Aix20 v Director-General of Security

Link copied
Case Copied 25 min read

FEDERAL COURT OF AUSTRALIA

AIX20 v Director-General of Security [2023] FCA 1344

File number: VID 711 of 2022
Judgment of: MOSHINSKY J
Date of judgment: 3 November 2023
Catchwords:

PRACTICE AND PROCEDURE – application for summary dismissal of the applicant’s negligence claim on the basis that no duty of care was owed by the respondent to the applicant – where the alleged duty of care was based on statutory provisions and on alleged facts – where there was no precedent on the question – whether the applicant’s negligence claim had no reasonable prospect of success – held: application for summary dismissal refused

PRACTICE AND PROCEDURE – separate questions – where the respondent applied for an order that certain questions be heard separately – where the respondent in substance sought to demur to the applicant’s claim – where the applicant opposed the order for separate questions – case management considerations – held: application for separate questions dismissed

Legislation:

Australian Security Intelligence Organisation Act 1979 (Cth), ss 17, 25, 35, 37

Federal Court of Australia Act 1976 (Cth), s 31A

Migration Act 1958 (Cth), ss 501, 501C

Federal Court Rules 2011, rr 26.01, 30.01

Cases cited:

ASZ21 v Commissioner of Taxation [2021] FCA 1304

Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334

Electricity Networks Corporation v Herridge Parties [2022] HCA 37; 96 ALJR 1106

Hill v Hamilton-Wentworth Regional Police Services Board [2007] SCC 41; [2007] 3 SCR 129

Perera v Genworth Financial Mortgage Insurance Pty Ltd [2017] NSWCA 19; 94 NSWLR 83

Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4; [2018] AC 736

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

Sullivan v Moody [2001] HCA 59; 207 CLR 562

Trkulja v Google LLC [2018] HCA 25; 263 CLR 149

Division: General Division
Registry: Victoria
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 53
Date of hearing: 27 October 2023
Counsel for the Applicant: Mr E Nekvapil SC with Ms E Brumby
Solicitor for the Applicant: Victoria Legal Aid
Counsel for the Respondent: Mr P Herzfeld SC with Ms A Hammond
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

VID 711 of 2022
BETWEEN:

AIX20

Applicant
AND:

DIRECTOR-GENERAL OF SECURITY

Respondent

ORDER MADE BY:

MOSHINSKY J

DATE OF ORDER:

3 NOVEMBER 2023

THE COURT ORDERS THAT:

1.The respondent’s interlocutory application dated 3 October 2023 be dismissed.

2.The respondent pay the applicant’s costs of the interlocutory application.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

  1. By interlocutory application dated 3 October 2023, the respondent, the Director-General of Security (the Director-General) has applied for:

    (a)an order pursuant to r 30.01 of the Federal Court Rules 2011 (the Rules) that certain questions be heard separately;

    (b)alternatively, an order pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) and/or r 26.01 of the Rules that the proceeding (alternatively,…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Aix20 v Director-General of Security and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2023] FCA 1344
Decision Date

CaseChat Overview and Summary

The Federal Court of Australia was asked to consider an interlocutory application by the Director-General of Security seeking summary dismissal of a negligence claim brought by the applicant, Aix20. The Director-General argued that the claim had no reasonable prospect of success due to the lack of a duty of care. Additionally, the Director-General applied for certain questions to be heard separately, effectively seeking to demur to the applicant's claim. The applicant opposed both applications.

The legal issues before the court were whether the applicant's negligence claim had no reasonable prospect of success and whether certain questions should be heard separately. The Director-General contended that the alleged duty of care was inconsistent with the statutory framework of the ASIO Act, and the applicant's judicial review claim was unlikely to succeed due to the lack of utility in ordering declaratory relief. The applicant argued that the statutory scheme did not preclude the existence of a duty of care and that the application for separate questions was an attempt to demur to his claim.

The court dismissed the Director-General's application for summary dismissal. It found that the statutory scheme did not preclude the existence of a duty of care and that the applicant had a reasonable prospect of establishing a duty of care. The court also dismissed the application for separate questions, finding that it amounted to an attempt to demur to the applicant's claim, which is not permitted under the Federal Court Rules. The Director-General was ordered to pay the applicant's costs of the interlocutory application.

Orders

Orders of the court

1. The respondent’s interlocutory application dated 3 October 2023 be dismissed.

2. The respondent pay the applicant’s costs of the interlocutory application.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

