Plaintiff v First Defendant

For the Commonwealth and the Minister for Immigration and Border Protection

1 AS is the representative plaintiff in a class action brought (through her litigation guardian Marie Theresa Arthur) on behalf of asylum seekers detained under the Migration Act 1958 (Cth) (the Act) on the Christmas Island detention centre (the detention centre) between August 2011 and August 2014. The defendants are the Minister for Immigration and Border Protection (the Minister), and the Commonwealth of Australia (the Commonwealth) (collectively, the defendants). International Health and Medical Services Pty Ltd (IHMS) and Serco Australia Pty Ltd (Serco) are third parties joined by the Commonwealth.

2 The Commonwealth contracted out much of the management of the detention centre; relevantly, and in broad terms, to IHMS which provided medical services; and to Serco, which provided administrative and other services. The Commonwealth, by its third party proceedings, will endeavour to pass on any liability it may have to AS and the group members to these organisations (at least in relation to the operations managed by them).

3 This ruling was generated by the application of AS to amend the statement of claim. The case, which is due to go to trial in November 2016, has hit a number of hurdles. The first relates to AS's lawyers' ability to interview potential witnesses. This was the subject of a previous ruling and, I hope, is now being sorted out by the parties.[1] The second, which is the subject of this ruling, is the state of the pleadings and whether the case should proceed on the basis of the proposed amendment (the draft).

4 I accept that it has been no easy task to plead out AS's claim. Although AS and her family are no longer in the detention centre and reside in Melbourne, obtaining clear instructions as to her treatment on Christmas Island and interviewing other witnesses has been challenging.

5 This lack of information is reflected by the current version of the statement of claim (the further amended statement of claim)[2] which does not, with any real precision, identify the case that the Commonwealth (and, in many respects, IHMS and Serco) will have to meet at trial.

6 The issues which initially required determination were whether:

(a) the draft should be allowed to stand as the statement of claim;

(b) the pleaded case of AS, in its present form (and in the draft), concerning decisions made by the Minister under the Act, was within the jurisdiction of the Court. The Act, it was said by the defendants, deprived this Court of jurisdiction to entertain any question about the validity of a 'migration decision';

(c) s 4AA of the Act creates a statutory duty at common law enforceable against the Minister; and

(d) an arguable common law duty of care against the Minister in relation to his exercise of power is made out on the allegations contained in the draft.

7 As to the second of these points, at the hearing on 15 May 2016, I was informed by counsel for the defendants that the Minister abandoned the argument on a strike out or summary basis - but that it may agitate it at trial once the evidence is in. This issue can therefore be put to one side, at least for the moment.

8 One further matter should be mentioned here. Strictly speaking, this application was concerned with the amendment of the statement of claim and, as such, involves a dispute between AS and the Commonwealth. For the purpose of this application, it was accepted that each of the third parties - Serco and IMHS - should have a say in relation to whether the amendments should be allowed. This was for a good practical reason, and consistent with the aims of the Civil Procedure Act 2010, in that if the amendments were allowed, then it was certain that they would be passed on in that form by the Commonwealth to the third parties.

9 A second interrelated point (to which I have briefly referred) was that, as part of the opposition to the amendment of the statement of claim, it was argued by the defendants and third parties that it should be re-pleaded entirely as, in its current form, with or without the amendments contained in the draft, it remains confusing and fails to come to grips with any particularity in identifying the case against the defendants (and therefore the case by the Commonwealth against the third parties). It was not, however, suggested by either the defendants or third parties that the claim (or any consequential third party proceeding) should be dismissed. They contended that the Court should order that the lawyers for AS go back to the drawing board.

10 The writ was issued on 26 August 2014. The statement of claim has been amended on a number of occasions and, if granted, this application would produce a second further amended statement of claim.

11 The question of the adequacy of the pleadings was partially dealt with by Kaye J in November 2014.[3] That ruling concerned an application by the defendants to strike out a number of paragraphs of the amended statement of claim and to have the proceeding 'decertified' pursuant to s 33N of the Supreme Court Act 1986 (Vic).

12 For the purpose of this application, it is only necessary to note the following:

(a) It was accepted by the defendants that the Commonwealth 'owed a non-delegable duty of care to provide reasonable health care to persons held in detention on Christmas Island pursuant to the Act'.[4]

(b) A number of paragraphs of the statement of claim were either withdrawn or struck out. His Honour observed '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 purpose 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 any other members of the group'.[5]

Can the claim for breach of statutory duty arising out of s 4AA of the Act be maintained?

13 AS asserts that s 4AA of the Act creates a private right (or statutory duty) enforceable by her against the Minister and the Commonwealth. The defendants contend that s 4AA is no more than an aspirational statement of principle to be applied to other provisions within the Act.

14 As it stands,[6] AS's pleading alleges at [19] and [20] that:

19A A.S. is a minor and the group members include persons who are minors (together, the minor group members).

19. In addition to the common law duty to take reasonable care, the defendants each owed and owe separate duties to each of A.S. and the minor group members 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).

Particulars

Section 4AA of the Migration Act as informed by Articles 24, 27 and 39 of the United Nations Convention on the Rights of the Child.

20. The statutory duty of each of the defendants to detain minors only as a measure of last resort was not and is not delegable.

15 This allegation is then reiterated and elaborated upon in paragraph [32], as follows:

Statutory duty to detain minors only as measure of last resort

32. Each of the defendants

1. in respect of A.S. and the minor group members no longer in immigration detention, detained; and
2. in respect of the minor group members still detained, continues to detain;

the minor group members other than as a measure of last resort and in so doing failed in its statutory duty to detain minors only as a measure of last resort (the detention of minors breach).

Particulars

(i) The Minister stated in a transcript of the press conference and subsequent 'clarification' media release from the Minister of 8 November 2013, in which he stated that the defendants operate a 'no exceptions policy' in relation to detention of group members as part of their 'offshore processing' policy [ASR.101.003.0014 at .0015, .0021, .0023; ASR.101.003.0029].

(ii) Upon A.S. first arriving in Australia on Christmas Island at around 10:20 am Christmas Island time on 26 July 2013, she was taken into detention detained by Hans Blume, an officer of the Commonwealth pursuant to section 189(3) of the Migration Act [CTH.0004.0002].

(iii) A.S. and her family were the subject of a residence determination pursuant to section 197AB of the Migration Act, which determination was revoked on or about 27 September 2013 [CTH.0353.0184].

16 Section 4AA reads as follows:

4AA Detention of minors a last resort

(1) The Parliament affirms as a principle that a minor shall only be detained as a measure of last resort.[7]

(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 The objects of the Act are contained in s 4:

(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 provides for non-citizens and citizens to be required to provide personal identifiers for the purposes of this Act or the regulations.

(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.

(a) section 4AA imposes a mandatory obligation on decision makers under the Act, and thereby establishes a private right enforceable by her; and

(b) this interpretation accords with the principle of legality, and Australia's obligations at international law; specifically, Australia's obligations under the Convention on the Rights of the Child.

(a) section 4AA does not impose an obligation, or even a power. Accordingly, it cannot give rise to a private right of action;

(b) at its highest, s 4AA is a statement of principle to be considered by decision-makers under the Act;

(c) the language of s 4AA is unambiguous, and the text of the statute must be the highest consideration in the construction exercise; and

(d) the interpretation proposed by AS would be inconsistent with the mandatory detention regime established by the Act.

