceeding under Part 4A of the Supreme Court Act pursuant to s 33N of the Act.
4 It is convenient, first, to consider the application to strike out paragraphs of the amended statement of claim. That application is made pursuant to rule 23.02 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic), or, alternatively, pursuant to the inherent jurisdiction of the court, on the grounds that the paragraphs in question "do not disclose a cause of action, may prejudice, embarrass or delay the fair trial of the proceeding or alternatively are an abuse of the process of the court".
5 By their summons, and in their written submissions, the defendants directed their application to a significant number of parts of the amended statement of claim. However, in the course of oral submissions, Mr G Livermore, who appeared on behalf of the defendants, confined his arguments to a limited number of those aspects of the amended statement of claim. In doing so, he conceded that the other parts of the amended statement of claim, which were the subject of the summons, were sufficiently pleaded. In turn, Mr M Lee SC, who appeared with Mr M Albert and Mr A Solomon-Bridge on behalf of the plaintiff, conceded that the aspects of the amended statement of claim, to which Mr Livermore confined his oral submissions, ought to be struck out, and re-pleaded. The approach adopted by counsel on both sides was sensible and constructive, and is to be commended.
6 Notwithstanding the common ground which emerged in the course of oral submissions, it is, nevertheless, useful to set out the relevant aspects of the amended statement of claim which remained the subject of the application by the defendants, and to set out, in brief compass, the basis upon which they should be struck out and re-pleaded. I do so to ensure, so far as possible, that the re-pleaded statement of claim will be a sufficient basis upon which the proceeding might progress through its interlocutory stages.
7 For the purpose of considering the defendants' application, it is necessary to set out, at some length, the relevant portions of the amended statement of claim. They are as follows:
(a) has been put in detention on Christmas Island in the period between 27 August 2011 and 26 August 2014 inclusive (the relevant period) whether or not they have since been released from detention;
(b) was injured and/or pregnant during the relevant period, while in detention; and
(c) has, during the relevant period, suffered an injury or an exacerbation of an injury which is alleged to be as a result of the defendants' failure to provide him, her or his or her parents with reasonable health care.
(i) take reasonable care to ensure that their detention did not or does not cause injury;
(ii) provide reasonable health care in the event that they are injured or pregnant while in detention; and
(iii) exercise due care and skill in providing such care; and
(b) who were or are minors, to put them in detention only as a measure of last resort; and
[there is no subparagraph 18(c)]
(d) who are children of "compulsory school age" to enrol them in an "educational programme" for their "compulsory education period" within the meaning of the School Education Act 1999 (WA).
In addition to the duties set out in the paragraphs above, and in the circumstances set out in paragraph 9 to 17, the defendants each owed and owe separate duties to each of the group members who were or are minors to put them in detention only as a measure of last resort (the statutory duty to detain minors only as a measure of last resort).
Section 4AA of the Migration Act.
Sections 9 and 10 of the School Education Act.
(a) a failure to enrol them in an educational programme for their compulsory education period within the meaning of the School Education Act could cause them to develop injury or exacerbate existing injury;
(b) such injuries include physical and psychological injury.
Particulars of AS's claim
(i) Failing to make a residence determination within the meaning of the Migration Act.
(ii) Failing to make a determination under s 198AE of the Migration Act that section 198AD not apply to the group members.
(iii) Failing to make the determinations particularised above in a manner that would have been consistent with discharging his duty to take reasonable care, notwithstanding that the Migration Act in and of itself does not create a duty for him to do so.
(iv) Failing to ensure that his servants or agents would not tell AS that she and her immediate family are liable to be removed to either Nauru or Manus Island at any time despite having given an undertaking to her lawyers Maurice Blackburn in a letter dated 16 April 2014 that she would not be so removed.
(v) Failing to ensure that his servants or agents would not separate AS from her mother when her mother was moved to Darwin to give birth to AS's brother.
Particulars of group members' claims
(vi) Particulars of the group members' claims will be provided after the trial of AS's claim.
Particulars of AS's claim
Failures relating to nature of detention
(a) other than on mainland Australia, where the standard of care could be more readily met than on Christmas Island; alternatively
(b) on Christmas Island without also causing actions to be taken so that the standard of care can be met there.
(xxvi) Acting in a manner inconsistent with human rights within the meaning of the Australian Human Rights Commission Act 1986 (Cth) by:
(a) not having reasonable regard to Article 7 of Schedule 2 to the Australian Human Rights Commission Act 1986 (Cth) (the International Covenant on Civil Rights and Political Rights);
(b) not having reasonable regard to Principles 2, 4, 5, 6, 8, 9 of Schedule 3 to the Australian Human Rights Commission Act 1986 (Cth) (the United Nations Declaration on the Rights of the Child).
(xxvii) Detaining AS other than as a measure of last resort.
(xxviii) Failing to enrol AS in an educational programme.
Particulars of AS's claim
Failures relating to nature of detention
(a) other than on mainland Australia, where the standard of care could be more readily met than on Christmas Island; alternatively
(b) on Christmas Island without also causing actions to be taken so that the standard of care can be met there.
[there is no particular (ii) to this paragraph].
(xxvi) Acting in a manner inconsistent with human rights within the meaning of the Australian Human Rights Commission Act 1986 (Cth) by:
(a) not having reasonable regard to Article 7 of Schedule 2 to the Australian Human Rights Commission Act 1986 (Cth) (the International Covenant on Civil and Political Rights);
(b) not having reasonable regard to principles 2, 4, 5, 6, 8, 9 of schedule 3 to the Australian Human Rights Commission Act 1986 (Cth) (the United Nations Declaration on the Rights of the Child).
