Is there any reasonable prospect of Mr Tanioria prosecuting his claim for false imprisonment?
56 The exercise of the power to summarily dismiss a proceeding or a part of it must be approached with caution. The Commonwealth and Serco have made submissions that the claim for false imprisonment has no reasonable prospect of success because of matters that do not traverse the "foundational Constitutional allegation" that Serco and its employees are not officers of the Commonwealth and are incapable of exercising the executive power of the Commonwealth.
57 The Commonwealth put three alternative bases, adopted by Serco, on which the claim for false imprisonment would be summarily dismissed. Having considered each of those bases I am not persuaded that the claim should be summarily dismissed.
58 The first basis relied on by the Commonwealth is, in summary, that the detention of Mr Tanioria pursuant to ss 189 and 196 of the Act was not, properly considered, an exercise of executive power within the meaning of s 61 of the Constitution in that it is not the execution of the laws of the Commonwealth but is conduct authorised directly by the Act. However, as counsel appearing for the Commonwealth frankly submitted, the decision relied on in support of that submission is not conclusive. As set out at [33]-[34] above, the Commonwealth relies on a passage from the decision of Williams J in the Communist Party Case at 230. The argument relies on the fact that, in giving a meaning to the phrase "the execution and maintenance of the laws of the Commonwealth", Williams J did not use the word "prescribed" but only referred to something that is "authorized" by a law of the Commonwealth.
59 True it is that s 189 of the Act requires or obliges detention once an officer forms the necessary state of mind; it does not authorise it. Notwithstanding that, I am not minded to summarily dismiss the claim on this basis. In issue is the meaning of the phrase "the execution and maintenance … of the laws of the Commonwealth" in s 61 of the Constitution. The Commonwealth relies on a single line in a detailed and complex judgment without making clear what, if any, submissions were made on the meaning of the phrase to the High Court. In response, and to demonstrate that detention of a person for the purposes of their expulsion or deportation is an executive function, Mr Tanioria relied on the extract of the decision in Lim set out at [38] above. The meaning of the phrase in issue has not been settled such that I would summarily dismiss Mr Tanioria's claim for false imprisonment on this basis.
60 The second basis on which the Commonwealth argued that the claim for false imprisonment ought to be summarily dismissed is the contention that, even if detention is an exercise of executive power, there is no constitutional limitation that might preclude a statute from conferring such power on persons who are not officers of the Commonwealth. The Commonwealth relied on O'Donoghue v Ireland (2008) 234 CLR 599 (O'Donoghue) at [40] and [51] and NEAT Domestic Trading Pty Limited v AWB Limited (2003) 216 CLR 277 (NEAT Domestic Trading) at [49]-[99] in support of that contention and as authority for the proposition that there is no general prohibition on a Commonwealth statute conferring a power or duty upon a person who is not an officer of the Commonwealth, such as a State officer, a corporation or a private citizen. That is so.
61 In NEAT Domestic Trading the issue before the High Court was whether the refusals by AWB (International) Ltd (AWBI) to give its approval to applications made by NEAT Domestic Trading Pty Ltd were decisions of an administrative character made under an enactment and thus whether they were amenable to review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The issue arose because the Wheat Marketing Act 1989 (Cth) prohibited the export of wheat from Australia without the consent of the Wheat Export Authority (Authority). The Authority was required to consult with AWBI prior to granting any consent and was prohibited from giving a bulk-export consent without the approval of AWBI. The effect was to confer upon AWBI, a private company, a discretion to oblige the Authority to refuse third parties' applications to bulk-export wheat. No issue was identified by the High Court that suggested that that scheme was invalid or that a statute could not vest a discretionary power in a private company.