20 At the outset, I consider it appropriate to determine this issue now, as opposed to at trial. In Matthews v SPI [Ruling No 2] I said:

A claim asserting breach of a statutory duty is more amenable to summary dismissal than an application to dismiss a claim alleging common law negligence. This is because the question as to whether a statute confers a private right is one of construction and not dependent upon a substratum of facts. As Dixon J said in the seminal case of O'Connor v SP Bray Ltd:

... The received doctrine is that when a statute prescribes in the interests of the safety of members of the public or a class of them a course of conduct and does no more than penalize a breach of its provisions, the question whether a private right of action also arises must be determined as a matter of construction.[8]

21 This proposition drew upon what was said by the High Court in Byrne v Australian Airlines Ltd:

A cause of action for damages for breach of statutory duty arises where a statute which imposes an obligation for the protection or benefit of a particular class of persons is, upon its proper construction, intended to provide a ground of civil liability when the breach of the obligation causes injury or damage of a kind against which the statute was designed to afford protection.[9]

22 The exercise of statutory construction requires a consideration 'of the scope and purpose of the statute as a whole'.[10] The analysis must have 'particular regard to the stated objectives within the legislation itself'.[11] To do so:

one examines the nature, scope and terms of the statute, including the particular evil against which it is directed, the nature of the conduct which is prescribed and the pre-existing state of the law and the general circumstances surrounding the introduction of the particular provisions.[12]

23 It is notorious that such an examination will, as Dixon J observed, 'rarely yield a necessary implication positively giving a civil remedy'.[13] However, where an existing common law duty of care is owed towards a class of person to whom the statute is intended to protect, 'in the absence of any indication of a contrary intention' there is a greater likelihood that the statute may be read as creating a private cause of action.[14]

24 The possible indicia of an intention to confer such a private right were also considered by the House of Lords in X v Bedfordshire County Council:

There is no general rule by reference to which it can be decided whether a statute does create such a right of action but there are a number of indicators. If the statute provides no other remedy for its breach and the Parliamentary intention to protect a limited class is shown, that indicates that there may be a private right of action since otherwise there is no method of securing the protection the statute was intended to confer. If the statute does provide some other means of enforcing the duty that will normally indicate that the statutory right was intended to be enforceable by those means and not by private right of action: Cutler v. Wandsworth Stadium Ltd. [1949] A.C. 398; Lonrho Ltd. v. Shell Petroleum Co. Ltd. (No. 2) [1982] A.C. 173. However, the mere existence of some other statutory remedy is not necessarily decisive. It is still possible to show that on the true construction of the statute the protected class was intended by Parliament to have a private remedy.[15]

The cases where a private right of action for breach of statutory duty have been held to arise are all cases in which the statutory duty has been very limited and specific as opposed to general administrative functions imposed on public bodies and involving the exercise of administrative discretions.[16]

25 It follows from this discussion that there are, I think, four questions which may need to be considered:

(a) does s 4AA impose an obligation or duty upon one or other of the defendants?

(b) if so, does s 4AA demonstrate a legislative intention to create a private right of action?

(c) is this obligation imposed for the protection or benefit of a particular class of persons?

First question: does s 4AA impose an obligation upon one or both of the defendants?

26 First, the primary contest between the parties as to the construction of the text of s 4AA(1) relates to the importance of the words 'affirms as a principle' and 'shall' within the sub-section. The submission on behalf of AS effectively requires the phrase and the word to be read in isolation - and thus emphasise their asserted importance.

27 This latter approach, in my opinion, leads to error. Critically, as I shall explain in a moment, the text, when viewed as a whole, demonstrates that the legislature did not intend to impose any obligation upon the Minister or the Commonwealth in relation to the detention of minors.

28 As is demonstrated by the authorities to which I have referred, it is inappropriate to consider the words 'principle' and 'shall' alone and their meanings independently. In its statutory context, the meaning of 'shall' is conditioned by the use of 'principle'. The word 'shall' is simply part of the principle 'affirmed' by s 4AA.

29 There is no fixed rule as to how questions regarding mandatory/facultative dichotomies are to be resolved; rather, resolution relies on the ordinary principles of statutory construction.[17] The proposition that the word 'shall' conveys a mandatory connotation is only a general rule - if it can be called a rule. However, it must not be elevated above the ordinary principles of statutory interpretation.

30 In Project Blue Sky Inc v Australian Broadcasting Authority, rather than engaging concepts such as 'mandatory' and 'directory,' the High Court said that:

A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid.[18]

31 So, one of the questions to be considered is: what are the consequences of failing to comply with the provision? In this case, there are none. Section 4AA does not impose any obligation or sanction for a breach of the obligation. Rather, when viewed as a whole - not in isolation - it is patently a statement of principle to be aspired to, but no more.

32 To look at the question from a different perspective, assume for the moment that s 4AA(1) imposes such an obligation as contended by AS: what effect would this have on the Act? It is clear that, as the defendants argue, there would be a manifest inconsistency between that obligation and the mandatory detention arrangements and ministerial discretions imposed by the Act. Such an inconsistency counts powerfully against the suggestion that the section created a mandatory obligation.

33 Moreover and, contrary to the submissions on behalf of AS, to relegate s 4AA to a mere statement of aspiration would, in fact, be consistent with the objects of the Act; namely, to regulate the entry and stay in Australia of non-citizens, such non-citizens not being otherwise separated in the Act into those who are adults, and those who are minors.

34 Second, the detention of minors as a measure of last resort is expressed to be a 'principle'. Counsel for AS contend that the use of the word 'affirms' indicates a parliamentary understanding that the principle was pre-existing, and the provision merely codifies it. I do not accept this. While affirm can mean to 'confirm' or 'ratify', in can also mean to 'state' or 'declare'. In any event, 'affirm' needs to be read together with 'principle' - and, as I have mentioned, the whole of the section.

35 A 'principle' is defined by the Macquarie Dictionary as 'an accepted or professed rule of action or conduct' and a 'guiding sense of the requirements and obligations of right conduct'.[19] It is an 'underlying moral'.

36 The plain and ordinary meaning of the word 'principle' demonstrates that s 4AA of the Act was not intended to impose an obligation. This unusual, indeed unique, phrase (at least as far as I am aware) demonstrates Parliament's intention to state an aspirational position - not to create an obligation. Had Parliament intended to create an obligatory duty, it could easily have done so by the use of mandatory language.

37 Third, AS relies on the following passage from McDonald v Girkaid Pty Ltd, as follows:

Regulation 19(g) is in a different category. It prescribes the end but not the means. It does not identify any specific precaution or measure which the occupier is to take for the safety of others. It is a blanket prohibition on doing the act in question. It does not tell the occupier what measures must be taken: cf Utah Construction & Engineering Pty Ltd v Pataky [1966] AC 629 at 641. In my view, the absence of identification of specific precautions means that reg 19(g) should not be construed as conferring a correlative private cause of action on Girkaid and Inghams. I would, therefore, uphold ground 6(a) of McDonald's notice of appeal insofar as it related to reg 19(g).[20]

38 The submission that provisions which specify the 'means,' rather than 'ends,' are consistent with creating a private right, does not assist AS. In fact, it does the contrary. Section 4AA does not identify the means by which the objective of minors being held in detention as a last resort is to be achieved. As I have mentioned, the section states an ultimate aim or goal - it does not state the measures by which the aim is to be achieved, nor does it provide examples of actions to be taken to ensure detention only occurs as a 'last resort'.

