Tepperova v Minister for Immigration & Multicultural & Indigenous Affairs

The adjourned directions hearing 9 At the directions hearing on 1 November 2005 counsel for the applicant handed to the Court an Amended Application which he sought leave to file and serve. The proposed amendment added to the Application, in skeletal form, claims in negligence and for misfeasance in public office against all three respondents. Given that there was no decision to review in consequence of the Administrative Appeals Tribunal decision, I refused leave to amend. The proceeding appeared in substance to be little more than a tort claim (which was inadequately outlined), although in form it had properly invoked the jurisdiction of this Court through the s 39B of the Judiciary Act 1903 (Cth) prayer for an order of review. I required that an Amended Application and Statement of Claim be brought back and leave to file and serve these be sought.

The 21 November directions hearing 10 It was apparent from the outset that the documents that were produced in compliance with my previous directions were seriously deficient. As counsel for the respondents objected to the grant of leave, I adjourned the hearing of the leave application and directed Dr Bleby for the respondents to file an outline of the objections taken to the proposed Amended Application and Statement of Claim.

The Minister's first motion 11 On 28 February 2006 the respondent Minister sought to have the initial application struck out and the application for leave to amend refused. It emerged from the affidavit accompanying the motion that on 25 February 2005, Ms Tepperova wrote to the Department advising that she wished to withdraw her "spouse application for permanent residency in Australia". She indicated she would be returning to Slovakia permanently. 12 In light of both the Administrative Appeals Tribunal decision and the withdrawal of the visa application, the futility of the order to review claims was highlighted to the applicant's advisers. Likewise I indicated to her counsel that if misfeasance in public office claims were to be made against the respondents, it was necessary to separate out the claim made against each respondent and plead separately the ingredients of the respective claim against each respondent. In the proposed Amended Application the misfeasance claims were stated in an omnibus fashion. 13 I refused leave to file the Amended Application, but granted leave to file a fresh Amended Application and Statement of Claim by 28 March 2006. The documents were not filed until 20 April 2006.

The 28 April 2006 hearing 14 Prior to this hearing the alleged deficiencies in the proposed Amended Statement of Claim were communicated by Dr Bleby to the applicant. The pleading was obviously defective on its face particularly in relation (a) to how it pleaded the misfeasance tort and (b) to its failure properly to link causes of action to particular respondents. I refused leave to file and serve the Statement of Claim. 15 I indicated I would give one further opportunity to amend the Statement of Claim. I gave the respondents leave to file a fresh motion in relation to that Amended Statement of Claim. Leave was given to file and serve the Amended Application which sought a writ of mandamus requiring the Minister to issue the applicant an 820/801 Spouse Visa and damages for misfeasance in public office. At a later aborted hearing on 26 June 2006 I indicated to the applicant's solicitor that I would not entertain any further application to amend the pleadings.