(xxvii) Detaining AS other than as a measure of last resort.
(xxviii) Failing to enrol AS in an educational programme.
...
(xxx) Particulars of the group members' claims will be provided after the trial of AS's claim.
8 By way of relief, AS claims, on behalf of herself, damages, including exemplary damages, against the Commonwealth, and an order restraining the defendants from detaining her on Christmas Island. On behalf of the group members, AS claims damages against the Commonwealth, and an order that each defendant be restrained from detaining any of the group members on Christmas Island.
9 Part D of the amended statement of claim sets out seven questions, which, it is claimed, are common to claims of the group members. I shall return to that aspect of the statement of claim later in this ruling.
The application to strike out the plaintiff's pleadings
10 As I stated, the first paragraph of the defendants' summons is directed to striking out the paragraphs of the pleading to which I have already referred. The application itself is made on two bases. First, the defendants seek, under rule 23.02 of the Supreme Court (General Civil Procedure) Rules 2005, to impugn the adequacy of the manner in which the plaintiff has pleaded various aspects of the amended statement of claim. In that respect, the application by the defendants is directed to whether particular parts of the amended statement of claim sufficiently comply with the rules of pleading.[1] Under rule 23.02, a pleading is embarrassing, and liable to be struck out, if it is unintelligible, or ambiguous, or if it lacks sufficient precision to fairly inform the other party, and the court, of the fundamental elements of the cause of action on which the plaintiff seeks to rely.[2]
11 An application, made under rule 23.02, is particularly directed to ensuring that the pleading fulfils its fundamental purpose, namely, that it specifies, in clear and intelligible terms, the case which the plaintiff seeks to make, and which the defendants must meet.[3] In a group proceeding brought under Part 4A of the Supreme Court Act, it is particularly important that the plaintiff's claim is sufficiently pleaded to fulfil that fundamental function. In particular, it is necessary that the pleading be couched in terms which are sufficiently specific to enable a clear elucidation of the issues that are in dispute in the case, so as to enable the court to properly identify the common issues of fact and law, which are to be determined for the purposes of the group proceeding.
12 The defendants originally additionally sought to strike out particular paragraphs of the amended statement of claim, on the basis that they do not disclose a cause of action. However, in the course of oral submissions, Mr Livermore conceded that, if properly pleaded, those paragraphs of the plaintiff's amended statement of claim would disclose an arguable cause of action. Mr Livermore was correct in making that concession. It is well established that, on an application under rule 23.02, a court should exercise its summary jurisdiction, to strike out a claim (or defence), only where it is clearly not tenable as a matter of law. Although the question, as to the viability of the cause of action, or defence, which is pleaded, might be the subject of some argument, nevertheless, in the end, the case must be particularly clear, in order to justify the court intervening, at a summary stage, to deprive a party of the right to a trial on the cause of action (or defence) which is pleaded.[4] As Byrne J stated, in his unreported decision in Opat Decorating Service (Vic) Pty Ltd v Jennings Group Limited, on an application under rule 23.02, ordinarily:
A plaintiff will be stopped from putting a claim forward only where, assuming the facts pleaded have been established, the claim is so manifestly hopeless that a trial would be a futility. In case of doubt I should refuse to exercise the power [to strike out the pleading].[5]
13 There are a number of authorities which support the proposition that, where a difficult or novel question of law arises in the context of an application to strike out a pleading under rule 23.02, the preferable course is for the party, wishing to raise that issue, to plead it, and then apply to have the issue determined before trial, under rule 47.04, or at trial.[6] The difference between the determination of such an issue on an application under rule 23.02, and the determination of it pursuant to rule 47.04, or at trial, is not a mere matter of technicality. Rather, it involves the difference between, on the one hand, determining an issue of pleading, and, on the other hand, determining a substantive question of law in the context of the principles that apply to the trial of a civil proceeding.
The Migration Act 1958 (Cth)
14 For the purposes of this ruling, it is convenient to set out, first, the relevant provisions of the Migration Act.
15 Section 4 of the Act defines the objects of the Act as follows:
(1) The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
(2) To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.
(3) To advance its object, this Act requires persons, whether citizens or non-citizens, entering Australia to identify themselves so that the Commonwealth government can know who are the non-citizens so entering.
(4) To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act.
(5) To advance its object, this Act provides for the taking of unauthorised maritime arrivals from Australia to a regional processing country.
16 Section 4AA of the Act is entitled "Detention of minors a last resort". It provides:
(1) The Parliament affirms as a principle that a minor shall only be detained as a measure of last resort.
(2) For the purposes of subsection (1), the reference to a minor being detained does not include a reference to a minor residing at a place in accordance with a residence determination.
17 Section 189(1) of the Act provides that if an officer knows or reasonably suspects that a person in the "migration zone" is an "unlawful non-citizen", the officer must detain that person. Section 5 of the Act defines "migration zone" to mean the area consisting of the States, the Territories, Australian resource installations and Australian sea installations (but does not include sea within State or Territory limits but not in a port). Section 5 defines a "non-citizen" to mean a person who is not an Australian citizen. Section 13(1) provides that a non-citizen in the migration zone, who holds a visa that is in effect, is a "lawful non-citizen". Section 14(1) provides that a non-citizen in the migration zone, who is not a lawful non-citizen, is a "unlawful non-citizen".
