Migration Act 1958

Limitation of Actions Act 1958 (Vic)

Solicitor for Respondent : Australian Government Solicitor

1. That each of the following claims by the applicant is

barred by section 5 of the Limitation of Actions Act

1958 (Vic.) namely:-

A. Declarations that the several decisions made by,

and/or the conduct of, the respondents, or either

of them, referred to therein, being:

(i) the detention of the applicant from

about 17 April 1982 until 30 April 1982;

(ii) the authorized detention and transfer of

the Applicant made on 30 April 1982;

(iii) the authorized detention and transfer of

the applicant made on 7 May 1982;

(iv) the detention of the applicant from 30

April 1982 until 20 May 1982;

(v) the issuing of a deportation order

against the applicant on 20 May 1982;

(vi) the detention of the applicant from 20

May 1982 until 21 February 1983;

was, in each case void and of no force or effect.

B. Damages, including exemplary damages, for

detention, false imprisonment, breach of statutory

duties imposed by the Migration Act 1958, trespass

and or assault with respect to any period prior to

the period of six years before 17 February 1989.

2. Except insofar as the amount claimed by the Commonwealth

may be or is a proceeding by the Crown for the recovery

of any tax or interest thereon under section 32 of the

Limitation of Actions Act 1958 (Vic.) the claim by the

Commonwealth for the recovery from the applicant of any

amount due under sub-sections 21A(7) and (11) of the

Migration Act 1958 is barred by section 5 of the

Limitation of Actions Act 1958 (Vic.) insofar as it is

based upon any period prior to the period of six years

before 17 February 1989.

3. That the motion by the applicant, notice of which is

dated 26 September 1989, be refused.

4. That the directions hearing be adjourned to 16 February

1990 at 10.15 a.m.

5. That the costs be reserved.

THE COURT ORDERS:-

1. That the motion by the applicant, notice of which is

dated 22 February 1989, be refused.

2. That the application be dismissed.

3. That the applicant pay the respondents costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The issues raised in the matters presently before the Court involve the application of s.5 of the Limitation of Actions Act 1958 (Vic), ("the Limitation Act"), whether the period within which an action may be brought should be extended under s.23A of the Limitation Act and whether the Court should allow an extension of time under s.11 of the Administrative Decisions (Judicial Review) Act 1977 (Commth.) ("the Judicial Review Act") to enable an application under s.5 of the Judicial Review Act to be brought.

2. The facts giving rise to the proceedings V. No. G.36 of 1989 and V. No. G.37 of 1989 are complex but need not be considered in detail in these reasons. The matters before the Court arise from these two proceedings but, with the consent of the parties, were heard together. Chan Yee Kin is the applicant in each proceeding. The Minister for Immigration, Local Government and Ethnic Affairs and the Commonwealth of Australia are the respondents to each proceeding.

3. The applicant entered Australia in about August 1980 and has remained in Australia since then. On 15 April 1982 he was arrested as a person reasonably supposed to be a prohibited non-citizen; see s.38 of the Migration Act 1958 (Commth.). Between 15 April 1982 and 21 February 1983 the applicant was detained in custody at the Maribyrnong Detention Centre, Melbourne. The respondents claim that on three occasions namely 16 April 1982, 30 April 1982 and 7 May 1982 a prescribed authority, pursuant to the powers conferred by s.38 of the Migration Act authorized the detention of the applicant in custody for periods expiring on 21 May 1982. The validity of each of these authorizations is being challenged by the applicant. On 20 May 1982, a deportation order under s.18 of the Migration Act was issued against the applicant. Thereupon the applicant became a deportee under sub-section 39(6) of the Migration Act and was kept in custody until released from custody on 21 February 1983. The applicant is challenging the validity of the deportation order made on 20 May 1982.

4. In November 1982 the applicant applied for refugee status. It is not necessary in these reasons to refer to the problems arising with respect to the application of s.6A of the Migration Act. The application was refused. In 1984, the applicant commenced a proceeding, V. No. G.320 of 1984, under the Judicial Review Act seeking review of a number of decisions including the deportation order of 20 May 1982. That proceeding did not go to trial since the deportation order of 20 May 1982 was revoked and a fresh deportation order dated 20 April 1986 was issued. That deportation order was sought to be reviewed by proceeding V. No. G.156 of 1987. An issue in that proceeding was whether the decision to refuse to grant refugee status was valid. Eventually that issue was decided by the High Court in favour of the applicant. The High Court ordered that the application for refugee status by the applicant be referred to the Minister to be determined according to law; see Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 87 ALR 412.