62 O'Donoghue concerned s 19 of the Extradition Act 1988 (Cth), which provided that, where an application was made to a magistrate for proceedings to be conducted in relation to a person, "the magistrate shall conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or extradition offences for which surrender of the person is sought by the extradition country". That is, a Commonwealth statute conferred administrative functions on State magistrates. The High Court held that there could be no constitutional objection to the granting of powers by the Federal Government to State magistrates, nor anything that prevented the State magistrates from accepting those functions. At [40] and [51] the plurality (Gummow, Hayne, Heydon, Crennan and Kiefel JJ) said:
40 It is settled by authority including Pasini v United Mexican States and Vasiljkovic that the determination under s 19(1) of eligibility to surrender and the making of consequential orders under s 19(9) and (10) involves the exercise of administrative functions and not the exercise of the judicial power of the Commonwealth. Accordingly, s 19 is not the product of an exercise by the Parliament of its power conferred by s 77(iii) of the Constitution to make laws investing State courts with federal jurisdiction.
…
51 This Court in Aston v Irvine also referred with apparent approval to the following passage in the treatise by Willoughby:
In general, however, the Federal and State Governments act independently of each other, as regards their executive or administrative services, and the principle is well established that the Federal Government may not impose upon State officials the imperative obligation and burden of executing Federal laws, nor, a fortiori, may the States obligate Federal officials to execute State laws. However, it is equally well established that there is no constitutional objection to the granting by the Federal Government to State officials of authority to execute Federal functions, if they, or rather their respective State governments, are willing that they should do so.
(footnotes omitted)
63 The Commonwealth also placed reliance on Lim, which concerned the validity of the then-current legislative scheme for the detention of certain non-citizens. While there were differences of opinion on some issues, all members of the High Court accepted that the legislative power conferred by s 51(xix) of the Constitution extended to conferring upon the Executive the authority to detain non-citizens for the purposes of expulsion or deportation. The Commonwealth relied on the passage from the judgment of Brennan, Deane and Dawson JJ at 32 (see [38] above) to support its argument that a statute may confer on persons who are not officers of the Commonwealth the power to detain. That is, the Commonwealth submitted that their Honours expressly held that the power in s 51(xix) of the Constitution includes the power to confer authority upon the Executive to either detain or to direct the detention of an alien in custody for the purposes of expulsion or deportation. Because the Executive may direct the detention of aliens, those aliens do not have to be held by an officer of the Commonwealth and such an officer can direct that the detention be effected, in this case, by persons who are "officers" within the meaning of s 5 of the Act.
64 Mr Tanioria submitted that the phrase "direct the detention of" included in the passage at 32 of Lim did not mean that a direction to detain could be made to "anybody in the universe" and that there was no authority for that proposition in Lim or any other decision. He further submitted that the correct position must be determined by the language of the Constitution, which is as set out in s 61, "exercisable by the Governor-General". He contended that those words have a meaning that do not refer to the Governor-General as an individual, but to the Governor-General as the representative of a state with officers who carry out functions on his or her behalf.
65 The question that arises, assuming that detention is an exercise of executive power and accepting that the Executive can direct the detention of an alien, is whether the Executive can give such a direction to persons who fall within the definition of "officer" as that term is defined by s 5 of the Act. The cases to which I was taken by the Commonwealth do not answer that question and, in my opinion, it is not an issue that can be determined on this application. There is an issue that arises for determination and I am unable to say that the claim for false imprisonment has no reasonable prospect of success on the basis of this second ground.
66 The third and final basis put forward by the Commonwealth for summary dismissal of Mr Tanioria's claim for false imprisonment is that his detention was in fact detention by the Commonwealth and, accordingly, that he was lawfully detained. There is no issue between the parties that the Commonwealth could have lawfully detained Mr Tanioria pursuant to ss 189 and 196 of the Act. So much is apparent from Mr Tanioria's submissions and the amendment made to [16] of the further amended statement of claim. But Mr Tanioria asserted that his "de facto" detention was carried out by Serco or its employees. He asserted that he could still make a claim of unlawful imprisonment where, notwithstanding that he could have been lawfully detained, there was a violation of his civil rights because his detention was carried out by persons not authorised to do so.