The Amended Application and the Amended Statement of Claim 16 The Amended Statement of Claim was filed on 24 May 2006. The respondents moved for summary judgment under s 31A(2) of the Federal Court of Australia Actor for orders striking out the Amended Application and the Amended Statement of Claim. 17 The Amended Statement of Claim retains, in large measure, material relevant only to the order of review claims made in the original Application but which are not pursued in the Amended Application. 18 Before turning to those parts of the pleading that are presently relevant, I would note the following by way of background. Mr Schwarzbacher sponsored Ms Tepperova's application for migration and, it is claimed, filled out for her as well a form 47SP which disclosed only one of his previous marriages. Ms Tepperova signed that form. At a later interview with an immigration officer, Ms Tepperova disclosed Mr Schwarzbacher's previous two marriages. In his interview, he disclosed only one. When Ms Tepperova arrived in Australia she was granted a TO-300 visa. She later applied for the 820/801 Spouse Visa. 19 The relevant parts of the Statement of Claim for present purposes are contained in the following paragraphs (notwithstanding that par 14 refers to additional paragraphs which were only of relevance to the order of review claims): "12. The decision of 28th June 2002 was not a bona fide exercise of powers vested in the Minister pursuant to Regulation 1.20J(2) and s 501(1) respectively of the Act, in that the decision was made for an improper purpose, namely to prevent Schwarzbacher from successfully sponsoring a third spouse. PARTICULARS (a) The decision in fact was directed at Schwarzbacher who the Second and Third Respondents believed, had sought to mislead the Minister about his previous sponsorships and marriages. (b) The Second and Third Respondents only contemplated refusing the applicant's 820 visa application after they had received legal advice that it was not possible to 'revisit' the question of sponsorship once a person had been accepted as a sponsor. (c) The Second and Third Respondents justified the decision to refuse the applicant's 820 visa application on the basis that the non-disclosure of two previous sponsorships by Schwarbacher was: 'indicative of both parties having at the TO-300 application stage deliberately provided false information and misled this Department in order to circumvent the migration process.'" 20 The paragraph went on to refer (i) to what is said to be an incorrect factual assertion by the second and third respondents; (ii) to the information about Schwarzbacher's sponsorship being unrelated to her and not known first hand by her; (iii) to the absence of evidence that she sought to mislead the Minister deliberately; (iv) to the facts that she could not at the relevant time speak or write English and that she relied on Schwarzbacher to fill in her application; and (v) to form 47SP not requiring her to disclose any knowledge of her sponsor's previous sponsoring of spouses. 21 Paragraph 13 of the pleading stated there was no basis for the second and third respondents' assertion that she had made a misleading statement. 22 Paragraph 14 which is central to the misfeasance claims was in the following terms: "14. In refusing to grant the 820 visa to the Applicant ('The decision'), the Second and Third Respondents committed a misfeasance in public office in that: (a) The Second and Third Respondents were at all material times public officers. (b) The said decision was beyond power, by reason of the matters set forth in paragraph 11 above. (c) The said decision was made in circumstances where the Second and Third Respondents knew or ought to have known that the decision was made beyond power (for the reasons set forth in paragraphs 11 and 12 above) and for an improper purpose and that there was a foreseeable risk of harm to the Applicant as the inevitable consequence of the decision was that the Applicant would be detained in custody. (d) The decision was made by the Second and Third Respondents in purported discharge of their public duty. (e) The decision was made by the Second Respondent on the advice of the Third Respondent. Both the Second and Third Respondents had the intention of causing harm to the Plaintiff for the reason set out in paragraph 12 above, and in case of the Second Respondent paragraph 10.3 above and in case of the Third Respondent paragraphs 10.1 and 10.2 above. (f) By reason of the decision and her consequent detention the Applicant suffered harm, loss and expense." 23 Paragraph 15 asserted that the Minister was liable for the misfeasance torts of the second and third respondents who were employed by him and were his delegates. 24 The pleading then asserted that the applicant suffered harm, loss and expense "[b]y reason of the decision and her consequent detention" and damages were claimed. 25 Paragraph 19 sought mandamus against the Minister for not considering her visa application. It nonetheless acknowledged in par 18 that she had notified the Department of her wish to withdraw her application but went on to claim that she did so under duress because she was told (a) that unless she paid her (detention expenses) debt she would not be allowed to return to Australia but (b) that that sum would not be claimed if she withdrew her application.

Section 31A 26 Insofar as presently relevant, this section provides: "31A … (2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is defending the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. (3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospect of success. (4) This section does not limit any powers that the Court has apart from this section." 27 As the claims for misfeasance in public office were first made in the Amended Statement of Claim filed on 24 May 2006 - and hence, by virtue of O 13 rr 3(3) and 3A(1)(b) of the Federal Court Rules, took effect from that date - it is subject to s 31A which was itself brought into effect on 1 December 2005: see Migration Litigation Reform Act 2005 (Cth), Sched 1. 28 While there is some level of uncertainty as to the burden of the "no reasonable prospect" formulae in s 31A: see e.g. Vans, Inc v Offprice.Com.Au Pty Ltd [2006] FCA 137; this is not a case in which it is necessary to explore that formula at any length. The claims made against the first and third respondents are doomed to failure as they disclose no reasonable causes of action in any event. The Amended Statement of Claim is itself embarrassing and must be struck out under O 11 r 16. As the applicant has been given every reasonable opportunity to replead and has been given adequate forewarning of what was needed and required, I will not give leave again to further amend the Amended Statement of Claim. Rather I will order the application be dismissed.