5. By notice dated 14 November 1986, the Minister, acting on behalf of the Commonwealth and pursuant to s.21A of the Migration Act, served a "Notice in Respect of Deportation Costs, Maintenance Costs - Deportee in Custody" claiming the sum of $9,956.00 as a debt due and owing by the applicant to the Commonwealth for the period of detention of the applicant as a deportee for the period 21 May 1982 to 20 February 1983. This claim is called "the maintenance claim".

6. Application V. No. G.36 of 1989 was commenced on 17 February 1989. In this application the applicant is seeking declarations that each of the decisions under which the applicant was detained in custody from 15 April 1982 to 21 February 1983 was void and of no effect. The decisions are those referred to earlier in these reasons being the authorizations of the prescribed authorities and the decision to issue the deportation order of 20 May 1982. These decisions are hereinafter called the warrants. In addition, the applicant is claiming damages and exemplary damages. Further, the applicant is seeking a declaration that the decision to make the maintenance claim is void, one of the grounds being that s.21A of the Migration Act is beyond the power of the Parliament as being contrary to s.55 of the Constitution. In addition the applicant is seeking an injunction restraining the respondents from "seeking to claim moneys from the Plaintiff (sic) pursuant to" the Migration Act "or at all".

7. The statement of claim shows the grounds on which the declarations of invalidity are being sought but those grounds need not be referred to in these reasons. Paragraph 18 of the statement of claim is as follows:-

"(18) In the premises, the Applicant's said detention

amounted to:-

(a) a breach of statutory duties imposed by the

(Migration) Act;

(b) false imprisonment of the Applicant;

(c) trespass and or assault to the person of the

Applicant."

8. Paragraph 27 of the statement of claim alleges that the proceeding is brought "simultaneously with and in support of an application to Review ... whereby the Applicant seeks judicial review of the Respondents' conduct mentioned herein."

9. By their defence, the respondents pleaded that the warrants pursuant to which the applicant was detained in custody "did not occur within six years before this action was commenced and that the action, insofar as it is founded on these events, is barred by s.5" of the Limitation Act. By way of cross-claim the Commonwealth is seeking an order that the applicant pay to the Commonwealth the amount of the maintenance claim ($9,956.00).

10. By his defence to the cross-claim, the applicant pleads that the maintenance claim is statute barred by reason of s.5 of the Limitation Act.

11. By order made on 19 May 1989, the Court, by consent, ordered that the issue of whether or not all, or any and if so which part of, the proceedings are statute barred be tried as a preliminary question pursuant to O.29 of the Federal Court Rules. This issue came on for hearing before the Court on 8 November 1989.

12. By motion, notice of which is dated 26 September 1989 the applicant is seeking an order extending the time in which to issue this proceeding. The motion is made pursuant to s.23A of the Limitation Act. The motion came on for hearing on 8 November 1989.

13. Application V. No. G.37 of 1987 was commenced on 17 February 1989. The application is brought under the Judicial Review Act. Paragraph 1 of the application states that the application is "brought simultaneously with and in support of" the application "whereby the applicant seeks damages, inter alia, for wrongful imprisonment and other relief" against the respondents. The decisions sought to be reviewed are the warrants pursuant to which the applicant was detained in custody between 15 April 1982 and 21 February 1983, the decision to make the maintenance claim and a decision made in August 1987 whereby the Minister refused to provide reasons pursuant to a request under s.13 of the Judicial Review Act with respect to the decision to make the maintenance claim.

14. The time within which an application to review the decisions sought to be reviewed had expired many years prior to 17 February 1989; see s.11 and s.13 of the Judicial Review Act. The applicant did not dispute this but by motion, notice of which is dated 22 February 1989, he sought orders under paragraph 11(1)(c) of the Judicial Review Act extending the time in which to issue this proceeding. On 19 May 1989 the Court ordered that this motion be heard with the preliminary question ordered to be tried in matter V. No. G.36 of 1989. This motion was the third issue heard by the Court on 8 November 1989.