67 Even if it is assumed that Serco held Mr Tanioria on behalf of the Commonwealth, that his detention was thus relevantly "by the Commonwealth" and, as is accepted by Mr Tanioria, that the Commonwealth was authorised to detain him under the Act, it does not follow that the mode of detention employed by the Commonwealth was lawful. The claimed unlawfulness underlying Mr Tanioria's claim of unlawful imprisonment is said to arise from the unconstitutionality of the mode of detention that was employed by the Commonwealth. That is, Mr Tanioria claims that Serco and its employees could not lawfully detain him on behalf of the Commonwealth because it was unconstitutional to do so. The Commonwealth's contention that Mr Tanioria's detention was lawful because it was in fact detention by the Commonwealth is unable to overcome or circumvent that complaint. The question whether the mode of his detention was unconstitutional must be resolved before it can be said that his detention by the Commonwealth was lawful or unlawful.
68 The detaining and holding of a person pursuant to the Act is undertaken by an "officer" as that term is defined. As Finn J held in Applicant S, whoever the officer is in a given case, the detaining and holding is both on behalf of and by the Commonwealth: at [205]. It was for that reason that Finn J considered that the Commonwealth had correctly conceded that it owed a non-delegable duty of care to the applicants. But Mr Tanioria's claims depend on the question whether Serco and its employees could be, within the framework of the Constitution, authorised to hold him on a day-to-day basis.
69 In Behrooz Gleeson CJ said at [21] that "[a]n alien does not stand outside the protection of the civil … law" and thus that "[i]f those who manage a detention centre fail to comply with their duty of care, they may be liable in tort". Mr Tanioria relies on the statement of Gleeson CJ to support a submission that the fact that his detention was lawful, in the sense that it was by the Commonwealth under the Act, does not prevent him from claiming that some aspect of his detention was in violation of his "civil rights". That is so. Gleeson CJ referred to aspects of the conditions of detention that might give rise to a claim in tort and, while his Honour did not refer to false imprisonment, it cannot be said that such a claim would be excluded.
70 Here Mr Tanioria's claim in tort is for false imprisonment based on an allegation that he was in fact held by officers of Serco who, it is alleged, were not officers of the Commonwealth for the purposes of s 61. As Gleeson CJ also said at [21], "there is no warrant for concluding that, if the conditions of detention are sufficiently harsh, there will come a point where the detention itself can be regarded as punitive, and an invalid exercise of judicial power". His Honour further said that "for an alien, the detention is an incident of the exclusion and deportation to which an alien is vulnerable". The detention is not punitive and does not become so because of its conditions. Nor does the detention in that way become an invalid exercise of judicial power, as opposed to a valid exercise of executive power.
71 That does not provide an answer to the claims made by Mr Tanioria. As set out at [67] above, Mr Tanioria's complaint goes to the mode of detention employed by the Commonwealth and, in particular, the allegation that his detention was unconstitutional because it was effected by Serco. His complaint does not concern the conditions of detention or the harshness of those conditions in the sense that those issues were considered by Gleeson CJ in Behrooz. Indeed, Mr Tanioria, in conceding that there is a real risk that he will be limited to nominal damages, implicitly concedes that the conditions of detention to which he was subjected are likely the same as those he would have faced if he had been lawfully detained by the Commonwealth pursuant to ss 189 and 196. Rather, Mr Tanioria's case concerns the constitutionality of the arrangement between the Commonwealth and Serco by which a non-citizen is detained by and on behalf of the Commonwealth.
72 In any event, the claim against the Commonwealth is also that it is vicariously liable for the actions of Serco and/or its employees. There is no evidence before me about the relationship between the Commonwealth and Serco. The framing of the claim in that way adds complexity and a factual issue, namely, determining the nature of the relationship between the Commonwealth and Serco, such that I would not summarily dismiss the claim.
73 I turn then to consider Serco's submission, adopted by the Commonwealth, that the claim should be summarily dismissed because Mr Tanioria is entitled to no more than nominal damages. That submission relies on the decision in Fernando v Commonwealth of Australia (2014) 231 FCR 251 (Fernando). In that case the appellant, Mr Fernando, a Sri Lankan national, was granted a permanent residency visa in 1995. He was later convicted by the District Court of Western Australia of certain charges and sentenced to eight years imprisonment. He was due to be released on parole on 5 October 2003.