Consideration 29 I will consider the claims made against each respondent in turn.

(i) The Minister 30 There are two bases on which relief was sought against the Minister. The first was that he was vicariously liable for the misfeasance tort of the second and third respondents. Accepting that an employer could be vicariously liable for such a tort: see Racz v Home Office [1994] 2 AC 45; Porter v OAMPS Ltd (2005) 215 ALR 327 at [108]; the applicant abandoned this claim when confronted with the constitutional reality in this country that public servants, such as the second and third respondents who are employed under the Public Service Act 1999 (Cth), are employees of the Commonwealth, not of the relevant portfolio Minister. 31 The Second claim was for an order of mandamus directing the Minister to issue the applicant's 820/801 Spouse Visa application which was remitted to the Minister by the Administrative Appeals Tribunal (the Statement of Claim wisely retreated to an order directing the Minister "to consider" her application). The answer to this claim howsoever cast lies in the applicant's own admission that she withdrew that application. The pleading alleges that she did so under duress but it states no cause of action that could lead to her withdrawn application being reinstated and which would activate the duty to consider the application. I would add that the conduct alleged to constitute "duress" is slight to say the least of it. In s 31A terms, this claim has no reasonable prospect of being successfully prosecuted.

(ii) The third respondent 32 As I earlier indicated, on the hearing of the Minister's first motion of 28 February 2006, I indicated to the applicant's counsel that if misfeasance claims were to be made against these respondents they should not be "rolled up" but be pleaded against each respondent separately. This was not done in the crucial par 14 of the Amended Statement of Claim. The consequence of this is that the claim against the third respondent is fatally flawed. The misfeasance alleged inhered in the decision to refuse to grant the 820/801 Spouse Visa. That was not a decision made by the third respondent. While par 14 alleges that the second respondent's decision was made on the advice of the third respondent, no separate claim has been made alleging misfeasance by the third respondent on that basis. The allegations that the third respondent intended to cause harm to the applicant (par 14(e)) relate back (i) to par 12 which relates to conduct directed at Mr Schwarzbacher, not the applicant and (ii) to par 10.1 and 10.2 which merely describes the recommendations made by the third respondent. The allegation in par 14(c) that the third respondent knew or ought to know the decision made was beyond power refers again to par 12 as also par 11. The latter of these relates to the now abandoned order of review claims and is simply not directed at what this respondent knew or ought to have known. Further it relates only to the second respondent. 33 In short, not only is no separate tort of misfeasance in public office claim pleaded against this respondent, the factual matters pleaded which in some fashion are designed to implicate him in the commission of such a tort do not carry the burden attributed to them in the assertions made in par 14. 34 The applicant has no reasonable prospect of successfully prosecuting this claim: cf s 31A(1)(b). Further, the proceeding discloses no reasonable cause of action against this respondent: cf O 20 r 2(1) of the Federal Court Rules. The claim ought be dismissed.