15. I propose to consider first the issue raised in proceeding V. No. G.36 of 1989 of whether or not all, or any and if so which part of, the proceedings are statute barred. This issue is raised by the defences to the claim and to the counter claim based upon s.5 of the Limitation Act. That is a State Act but applies to this proceeding by reason of s.79 of the Judiciary Act 1903. The relevant parts of sub-section 5(1) of the Limitation Act are set out:-

"5.(1) The following actions shall not be brought

after the expiration of six years from the date on

which the cause of action accrued:

(a) Actions founded on simple contract (including

contract implied in law) or (subject to

sub-section (1A)), actions founded on tort

including actions for damages for breach of a

statutory duty;

(b) ...

(d) Actions to recover any sum recoverable by

virtue of enactment ...".

16. Putting to one side the applicant's claim with respect to the maintenance claim and the constitutional issue, a reference to the relief claimed in the application and the form of the statement of claim makes it clear that the applicant is claiming that the various warrants relied upon by the respondents for the detention in custody of the applicant are void and of no effect. It is alleged that the powers conferred by the Migration Act were not properly exercised or made according to law with the result that the detention in custody was unlawful. The reference in paragraph 18 of the statement of claim that the detention amounted to a breach of statutory duties imposed by the Act makes this very clear. If the warrants are void then it is claimed that the detention was unlawful and the applicant claims, under paragraph 18 of the statement of claim, that the detention amounted to false imprisonment and trespass to the person and assault. In the affidavit material before the Court then is a suggestion that during his period of detention the applicant suffered some illness which, on one occasion, required attendance at a hospital. The statement of claim does not allege any breach of a duty to take care whether under statute law, common law or otherwise for the safety or welfare of the applicant while being detained in custody. In these circumstances, the causes of action on which the proceeding are founded are the torts of false imprisonment, trespass to the person and assault resulting from unlawful detention in custody. Accordingly, it is necessary to determine when each of those causes of action accrued.

17. The crucial date is 17 February 1983 being six years before the proceeding was instituted. The three warrants given by the prescribed authorities under which the applicant was detained until 20 May 1982 each occurred before 17 February 1983 and detention under those warrants ceased before 17 February 1983. The deportation order under which the applicant was detained until 21 February 1983 was made on 20 May 1982. The applicant was detained under this warrant until 21 February 1983 which included a period of 5 days which were within the six year period before the application was issued. In these circumstances, it is necessary to determine the nature of the claim based upon false imprisonment, trespass and assault to determine when the causes of action accrued if the warrant of 20 May 1982 was invalid.

18. On one view, the warrants authorising the interference with the freedom of the applicant each occurred beyond the limitation period. If the onus is on the applicant to prove the invalidity of those warrants, the respondents may have the benefit of the statute of limitations. If, as a matter of analysis, the applicant can rely upon the fact of his detention thus leaving it for the custodians to establish the validity of the warrants, even if limited to the shifting onus concept, the applicant may be in a position to claim damages for the five days detention within the limitation period. "Prima facie, no doubt, any restraint of a person's liberty without his consent is actionable"; The Balmain New Ferry Co. Ltd. v Robertson [1906] HCA 83; (1906) 4 CLR 379. This procedure would not deny the right of the respondents to contend that the warrant for detention, being the deportation order of 20 May 1982 was valid. On any view, the claims based on detention pursuant to the earlier warrants are statute barred.

19. The judgments given in O'Connor v Isaacs (1956) 2 Q.B. 288 provide a very helpful source for a consideration of the nature of false imprisonment, trespass to the person and assault. Essentially false imprisonment is a trespass committed against a person by imprisonment or detention of that person without lawful cause. False imprisonment is a trespass to the person. Assault is an intentional use or threat of force or violence to the person of another and for present purposes is similar to trespass to the person arising from false imprisonment or detention. From the pleadings in the present proceeding, the complaint by the applicant is that he was falsely imprisoned or placed in detention by the respondents. The claims based on trespass to the person and on assault form part of the claim for false imprisonment. The essential feature of this cause of action is the imprisonment. An applicant establishes a prima facie case if he proves that he was detained by the respondent. In Hicks v Faulkener (1878) 8 QBD 167, Hawkins J., speaking on behalf of Huddleston B. and himself in explaining the difference between an action for malicious prosecution and an action for false imprisonment said at p 170:-

"... in false imprisonment the onus lies upon the

defendant to plead and prove affirmatively the

existence of reasonable cause as his justification,

whereas in an action for malicious prosecution the

plaintiff must allege and prove affirmatively its

non-existence."