74 In 2001 the Minister cancelled Mr Fernando's visa under s 501(2) of the Act. Mr Fernando brought an application for judicial review which resulted in this Court making an order on 16 September 2003 that the Minister's decision be set aside. The Minister thereafter once again commenced the process by which he would consider whether to cancel Mr Fernando's visa. As a result, Mr Fernando's visa was cancelled by the Acting Minister for Immigration and Multicultural and Indigenous Affairs (Acting Minister) on 3 October 2003. Upon Mr Fernando's release from prison he was immediately taken into immigration detention.
75 Mr Fernando commenced a second application for judicial review in relation to the conduct of the officers of the Acting Minister's Department in issuing him with a notice of intention to cancel his visa on 17 September 2003. That application was subsequently amended to challenge the decision to cancel his visa. Following the decision in Sales v Minister for Immigration and Multicultural Affairs [2006] FCA 1807 and, as a result of a review undertaken by the Department of cases that might be affected by that decision, Mr Fernando was informed that he may not have been accorded procedural fairness in relation to the decision to cancel his visa. He was released from detention on 18 January 2007. On 24 January 2007 orders were made quashing the cancellation of Mr Fernando's visa.
76 By the time of his release Mr Fernando had spent 1,203 days in immigration detention. He thereafter brought a claim for damages, including aggravated and exemplary damages, against the Commonwealth and the Acting Minister relying on various causes of action, including the tort of false imprisonment.
77 At first instance the primary judge relevantly found that Mr Fernando had been falsely imprisoned by the Commonwealth for one day and awarded him $3,000 in damages. The primary judge found that Mr Fernando's detention had been lawful on and from the second day. Orders were also made against the Acting Minister that made him jointly and severally liable for the damages. In a later judgment the primary judge found that there were grounds for an award of exemplary damages against the Commonwealth and awarded Mr Fernando $25,000.
78 The Commonwealth and Acting Minister appealed from, among other things, the primary judge's holdings that Mr Fernando had been falsely imprisoned for one day and that the Commonwealth was liable to pay exemplary damages. Mr Fernando cross-appealed against the primary judge's holding that he had not been falsely imprisoned for the entire period of his detention. A Full Court of this Court dismissed the appeal against the holding that Mr Fernando had been falsely imprisoned for one day. It remitted to the primary judge the question of whether there should be an award for exemplary damages and, if so, the amount to be awarded. The cross-appeal was successful and the issue of damages was remitted to the primary judge.
79 After the Full Court had made its orders, but before the primary judge had considered the issue of damages, a new argument emerged that Mr Fernando should be awarded no more than nominal damages in respect of his false imprisonment because he could and would have been lawfully detained in any event. On the remitter the primary judge found that the Commonwealth and the Acting Minister had committed the tort of false imprisonment and ordered that they pay Mr Fernando nominal damages of $1. The primary judge also ordered that the Commonwealth pay Mr Fernando $25,000 as exemplary damages. Mr Fernando appealed from those orders and the Commonwealth cross-appealed. The issues before the Full Court were, in the case of Mr Fernando's appeal, whether the primary judge erred in not awarding compensatory and aggravated damages and the alleged inadequacy of the award of exemplary damages against the Commonwealth: at [17].
80 In considering the issues in the appeal Besanko and Robertson JJ referred at [61]-[63] to the primary judge's finding that Mr Fernando could and would have been lawfully detained in any event:
61 The primary judge referred to the relevant statutory provisions and said that they had the effect that a non-citizen whose permanent residency visa has been cancelled under s 501 of the Act, and who challenged the validity of that decision in court, was to be kept in detention for the duration of the relevant court proceeding. He also said that, after the Acting Minister had made his decision to cancel the appellant's visa, the appellant was susceptible to being detained and, in fact, could and would have been detained by an officer in the performance of that officer's duty under s 189(1) of the Act. That followed from the fact that the decision to cancel the appellant's visa was valid on its face and was sufficient to engender in an officer a reasonable suspicion that the appellant was an unlawful non-citizen.
