FEDERAL COURT OF AUSTRALIA
Abela v Minister for Home Affairs [2021] FCA 96
File numbers: VID 167 of 2020
VID 436 of 2020Judgment of: ABRAHAM J Date of judgment: 12 February 2021 Catchwords: PRACTICE AND PROCEDURE – application for summary dismissal – whether applicant has no reasonable prospect of successfully prosecuting the proceeding – whether no reasonable cause of action disclosed – application for pleadings to be struck out – whether pleading is evasive, ambiguous or likely to cause prejudice or embarrassment – applications for summary judgment granted. Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth)
Australian Border Force Act 2015 (Cth)
Crimes Act 1914 (Cth) s 85ZZH(d)
Federal Court of Australia Act 1976 (Cth) ss 19, 31A
Federal Court Rules 2011 (Cth) rr r 6.01, 16.21, 26.01
Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth)
Cases cited: AFF20 v Minister for Home Affairs [2020] FCA 546
CCA19 v Minister for Home Affairs [2019] FCA 939
Chandrasekaran v Commonwealth of Australia (No 3) [2020] FCA 1629
Colgate-Palmolive Company v Cussons Pty Limited [1993] FCA 801; (1993) 46 FCR 225
DCQ18 v Minister for Home Affairs [2018] FCA 918 and FJG18 v Minister for Immigration and Border Protection, Citizenship and Multicultural Affairs [2018] FCA 1585
Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803
Fuller v Toms [2012] FCA 27; (2012) 247 FCR 440
Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401
Minister for Immigration and Border Protection v ARJ17 [2017 FCAFC 125; (2017) 250 FCR 474
Ogawa v The University of Melbourne (No 2) [2004] FCA 1275
Pharm-a-Care Laboratories Pty Ltd v Commonwealth (No 3) [2010] FCA 361; (2010) 267 ALR 494
Plaintiff S99/2016 v Minster for Immigration and Border Protection [2016] FCA 483; (2016) 243 FCR 17
Polar Aviation Pty Ltd v Civil Aviation Safety Authority(No 4) [2011] FCA 1126; (2011) 203 FCR 293
Simjanovska v Department of Human Services [2019] FCA 499
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 109 Date of hearing: 30 October 2020 Counsel fo the Applicant Applicant appeared in person Counsel for the Respondents: Mr. P Herzfeld with Ms. J Watson Solicitor for the Respondents: Australian Government Solicitor ORDERS
VID 167 of 2020 BETWEEN: IVAN ABELA
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
COMMONWEALTH OF AUSTRALIA
Second Respondent
SECRETARY OF THE DEPARTMENT OF HOME AFFAIRS
Third Respondent
ORDER MADE BY:
ABRAHAM J
DATE OF ORDER:
12 FEBRUARY 2021
THE COURT ORDERS THAT:
1.Pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) and…
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- Case
- [2021] FCA 96
- Decision Date
CaseChat Overview and Summary
Orders
Orders of the court
1. Pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth) the proceedings against the first, second and third respondents be summarily dismissed.
2. The applicant pay the costs of the first, second and third respondents to be agreed or taxed.
3. The respondents’ application for costs on an indemnity basis is refused.
[Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.]
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
As noted above, the applicant’s submissions and associated documents sought that the respondents’ interlocutory application, notice of objection to competency and affidavit be summarily dismissed or struck out. The documents referred to various cases (at least one without any reference to the name of the case), which he said supported that this Court had jurisdiction. The applicant submitted that respondents have been unsuccessful in striking out claims in other cases, and that this shows the Court has jurisdiction. The applicant contended that the respondents’ application is made in bad faith and is biased, and in disregard of certain specified rules. He also made a general submission that the Court has jurisdiction in relation to the common law duty of care and recites passages from cases and other documents to submit that this Court has jurisdiction in relation to medical issues. In relation to the Third Abela Affidavit, the applicant’s primary submission appears to be that because the respondents have failed in other cases to establish that the Court has no jurisdiction, the Court should reject the respondents’ submissions in relation to jurisdiction (see at [5]–[98]). Consideration For the reasons that follow the respondents’ submission should be accepted. The pleadings The breadth of the complaints in the applicant’s originating application which seeks review of the “failure and conduct” of the respondents’ conduct in relation to very many matters is plain from the description of the application above at [29]. As the respondents correctly submitted, the application is for a judicial review, yet no decision(s) are identified from which such a review could be sought. The originating application does not identify any specific decision made by any specific government official under any Act that he seeks to challenge on the basis that it exceeds the power conferred on that government official, or any specific conduct or lack of conduct of a specific government official under an Act that he seeks to challenge on the basis that the person has not complied with a specific legal obligation or any legal obligation on a government official or any other person with which they have failed to comply or any legal prohibition which has been contravened. Although there is reference to some legislative provisions in the originating application, there is no identification as to how they relate to any claim. The originating application does not identify any specific causeof action or any basis for the relief sought. The relief sought in the originating application does not accord in many respects to the statement of claim, which asserts some facts which relate to some, but not all the allegations in the originating application. The deficiencies in the originating application are not rectified in the statement of claim. To the contrary, as the respondents correctly contended, the pleading makes various complaints about how the applicant claims he has been treated in detention, and makes allegations using legal terms as described above at [36], but these are bare conclusory statements.