20. This is consistent with the views expressed in Balmain New Ferry Co. Ltd. v Robertson, above, and on appeal to the Privy Council, Robinson v Balmain New Ferry Co. Ltd. [1909] UKPC 1; (1910) AC 295.

21. Upon an applicant proving he was imprisoned or detained without his or her consent, the applicant establishes a case of false imprisonment unless the respondent justifies the detention. The respondent has the onus, where justification is pleaded, of proving that the imprisonment or detention was lawful or, in other words, was legally justifiable.

22. On this analysis, the cause of action for false imprisonment, and its inherent aspects of trespass to the person and assault, arises when imprisonment or detention first occurred and continues until the applicant is released.

23. Claims for damages for false imprisonment, trespass to the person and assault are each founded on tort and thus under sub-section 5(1) of the Limitation Act can not be brought after the expiration of six years from the date on which "the cause of action accrued." It is well established that a cause of action "is the entire set of facts that gives rise to an enforceable claim: the phrase comprises every fact which, if traversed, the plaintiff must prove in order to obtain judgment"; see Stroud's Judicial Dictionary, 4th edition, paraphrasing what was said by Lord Esher M.R. in Read v Brown (1889) 22 QBD 128 at p 131.

24. Applying this principle to the present case, any claim based upon the imprisonment or detention of the applicant prior to six years before 17 February 1989 is barred by sub-section 5(1) of the Limitation Act. This conclusion is consistent with what appears in Halsbury's, Laws of England 3rd Ed. Vol. 38 at p 770:-

"It is a defence to an action of false

imprisonment to prove that the imprisonment ended

more than six years before the commencement of the

action; when the imprisonment continued into the

six year period the statute of limitations is a

defence to the recovery of damages in respect of so

much of the imprisonment as occurred outside that

period."

25. That statement is clearer than the corresponding pararagraph appearing in the 4th Ed. of Halsbury, Vol. 28 para. 688:-

"Where an action is brought for false

imprisonment and the imprisonment began more than

six years before action but continued to a time

within that period, damages for so much of the

imprisonment as took place within the six years

before action may be recovered, although a plea of

the statute prevents the recovery of damages for so

much of the imprisonment as took place outside that

period."

26. One of the authorities referred to as a footnote to this paragraph is O'Connor v Isaacs, above. There is no statement in the reasons for judgment expressly stating this principle but a reading of the whole of the judgments in that authority supports the paragraph appearing in Halsbury. I accept the statement of principle contained in Halsbury as being correct.

27. In the present case, the position is confused by the form of the application and form of the statement of claim in proceeding V. No. 36 of 1989. In addition to a claim for damages, the applications seeks a number of declarations including the following:-

"A. Declarations that the several decisions made

by, and/or the conduct of, the Respondents, or

either of them, referred to therein, being:

(i) the detention of the Applicant from

about 17 April 1982 until 30 April

1982;

(ii) the authorized detention and transfer

of the Applicant made on 30 April 1982;

(iii) the authorized detention and transfer

of the Applicant made on 7 May 1982;

(iv) the detention of the Applicant from 30

April 1982 until 20 May 1982;

(v) the issuing of a Deportation Order

against the Applicant on 20 May 1982;

(vi) the detention of the Applicant from 20

May 1982 until 21 February 1983;

(vii) ...

was, in each case, void and of no force or

effect."

28. The statement of claim refers to each of the warrants and the action taken by the respondents pursuant to those warrants and alleges that each of the warrants was void and the detentions based upon each of those warrants was unlawful. On a strict pleading, an allegation of imprisonment or detention should have been made in which case the respondents, if so advised, could have raised by way of defence the existence of the warrants and the validity of those warrants. It is recognised that under s.21 of the Federal Court of Australia Act 1976, the Court has the power to make binding declarations whether or not any consequential relief is or could be claimed, but that power should not be exercised when the substantive claim is barred by the Limitation Act. This, however, does not deny to the respondents the right to rely upon the warrants, or any of them, to justify the imprisonment or detention of the applicant for that period which is not barred by the six year period. What the Limitation Act provides is the barring of a claim, not the barring of a defence based on facts occurring beyond the limitation period.