62 The primary judge referred to his conclusion in his second judgment (at [36]) that the provisions of s 189 of the Act meant that, on cancellation of a person's visa, it is highly likely they will be detained even if it transpires that the cancellation is unlawful. He also referred to the fact that, in Ruddock v Taylor (2003) 58 NSWLR 269 (Ruddock (NSWCA)) at [72], Meagher JA referred to the detention of an unlawful non-citizen as inevitable.
63 The primary judge did not think that the question of which party bore the onus of establishing what would otherwise have happened was significant because the provisions of the Act rendered the appellant's detention following the cancellation of his visa inevitable or virtually inevitable.
81 Besanko and Robertson JJ then turned to consider two English authorities: R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245 (Lumba) and R (on the application of Kambadzi) v Secretary of State for the Home Department [2011] 1 WLR 1299. Those decisions were handed down after the primary judge delivered his first judgment but were relied on by the Commonwealth on the remitter in support of the argument that Mr Fernando should only be awarded nominal damages for his false imprisonment because he could and would have been lawfully detained in any event. In considering those authorities their Honours noted at [69] in relation to the decision in Lumba that:
A majority of the Court in Lumba held that it was inevitable that the claimants would have been detained even if the published policy had been applied to them. The question then arose as to what effect that conclusion had on any award of compensatory damages and what is referred to in the United Kingdom as vindicatory damages.
82 At [72] their Honours referred to the conclusion of Lord Dyson JSC on the issue of nominal damages:
His Lordship stated his conclusion on the issue of nominal damages in the following terms (at [95]):
The question here is simply whether, on the hypothesis under consideration, the victims of the false imprisonment have suffered any loss which should be compensated in more than nominal damages. Exemplary damages apart, the purpose of damages is to compensate the victims of civil wrongs for the loss and damage that the wrongs have caused. If the power to detain had been exercised by the application of lawful policies, and on the assumption that the Hardial Singh principles had been properly applied (an issue which I discuss at paras 129-148 below), it is inevitable that the appellants would have been detained. In short, they suffered no loss or damage as a result of the unlawful exercise of the power to detain. They should receive no more than nominal damages.
83 Besanko and Robertson JJ noted at [74] that the rest of the court in Lumba agreed with Lord Dyson JSC on the issue of whether there should be an award of compensatory damages. As far as their Honours were able to ascertain, the principle set out in Lumba "concerning the recoverability or otherwise of compensatory damages for unlawful detention has not since been doubted in the United Kingdom" and has been applied in areas outside immigration detention: at [76].
84 Besanko and Robertson JJ then turned to consider Mr Fernando's case. At [81]-[82] their Honours said:
81 The respondents submitted that, even though the appellant had been unlawfully detained for 1,203 days, he could and would have been lawfully detained in any event, and it followed that he was not entitled to compensatory damages. He could and would have been lawfully detained if the tort had not been committed because, having regard to the cancellation of his visa by the Acting Minister, an officer could and would have formed the reasonable suspicion referred to in s 189(1) of the Act. He would then have been kept in immigration detention under s 196(1) of the Act, and the fact that he was challenging the decision to cancel his visa on the ground that it was unlawful would not have affected the statutory requirement in s 196 of the Act to keep him in immigration detention. We think that contention is correct.
82 This conclusion certainly goes one step further than Ruddock (High Court) in that it relates to the damages to be awarded, not the lawfulness of the detention. However, the step is consistent with the principle identified in Lumba and subsequent cases in the United Kingdom. We say identified rather than established or enunciated because the principle is not a new one. It is a basic principle relevant to the award of compensatory damages under Australian common law as much as the common law of the United Kingdom. Unless there was reason to think that the principle had been excluded by the particular statutory context, then it should be applied. No statutory provisions suggesting the exclusion of the principle were identified in this case.