(iii) The second respondent 35 There are elements of a claim of misfeasance in public office made against this respondent in her making of the decision to refuse the applicant's visa application. I say "elements" for this reason. The claim made against this respondent is so compounded with that supposedly made against the third respondent that it is difficult to determine whether a claim has been pleaded against her which could survive the dismissal of the claim against the third respondent. Paragraph 14 alleges a common knowledge, intent and purpose of both respondents. The pleading does not indicate the significance of this (i.e. whether the respondents acted severally or in concert) or how it occurred other than seemingly the second respondent accepted the submission and recommendation of the third respondent. And how this produced a community of purpose to commit a dishonest abuse of public power is a matter on which the pleading is silent. 36 I have already noted that I pointed out to the applicant's counsel the need to separately plead each misfeasance claim. This was not done. I also made plain that I would not give leave to further amend the Amended Statement of Claim. The time has well and truly been reached where this proceeding stands or falls on this pleading. More than a reasonable opportunity has been given to the applicant in this regard, the moreso since she has been legally represented throughout. 37 When one considers the pleading and, in particular, the all important par 14, one can only conclude that it is internally contradictory and embarrassing (as the respondents have amply demonstrated in written submissions). It provides an unsafe and unsatisfactory platform upon which to conduct a hearing of the matter. 38 As I earlier indicated, the proceeding itself was originally for an order of review and the content of the original Application was cast accordingly. While the proceeding has metamorphosed primarily into a misfeasance tort case, it has retained much of the character of a judicial review proceeding. This is apparent in par 11 of the pleading (not reproduced in these reasons) which is directed towards showing that the decision of the second respondent refusing the visa on s 501(1) grounds was beyond power because she "misconceived her jurisdiction" in a number of pleaded respects and she "misconstrued … the Ministerial Direction" with which she was bound to comply. While designed to demonstrate jurisdictional error, this paragraph was not designed to, and does not, address whether the second respondent knew or ought to know that her decision was beyond power. Yet it is relied on for this very purpose in par 14(c) of the Amended Statement of Claim. Far from supporting the claim made in that paragraph, par 11 is drafted in terms more consistent with the second respondent having acted honestly but mistakenly. 39 As is now well accepted, the misfeasance tort can take either of two forms. In one form (that of "targeted malice") it must be shown that the public officer in question has acted as such with an actual intent to cause injury to a person or persons. In its alternate form it must be shown either that the officer has actual knowledge both that his or her action was beyond power and would cause or be likely to cause injury, or else that the officer has acted with reckless indifference both to the possibility his or her action was beyond power and to the possibility that that action would cause or be likely to cause injury: see generally Sanders v Snell (No 2) (2003) 130 FCR 149 at [95]-[100]. The essence of the tort in either of its forms is the "dishonest abuse of power": L (a child) v Reading Borough Council [2001] 1 WLR 1575 at 1588. 40 Paragraphs 14(c) and (e) attempt to plead the alternative forms. Paragraph 14(e) alleges targeted malice, but seemingly does so against Mr Schwarzbacher because, notwithstanding the allegation made in that sub-paragraph that both the second and third respondents "had the intention of causing harm to the plaintiff", their reason for doing so is said to be set out (inter alia) in par 12 of the pleading. That paragraph in turn assigns to the two respondents "an improper purpose, namely to prevent Schwarzbacher from successfully sponsoring a third spouse". As Particular (a) to par 12 states "[t]he decision was directed at Schwarzbacher". 41 The other paragraph of the pleading relied upon in par 14(e) as revealing an intent to cause harm to Ms Tepperova is subpar 10.3. That sub-paragraph is simply narrative in character which, while indicating that the second respondent accepted the third respondent's submission and recommendation to refuse the visa, does not illuminate in any way her intention in so doing. 42 The alternative formulation of the misfeasance claim in par 14(c), i.e. knowingly acting beyond power while knowing there was a foreseeable risk of harm, is likewise problematic. To the extent it relies upon par 11 (to which I earlier referred) to demonstrate the knowledge of the second respondent, it is misconceived as I have indicated. This claim, then, if it is to stand must do so for the reasons set out in par 12 of the pleadings - a paragraph which, as I have indicated, is deployed in par 14(c) to a quite inconsistent end. 43 While it may be able to be said, and Dr Bleby concedes as much, that it is possible to discern a pleaded case of misfeasance in public office against the second respondent, I am satisfied that it should be struck out. The Amended Statement of Claim is as embarrassing as it is oppressive of, and unfairly prejudicial to, the second respondent. She is entitled to be properly, fairly and intelligibly informed of the basis of the claim against her. I have given considerable latitude to the applicant to salvage, first, an application and, then a pleading which were in large measure misconceived in the claims made and which, in the case of the pleading, was deficient, uncertain and contradictory. I would add that had I not taken this course I would in any event have been inclined to give judgment against the applicant on this claim as well under s 31A. The pleading discloses a claim with obvious flaws and little by way of prospect. 44 Counsel for the applicant has sought a further opportunity to replead at least the claim against the second respondent in an acceptable form. I am not prepared to do this. Having already dismissed the claims against the first and third respondent, I will order that the Amended Statement of Claim as it relates to the second respondent be struck out. I will, in consequence, order that the application be dismissed and that the applicant pay the respondents' costs including reserved costs. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate: Dated: 29 August 2006 Counsel for the Applicant: Mr A Collett

Solicitor for the Respondent: Australian Government Solicitor