29. Applying these principles to the facts of this case, a declaration should be made that those parts of the proceeding V. No. G.36 of 1989, by which the applicant is seeking declarations that each of the warrants is void and declarations that the detention of the applicant pursuant to any of those warrants constituted unlawful imprisonment, except for any period coming within six years before 17 February 1989, are statute barred. Likewise, any claim for damages for false imprisonment, trespass or assault with respect to any period prior to the six years period before 17 February 1989 is statute barred.

30. Counsel for the applicant sought to overcome this conclusion by relying upon sub-section 5(1A) of the Limitation Act. That sub-section is set out in full:-

"(1A) An action for damages for negligence

nuisance or breach of duty (whether the duty exists

by virtue of a contract or of provision made by or

under a statute or independently of any contract or

any such provision) where the damages claimed by

the plaintiff consist of or include damages in

respect of personal injuries consisting of a

disease or disorder contracted by any person may be

brought not more than six years from the date on

which the person first knows-

(a) that he has suffered those personal

injuries; and

(b) that those personal injuries were caused

by the act or omission of some person."

31. On its fair reading, this sub-section has no application to the facts of this case. The applicant is not seeking damages "for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute ...)". The applicant does not allege any breach of a duty to take care of the applicant. The reference in the proceeding to the statutory duty relates to the powers conferred by the Migration Act and are not pleaded as a separate cause of action based upon a duty of care arising from statute. In any event, there is no suggestion that the second part of the requirement of the sub-section is satisfied. Acordingly, the applicant cannot rely upon this sub-section.

32. In his defence to the cross-claim by the Commonwealth for the maintenance claim, the applicant has pleaded s.5 of the Limitation Act. Under sub-section 21A(7) of the Migration Act a deportee who is kept in custody under the Act pending deportation, is liable to pay to the Commonwealth an amount calculated on a daily basis in respect of the cost of the Commonwealth of keeping and maintaining that deportee. Under sub-section 21A(11), the amount so payable by the deportee "may be recovered by the Commonwealth, as a debt due to the Commonwealth, in a court of competent jurisdiction". By its cross-claim, the Commonwealth is claiming against the respondent the sum of $9,956.00 being the cost of maintaining the applicant whilst he was in custody from 21 May 1982 to 20 February 1983. The cross-claim was issued on 18 April 1989. The applicant alleges the maintenance claim is statute barred since it was made more than six years after 20 February 1983; see paragraph 5(1)(d) of the Limitation Act which imposes a limitation period of six years with respect to "actions to recover any sum recoverable by virtue of an enactment."

33. Section 30 of the Limitation Act provides that for the purposes of that Act, any counter-claim shall be deemed to be a separate action and to have been commenced on the same date as the action in which the counter-claim is pleaded. Applying this section to the facts of this case, the cross claim is deemed to have been commenced on 17 February 1989. Under sub-section 32(1) of the Limitation Act, subject to the proviso to the sub-section, that Act applies to proceedings by or against the Crown. Accordingly, the maintenance claim is statute barred with respect to those parts of the claim which relate to days prior to 17 February 1983.

34. The proviso to sub-section 32(1) of the Limitation Act is set out:-

"Provided that this Act shall not apply to any

proceedings by the Crown for the recovery of any

tax or duty or interest thereon."

35. If the maintenance claim constitutes a tax, the Commonwealth is not bound by the Limitation Act. In the present case, the applicant is seeking a declaration that the claim under s.21A of the Migration Act is void since sub-section 21A(7) imposes a tax and was not enacted in conformity with s.55 of the Constitution. That issue was not before the Court on the hearing of the preliminary issues and so the order made on the Limitation Act issues will be expressed in a form so as to leave open the constitutional issue. Thus any declaration, on this aspect, will state "Except insofar as the amount claimed by the Commonwealth may be or is a proceeding by the Crown for the recovery of any tax or interest thereon under s.32 of the Limitation Act ..."