85 At [84]-[88] their Honours considered and rejected four arguments put by Mr Fernando as to why compensatory, as opposed to nominal, damages would be awarded. The arguments were: first, that Lumba and the decisions that followed it were of limited assistance because they were decided under different statutory regimes and because this Court is not bound by those decisions; secondly, that acceptance of the respondents' argument would be to go one step further than the High Court did in Ruddock; thirdly, that he had not been lawfully detained in the first place and there was nothing to suggest that he would have been detained at any time during which he was kept in detention under s 196(1) of the Act; and, finally, that the respondents had not adduced any evidence to the effect that it was inevitable that an officer would have formed the relevant opinion under s 189(1) of the Act and detained him. Their Honours upheld the primary judge's conclusion that Mr Fernando was only entitled to nominal damages: at [89]. In a separate judgment Barker J agreed with the reasoning of Besanko and Robinson JJ: at [164].
86 Serco also drew my attention to the decision in CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 (CPCF). That case concerned a claim for unlawful detention on board a Commonwealth vessel and damages for wrongful imprisonment. A number of agreed questions, based on agreed facts, were referred to the Full Court of the High Court by way of special case. The central question was whether the Maritime Powers Act 2013 (Cth) (MPA) and/or s 61 of the Constitution authorised the detention and taking of the plaintiff from Australia's contiguous zone to India. The question of particular significance to the issue now under consideration was as follows:
Question 6 Was the detention of the plaintiff unlawful at any, and if so what period, from 1 July 2014 to 27 July 2014 and if so are they [sic] entitled to claim damages in respect of that detention?
87 A majority of the High Court held in separate judgments (per French CJ, Crennan, Gageler and Keane JJ) that the detention was authorised under the MPA.
88 Hayne and Bell JJ and Kiefel J (as her Honour then was), in dissent, found that the plaintiff had been unlawfully detained and thus went on to consider what flowed from that finding on the question of damages. At [155] Hayne and Bell JJ said:
The submission of the Commonwealth parties implicitly assumed that damage is the gist of the tort of false imprisonment. It is not. Like all trespassory torts, the action for false imprisonment is for vindication of basic legal values: in this case the value long assigned by the common law to liberty from restraint, especially restraint at the behest of government. False imprisonment is, and long has been, actionable without proof of special damage. Hence, demonstrating that a plaintiff was unaware of the imprisonment, or for some other reason suffered no substantial loss, neither denies the availability of the action nor provides a defence to it. Such matters are relevant, if at all, only to the assessment of damages but do not, of themselves, require the conclusion that only nominal damages may be awarded.
(footnotes omitted)
89 At [324]-[325] Kiefel J said:
324 Unlawful detention is a trespass and actionable as a tort regardless of whether the plaintiff has suffered harm. In the present case, had the plaintiff not been detained on the Australian vessel for the period in question, he would have been detained in immigration detention. The circumstances of this case are similar to those pertaining in R (Lumba) v Secretary of State for the Home Department. In that case, the claimants were falsely imprisoned, but the Supreme Court of the United Kingdom held that it was inevitable that they would have been detained in any event, had correct principles and lawful policies been applied. The claimants were held to have suffered no loss or damage as a result of the unlawful exercise of the power to detain and therefore nominal damages only could be awarded.
325 The plaintiff submits that this Court should leave the question as to the extent of any award of damages to be assessed on remitter. However, it seems to me that only one conclusion is possible and the terms of any remitter ought to be made clear. Damages could only be awarded for the infraction of the MP Act. In such circumstances, only nominal damages can be awarded.
(footnotes omitted)
90 While Keane J found that the plaintiff's detention was lawful, he nonetheless addressed the question of entitlement to damages at [510]-[512]. In doing so, like Kiefel J, his Honour referred, with apparent approval, to the decision in Lumba. At [512] Keane J said:
512 In the present case, the issue is as to the duration of lawful detention. If the plaintiff had been brought directly to Australia, he would have been detained immediately under s 189 of the Migration Act. In those circumstances, the plaintiff would have been in lawful detention at all material times, whether the authority for that detention derived from s 72(4) of the Act or s 189 of the Migration Act. In this scenario, there would be no need for a lawfully made executive decision to justify the plaintiff's ongoing detention. The present case differs from Lumba's Case in this respect. This difference might well leave the plaintiff in a worse position than the claimant in Lumba's Case, so far as a claim for damages for unlawful imprisonment is concerned, in that even nominal damages would not be recoverable.
