Tang v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 On 16 December 2003 Spender J ordered that proceedings Q27 of 2003 brought by the applicant against the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister') be summarily dismissed pursuant to O 20 r 2 of the Federal Court Rules. In his Honour's view, the materials disclosed no reasonable cause of action against the Minister or the Commonwealth of Australia, a situation which could not be overcome by granting leave to replead, and the proceedings were otherwise vexatious, oppressive and an abuse of the process of the Court. As the orders are interlocutory in nature, the applicant requires leave to appeal. Accordingly, the applicant filed an application for such leave and named as respondents to this application the Minister and the Commonwealth of Australia. 2 The applicant has been acting on his own behalf at all times. He is not legally trained. He originally commenced his proceedings in the High Court of Australia by the filing of a writ of summons and statement of claim. Steps were taken in that Court to seek to have the proceedings struck out or remitted to this Court. Callinan J did not determine the substantive strike out application. However, he remitted the proceedings to this Court for determination according to law. 3 The materials reveal that the applicant alleges that he is entitled to the payment of criminal compensation by the Minister in consequence of two criminal acts for which he alleges the Minister is criminally responsible. The first criminal act alleged is the creation of a file note by Mr David Browne, an officer of the Department of Immigration and Ethnic Affairs ('the Department') which bears the date 12 February 1993 and which purports to record an attendance of the applicant at the Brisbane office of the Department on that date. The applicant alleges that the document is a forgery and that it was created by Mr Browne in contravention of the then s 72 of the Crimes Act 1914 (Cth) ('the Crimes Act 1914'). The second criminal act alleged is the sending of a facsimile dated 12 May 1995 from the Queensland State Headquarters of the Department to the Embassy of the People's Republic of China in Canberra. The facsimile included a cover sheet and message signed by Mr Michael Belcher, an officer of the Department. The applicant alleges that because the contents of the message were false, the sending of the facsimile was an act amounting to a criminal abuse of public office in contravention of s 142.2 of the Criminal Code 1995 (Cth) ('the Criminal Code 1995'). The applicant contends that the Minister was personally criminally liable for each criminal offence, or vicariously criminally liable for each such offence, and thereby is obliged to pay criminal compensation to the applicant. 4 On 11 March 2003 the applicant amended his writ of summons and statement of claim to delete the allegation that the conduct complained of was in breach of s 72 of the Crimes Act 1914 and in lieu alleged that such conduct was in breach of s 145.4 of the Criminal Code 1995. 5 In his written reasons for decision ([2003] FCA 1494), Spender J found that: (a) neither the writ of summons in its original form (nor as amended), nor the supporting affidavit, pleaded or disclosed a cause of action known to law against the Minister; (b) there was no basis shown for holding that the Minister could be civilly liable in damages for any conduct allegedly engaged in by officers employed by the Commonwealth of Australia. Even if the officers did commit offences of the type alleged, that would not provide a proper basis for asserting that the Minister would be liable as a result to pay civil damages to the applicant; (c) the Commonwealth would not be vicariously liable for falsification of records by an officer in breach of s 72 of the Crimes Act 1914 where the officer was not undertaking duties imposed on him by the nature of the employer's business: New South Wales v Lepore (2003) 195 ALR 412; (d) if the officers did commit the offences asserted by the applicant they would clearly be acting outside their authority, actual or ostensible, and such criminal acts by them would not confer a right to claim damages against the Commonwealth; and (e) neither the Crimes Act 1914 nor the Criminal Code 1995 as a matter of construction created a common law cause of action in favour of the applicant as a person injured by the contravention of a criminal statute: Schiliro v Peppercorn Child Care Centres Pty Ltd No 2 [2001] 1 Qd R 518; Schulz v Schmauser [2001] 1 Qd R 540. 6 The applicant contends that his Honour erred in the following respects, and that each error constitutes a proper ground of appeal: (a) by erroneously finding that any alleged offences committed by the officers of the Commonwealth would have been committed outside the course of the officers' employment and beyond the authority of those persons in their position as officers of the Commonwealth; (b) by erroneously concluding that it was not necessary, in determining the matter, to determine whether there had been in fact any offence committed by the officers of the Commonwealth as alleged by the applicant; and (c) by erroneously concluding that the Crimes Act 1914 and the Criminal Code 1995 as criminal statutes of general application did not give the applicant a cause of action and failing to hold that the Criminal Code 1995 gave the applicant a cause of action. 7 To obtain leave to appeal from an interlocutory order the applicant must ordinarily show that he has prospects on the appeal in that the decision, which it is sought to appeal, is attended with sufficient doubt to warrant it being reconsidered by the Full Court. Further, the Court must consider whether a substantial injustice would result if leave were refused supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (FC) at 398-399. In the instant case the applicant must demonstrate that he has a reasonable cause of action against either the Minister or the Commonwealth of Australia before he will make out grounds for the grant of leave under these two heads. 8 The present proceedings are pleaded on the basis that the commission of the pleaded activity constituted criminal offences under the Crimes Act 1914 and/or the Criminal Code 1995. The assumption is that the commission of the pleaded criminal offences creates a right to recover damages for an injury incurred as a result of the commission of the offences. 