36. By motion on notice dated 26 September 1989, the applicant is seeking an order under s.23A of the Limitation Act. That section applies "to any action for damages for negligence nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute ...) where the damages claimed consist of or include damages in respect of personal injuries ...". Under s.3, personal injuries includes any disease and any impairment of a person's physical or mental condition. Under sub-section 23A(2) a court has a power, if it decides that it is just and reasonable so to do, to extend the time in which a cause of action referred to in sub-section (1) may be brought. In exercising that power, the court is required to have regard "to all the circumstances of the case" including a number of matters specified in sub-section (3).

37. The motion must be refused. As appears from the earlier part of these reasons, the claim by the applicant is not an action "for negligence, nuisance or breach of duty" and thus does not come within sub-section 23A(1) of the Limitation Act. Further, the damages claimed do not include a claim for personal injuries for negligence nuisance or breach of duty. Further, without referring in detail to the reasons for so holding, having regard to all the circumstances of this case, including the matters specified in sub-section (3), this is not a case where the Court should exercise its discretion in favour of the applicant. This motion should be refused with costs.

38. There remains to be considered the motion in proceeding V. No. G.37 of 1987 seeking leave to have a review of the warrants, the decision to make the maintenance claim and the decision to refuse to provide reasons pursuant to a request under s.13 of the Judicial Review Act with respect to the decision to make the maintenance claim. The motion is brought under s.11 of the Judicial Review Act. The discretion conferred upon the Court by that section is unfettered but a number of authorities in which the discretion has been considered have been reported. A reference to a number of these authorities is contained in Hunter Valley Developments Pty. Ltd. v. Minister for Home Affairs and Environment (1984) 58 ALR 305 per Wilcox J. at pp 310-312.

39. The application, insofar as it seeks a review of the warrants, is expressed to be "brought simultaneously with and in support of" the application "whereby the applicant seeks damages, inter alia, for wrongful imprisonment and other relief". The claims in that application seeking declarations that the warrants are void are statute barred and the provisions of the Limitation Act should not be negated by the exercise of the discretion conferred by s.11 of the Judicial Review Act. An earlier application by the applicant for a review of the deportation order of 20 February 1982 was abandoned by the applicant. The applicant's claim for damages does not depend upon the applicant proving that the warrants are void. The claim for damages can proceed independently of any order made under the Judicial Review Act.

40. The decision to make the maintenance claim was not made until November 1986 but no application for review of that decision was made until 17 February 1989. At all material times, the applicant was represented by legal advisers, but no application was made to review that decision. The claim for maintenance is before the Court in proceeding V. No. G.36 of 1989 and a declaration is being sought that the claim is barred insofar as it is based upon s.21A of the Migration Act. That section enables the claim to be made. The delay in seeking a review under the Judicial Review Act has not been explained satisfactorily so as to justify the granting of an extension of time within which to bring the application. There is a real doubt that the applicant is entitled to reasons for the decision to make the maintenance claim; see s.13 of the Judicial Review Act and in particular paragraph 13(11)(c) and paragraph (f) of Schedule 2 of that Act.

41. In all the circumstances of the case, this motion should be refused with costs.

42. Since the hearing of this case, the High Court, on 21 November 1989, published its judgment in Park Oh Ho v. The Minister of State for Immigration and Ethnic Affairs. There a delegate of the Minister on 20 August 1986 had made a deportation order with respect to a number of prohibited non-citizens. In proceedings under the Judicial Review Act to review those deportation orders, the Federal Court found that at the time the deportation orders were made, the delegate:-

"... must have had in mind that the deportation

orders would serve to authorize the detention

orders of the appellants (the prohibited non

citizens) so that they could be kept in Australia

to give evidence for the prosecution in the

criminal proceedings against other persons. In

other words, none of the deportation orders had

been made by (the delegate) for the legitimate

purpose of giving effect to a decision that a

prohibited non-citizen should be deported as soon

as appropriate arrangements for that deportation

could be made. Each had been made for the

impermissable purpose of detaining the particular

appellant in custody in Australia so that his

evidence would be available in the essential

proceeding. That being so, the deportation orders

were all intrinsically flawed".

43. The Federal Court set aside the deportation orders but refused to make a declaration that the detention of each appellant between 20 August 1986 and 2 December 1986 had been unlawful. The High Court gave special consideration to this aspect of the matter.