39 Counsel for AS used the following examples to support their contention that ambiguity in the phrase 'affirms as a principle' is not fatal to the establishment of a statutory duty, as follows:

For example, a provision which imposed duties on a plant manufacturer to 'ensure so far as reasonably practicable' that the plant is safe was sufficient to support a statutory duty.[21] Similarly, apparent ambiguity arising from a duty to take 'all practicable steps' and 'all practicable precautions' permitted the finding of a statutory duty.[22]

40 These phrases are worlds away from the expression 'affirms as a principle'. They clearly import a requirement to perform certain, but unspecified, tasks in the achievement of a certain goal. Section 4AA simply specifies an end to be aimed for.

41 Fourth, the principle of legality - that 'courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language'[23] - was not in dispute.[24]

42 I accept the defendants' submission that the 'common law presumption must bow to the express terms of the Act'.[25] The Act explicitly requires mandatory detention of a person known or suspected to be an unlawful non-citizen in 'unmistakeable and unambiguous language'.[26] Section 4AA does not change this position.

43 In Australian Securities and Investments Commission v DB Management Pty Ltd, the High Court said:

As to the presumption that legislation is not intended to interfere with vested proprietary rights, the relevant provisions of the legislation in question have, as their primary concern, interference with vested proprietary rights. That is what compulsory acquisition is about. As the legislative history referred to above shows, the object of the legislation is to provide a regulatory scheme which enables a takeover offeror, who has achieved a prescribed level of acceptances, to compel people who have not accepted the offer to transfer shares, subject to appropriate safeguards to protect their interests. It is of little assistance, in endeavouring to work out the meaning of parts of that scheme, to invoke a general presumption against the very thing which the legislation sets out to achieve. [27]

44 Whilst counsel for AS submitted that the amendment which introduced this provision was Parliament's way of 'restoring' such fundamental rights, this is not reflected in the language of the provision, nor the Act generally.

45 Fifth, I do not consider that the question of consistency with international obligations assists the argument of AS. In Polites v Commonwealth Dixon J said:

It is a rule of construction that, unless a contrary intention appear, general words occurring in a statute are to be read subject to the established rules of international law.[28]

46 This rule was affirmed by McHugh J in Al-Kateb v Godwin, with the following observation as to the rule's place in the modern legal world:

... In Polites v The Commonwealth, the Court accepted that, so far as the language of a statute permits, it should be interpreted and applied in conformity with the established rules of international law. That is a rule of construction of long standing. The rationale for the rule is that the legislature is taken not to have intended to legislate in violation of the rules of international law existing when the legislation was enacted. Accordingly, the law is construed as containing an implication to that effect. But, as Polites decided, the implication must give way where the words of the statute are inconsistent with the implication. No doubt the rule of construction had some validity when the rules of international law were few and well-known. Under modern conditions, however, this rule of construction is based on a fiction.

...

... it becomes obvious that the rationale for the rule that a statute contains an implication that it should be construed to conform with international law bears no relationship to the reality of the modern legislative process. Be that as it may, the rule of construction recognised in Polites was reaffirmed by this Court in Teoh and by Gummow and Hayne JJ in Kartinyeri v The Commonwealth. It is too well established to be repealed now by judicial decision.[29]

47 Similar considerations apply when considering the impact of a treaty or convention to which Australia is a signatory:

... where legislation has been enacted pursuant to, or in contemplation of, the assumption of international obligations under a treaty or international convention, in cases of ambiguity a court should favour a construction which accords with Australia's obligations.[30]

48 This proposition was reflected by the High Court's statement in Lim v Minister for Immigration Local Government and Ethnic Affairs:

We accept the proposition that the courts should, in a case of ambiguity, favour a construction of a Commonwealth statute which accords with the obligations of Australia under an international treaty. The provisions of Div. 48 which require that, in the circumstances which presently exist, the plaintiffs be detained in custody are, however, quite unambiguous.[31]

and reaffirmed by the High Court in BZAAH v Minister for Immigration and Citizenship in relation to the Refugees Convention:

The Refugees Convention was originally made in 1951 and modified by protocol in 1967. Under Australian domestic law, it is permissible to construe the Refugee Convention by reference to principles of interpretation set out in the Vienna Convention on the Law of Treaties 1969, done at Vienna on 23 May 1969, [1974] ATS 2 (Vienna Convention): QAAH at [34]. These principles, in turn, include the requirement that a treaty be construed by reference to its context, object and purpose (Art 31) and that it is permissible to take into account in construing a treaty its preparatory work (Art 32). Even so, a meaning derived by the application of these principles to the interpretation of the incorporated international obligation would have to yield to any contrary meaning evident in the adopting Act.[32]

49 These cases demonstrate that the construction exercise begins and ends with the text of the relevant statute.[33] While Australia's international law and convention obligations may be considered and may be relevant in cases of ambiguity, the text itself has supremacy. So, to return to the first point and the language of Project Blue Sky, s 4AA is more aptly described as a goal to be achieved, rather than a rule to be obeyed.[34]

50 To read s 4AA(1) as not imposing an obligation or giving rise to a private right of action does not offend the rule against surplusage. It is simply reading the provision in its ordinary and natural meaning in accordance with established rules of statutory interpretation. Construing the sub-section as an aspirational principle playing a part in the exercise of other discretions or powers under the Act does not fail to give meaning to every word of the provision, nor fail to give the provision effect. Accordingly, the rule (again, if it be a rule) against surplusage is not offended.

51 For these reasons, s 4AA(1) does not impose an obligation or a duty upon decision makers under the Act. The provision is an expression of 'legislative policy'[35] intended to inform how other powers created by the Act should be exercised. It must follow that no statutory duty on the part of either of the defendants arises.

52 Given this conclusion, it is not strictly necessary to deal with the other arguments regarding the construction of s 4AA. However, I make the following comments:

(a) The location of s 4AA within the Act is not of assistance. The text of the provision is paramount - not its placement in the Act.

(b) I accept (as the Commonwealth concedes) that a pre-existing common law duty was owed to AS in relation to her confinement in the detention centre. O'Connor supports the contention that a pre-existing duty will give rise to a correlative private right. However, this, of course, is subject to the text itself, and whether 'a contrary intention appears'[36] - which is the case here.

(c) AS's reliance on the asserted fact that all children held in detention were released following the introduction of s 4AA is neither relevant or persuasive.

Indeed, on one view all it demonstrates is that s 4AA may have influenced the decision making process. As the defendants contend, that is what s 4AA was intended to do.

Second question: if so, does s 4AA demonstrate a legislative intention to create a private right of action?

53 I repeat that even if an obligation did exist, as contended by AS, I can detect no legislative intention as evinced by the terms of s 4AA that a child in the position of AS would have a private right of action in respect of a breach of the obligations.

54 Although 'each case turns on the provisions in the relevant statute,'[37] it is worth noting that other instances of endeavouring to treat different provisions under the Act as giving rise to a private cause of action, have been unsuccessful.[38] It is also worth noting that it is a characterising feature of the Act that it strictly provides for, or excises, the review of decisions and actions made under the Act.