9 The pleading asserts that the criminal offences were personally committed by the Minister, or were acts for which the Minister was personally liable notwithstanding that they were committed by officers of the Department. 10 The assumption that the commission of a criminal offence simplicitur creates a right to criminal compensation is incorrect. The relationship between the commission of a crime and the right to compensation for injury sustained in relation to that act lies solely in the nature of the act constituting the criminal offence. The perpetrator of a criminal act is only liable to pay damages by way of compensation if the commission of the elements which constitute that criminal act themselves, wholly or in part, or in conjunction with other factual elements, constitute all of the elements necessary to constitute an actionable tort against the actor. That actionable tort may be either: (a) a cause of action recognised by the common law; or (b) a cause of action recognised by the statute which creates the criminal offence. 11 The applicant has not identified before Spender J, nor on this application, any common law cause of action which he alleges he has against the Minister or the Commonwealth. The pleaded cause of action is simply the commission of a criminal act with the assertion of a right to criminal compensation in consequence of sustaining injury from the commission of the crime. 12 The applicant, on the basis of the reasons for judgment of Spender J, now asserts that he had a cause of action against the Minister and/or the Commonwealth of Australia because the Criminal Code 1995 provides a statutory cause of action in his favour as a member of a class intended to be protected by the provisions of s 142.2 of that Code. That is, that he has a cause of action recognised by the common law because the statute creates a duty in favour of him which was breached by the officers of the Commonwealth and for which the Commonwealth is now criminally and civilly vicariously liable. 13 The applicant contends that because s 142.2 of the Criminal Code 1995 prohibits the doing of an act which constitutes a detriment to a person and he is a person who has suffered a detriment because of the act of an officer of the Commonwealth, he was thereby within the class of persons intended to be protected by the operation of s 142.2. Although he did not do so expressly, he presumably contends that s 145.4 of the Criminal Code 1995, which he raised by his amendment, operates to the same effect. 14 The applicant does not submit that the Crimes Act 1914 gave to him a statutory cause of action arising under s 72 of that Act. 15 The first problem with the contention advanced by the applicant is that sections 142.2 and 145.4 of the Criminal Code did not exist in 1993 or in 1995. They were inserted by the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (Cth) into the Criminal Code 1995 as part of Chapter 7 and came into effect as and from 24 May 2001. By the same amending Act, s 72 of the Crimes Act 1914 was repealed as and from 24 May 2001. 16 The conduct alleged in 1995 was not, at that time, criminal conduct. Section 142.2 is not to be construed as creating retrospectively a criminal offence without there being clear words in the Criminal Code 1995 that it is to have such an effect or unless a necessary intendment is discernible that it is to operate retrospectively: Moss v Donohoe (1915) 20 CLR 615 at 621; Worral v Commercial Banking Co of Sydney Ltd (1917) 24 CLR 28 at 32; Waddington v Miah [1974] 1 WLR 683 at 694; Maxwell v Murphy (1957) 96 CLR 261 at 267; Heading v Elston (1980) 23 SASR 491 at 496; R v Kidman (1915) 20 CLR 425 at 442-3. There is no such indication in the present Code in respect of s 142.2. The presumption is that s 142.2 would operate prospectively from the date of its commencement and that it would operate according to its terms in relation to conduct which thereafter fell within its operation. 17 There is nothing in s 145.4 of the Criminal Code 1995 to indicate that it was intended to operate retrospectively in respect of conduct alleged to have occurred in February 1993 which would at that time have constituted a crime pursuant to s 72 of the Crimes Act 1914. 18 Even if the absence of criminal offences occurring under the Criminal Code 1995 could be overcome, that Code as a matter of construction does not give rise to a civil or criminal right to compensation for breach of either s 142.2 or s 145.4. 19 The general rule is that where an Act creates an obligation and enforces the obligation in a specified manner, performance cannot be enforced in any other manner: Doe v Bridges (1831) 1 B & Ad 847 at 859; Abela v Giew (1965) SR (NSW) 485 (FC) at 490. There may be exceptions to the general rule. Where the statute prescribes, in the interests of safety of members of the public or a class of them, a course of conduct and does no more than penalise a breach of its provision, it is a matter of statutory construction to identify whether a private right of action also arises. Where the legislature has expressed no intention on the issue the canons of construction will rarely yield a necessary implication positively giving a civil remedy. Where it has occurred it has been on the basis that a duty imposed by statute to take measures for the safety of others also creates a correlative private right, although the sanction is penal, because it protects an interest recognised by the common law: O'Connor v S P Bray Ltd (1937) 56 CLR 464 at 477-478 per Dixon J; Abela v Giew at 488-489; Lonhro Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173 at 185. 20 In every case the question is 'Did the legislature intend to confer on the plaintiff a cause of action for breach of statutory duty in the event that there was a breach of a statutory provision?'. That is a matter of statutory construction of the enactment said to create the duty: R v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58 at 159, 170-171; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 458-459. To show that the enactment was intended to protect certain persons from the risk of loss in consequence of the prohibited conduct is not of itself enough; something more is required. Ex parte Hague at 170-171; Calveley v Chief Constable of the Merseyside Police [1989] AC 1228 at 1237. It is necessary to show the imposition by the statute of a duty in favour of a person or class of persons which gives rise to a correlative private right. 