44. Sub-section 39(6) of the Migration Act provides:-

"(6) A deportee may be kept in such custody as

the Minister or an officer directs-

(a) pending deportation, until he is placed on

board a vessel for deportation;

(b) at any port or place in Australia at which

the vessel calls after he has been placed on

board; or

(c) on board the vessel until her departure from

her last port or place of call in

Australia."

45. Section 20 of the Migration Act provides:-

"20(1) Where the Minister has made an order for the

deportation of a person, that person shall, unless

the Minister revokes the order, be deported

accordingly.

(2) The validity of an order for the deportation

of a person shall not be affected by any delay in

the execution of that order."

46. The High Court held that the deportation orders were void and that the void order did not authorise the continued detention of the appellants under sub-section 39(6) of the Migration Act and that that sub-section does not authorize the indefinite detention in custody of a person for some ulterior purpose and that sub-section 20(2) does not validate a deportation order which is void ab initio.

47. In the light of the special facts of that case, the High Court considered the nature of the power conferred by paragraph 16(1)(c) of the Judicial Review Act. Sub-section 16(1) of that Act provides:-

"16(1) On an application for an order of review in

respect of a decision, the Court may, in its

discretion, make all or any of the following

orders:

(a) an order quashing or setting aside the

decision, or a part of the decision, with

effect from the date of the order or from

such earlier or later date as the Court

specifies;

(b) an order referring the matter to which the

decision relates to the person who made the

decision for further consideration, subject

to such directions as the Court thinks fit;

(c) an order declaring the rights of the parties

in respect of any matter to which the

decision relates;

(d) an order directing any of the parties to do,

or to refrain from doing, any act or thing

the doing, or the refraining from the doing,

of which the Court considers necessary to do

justice between the parties."

48. The Court, Mason C.J., Deane, Toohey, Gaudron and McHugh JJ., after quoting that sub-section, said:-

"The legislative purpose to be discerned in

the conferral by s.16(1)(c) and (d) of power to

grant declaratory and injunctive relief in addition

to the power to quash or set aside (with effect

from a specified date) an impugned decision is

clear. It is to allow flexibility in the framing

of orders so that the issues properly raised in the

review proceedings can be disposed of in a way

which will achieve what is "necessary to do justice

between the parties" (s.16(1)(d)) and which will

avoid unnecessary re-litigation between the parties

of those issues. The scope of the powers to make

orders which the sub-section confers should not, in

the context of that legislative purpose, be

constricted by undue technicality. In particular,

the phrase "any matter to which the decision

relates" in s.16(1)(c) should be construed as

encompassing any matter which is so related to, in

the sense of connected with, the impugned decision

that it is appropriate that it be dealt with by the

grant of declaratory relief in judicial proceedings

for the review of the propriety of that decision.

In a case such as the present where the impugned

decision is a deportation order which has been

found to have been null and void ab initio, the

lawfulness of a period of forced imprisonment which

was based solely on the void order could, depending

on the circumstances, be such a matter. If the

applicant in such a case is still held in custody

by persons under the control of the respondent

decision-maker, an injunctive order that the

respondent do whatever be necessary to procure the

applicant's release could be properly considered as

"necessary to do justice between the parties". In

that regard, it is relevant to mention that both

declaratory and injunctive orders, as distinct from

an order for damages, can readily be seen as

appropriate remedies of judicial "review" of

administrative decisions and actions."

49. The High Court ordered that a declaration be made that the detention in custody of the appellants during the period from 20 August 1986 to 2 December 1986 was unlawful. The effect of that declaration was "to resolve finally, as between the appellants and the Minister, the question whether the appellants' detention in custody during the relevant period was unlawful. It will not conclude as against the Minister the question of the Minister's responsibility for that unlawful detention".

50. The judgment of the High Court in that case does not affect the decision of the Court in the present case. The question of the validity of the warrants is raised in proceeding V. No. G.36 of 1989 and the declarations sought with respect to the validity of those warrants have been held to be statute barred. Leave has been refused to commence proceeding in proceeding V. No. G.37 of 1989 for the reasons given. The applicants claim for wrongful imprisonment continues for the period within the limitation period. The validity of the warrant of 20 May 1982 is an issue arising with respect to that claim. It is not necessary to give leave to commence the review proceeding in the circumstances of this case. The result would have been the same even if the applicant had sought a declaration that the detention in custody based on that warrant was unlawful.