55 There is nothing in the text and structure of the Act which points to a conclusion that Parliament intended to confer on an individual a private right of action regarding a breach of s 4AA.

The third and fourth questions: is the obligation imposed for the protection or benefit of a particular class of persons? Who is the subject of the obligation?

56 Given my answer to question one, it is unnecessary to answer these questions. However, if I am wrong in terms of the creation of the obligation and private right, I would have concluded that the obligation was clearly for the benefit of minors in detention and the Minister, and perhaps the Commonwealth, was the subject of the obligation.

Is there an arguable common law claim of breach of duty by the Minister?

57 The Minister no longer maintains, on a summary basis, that the allegations concerning the exercise of power under the Act should be struck out as being beyond the jurisdiction of the Court by reason of the provisions of the Act.[39] However, it is still contended that the pleaded case against the Minister contained in paragraph 28 could not give rise to a common law duty; and that pursuant to Rule 23.01 of the Supreme Court (General Civil Procedure) Rules 2015, the allegations concerning the Minister should be struck out.

58 Essentially, the issue is whether the case, as pleaded, discloses a claim in respect of operational decisions made by the Minister or his delegate as opposed to policy matters which would be immune from challenge in a common law proceeding.

1. in respect of A.S. and group members no longer in immigration detentionstill detained, failed; and

b. in respect of the group members still detained, continues to fail

to take reasonable care to prevent the detention of A.S. and the group members from causing them injury (the Minister's duty to take reasonable care breach).

Particulars

(i) Failing to:

(a) exercise his power to make a 'residence determination' under section 197AB of the Migration Act at all or in a timely manner by which A.S. and any other group member could live outside of an immigration detention centre; alternatively. Alternatively,

(b) failing to refuse to make a 'residence determination' or failing to inform A.S. or any of the group members of a refusal;

and instead continuing to detain A.S. in the conditions particularised in paragraphs 29 and 30.

Any of these failures contributed to or caused injuries of the nature particularised at paragraph 35 by virtue of causing uncertainty about the future, and the period and location of continued detention of A.S. and the group members.

(ii) Failing to:

(a) exercise his power to exempt A.S. or any group member from regional processing under section 198AE of the Migration Act; alternatively

(b) Alternatively, failing to refuse to make an exemption or failing to inform A.S. or the group members of a refusal;

And instead continuing to detain A.S. in the conditions particularised in paragraphs 29 and 30.

Any of these failures contributed to or caused injuries of the nature particularised at paragraph 35 by virtue of causing uncertainty about the future, and the period and location of continued detention of A.S. and the group members.

[There are is no sub-paragraphs (iii) and (iv).]

(iv) In respect of A.S. only, failing to ensure that his servants or agents did not separate A.S. from her mother when her mother was moved to Darwin to give birth to A.S.'s brother.

(v) In respect of the group members, further particulars will be provided after the trial of A.S.'s claim.

60 Counsel for the Minister submitted that the allegations of breach are solely an attack on the policy decisions made by the Minister under the Act in relation to the detention of AS and the group members. As such, they are immune to any challenge.

61 AS responded by asserting that this matter could not be determined on a strike out basis, as the question of whether decisions made by the Minister were solely policy (not operational) matters could only be answered once the evidence had been adduced.

62 In Matthews,[40] I considered whether the pleaded case against officers of the Victoria Police in relation to the Black Saturday Bushfires should be allowed to proceed to trial. At the nub of the claim was the purported negligent exercise of, (or failure to exercise) a statutory power. The following excerpts from that ruling are of relevance to this application:[41]

Turning now to the relevant principles, it is settled that a person or a body exercising a statutory power or a function may owe a common law duty of care, independent of any statutory duty imposed by a particular piece of legislation. There is a line of authority in the High Court which provides guidance on this issue: Sutherland Shire Council v Heyman;[42] Pyrenees Shire Council v Day;[43] Crimmins v Stevedoring Industry Finance Committee;[44] Sullivan v Moody;[45] Graham Barclay Oysters Pty Ltd v Ryan;[46] Stuart v Kirkland-Veenstra.[47]

...

As the High Court authorities demonstrate, the starting point for consideration of the existence of a common law duty (but not the only consideration) is the statutory provisions which set out the relevant functions and powers of the authority or person.

...

The second point is that an examination of the statutory regime in isolation does not provide the answer as to the existence of a duty of care.

...

In Stuart, the High Court said:

There can be no duty to act in a particular way unless there is authority to do so. Power is therefore a necessary condition of liability but it is not a sufficient condition. Statutory power to act in a particular way, coupled with the fact that, if action is not taken, it is reasonably foreseeable that harm will ensue, is not sufficient to establish a duty to take that action. Rather, as was pointed out in Graham Barclay Oysters Pty Ltd v Ryan, the existence or otherwise of a common law duty of care owed by a statutory authority (or in this case the holder of statutory power) "turns on a close examination of the terms, scope and purpose of the relevant statutory regime". Does that regime erect or facilitate "a relationship between the authority [here the holder of statutory power] and a class of persons that, in all the circumstances, displays sufficient characteristics answering the criteria for intervention by the tort of negligence"?

Evaluation of the relationship between the holder of the power and the person or persons to whom it is said that a duty of care is owed will require examination of the degree and nature of control exercised over the risk of harm that has eventuated, the degree of vulnerability of those who depend on the proper exercise of the relevant power, and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute. Other considerations may be relevant. (emphasis added and citation omitted)

...

The analysis that was undertaken in cases such as Pyrenees Shire Council, Crimmins, Graham Barclay Oysters and Stuart depended upon findings of fact made at the trial. Only Sullivan was decided on a pleading point and, essentially, it was to the effect that to impose a duty of care would be to create inconsistent obligations, given the statutory and professional responsibilities of persons caring for young children. That is not the case here. Here, considerations of the type that arose in Pyrenees Shire Council, Crimmins, Graham Barclay Oysters and Stuart will need to be examined - such as the nature of the functions or powers of the relevant police officer, vulnerability, reliance, control, assumption of responsibility, the level of potential harm and knowledge of the potential danger, to name some that readily come to mind.