18 Section 189(3) provides that if an officer knows or reasonably suspects that a person in an excised offshore place is an unlawful non-citizen, the officer must detain the person. Section 5 defines "excised offshore place" to include the Territory of Christmas Island.
19 Section 196 (so far as it is relevant) provides:
(1) An unlawful non-citizen detained under section 189 must be kept in immigration detention until:
(a) he or she is removed from Australia under section 198 or 199; or
(aa) an officer begins to deal with a non-citizen under subsection 198AD(3); or
(b) he or she is deported under section 200; or
(c) he or she is granted a visa.
(2) To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen.
(3) To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than as referred to in paragraph (1)(a)(aa) or (b)) unless the non-citizen has been granted a visa.
Section 5 defines "immigration detention" in the following terms:
(a) being in the company of, and restrained by:
(i) an officer; or
(ii) in relation to a particular detainee - another person directed by the Secretary to accompany and restrain the detainee; or
(b) being held by, or on behalf of, an officer:
(i) in a detention centre established under this Act; or
(ii) in a prison or remand centre of the Commonwealth, a State or a Territory; or
(iii) in a police station or watch house; or
(iv) in relation to a non-citizen who is prevented, under section 249, from leaving a vessel - on that vessel; or
(v) in another place approved by the Minister in writing ... .
This subdivision applies to a person who is required or permitted by section 189 to be detained, or who is in detention under that section.
(1) If the Minister thinks that it is in the public interest to do so, the Minister may make a determination (a residence determination) to the effect that one or more specified persons to whom this subdivision applies are to reside at a specified place, instead of being detained at a place covered by the definition of immigration detention in subsection 5(1).
(2) A residence determination must:
(a) specify the person or persons covered by the determination by name, not by description of a class of persons; and
(b) specify the conditions to be complied with by the person or persons covered by the determination.
(3) A residence determination must be made by notice in writing to the person or persons covered by the determination.
(1) While a residence determination is in force, this Act and the Regulations apply (subject to subsection (3)) to a person who is covered by the determination and who is residing at the place specified in the determination as if the person were being kept in immigration detention at that place in accordance with section 189.
...
(1) If the Minister thinks that it is in the public interest to do so, the Minister may, at any time, revoke or vary a residence determination in any respect ... .
The Minister does not have a duty to consider whether to exercise the power to make, vary or revoke a residence determination, whether he or she is requested to do so by any person, or in any other circumstances.
21 Part 2 Division 8 Subdivision B of the Act provides for "regional processing" of "unauthorised maritime arrivals". Section 5AA, in effect, defines an "unauthorised maritime arrival" as an unlawful non-citizen who has entered the migration zone of Australia by sea. Section 198AD requires an officer to take an unauthorised maritime arrival to a regional processing country as soon as reasonably practicable.
22 Section 198AE is entitled "Ministerial determination that section 198AD does not apply". It provides:
(1) If the Minister thinks that it is in the public interest to do so, the Minister may, in writing, determine that section 198AD does not apply to an unauthorised maritime arrival.
(1A) The Minister may, in writing, vary or revoke a determination made under subsection (1) if the Minister thinks that it is in the public interest to do so.
(2) The power under subsection (1) or (1A) may only be exercised by the Minister personally.
(3) The rules of natural justice do not apply to an exercise of the power under subsection (1) or (1A).
...
(7) The Minister does not have a duty to consider whether to exercise the power under subsection (1) or (1A) in respect of any unauthorised maritime arrival, whether the Minister is requested to do so by the unauthorised maritime arrival or by any other person, or in any other circumstances.
Conclusions on application to strike out plaintiff's pleadings
23 In view of the common ground which emerged during oral submissions, it is only necessary for me to state briefly the conclusions, which I have reached concerning those parts of the defendants' application which Mr Livermore pressed on oral submission.
24 The defendants accept that the second defendant, the Commonwealth of Australia, owed a non-delegable duty of care to provide reasonable health care to persons who were held in detention on Christmas Island pursuant to the Migration Act.[7] The defendants do not concede that the first defendant, the Minister for Immigration and Border Protection, was subject to a similar duty of care. However, Mr Livermore accepted that it is arguable that the Minister is subject to such a duty of care. Accordingly, he accepted that paragraph 18(a) appropriately pleads a relevant duty of care owed by the defendants to the class of persons to which the plaintiff belonged.
25 On the other hand, it is common ground that paragraph 18(b) and paragraph 18(d) do not plead causes of action that are known to law. The written submissions, filed on behalf of the plaintiff, indicate that those two subparagraphs were directed to defining, or informing, the content of the duty of care, which is pleaded in paragraph 18(a). If the plaintiff wishes to rely on the matters, contained in paragraph 18(b) and 18(d), for that purpose, the pleading should be reformulated to make that clear.
Amended Statement of Claim - Paragraphs 20, 21, 25-27
26 As noted, paragraphs 20 and 21 plead a statutory duty owed by the defendants to detain minors, such as AS, only as a measure of last resort. Paragraphs 25, 26 and 27 plead a statutory duty to enrol children, of compulsory school age, in an educational programme. Paragraphs 32 and 34 plead breaches of those statutory duties. Mr Livermore accepted that it is arguable that each of those two sets of statutory provisions impliedly conferred on the plaintiff a civil right of action for breach of them. I agree with that concession. Each of the two causes of action, based on breaches of statutory duty, are novel. It would not be appropriate to determine whether they are known to law on a summary application under rule 23.02. As I indicated in the course of argument, it might be appropriate, in the course of the interlocutory stages of the proceeding, for the parties to formulate a question as to whether those paragraphs do in fact plead valid causes of action, so that that issue might be determined before the trial of the action, pursuant to rule 47.04.
