Abela v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

Abela v Minister for Home Affairs [2021] FCA 96  

File numbers: VID 167 of 2020
VID 436 of 2020
Judgment 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

Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees Association of Western Australia (1987) 13 FCR 413

Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees’ Association of Western Australia (1987) 13 FCR 413

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

Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118

Wride v Schulze [2004] FCAFC 216
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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Details
Case
[2021] FCA 96
Decision Date

CaseChat Overview and Summary

In Abela v Minister for Home Affairs, the applicant sought review of the conduct of the respondents in relation to his detention and treatment while in immigration detention. The Federal Court was required to decide whether the application had no reasonable prospect of success and whether the pleadings were evasive, ambiguous, or likely to cause prejudice or embarrassment. The Court found that the applicant’s originating application and statement of claim were deficient in identifying specific decisions, causes of action, or legal obligations that could be the subject of judicial review. The Court held that it had the power to strike out the pleadings under r 16.21 of the Federal Court Rules 2011 (Cth), but it did not have the power to summarily dismiss the proceeding under s 31A of the Federal Court of Australia Act 1976 (Cth). However, the Court found that the applicant had no reasonable prospect of successfully prosecuting the proceeding due to the deficiencies in the pleadings. The Court granted the respondents’ applications for summary judgment and ordered that the proceedings be summarily dismissed, with the applicant to pay the respondents' costs.

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

Where the evidence shows that a person may have a reasonable cause of action or a reasonable prospect of success, but the person’s pleading does not disclose that to be the case, the Court may be empowered to strike out the pleading under r 16.21 of the Federal Court Rules 2011 (Cth) (Rules), but is not empowered to summarily dismiss the proceeding under s 31A of the FCA Act: Spencer at [23] citing White Industries Australia Ltd v Federal Commissioner of Taxation [2007] FCA 511; (2007) 160 FCR 298 at [47]. Summary judgment Section 31A of the FCA Act relevantly provides: (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. The power to dismiss an action summarily is not to be exercised lightly: Spencer at [60] and see [24], although it does not require that the proceedings to be seen as “frivolous”, “untenable” or “groundless”: Spencer at [24], [53]-[60]. The critical question is whether the moving party has persuaded the court that the opposing party has no reasonable prospect of success: Polar Aviation Pty Ltd v Civil Aviation Safety Authority(No 4) [2011] FCA 1126; (2011) 203 FCR 293 at [17]. The meaning of reasonable prospect of success in this provision was considered in Spencer with the plurality, Hayne, Crennan, Kiefel and Bell JJ observing at [59]-[60]:[59] In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word "reasonable", in the phrase "no reasonable prospect", be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a "frivolous", "untenable", "groundless" or "faulty" claim.[60] Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success… The inquiry required under s 31A is “not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail”: Spencer at [52]. The assessment of whether a proceeding has no reasonable prospects of success necessitates the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 at [28].

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.