21 In determining the question of construction, the Court will determine what inference should be drawn on a balance of considerations from the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law and matters of general consideration relevant to the question of construction: Martin v Western District of the Australasian Coal and Shale Employees' Federation (1934) SR (NSW) 593 at 596 per Jordan CJ; approved in Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 405; Byrne at 461. 22 Sections 142.2 and 145.4 of the Criminal Code 1995 do not purport to give to any person a private civil right exercisable upon breach. 23 Each of the offences falls within Chapter 7 of the Criminal Code 1995. That chapter is concerned with the 'Proper Administration of Government'. The evident statutory object is to protect the Commonwealth of Australia from persons engaging in unlawful conduct which is inimical to the proper administration of government and the property and other interests of the Commonwealth. That the sections may operate to protect a third party from loss does not of itself indicate that there was an intention on the part of the legislature to give to a third party a private civil right of action under the sections in addition to the common law rights of action held by the third party whenever a breach of the section is causative of loss. This is because the duty, if it is properly characterised as a duty, is one not to engage in the conduct prescribed by the sections. The object of that duty being to protect the Commonwealth of Australia and the public at large from conduct which is inimical to the interests of the proper administration of government. It is not a duty to protect each member of the public from an injury of any kind causative of loss arising in the administration of government. So understood, it cannot be said that the legislature intended to give to any member of the public a right to damages for breach of the duty owed to the Commonwealth and the public at large; there is no duty created for the benefit of each member of the public, or any class of members of the public, which gives rise to a correlative private right to sue for compensation: Calveley at 1237; Ex parte Hague at 170-171. 24 In my view Spender J in his reasons correctly stated that the sections of the Criminal Code 1995 did not create a relevant duty in favour of the applicant with a correlative right to sue if injured by its contravention: see par 24 of his Honour's reasons. 25 The applicant does not make out any statutory cause of action arising under the Criminal Code 1995. 26 Although the conduct alleged was conduct engaged in by officers of the Commonwealth, the applicant did not allege before Spender J, nor on this application, that the conduct alleged to have occurred in 1993 and in 1995 constituted the common law cause of action for misfeasance in public office. There are good reasons for not doing so. Misfeasance in public office is a deliberate tort and there is no liability unless either there is an intention to cause harm or, at a minimum, the officer concerned knowingly acts in excess of his or her power and does an act which involves a foreseeable risk of harm: Northern Territory v Mengel (1995) 185 CLR 307 at 345, 347; McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 at 455-456; Rowan v Cornwall (2002) 82 SASR 152 at 357-358. 27 There is nothing in the material before Spender J that would entitle the applicant to plead the existence of mal fides on the part of each of the officers of the Commonwealth, which plea is essential to a cause of misfeasance in public office. 28 Further, because the tort is a deliberate tort, the balance of authority is against vicarious liability arising in the Commonwealth in the absence of actual or de facto authority in the officer to do that which he or she did; any liability is personal to the officer alone: McKellar at 458 and the cases cited there. 29 Unless the applicant can establish that the conduct of the officers of the Commonwealth on the occasions particularised would, if proved up, constitute actionable tortious conduct for which they would have been liable civilly if sued, and he has failed to do that, no question arises as to whether the Minister or the Commonwealth of Australia is itself personally or vicariously liable to pay damages to the applicant in consequence of the occurrence of the alleged conduct. 30 The real issue before Spender J was whether the conduct complained of, if proved, made out an actionable civil wrong. His Honour found that no reasonable cause of action known to law was made out against either the Minister or the Commonwealth of Australia on the pleadings or on the material before him. In this his Honour was plainly correct. 31 The absence of a reasonable cause of action entitled Spender J to grant the relief which he did under O 20 r 2 of the Federal Court Rules. His Honour was conscious of the considerations which he had to take into account in the exercise of a discretion to strike out (see General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125). His Honour was also conscious of the fact that any defect could possibly be the subject of amendment or reformulation of the claim and that he must consider this possibility. He did so, and determined that on the material before him there was no cause of action made out which could be the subject of a reformulated claim against the Commonwealth of Australia in lieu of the Minister. 32 The failure of the applicant to make out the grounds for leave to appeal means that his application fails. In consequence, it will be dismissed. 33 The general rule is that costs follow the event. No basis has been submitted by the applicant that other than the general rule ought to apply. 34 The Court orders that: 1. the application for leave to appeal is dismissed; and 2. the applicant pay the respondents' costs of and incidental to the application, to be taxed if not agreed. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper J.