27 The question, whether paragraphs 20 and 21 plead a valid cause of action, involves a number of issues, which would require detailed argument and consideration. Those issues include, first, the question of the interrelationship between s 4AA, s 189, s 197AB and s 197AE of the Migration Act. Secondly, if, on its proper interpretation, s 4AA does impose upon the Minister a public law duty not to detain minors other than as a matter of last resort, it would be necessary to determine whether that section confers on any child, who is detained in custody, a private right of action against the defendants for breach of the section. In general, the question, whether a statute confers a private right of action, is resolved by determining whether there may be imputed to the legislature an intention to confer such a private right of action for breach of the duty prescribed by the legislation in question.[8]
28 The question, whether paragraphs 25 to 27 of the amended statement of claim plead a cause of action known to law, would depend on at least three questions, namely:
(a) Is the Commonwealth a "parent" for the purposes of s 9 of the School Education Act 1999 (WA)?
(b) If so, on its proper construction, is the School Education Act intended to apply to the Crown in right of the Commonwealth?
29 The first question is a mixed question of fact and law. The plaintiff should plead the facts upon which it will be contended that, for the purposes of the School Education Act, the first defendant was the "parent" of her and of the other group members. The second and third questions are questions of law, and would, I expect, be amenable of determination before trial under rule 47.04.
30 In the course of these proceedings, the issues, that I have just mentioned, will need careful consideration by the parties. However, as I stated, I agree with the concession made by Mr Livermore that an application under rule 23.02 is not an appropriate vehicle by which to address them.
Amended Statement of Claim - Paragraphs 28, 29, 30
31 Paragraph 28 pleads a failure by the Minister to take reasonable care to ensure that the detention, to which "group members" have been subject, did not and does not cause injury. Particulars of AS's claim are provided under that paragraph. Paragraph 29 pleads a breach by the defendants of their duty to take reasonable care to ensure that the detention to which AS was subject did not cause injury. The particulars which are provided are particulars relating to AS. Paragraph 30 pleads that each of the defendants failed to provide reasonable health care to the "group members" who have been injured or are injured, or who were or are pregnant while in detention. The particulars, which are pleaded, are those of AS's claim. In that way, the three paragraphs, taken together, are confusing. Mr Lee undertook to clarify whether it was intended that those paragraphs plead breaches of the relevant duties owed to group members, to AS, or to both.
32 By their summons, and by their written submissions, the defendants sought to have subparagraphs (i) to (v) of the particulars to paragraph 28 struck out. In the course of his oral submissions, Mr Livermore conceded that subparagraphs (iv) and (v) are properly pleaded. He submitted, and Mr Lee accepted, that subparagraphs (i), (ii) and (iii) of the particulars are too wide and unspecific. Those particulars fail to demonstrate how a failure by the Minister, to make a residence determination, could constitute a particular of a failure to take reasonable care to ensure that the detention of AS (or the group members) did not cause injury. I apprehend, from oral argument, that the plaintiff proposes to rely on the proposition that, in the conditions and circumstances that prevailed on Christmas Island, AS (and group members) would or might suffer injury, if a residence determination were not made in her, or their, favour, so as to enable her or their removal from Christmas Island to mainland Australia. If subparagraph (i) intends to fulfil that purpose, then the plaintiff's pleading would need to plead sufficient material facts, and to be expressed with sufficient specificity, in order to properly formulate that proposition.
33 Similarly, subparagraphs (ii) and (iii) of the particulars to paragraph 28 are too wide and unspecific. As I understand it, the plaintiff intends to allege, as a particular, that by failing to make a timely determination under s 198AE of the Migration Act, the first defendant has left group members in a state of suspense as to their fate, which has been detrimental to their psychological health. Again, if the plaintiff intends to rely on such a proposition, the relevant material facts will need to be properly pleaded, and the proposition will need to be formulated with sufficient specificity.
34 Mr Livermore contended, and Mr Lee accepted, that the particulars provided in subparagraph (i)(a) and (i)(b) to paragraph 29 and paragraph 30 are too wide and unspecific. I agree with that contention by Mr Livermore, and the concession made by Mr Lee. Particular (i)(a) must be formulated with sufficient specificity, detailing how and in what manner the standard of care, available on mainland Australia, could not be readily met on Christmas Island. Similarly, paragraph (i)(b) will need to be reformulated, by specifying the particular actions, which it is alleged should have been taken, on Christmas Island, to ensure that the standard of care, which the law requires of the defendants, could be met there.
35 In their summons, and by their written submissions, the defendants also sought to impugn subparagraphs (ii), (iii), (iv), (v) and (xxiv) of the particulars under paragraphs 29 and 30. However, in oral submissions, Mr Livermore conceded that each of those particulars was sufficiently pleaded. I agree with that concession.
36 On the other hand, it is common ground, with which I agree, that particulars (xxvi), (xxvii) and (xxviii) to paragraphs 29 and 30 need reformulation. The particulars provided in subparagraph (xxvi) are deficient for two reasons. First, article 7 of the International Covenant on Civil and Political Rights, and principles 2, 4, 5, 6, 8 and 9 of the United Nations Declaration on the Rights of the Child, are, necessarily, expressed in very wide and general terms. The plaintiff will need to specify the particular aspects of that article and of those principles, upon which she seeks to rely. Secondly, it will be necessary for the plaintiff to specify how and in what manner the defendants acted inconsistently with those rights, and how and in what manner it is alleged that the defendants did not have "reasonable regard" to the rights, which are contained in the article and the principles.