63 In Heyman, Mason CJ explained the rationale for the distinction between policy and operational matters, and how this may assist in identifying the dividing line:

The distinction between policy and operational factors is not easy to formulate, but the dividing line between them will be observed if we recognize that a public authority is under no duty of care in relation to decisions which involve or are dictated by financial, economic, social or political factors or constraints. Thus budgetary allocations and the constraints which they entail in terms of allocation of resources cannot be made the subject of a duty of care. But it may be otherwise when the courts are called upon to apply a standard of care to action or inaction that is merely the product of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness.[48]

64 Adopting Mason J's general discussion of this principle, Gleeson CJ elaborated upon the distinction in Graham Barclay Oysters, in particular questioning the role of budgetary considerations:

There are forms of governmental activity, which courts in the past endeavoured to describe by the term ``operational'', where there is no reason for hesitating to assimilate the position of governments to that of citizens in imposing duties and standards of care. Such activity might involve budgetary considerations, but that does not prevent such assimilation. Individuals and corporations also have to watch their budgets, and decisions about what is reasonable may have to take account of that. As the other extreme, the reasonableness of legislative or quasi-legislative activity is generally non-justiciable.[49]

65 McHugh J in Crimmins suggested that those functions forming 'part of the ''core area'' of policy-making, or which are quasi-legislative or regulatory in nature, are not subject to a common law duty of care.'[50] However, '[o]utside this narrowly defined policy exception' the distinction and considerations that give rise to that distinction may fall to be considered at the breach stage, rather than negativing the existence of a duty per se. [51]

66 However, at the end of the day, it is always the facts of the particular case which will be determinative of this question. In Pyrenees, this was made explicitly clear by Gummow J:

Some of these distinctions and doctrines are entrenched in the common law of Australia, others are not. All of them ... tend to distract attention from the primary requirement of analysis of any legislation which is in point and of the positions occupied by the parties on the facts as found at trial.[52]

67 Importantly, the facts need to be understood and established before any policy or operational distinctions, as asserted by the Minister, can be brought into play. There is no bright line that exists, independent of the facts of a case, between policy matters which may not be subject to a duty of care, and actionable 'operational' matters. It is by no means clear that it is any longer considered that '[t]he distinction between the area of policy and the operational area is a logical and convenient one.'[53] In Graham Barclay Oysters, Gleeson CJ explained:

In determining the existence and content of a duty of care, there are differences between the concerns and obligations of governments, and those of citizens. Such differences led to an attempt to distinguish between matters of policy and operational matters. That distinction was never rigorous, and its validity and utility have been questioned. Even so, the idea behind it remains relevant in some cases, such as the present.[54]

68 Each case turns on its own facts and legislative scheme. The decisions in Saitta Pty Ltd v Commonwealth of Australia[55] and R.T. and Y.E. Falls Investments Pty Ltd v State of NSW [No 2][56] relied upon by the Minister turned upon their own circumstances.

69 Whilst I accept that a number of the decisions identified in the particulars made by the Minister under the Act may appear to be of a policy nature and therefore immune to any suggestion of founding a common law duty, it is nonetheless conceivable that the Minister, or his delegate, made operational decisions within power (or alternatively failed to exercise such a power) which, when combined with the terms of the Act, may arguably found a duty of care.

70 Decisions as to the place of detention of AS (and her family) and her conditions of detention are canvassed by the particulars. Arguably such decisions may be operational - the proper way to determine this is by adducing evidence at trial.

71 In Heyman, Pyrenees, Crimmins, Graham Barclay Oysters and Stuart[57] the facts were assembled at trial and the issue of exercise of statutory power determined either at the conclusion of the trial or on appeal.[58]

72 In my opinion, it would be premature to strike out this cause of action on a summary basis notwithstanding that the particulars viewed generally may point towards policy rather than operational decisions. Rather, as the cases demonstrate, the factual matrix needs to be understood before determining whether a duty did or did not exist.

73 A court will not make an order under Rule 23.01 unless it is clear on the pleadings, or from extrinsic evidence, that the claim cannot be sustained in fact or law. The Minister has not established that this part of the case cannot be maintained at trial.[59]

74 I should add one further other observation: paragraphs 28(b)(ii) and (iv) are, as the Minister contends, unclear both as to factual allegations and the consequences for AS if made out. This will need to be addressed if the allegation is to be maintained.

Should the draft be allowed to go ahead or should the claim be re-pleaded?

75 As I mentioned at the outset, it is accepted (and understood by all) that the gist of the claim is that there was inadequate care for AS whilst she was in the detention centre.

76 The issue between the parties, however, lies in the detail of both the current pleading and the draft. In particular, whether:

(a) there are sufficient material facts alleged in the statement of claim to provide the Court and the defendants (and necessarily the third parties) with the factual substratum supporting AS's claim;

(b) the particulars of negligence alert the Court and the parties to the particular acts or omissions which will be contended for at trial by AS; and

(c) there is a discernible causal link (whether express or by implication) pleaded between those acts or omissions and the injuries allegedly sustained by AS.

77 There are two other matters that are critical to the analysis of the statement of claim and which, I suspect, have been overlooked by the lawyers acting for AS.

78 First, the case to be tried concerns AS's claim against the defendants. What is imperative for the proper preparation of the trial and defence of the claim is determining, with some precision, the nature of the allegations of duty, breach and causation. Questions and issues relating to findings that may be binding upon other group members and the parties to the proceeding are subsidiary to the determination of AS' case.

79 Second, in many common law cases, the link between the alleged breach (be it by an act or omission) and the injury or damage is self-evident and requires no express pleading. However, in a case such as this, where there are a multitude of allegations concerning the management of the detention of AS over a lengthy period of time and with a diverse range of injuries (several of which are significant), it is important that a particular injury or condition be linked to the relevant allegation of negligence.

80 For decades, judges have attempted (at times in vain) to identify the principles to be applied in determining whether a pleading (be it a statement of claim or defence, or otherwise) is adequate to allow the case to proceed to trial.

81 In Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd[60] the Court of Appeal said as to the fundamental principles:

(a) a properly pleaded statement of claim ensures the basic requirement of procedural fairness that the opposite party has the opportunity of meeting the case against him or her, defines the issues for decision, and enables the court to ascertain the facts forming the ingredients of the cause of action;

(b) particulars define the scope of evidence to be led in support of the material facts alleged;

(c) permission to depart from the pleadings is a matter for the discretion of the trial judge, having regard to the interests of justice; and

(d) when litigation is large and complex, with serious consequences for the defendants if the plaintiff succeeds, and the parties are required to incur very substantial costs, the imperative to hold the plaintiff to its pleaded case is strengthened. [61]

82 In recent years in the trial division of this Court, there have been a number of decisions relevant to the test of pleadings, such as SMEC Australia Pty Ltd & Anor v McConnell Dowell Constructors (Aust) Pty Ltd & Ors [No 2],[62] Environinvest Ltd v Pescott;[63] and Clarke v Great Southern Finance Pty Ltd (in liq) (Ruling No 1).[64] A helpful recent itemisation of the principles is set out by Dixon J in Wheelahan v City of Casey (No 12).[65] It suffices, for the purpose of this application, to identify several of the points made in that decision:

(a) The basic function of pleadings in a civil proceeding is to alert the other party to the case which it needs to meet and to define the issues for determination by the Court.

(b) The material facts which establish the elements of the cause of action must be pleaded.

(c) Facts, not conclusions from unstated facts, must be pleaded.

(d) The pleadings must be intelligible and extensive cross-referencing of facts can render parts (indeed perhaps the whole) of a pleading unintelligible.

(e) Where only part of a pleading should be struck out, but it is so intertwined with the balance of the pleading, then the whole should be struck out.

83 The overall structure of the draft is relatively uncontroversial; similarly, the introductory matters contained in paragraphs 1 to 17. However, it is the pleading out of the allegations of common law duty, breach and causation that has sparked the dispute between the parties (apart from the matters I have already determined). I will now set out some of the parts of the draft which have provoked the fight.

84 Paragraph 18 of the draft alleges a common law duty owed by each of the defendants to AS. The first three parts of the duty - to take reasonable care of AS and to provide reasonable healthcare in the event of injury - are not in issue. The particulars read as follows:

Particulars to paragraphs 18(a), (b) and (c)

(i) The duties are informed by the matters in paragraphs 9-17 and the common law, including international law and Article 7 of the International Covenant on Civil and Political Rights.