91 Mr Tanioria accepts that it would have been lawful for the Commonwealth to detain him during the period of his alleged unlawful detention. In his written submissions he says that he "must accept that on the cancellation of his visa, his status changed and he became liable to be detained pursuant to s 189(1) of the Act". That is, even if the alleged tort had not been committed, Mr Tanioria, like Mr Fernando, could and would have been lawfully detained. There is no allegation that Mr Tanioria's alleged unlawful imprisonment was different in its duration or conditions to what would have been his lawful detention. In those circumstances, even if Mr Tanioria can establish his claim of false imprisonment, he may only be entitled to nominal, as opposed to compensatory, damages.
92 The issue which then arises is whether, because of that outcome, the Court would summarily dismiss Mr Tanioria's claim. Serco submitted that, because s 31A(3) provides that a proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success, I would dismiss the claim summarily. This was said to be so because, even if Mr Tanioria might succeed in establishing his claim for unlawful imprisonment, in circumstances where the best he might achieve is damages of $1, the Court would not permit its resources to be used for the purpose of entertaining a proceeding involving complex issues and a lengthy trial having regard to s 37M of the Federal Court Act.
93 I accept that Mr Tanioria's claim for false imprisonment is a claim for damages only and, as I have already observed, one where the outcome may be at best an award of nominal damages. But I do not think that that outcome permits a characterisation of the claim as having no reasonable prospect of success, even having regard to the provision in s 31A(3) that the proceeding need not be hopeless or bound to fail. In the end the outcome may be of limited utility in the sense of the damages award achieved, but the Court must ask itself whether there are any real, as opposed to fanciful, issues of law or fact to be determined: see Takemoto at [15]. The question is focused on the identification of issues to be determined rather than the ultimate outcome in terms of the quantum of an award of damages. In this case, there are real issues of law to be determined notwithstanding what may be the outcome for Mr Tanioria even if successful.
94 Before leaving this issue I should say something about s 37M. It appears in Pt VB of the Federal Court Act headed "Case management in civil proceedings" and relevantly provides:
37M The overarching purpose of civil practice and procedure provisions
(1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
(2) Without limiting the generality of subsection (1), the overarching purpose includes the following objectives:
(a) the just determination of all proceedings before the Court;
(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court's overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3) The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
…
95 The application of the principles of case management set out in s 37M and in the subsequent sections that make up Pt VB are critical to the efficient running of proceedings in this Court for the benefit of all litigants. That s 37M(3) is mandatory in its terms emphasises the importance of those principles. But the principles of case management set out in s 37M and the balance of Pt VB of the Federal Court Act cannot excuse, avoid or detract from the analytical exercise that is required on an application for summary dismissal, namely, in this case, whether Mr Tanioria has reasonable prospects of successfully prosecuting the proceeding. In accordance with s 37M(3), that analysis must be informed by principles of case management which may, in an appropriate case, cause the balance to shift in favour of summary dismissal. However, in my opinion, case management considerations do not substantially affect the present assessment of whether Mr Tanioria has reasonable prospects of successfully prosecuting his case.
96 The final issue is that of vicarious liability. I do not propose to summarily dismiss the claim against the Commonwealth on the basis that it could not be vicariously liable. I accept Serco's submission that the issue of whether the Commonwealth would be vicariously liable for the actions of Serco and/or its employees is a question the answer to which is likely to depend on evidence, including evidence about the contractual relationship between the Commonwealth and Serco. There is no concept of dual vicarious liability but, as Serco submitted, there may an argument that the Commonwealth is vicariously liable for the actions of Serco if any liability were found against it.