37 Subparagraph (xxvii) of the particulars to paragraphs 29 and 30 suffers, essentially, from the same defect as the particular contained in subparagraph (i) to paragraph 28 of the amended statement of claim, which I have discussed above.
38 Subparagraph (xxviii) of the particulars to paragraphs 29 and 30 should be reformulated as a proper particular of negligence. The complaint made by the plaintiff is not that the defendants failed to enrol her in an educational programme. Rather, as I understand it, the complaint is that the defendants failed to provide her with proper and adequate educational and recreational programmes, in order to cater for her physical and mental health and well-being.
39 For the purpose of completeness, the plaintiff has conceded that paragraph 39 of the amended statement of claim should be struck out.
40 For those reasons, I shall make an order striking out paragraphs 18(b) and (d), and paragraph 39, of the amended statement of claim, and an order striking out subparagraphs (i), (ii) and (iii) of the particulars to paragraph 28, and subparagraphs (i), (xxvi), (xxvii) and (xxviii) of the particulars to paragraphs 29 and 30, of the amended statement of claim.
41 The fundamental difficulty with those parts of the pleadings, which are to be struck out, is that they are couched in terms which, generally, are more apposite to a proceeding which is brought for the purposes of seeking administrative law remedies. It is important that any reformulation of the amended statement of claim be directed to the basic claim which is brought by AS, on behalf of herself and other members of the group, namely, a claim for damages for personal injuries which are alleged to be the result of the failure by the defendants to take reasonable care to provide appropriate health care for those who were held in detention on Christmas Island pursuant to s 189 of the Migration Act during the period 27 August 2011 to 26 August 2014. The amendments to the pleading must be appropriate to that claim in tort for damages in respect of those injuries.
Constitution of action as group proceeding
42 The defendants have, in effect, made two principal submissions concerning the constitution of this case as a group proceeding. First, it is submitted that the proceeding is not properly constituted as a group proceeding. Secondly, it is submitted that I should make an order, under s 33N of the Supreme Court Act 1986, that the proceeding no longer continue as a group proceeding, on the grounds that there are no common questions of fact or law in the proceeding as required by s 33C of the Act.
43 The first submission was made on the ground that the amended statement of claim does not comply with s 33H(2)(a) of the Act, in that it fails properly to "describe or otherwise identify the group members to whom the proceeding relates". In support of that proposition, Mr Livermore contended that the class, pleaded in paragraph 4 of the amended statement of claim, is so "vague or uncertain" that potential group members could not reasonably be expected to ascertain, by reference to the pleading, whether they are in fact members of the group. Mr Livermore relied on the decision of Sackville J in Petrusevski v Bulldogs Rugby League Club Limited[9] as authority for the proposition that in such a case, the group is not sufficiently defined for the purposes of s 33H. He contended that in order that a person be able to determine whether he or she is a group member in the present proceeding, such a person would need to go through the amended statement of claim, analyse it, and try to form a conclusion as to whether or not he or she, or their parents, had been provided with adequate health care.
44 In response, Mr Lee submitted that the composition of the group was adequately described to comply with the requirements of s 33H(2)(a). He submitted that, in particular, paragraph 4(c) of the amended statement of claim sufficiently identified such group members, being persons who claimed (alleged) that they had suffered injury, or exacerbation of injury, due to a lack of adequate health care provided to them during the period nominated in the amended statement of claim, namely, the period between 27 August 2011 and 26 August 2014.
45 In Petrusevski v Bulldogs Rugby League Club Limited, Sackville J cautioned that a "narrow or technical approach" should not be taken in determining whether a pleading sufficiently satisfies s33H(1)(a) of the Federal Court of Australia Act 1976,[10] which is equivalent to s 33H(2)(a) of the Supreme Court Act. In doing so, his Honour stated:
A useful, although not necessarily exhaustive test, is whether the description is such as to enable a person, with the assistance of a legal adviser if necessary, to ascertain whether he or she is a group member. If the description incorporates a reference to conduct alleged in the pleadings, a person or his or her adviser ought to be able, by reading the description and the relevant portion of the pleadings, to determine whether he or she is a member of the represented group. If a person cannot reasonably be expected to do this, the definition is unlikely to satisfy the requirements of [s 33H(2)(a)].[11]
47 Based on those principles, I am satisfied that the identification of the group members, in the amended statement of claim, is sufficient to comply with s 33H(2)(a) of the Supreme Court Act. Paragraph 4 of the amended statement of claim specifies three criteria, by which the group is defined. The first two criteria are specific, and relatively simple of ascertainment. They require, first, that the group member be a person who had been in detention on Christmas Island during the specified period, and, secondly, that the person was, during that period, and while in detention, injured and/or pregnant. The third criterion (pleaded in paragraph 4(c)), has two components, namely, first, that such person suffered injury or exacerbation of injury, and, secondly, that such person alleges (or claims) that the further injury or exacerbation of injury was caused by the failure of the defendants to provide him, her, or his or her parents, with reasonable health care. That third criterion, thus, requires a person, already injured or pregnant, to suffer (in the case of a person already injured) a further injury or exacerbation of injury, or (in the case of someone who is pregnant) an injury. In addition, that injury or exacerbation of injury must be alleged to be the result of the failure of the defendants to provide reasonable health care. That is, the further injury or exacerbation of injury must be claimed by the particular person to be attributable to a particular aspect of that person's detention on Christmas Island during the relevant period, namely, the failure of the defendants to ensure that either he, she or his or her parents be provided with reasonable health care.