(ii) In the case of minors, the duties are further informed by:

(a) the principle that minors are only detained as a measure of last resort (which also finds statutory expression in section 4AA of the Migration Act) as informed by Articles 24, 27 and 39 of the United Nations Convention on the Rights of the Child and the matters in paragraphs 19A-20; and

(b) the obligation of parents to enrol their children in school (which also finds statutory expression in sections 4, 9 and 10 of the School Education Act 1999 (WA)) and the matters in paragraphs 24A-26.

1. AS and each of the minor group members while they were or are in detention, to provide the minor's parents with reasonable care such that his or her parent can or could mitigate the negative impacts of any injury to that minor (the family protective factor duty);

Particulars to paragraph 18(d)

The duty is informed by:

(i) the Commonwealth's policies including the Mental Health Policies that recognised '[r]esearch findings of clinical psychology and psychiatry suggest that the good mental health of parents and other primary care-givers can help to minimise the negative impacts that exposure to traumatic events has on minors' and 'parents and primary care-givers who are traumatised and distressed are unlikely to be able to meet the emotional needs of dependent minors' [CTH.0003.3101 at .3102];

(ii) Article 10 of the International Covenant on Economic, Social and Cultural Rights; and

(iii) Articles 19, 24 and 39 of the United Nations Convention on the Rights of the Child.

86 The alleged breaches of duty of the defendants are contained in paragraphs 29 to 31 of the statement of claim.

87 The allegations of breach consist of three components:

(a) within paragraph 29 described as the defendants' 'duty to take reasonable care breach';

(c) within paragraph 30 described as the defendants 'care after injury breach'; and

(d) within paragraph 31 a separate 'due care and skill breach' in relation to healthcare, but which relies upon the particulars joined to paragraph 30.

Substantively, the particulars attached to paragraphs 29 and 30 are the same.

88 Counsel for AS categorised these alleged breaches into six 'cases', described as:

89 The particulars of negligence, as identified by counsel for AS contained the following allegations:

Removal from Christmas Island anxiety;

Dissolving IHAG;

Failing to act on IHAG's recommendations;

Medical- prophylactic systems failures;

Medical- facilities inadequate;

Medical- record keeping failures;

Medical- decisions other than best interests;

Human rights failures generally;

Surveillance;

Recreational facilities;

Food and nutrition;

Detention of minors as a last resort;

Education failures;

Family protective failures;

Medical- queues for medication;

GP Standards;

Failure to provide an interpreter.

As a result of the negligence of each of the defendants, A.S. has suffered injuries as a result of her detention.

Particulars

The injuries which A.S. suffered include:

(i) Physical injuries

(a) recurrent dental abscesses; and

(b) recurrent allergic reactions;

(c) a brain injury which manifests in a visual perception disorder and cognitive deficits which cause learning difficulties and signs of developmental delay;

(d) latent Tuberculosis;

(ii) Psychological injuries

(c)(e) post-traumatic stress disorder;

(d)(f) separation anxiety disorder;

(e)(g) secondary nocturnal enuresis;

(f)(h) childhood onset fluency disorder (stuttering); and further or in the alternative to the above

(g)(i) major depression with anxiety.

The injuries include injuries as a result of her detention but diagnosed outside the relevant period.

Further particulars of the plaintiff's injuries will be supplied after service of medical reports.

91 AS contends that the draft (along with a number of amendments or deletions) is sufficient to satisfy the relevant test and that it should go forward as the basis upon which the trial is conducted. By the conclusion of the oral submissions counsel for AS sensibly conceded that there was room for considerable improvement in the draft but said that I should not 'throw the baby out with the bath water' and require a complete re-pleading.

92 A neat summary of the defendants' position is contained in paragraph 4 of their submissions:

It is submitted that the SFASOC is a complicated, convoluted and confusing document from which it is impossible for the defendants to identify the case they must meet at trial. The repeated assertions by those acting for AS that they desire to pursue a personal injury claim on behalf of AS is not reflected by the form and content of the SFASOC.

93 The third parties, Serco and IHMS, make similar general objections, each contending that the case should be re-pleaded by AS in a comprehensible fashion.

94 The defendants and third parties take issue with many aspects of the draft and its predecessor, some of which I will deal with in a moment. It suffices to say that the attacks relate not only to the adequacy of the particulars, but also to discerning the relationship between the allegations of negligence (and their particulars) and the injury, loss or damage sustained by AS.

95 There is considerable force in the submissions made by the defendants and the third parties. I do not think it would do any service to the reader, or the parties, to go chapter and verse through the draft - although I propose to refer to some of its shortcomings. Notwithstanding Kaye J's plea (see paragraph [12]), in my opinion, the current version of the statement of claim and the draft do not spell out, in any clear or comprehensible form, the case that will be run at trial by AS in relation to her care (medical and generally) at the detention centre. Moreover, it is impossible to determine what specific acts or omissions of the defendants are alleged to have caused injury, loss or damage to AS. For reasons I will now set out, I am satisfied that the draft should not be permitted to stand, and the current statement of claim be struck out.

96 First, the particulars at paragraphs 18 (a)-(c) describe the duty as being 'informed by ... the common law, including international law and Article 7 of the International Covenant on Civil and Political Rights'. I assume that the expression 'informed by' means that these matters provide a legal basis for concluding that a duty of care was owed to AS. If that be the case then it should be stated as such, as should any factual matters that are said to give rise to the duty.

97 Second, paragraph 18 (d) - 'the family protective duty' - is problematic. As I understand it, the allegation raises the following concept: that a duty owed by the defendants to a minor in detention under the Act extends to ensuring that adequate care is provided to his or her parents so that the minor is properly looked after. The defendants and the third parties contend that no such duty exists. Putting to one side the viability of such an allegation, it raises the following issues:

(a) the nature of the treatment of the parents in the detention centre over a lengthy period; and

(b) what, if any, factual matters will be relied upon in asserting the existence of the duty.

It is imperative that, if this allegation as to the scope of the duty owed to AS is to be maintained, the factual basis for such a duty in relation to AS be set out clearly and comprehensively. Only then can it be considered whether this aspect of the case can be determined on a summary basis, or whether it should proceed to trial. The same goes for the allegations of breach which I will mention in a moment.

98 I repeat, in the hope that it may be heeded, what I have said previously. The case that goes to trial, as I have been repeatedly told by counsel for AS, will only relate to her case against the defendants. It is therefore imperative that the allegations focus on the matters that are relevant to her care at the detention centre - not an investigation into every aspect of the conduct of the centre. Moreover, it is essential that the statement of claim that ultimately emerges properly identifies the breaches that are alleged to have resulted in the diverse range of injuries that AS is said to have sustained.

99 I will now try to set out briefly some of the problems I perceive in the current statement of claim and the draft.

100 First, there is quite an artificial, and totally incomprehensible, distinction in the allegations of negligence at paragraphs 29 to 31 between allegedly negligent acts or omissions which occurred during the course of detention; those which occurred 'after injury'; and those which are said to be related to 'medical health'. There seems to be no good reason why, in a general allegation of breach, the particular failings of the defendants or their agents, are separated into particular time periods or categories. To the contrary, this bifurcation simply enhances the incomprehensibility of the draft and its predecessor and prevents a reader (and particularly the parties and the Court) from being able to understand exactly what case is to be met.