48 Bearing those matters in mind, in my view the definition of the group, in paragraph 4 of the amended statement of claim, does sufficiently comply with the test postulated by Sackville J in Petrusevski, and to which I have just referred. In particular, a legal advisor, acquainted with the facts of the case of a person who claims to have suffered injury on Christmas Island, would be sufficiently able to form a judgment as to whether such a person qualified to be part of the group specified in paragraph 4 of the amended statement of claim.
49 For those reasons, I am not persuaded that paragraph 4 of the amended statement of claim is so wide or indefinite as to fail to sufficiently comply with the requirements of s 33H(2)(a) of the Supreme Court Act.
50 The second principal submission made by the defendants is that the amended statement of claim fails to disclose any common question of fact or law which is sufficient to satisfy the requirements of s 33C(1)(c) of the Supreme Court Act. Mr Livermore submitted that the group members are diverse and numerous, consisting of children, pregnant women and adults. Issues relating to breach of duty, causation and damage would be different, particularly in relation to each of the persons who claim to have suffered injury or illness resulting from the lack of adequate health care on Christmas Island. Mr Livermore noted that it is not in dispute that the Commonwealth owed a non-delegable duty of care to those who were kept in detention on Christmas Island during the relevant period. Accordingly, he submitted that the amended statement of claim fails to disclose any substantial question of fact or law that is common to the claims of AS and the group members.
51 In support of his submissions, Mr Livermore referred to the judgment of Garling J in Giles v The Commonwealth,[14] in which his Honour outlined the respective advantages and disadvantages pertaining to group proceedings.[15] Mr Livermore submitted that none of the advantages, identified by his Honour, are pertinent to the present case. In particular, the presentation of the case as a group proceeding would not be cost effective. It would not raise any common questions between the case relating to AS and the group members. There is no risk of any inconsistent judgments, and it would not promote the efficiency of the administration of justice. On the other hand, he submitted that the continuation of the case as a group proceeding would involve a number of the disadvantages noted by Garling J, including the difficulty for defendants to resolve the proceedings, and the difficulty of ascertaining the identities of other group members. Accordingly, he submitted that I should make an order under s 33N of the Supreme Court Act, directing that the proceeding not continue as a group proceeding.
52 In response, Mr Lee submitted that the defendants' contention confused the question, relating to the application of s 33C of the Act, with issues relating to s 33N of the Act. He submitted that, in view of the fact that the proceeding is in its early stages, it is premature to consider whether an order should be made under s 33N that the proceeding no longer continue as a group proceeding. He further submitted that, on the face of it, there are a number of common questions of fact or law which may be identified from the amended statement of claim, and which are set out in the seven questions stated in Part D to the amended statement of claim. Further, the proper identification of common questions of fact and law, in a group proceeding, is an evolving process, and those questions may alter or become more clear after the completion of the interlocutory stages of the proceeding. Mr Lee submitted that it would be more appropriate to revisit the question, as to the identification of the common questions of fact and law, before trial, so as to formulate those common questions which will need to be decided in the context of the determination of the individual claim brought on behalf of AS.
53 Section 33C(1) of the Supreme Court Act specifies three criteria, which must be met, in order that a proceeding be commenced by one or more persons as a group proceeding. Those requirements are:
(a) there be seven or more persons who have claims against the same person;
(b) the claims of all those persons must be "in respect of, or arise out of, the same, similar or related circumstances"; and
(c) the claims of all those persons must give rise "to a substantial common question of law or fact".
54 The courts have adopted a reasonably liberal approach to determining whether a group proceeding complies with the second and third requirements. In approaching that issue, it is necessary to bear in mind the advantages and purposes of a group proceeding, as helpfully summarised by Garling J in Giles v The Commonwealth, to which Mr Lee referred. A group proceeding is intended to be a facilitative process, so as to provide a cost effective method by which a large number of persons, who might otherwise be unable to do so, might have access to justice. It is a convenient procedure which can promote efficiency in the administration of justice, avoid inconsistent judgments, and obviate the re-litigation of common questions of fact in large numbers of separate proceedings. In approaching the issue, as to compliance by a proceeding with the requirements of s 33C, it is also relevant to take into account the disadvantages identified by Garling J, and in particular, the difficulty of ascertaining the identity of the members of the group in question.
55 The approach, which I have just discussed, is reflected in decisions relating to the construction of s 33C(1)(b). In Zhang v Minister for Immigration, Local Government and Ethnic Affairs,[16] French J (as his Honour then was) stated:
The question whether the claims of the persons who are proposed as members of a group arise out of "the same, similar or related circumstances" as required by s 33C(1) is not to be answered by an elaboration of that verbal formula. It contemplates a relationship between the circumstances of each claimant and specifies three sufficient relationships of widening ambit. Each claim is based on a set of facts which may include acts, omissions, contracts, transactions and other events. As appears from s 33C(2), the circumstances giving rise to claims by potential group members do not fall outside the scope of the legislation simply because they involve separate contracts or transactions between individual group members and the respondent or involve separate acts or omissions of the respondent done or omitted to be done in relation to individual group members.