101 None of the distinctions make sense. However, as I followed the submissions of counsel for AS, it was ultimately accepted that the distinctions served no useful purpose and should be re-pleaded.

102 On this basis alone (and, taking into account the admitted imperfections and necessary amendments), I would conclude that the whole of the draft should be re-pleaded.

103 Second, when viewed as a whole, the allegations particularised in paragraphs 29 and 30 constitute no more than a mixed bag of complaints about the way in which the detention centre was operated by the Commonwealth and/or its agents. Only occasionally do the pleadings identify individual failures which would appear to have some relevance to the treatment of AS, as opposed to asserted systemic failures with the management of the detention centre.

104 Third, the constant internal cross-referencing is confusing and highly irritating (or to use the appropriate legal expression - vexing). A combination of cross-referencing and references to external documents makes understanding the basis for the allegation particularly difficult. At times it is almost impossible to determine what allegation actually is being made - and the basis for it.

105 Fourth, the draft contains missing paragraphs and particulars (as a result of the previous strike out application), which when combined with the cross-referencing makes the task of reading the document especially difficult. A complete re-pleading will result in intelligible numbering and reduce, if not eliminate, cross-referencing.

106 I will now deal briefly with the categorised 'cases' identified by counsel for AS.

(i) Keeping AS and the group members in detention:

(a) other than on mainland Australia, where the standard of care could be more readily met than on Christmas Island because, on mainland Australia, there is access or better access to:

1. multidisciplinary and specialist service providers, including paediatricians, speech pathologists and perinatal/infant, child and family psychiatrists, such providers available other than only on a visiting basis;
2. medical, psychological or psychiatric professionals and care independent of and not paid by the Commonwealth or Minister; alternatively

(b) on Christmas Island without also causing actions to be taken so that the access to services detailed above can be met there.

108 Particular 29 (i)(a) is simply a statement of the level of care that might be provided in Australia. Accepting that it was lawful for AS to be placed in detention, the pleading does not in any way identify the failing in the level of care provided at the detention centre - which is the nub of AS's case; and particularly how that affected AS - assuming that is the allegation.

109 Another example is found in particular 29 (ii): 'failing to inform AS and the group members of when each of them will be removed from detention'. Again, this may be a perfectly valid complaint about treatment of asylum seekers in the detention centre - but, remembering that AS was a very young child at the time, it is impossible to see how it is related to her case and more importantly, how it has led to any injury, loss or damage.

110 Particulars 29 (iv) and (v) relate to dissolving the Immigration Health Advisory Group (IHAG) and failing to act upon its recommendations. It is quite unclear as to what effect, if any, the dissolution of the IHAG or its replacement, or 'recommendations', had on AS. This, I am afraid, is typical of the generalised complaints that are littered throughout the particulars of negligence; little or no attention being paid to identifying how the allegation relates specifically to the treatment of AS at the detention centre and how that has resulted in any injury to her.

(xii) Failing to make and keep available medical facilities that were and are fit for purpose and adequately stocked, including:

(a) the medical facility in Aqua Compound having only one room where a medical practitioner could attend upon a patient;

(b) the medical facility in Lilac Compound having no bed and no computer;

(c) a single makeshift dental facility on all of Christmas Island, located at North-West Point in a converted van;

(d) by providing medical facilities that were of limited therapeutic value by reason of them being:

1. within places of detention;
2. accessible only after making a written request to Serco;
3. under surveillance, including by CCTV and guard.

112 Each of these may be valid complaints about failings in the provision, or otherwise, of medical facilities at the detention centre. But what is the relevance to the case of AS? For instance, what does a computer have to do with AS's treatment and, more importantly, to any injuries sustained by her? It is quite unclear as to whether these allegations have any relevance to AS's confinement at the detention centre. It is simply not known whether AS has at any time been in Aqua Compound, Lilac Compound or the makeshift dental facility. Moreover, assuming that she was, the failing of the facility must be precisely identified (not just by an assertion of limited therapeutic value) and have some relationship to the injuries sustained by AS to amount to a relevant particular of negligence.

113 Particular 29 (xiv) contains a raft of alleged deficiencies in record keeping relating to the health of AS and the group members. It is entirely unclear whether there was any such failure in relation to the treatment of AS and, if so, in what regard. Then there is the issue as to what effect, if any, it had upon her and whether this resulted in any loss or injury to her. Ultimately this was abandoned by counsel for AS.

114 Particular 29 (xx) refers vaguely to 'health care decisions' made by the Commonwealth which precluded access to certain specialists. No detail of decisions made which affected AS and contributed to one or more of her injuries is provided, and the pleading concludes that 'further particulars may be provided after discovery and/or evidence'. Obviously enough, the particulars must precede the evidence at trial. Discovery has been completed. The lawyers for AS must now identify exactly what this complaint is about and how the decisions of the Commonwealth or its agents affected AS. If an allegation is made that a particular form of medical treatment was inadequate, then the nature of that deficiency should be identified and its causal connection to a particular injury pleaded out.

In respect of AS, in circumstances in which the failures particularised below in respect of AS's mother and father negatively impacted AS's own health and/or injury and/or reduced AS's mother's and father's capacity to mitigate the injury or injuries of AS.

116 The particulars go on to delineate instances of stress and depression on the part of AS's mother and father. Then follows a list of complaints about the failure to provide particular specialists at the detention centre - such as child and family psychiatrists, general practitioners. A number of the allegations made in relation to the treatment of AS are repeated under this 'case'.

117 I will not repeat what I have just said about the medical treatment case, save to say that it is incumbent upon AS's lawyers to plead (without cross-referencing) the exact nature of the failure in terms of the treatment of AS's mother and father and how that relates to the care of AS at the detention centre.

118 An allegation made in respect of a certain aspect of the treatment of the parents of AS must make clear how that failure resulted in harm to AS and its relationship to the injuries alleged by her.

119 These asserted failures are set out in particular 29 (xxvi) and include allegations relating to surveillance, the absence of adequate recreational facilities and the provision of 'nutritious palatable and varied food'.

120 The allegation about the provision of adequate food is elusive. It is not at all clear what the alleged deficiency was - or, to put it another way, what it is said should have been provided to AS while she was in the detention centre. Further, what is the relationship, if any, of the provision of inadequate food to any and which of her injuries?

121 Similarly, the complaint about surveillance requires more detail: is it simply the fact of surveillance that was productive of an injury or was it a particular form of surveillance and what was the injury?

122 As the defendants contend, this case is bound up with the question of the existence of the common law duty which I have resolved in favour of AS. The detention of AS, a minor, is not in issue. In the event that AS wishes to argue that her detention in certain parts of the centre, or for certain times, or on Christmas Island, constituted a breach of duty, then the statement of claim will need to identify what injuries flowed from that aspect of the detention.

123 This case is pleaded under particular 29 (xxviii) and relates to the alleged lack of educational facilities and participation in an educational program by AS. It is expressed in a highly generalised fashion and does not identify specific failings of the education facilities as provided to AS.

124 Further, the link between the asserted failures in the education program provided and the injuries of AS must be identified.