The outer limits of eligibility for participation in representative proceedings are defined by reference to claims in respect of or arising out of related circumstances. The word "related" suggests a connection wider than identity or similarity. In each case there is a threshold judgment on whether the similarities or relationships between circumstances giving rise to each claim are sufficient to merit their grouping as a representative proceeding. At the margins, these will be practical judgments informed by the policy and purpose of the legislation. At some point along the spectrum of possible classes of claim, the relationship between the circumstances of each claim will be incapable of definition at a sufficient level of particularity, or too tenuous or remote to attract the application of the legislation.[17]
56 A similar approach has been adopted in relation to the construction of s 33C(1)(c). In Wong v Silkfield Pty Ltd,[18] the High Court noted that the second reading speech for the Bill, which introduced Part IVA of the Federal Court of Australia Act 1976, described the purposes of that legislation as being to provide a real remedy to persons, who would otherwise not have sufficient economic means to be able to have access to judgment, to pursue their rights, and to enable the courts to deal efficiently where a large number of claims are sought to be agitated in respect of issues which have a sufficient commonality between them.[19] Accordingly, the High Court held that, in order that a proceeding involve a "substantial" question of law or fact, it is only necessary that there be a common question which is one of substance. It is not necessary that that question would determine the action, or would be a major or critical issue in the proceeding. The court stated:
... when used to identify the threshold requirements of s 33C(1), "substantial" does not indicate that which is "large" or "of special significance" or would "have a major impact on the ... litigation" but, rather, is directed to issues which are "real or of substance". ... It was not to the point that, in the final resolution of the litigation, [the common issue] might not prove to be the "major" or "core" issue. It was not necessary to show that litigation of this common issue would be more likely to resolve wholly, or to any significant degree, the claims of all group members.[20]
57 As I stated, in Part D to the amended statement of claim, the plaintiff specifies seven questions which, it is alleged, are common to the claims of the group members. Questions 1 and 2 concern the existence of non-delegable duties of care by the defendants to the plaintiff. The second defendant admits that it owed a non-delegable duty of care to the group members. The existence of such a duty on behalf of the first defendant is in dispute. It may, therefore, be the subject of a common question of law between the first defendant and the group members. Questions 3, 4, 5, 7A and 7B are each based on particulars, or pleadings, which are to be struck out. If those questions are to be relied on as common questions of fact or law, they will need to be reformulated.
58 The identification of a common question of fact or law, in the present proceeding, is somewhat difficult, particularly in light of the early stage at which that issue has been raised. This is not a case, such as in the recent bushfire litigation, in which a group proceeding is brought in respect of a single event, on behalf of a large group of disparate persons. As I have stated, it is not in dispute that the second defendant owed a non-delegable duty of care to the plaintiff and to the group members. The question of the existence of the two statutory duties is a common question, but it could be sufficiently and conveniently decided in a "test case", rather than in a group proceeding.
59 On the other hand, in a broader sense, it is evident that, potentially, there may be a number of issues of fact and law, common to the group members, relating to the content of the duty of care owed by the defendants to each of the group members. Those issues are comprehended within Question 6. That question may involve (inter alia) the following:
(a) The availability and adequacy of medical facilities, including diagnostic facilities, treatment facilities, and medication, on Christmas Island.
(b) The availability of sufficient psychological and therapeutic care to persons in detention on Christmas Island to assist them to cope with the lengthy and indeterminate nature of their detention.
(c) The availability and adequacy of educational facilities to minors which are sufficient to cater for the emotional and psychological development and well-being of minors.
(d) The steps taken by the defendants to address the issues referred to in subparagraphs (a), (b) and (c) above, and, in particular, the information available to the first defendant in respect of those matters.
(e) The processes adopted by the first defendant in making decisions under s 198AE of the Migration Act, and the adequacy of the communication of the nature of those processes to persons who are in detention.
(f) The availability of alternative places of residence for minors, other than in detention on Christmas Island, and the practicability of affording those alternative places to minors who are in detention on Christmas Island.
60 Those questions are comprehended within a number of the particulars, which are provided to paragraphs 29 and 30 of the amended statement of claim. In particular, they are raised by the particulars in subparagraphs (iv), (v), (vi) and (xii), and possibly also in subparagraphs (vii), (xiv) and (xx), to paragraph 29 of the amended statement of claim, and the particulars provided in subparagraphs (iv), (v), (vi), (x), (xi), (xii) and (xix), and possibly also the particulars provided in subparagraphs (xvi), (xvii), (xviii) and (xx), to paragraph 30 of the amended statement of claim. Collectively those questions, and, individually, some of them, involve issues which are of substance.
61 It is, to some extent, problematic whether any of those questions will be common to all of the group members, or to some of them. In an action for personal injuries in tort, the issue of breach of duty, and thus the identification of the precise content of the duty which is alleged to be breached, is ordinarily closely tied to the injury to the particular plaintiff, and to issues which are specific to that plaintiff. Further, the third question in paragraph 58(c) above, relating to the provision of sufficient educational facilities to minors, would only be common, at best, to those members of the group who, at the relevant time, were of school age.
62 On the other hand, it is feasible that where a group of similar persons have been exposed to the same condition, as a result of which they had suffered the same or similar injury, common questions may arise concerning the content of the duty of care, of the nature that I have outlined above. At this early stage of the proceeding, there is not sufficient information available to determine whether, ultimately, there will be sufficient common questions of fact or law for this case to proceed to trial as a group proceeding. That issue will need careful consideration, and clarification, in the course of the interlocutory processes. However, at this stage, I accept that the matters which I have set out above, and which are comprehended within the sixth question in Part D to the amended statement of claim, are, conceptually, sufficiently identified as common questions of fact or law in the proceeding for the purpose of s 33C of the Supreme Court Act.
63 In those circumstances, I am not persuaded that the proceeding, at this stage, does not involve claims, of the group members, which give rise to a substantial common question of law or fact.
64 Ultimately, a precise elucidation of the relevant common questions of fact or law will need to be undertaken before the trial of the proceeding. I agree with Mr Lee that, in all probability, the procedure which should be adopted in the present case is that which was discussed by the Full Court of the Federal Court in Merck Sharp & Dohme (Australia) Pty Ltd v Peterson.[21] That process will require that, after the completion of most, if not all, of the interlocutory steps in the case, and before the case is set down for trial, the parties will need to specify the particular common questions of fact and law which need to be determined in the trial, additional to the individual issues pertaining to the claim made by AS alone.
65 It is for those reasons that I also agree with the submission made by Mr Lee, that, at this early stage of the proceeding, it is premature to consider an application under s 33N that the action no longer continue as a group proceeding.[22] Such a question could be more appropriately determined later in the proceeding, particularly at the stage at which the parties seek to identify the common questions of fact or law which need to be determined upon the trial of the individual proceeding of AS.
66 For those reasons, I reject the submission, made on behalf of the defendants, that, at this stage, the proceeding does not adequately disclose or contain a substantial common question of law or fact for the purposes of s 33C(1)(c) of the Supreme Court Act, and the submission on behalf of the defendants that, under s 33N, the action no longer continue as a group proceeding.
67 For the reasons which I have set out above, I have reached the following conclusions:
(1) I shall make an order striking out the following paragraphs of the amended statement of claim filed 13 October 2014:
(b) subparagraphs (i), (ii) and (iii) of the particulars to paragraph 28;
(c) subparagraphs (i), (xxvi), (xxvii) and (xxviii) of the particulars to paragraph 29;
(d) subparagraphs (i), (xxvi), (xxvii) and (xxviii) of the particulars to paragraph 30; and
The plaintiff shall be granted leave to file and serve a further amended statement of claim consistent with my reasons for judgment.
(2) I do not uphold the application made by the defendants, pursuant to s 33N of the Supreme Court Act 1986, that the proceeding no longer continue under Part 4A of the Supreme Court Act as a group proceeding.
[1] Meckiff v Simpson [1968] VicRp 7; [1968] VR 62, 70.
[2] Environinvest Limited v Pescott [2011] VSC 325, [25] (Judd J); Hoh v Frosthollow Pty Ltd [2014] VSC 77, [13]-[19] (Derham AsJ).
[3] See Wheelahan v City of Casey (No 12) [2013] VSC 316 [25] (Dixon J).
[4] Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62, 84 (Latham CJ), 91 to 92 (Dixon J); General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, 129-30 (Barwick CJ); A v Ipec Australia Limited [1973] VicRp 4; [1973] VR 39, 53 (Menhennitt J); Hodges v State of New South Wales [1988] ALR 1, 2 (Brennan J).
[5] (Unreported, Supreme Court of Victoria, Byrne J, 16 September 1994, page 5).
[6] Healey v Bank of New South Wales [1899] VicLawRp 62; (1898) 24 VLR 405, 407 (Williams J); Kemsley v Foot [1951] 2 KB 34, 39 (Somervell LJ), 54 (Birkett LJ); Clarke v Great Southern Finance Pty Ltd [2010] VSC 473, [13] (Croft J); RSD Chartered Accountants v Bolitho [2014] VSCA 186, [17]-[18] (Nettle JA).
[7] See S v Secretary, Department of Immigration & Multicultural & Indigenous Affairs [2005] FCA 549; (2005) 143 FCR 217, 259-262 [205]-[217] (Finn J); SBEG v Commonwealth of Australia [2012] FCAFC 189, [19] (Keane CJ, Lander and Siopis JJ); Behrooz v Secretary, Department of Immigration & Multicultural & Indigenous Affairs [2004] HCA 36; (2004) 219 CLR 486, 499 [21] (Gleeson CJ), 507 [52] (McHugh, Gummow and Heydon JJ).
[8] See for example Henwood v Municipal Tramways Trust (South Australia) [1938] HCA 35; (1938) 60 CLR 438, 461 (Dixon and McTiernan JJ); O'Connor v SP Bray Ltd [1937] HCA 18; (1937) 56 CLR 464, 477-8; Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 424-6 (Brennan CJ, Dawson and Toohey JJ); 457-462 (McHugh and Gummow JJ).
[9] [2003] FCA 61, [25].
[13] [2000] FCA 1543, [11].
[17] Ibid 404-5. See also Philip Morris (Australia) Ltd v Nixon [2000] FCA 229; (2000) 170 ALR 487, 522-3 [162]-[164]; Guglielmin v Trescowthick (No 2) [2005] FCA 138; (2005) 220 ALR 515, 526 [48] (Mansfield J).
[21] [2009] FCAFC 26, [6]-[9].
[22] Compare Wong v Silkfield Pty Ltd [1999] HCA 48; (1999) 199 CLR 255, 266 [26], 268 [34]-[35]; Guglielmin v Trescowthick (No 2) [2005] FCA 138; (2005) 220 ALR 515, 531-2 [73]-[75].
A S
Minister for Immigration and Border Protection & Anor [2014] VSC 593
(1949) 78 CLR 62
(1964) 112 CLR 125
(2005) 143 FCR 217
(2004) 219 CLR 486
(1938) 60 CLR 438
(1937) 56 CLR 464
(1995) 185 CLR 410
(1993) 45 FCR 384
(2000) 170 ALR 487
(2005) 220 ALR 515
(1999) 199 CLR 255