125 The injuries alleged are diffuse and several are significant. As I have mentioned on a number of occasions, at no point in the draft or its predecessor are the particulars of injury related with any specificity to a specific allegation of breach. For instance, what is said to be the negligent cause of latent tuberculosis or the brain injury said to have been sustained by AS as a result of her detention? As I mentioned earlier, in most cases the relationship between a particular tortious event and the injury is self-evident. But this is far from the standard tort case. It involves a raft of diverse complaints about the management of AS whilst in the detention centre over a lengthy period of time. It is necessary that the asserted negligent cause of those injuries be properly identified so that the case of AS can be understood by the Court and met by the defendants and, presumably, the third parties.

126 (a) The current statement of claim should be struck out and AS be refused leave to amend in the form of the draft.

(b) Leave will be granted to AS to re-plead the statement of claim consistent with this ruling, on the following terms:

The re-pleaded statement of claim must expressly:

(i) identify in plain English and without cross referencing, each of the factors giving rise to the common law duty of care;

(ii) identify in plain English and without cross referencing, each of the allegations of breach relevant only to AS's claim; and

(iii) identify the relevant particular (or particulars) of negligence which relate to the specific injury alleged by AS and any consequential loss or damage.

(c) The claim for breach of statutory duty based on s 4AA of the Act is struck out and may not be re-pleaded in any further statement of claim.

(d) The Minister's application to strike out the claim against him based upon breach of common law duty of care is dismissed.

(e) The question of whether a 'family protective duty' of the defendants may be maintained at trial will be considered subsequent to the filing of the re-pleaded statement of claim.

(f) The question of the common issues to be determined at trial will be considered once the re-pleaded statement of claim is filed.

[1] AS v Minister for Immigration and Border Protection (Ruling No. 3) [2015] VSC 642.

[2] Filed pursuant to orders of Kaye J of 28 November 2014.

[3] AS v Minister for Immigration and Border Protection [2014] VSC 593.

[6] There is no difference in substance between the draft and the current pleading.

[8] [2011] VSC 168; (2011) 34 VR 584, 601 [64] ('Matthews').

[9] (1995) 185 CLR 410, 424 ('Byrne').

[10] Gardiner v Victoria [1999] VSCA 100; (1999) 2 VR 461.

[11] Matthews [2011] VSC 168; (2011) 34 VR 584, 602 [69].

[13] O'Connor v SP Bray Ltd [1937] HCA 18; (1937) 56 CLR 464, 478 ('O'Connor').

[14] Byrne (1995) 185 CLR 410, 424.

[15] [1995] UKHL 9; [1995] 2 AC 633, 731.

[17] DC Pearce, RS Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8th ed, 2014) 425 [11.1].

[18] (1998) 194 CLR 355, 390 [93] (McHugh, Gummow, Kirby, Hayne JJ) ('Project Blue Sky').

[20] [2004] NSWCA 297, [177] ('McDonald') (emphasis added).

[21] Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304, [27]-[29] (Gleeson CJ, Gummow and Hayne JJ); [50] (Gaudron J); [87] (Callinan J).

[22] McDonald [2004] NSWCA 297, [175].

[23] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 492 [30] (Gleeson CJ) ('S157').

[24] See also Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483, [449]-[451].

[26] S157 (2003) 211 CLR 476, 492 [30].

[27] [2000] HCA 7; (2000) 199 CLR 321, 340 [43].

[28] [1945] HCA 3; (1945) 70 CLR 60, 77.

[29] Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562, 589-591 [63], [65] (citations omitted, emphasis added).

[30] S157 (2003) 211 CLR 476, 492 [29] (emphasis added).

[31] (1992) 176 CLR 1, 38 (Brennan, Deane, Dawson JJ).

[32] [2013] FCAFC 72; (2013) 213 FCR 261, 271 [36] (emphasis added).

[33] See Maloney v The Queen (2013) 252 CLR 168, 292 [325]; FCT v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, 519 [39]; Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664, 671 [22].

[34] (1998) 194 CLR 355, 392.

[35] Plaintiff M168/10 v Commonwealth [2011] HCA 25; (2011) 279 ALR 1, 7 [22].

[36] O'Connor [1937] HCA 18; (1937) 56 CLR 464, 477-8.

[37] [1995] UKHL 9; [1995] 2 AC 633, 731.

[38] See, for example, Cherkupalli v Cth [2012] NSWSC 997; Fernando v Cth [2010] FCA 753; (2010) 271 ALR 521; Mbugua v Cth [2012] WADC 36; Parker v Cth [2011] FCA 1029.

[40] [2011] VSC 168; (2011) 34 VR 584.

[41] Ibid [104], [109], [113], [115] and [120].

[42] [1985] HCA 41; (1985) 157 CLR 424 ('Heyman').

[43] [1998] HCA 3; (1998) 192 CLR 330 ('Pyrenees').

[44] [1999] HCA 59; (1999) 200 CLR 1 ('Crimmins').

[45] [2001] HCA 59; (2001) 207 CLR 562 ('Sullivan').

[46] [2002] HCA 54; (2002) 211 CLR 540 ('Graham Barclay Oysters').

[47] [2009] HCA 15; (2009) 237 CLR 215 ('Stuart').

[48] Heyman [1985] HCA 41; (1985) 157 CLR 424, 468- 469 (Mason J).

[49] [2002] HCA 54; (2002) 211 CLR 540, 557 [14] (Gleeson CJ)

[50] Crimmins [1999] HCA 59; (1999) 200 CLR 1, 37 [87].

[52] Pyrenees [1998] HCA 3; (1998) 192 CLR 330, 377 [126] (Gummow J); Stuart [2009] HCA 15; (2009) 237 CLR 215, 239 (French CJ).

1. [53] Heyman [1985] HCA 41; (1985) 157 CLR 424, 442 (Gibbs CJ); see Graham Barclay Oysters [2002] HCA 54; (2002) 211 CLR 540, 664 (Callinan J); Pyrenees [1998] HCA 3; (1998) 192 CLR 330, 393-394 (Gummow J); Crimmins [1999] HCA 59; (1999) 200 CLR 1, 50 [131] (McHugh J), 101 [292] (Hayne J).

[54] [2002] HCA 54; (2002) 211 CLR 540, 556 (Gleeson CJ).

[55] [2003] VSC 436.

[56] [2005] NSWSC 335.

[57] Heyman [1985] HCA 41; (1985) 157 CLR 424; Pyrenees [1998] HCA 3; (1998) 192 CLR 330; Crimmins [1999] HCA 59; (1999) 200 CLR 1; Graham Barclay Oysters [2002] HCA 54; (2002) 211 CLR 540; Stuart [2009] HCA 15; (2009) 237 CLR 215, 239 (French CJ). Crimmins and Stuart were jury trials.

[58] See A.S. v Minister for Immigration and Border Protection [2014] VSC 593.

[59] Onus v Alcoa of Aust Ltd [1981] HCA 50; (1981) 149 CLR 27, [57]; Wickstead v Browne (1992) 30 NSWLR 1, [11].

[60] [2013] VSCA 237 (Warren CJ, Osborn JA and Macaulay AJA).

[62] [2011] VSC 492.

[63] [2011] VSC 325.

[64] [2012] VSC 295.

[65] [2013] VSC 316, [25].