During the hearing of the interlocutory application, the Director-General made clear that his application for an order that certain questions be heard separately is put on the basis that the separate questions would operate in substance in the same way as a demurrer. The Director-General acknowledges that the Rules do not provide for a demurrer procedure; that is why the application is couched in terms of separate questions. However, what is proposed is that the Director-General would accept as correct (for the purposes of the separate questions) all of the facts set out in the applicant’s pleading. The purpose of the separate questions would be to determine whether the applicant’s claims fail on that assumed basis. If and to the extent that the questions set out in the interlocutory application need to be reworded to make this clear, the Director-General seeks to have them reworded.Procedural background The applicant originally commenced another proceeding in this Court (VID 41/2020). That proceeding was originally brought against the Minister for Home Affairs. Subsequently, the applicant joined the Director-General as an additional respondent. Following amendments to the pleading, the applicant challenged: (a) two adverse security assessments made in relation to him by the Director-General; and (b) a decision of the Minister for Home Affairs, based on the first adverse security assessment, to cancel the applicant’s temporary protection visa. Since the cancellation of his visa, the applicant had been held in immigration detention. The proceeding was listed for hearing on 30 August 2022 (on an estimate of two days). However, in early August 2022, the respondents to that proceeding advised that the Director-General had provided a non-prejudicial security assessment in respect of the applicant to the Minister for Home Affairs, and the Minister for Home Affairs had decided to revoke the cancellation of the temporary protection visa. As the temporary protection visa could not be reinstated (as this was after the date when that visa would have ended in any event), the applicant was granted a bridging visa. The applicant was released from immigration detention. In light of these developments, the hearing of the proceeding was vacated. However, the proceeding was not dismissed as the applicant wanted to consider his position in relation to his claims. Subsequently, the applicant commenced a proceeding in the Supreme Court of Victoria against the Director-General alleging misfeasance in public office and negligence. On 16 November 2022, that proceeding was transferred to this Court and is the present proceeding (VID 711/2022). For a short time, the two proceedings in this Court were jointly case managed. On 10 February 2023, the applicant filed a statement of claim in the present proceeding that essentially consolidated the claims he wished to pursue against the Director-General in a single pleading. On 13 February 2023, the original proceeding in this Court was stayed, and this proceeding became the only active proceeding.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 19 March 2021, the Director-General decided to not act on the Independent Reviewer’s recommendation (the 19 March 2021 Decision). On 5 August 2022, the Director-General furnished on the Department of Home Affairs a “non-prejudicial security assessment” in respect of the applicant. There is no indication in the materials currently before the Court that there had been any change in the facts between the time when the Director-General gave the First ASA or the Second ASA (or made the 19 March 2021 Decision) and the time when he made the non-prejudicial security assessment. On 17 August 2022, the Minister for Home Affairs decided to revoke the cancellation of the applicant’s temporary protection visa pursuant to s 501C(4) of the Migration Act. The applicant was granted a bridging visa and released from immigration detention. Thus, the applicant spent over two-and-a-half years in immigration detention between the cancellation of his temporary protection visa and the revocation of the cancellation.Outline of the applicant’s claims The applicant sets out alleged background facts in paragraphs 3-61 of his amended statement of claim. In paragraphs 62-70 of the amended statement of claim, the applicant sets out what can be described as his judicial review claim. He contends that the First ASA, the Second ASA and the 19 March 2021 Decision were invalid on various grounds including denial of procedural fairness and legal unreasonableness. These allegations rely on the factual matters pleaded in the earlier part of the pleading (at paragraphs 3-61). In paragraphs 76-83 of the amended statement of claim, the applicant sets out his negligence claim. He contends that the Director-General was negligent in furnishing the First ASA and the Second ASA and in making the 19 March 2021 Decision. The pleading includes allegations regarding duty of care, breach, causation and loss and damage. The duty of care pleading is as follows:76.In:(a)furnishing the First ASA,(b)further or alternatively, furnishing the Second ASA,(c)further or alternatively, making the 19 March 2021 Decision,the Director-General was exercising powers and functions conferred on him by ss 17(1)(c) and 37 of the ASIO Act which were apt to create or exacerbate a risk of harm to the Applicant.77.By reason of the matters in paragraph 76, the Director-General owed the Applicant a duty to take reasonable care in discharge of his powers and functions under ss 17(1)(c) and 37 of the ASIO Act to avoid causing harm to the Applicant by reason of their careless exercise.78.Further or alternatively, in circumstances where the furnishing of the First ASA led to the Applicant being in a position where he was likely to suffer harm, the Director-General owed the Applicant a duty:(a)when furnishing the Second ASA,(b)when making the 19 March 2021 Decision,(c)at all other times,to take reasonable care in the continuation or additional exercise, or an absence of further exercise, of his powers and functions under the ASIO Act in respect of the Applicant.79.Further or alternatively, by reason of the matters in 76 to 78, taken together with the matters alleged in paragraphs 15 to 60 above:(a)it was at all relevant times reasonably foreseeable that failure by the Director-General to exercise reasonable care in discharge of his powers and functions under ss 17(1)(c) and 37 of the ASIO Act would cause harm to the Applicant;(b)that risk of harm was not remote or insignificant;(c)the Director-General exercised at all relevant times complete control over whether or not, and if so, the manner in which, he discharged the powers and functions under ss 17(1)(c) and 37 of the ASIO Act in respect of the Applicant;(d)the Applicant was highly vulnerable, including because he had no capacity to protect himself from the risk of harm that might be occasioned by reason of the Director-General’s careless exercise of the powers and functions under ss 17(1)(c) and 37 of the ASIO Act;(e)at:(i)all relevant times,(ii)further or alternatively, at the time of furnishing the Second ASA,(iii)further or alternatively, at the time of making the 19 March 2021 Decision,the Director-General knew, or ought to have known, of the matters informing the Independent Reviewer’s conclusion that the Applicant is not directly or indirectly a risk to Australia’s security within the meaning of s 4 of the ASIO Act, referred to at paragraph 46 above.80.By reason of the matters in paragraph 79 above, the Director-General owed a duty to the Applicant to exercise reasonable care in discharge of his powers and functions under ss 17(1)(c) and 37 of the ASIO Act.(Emphasis added.)

Ratio Decidendi

Legal Principle Established

See also Spencer at [24] per French CJ and Gummow J and Trkulja v Google LLC [2018] HCA 25; 263 CLR 149 at [22] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ.Consideration The Director-General’s application for summary dismissal has two distinct parts to it. First, he contends that the applicant’s negligence claim has no reasonable prospect of success because there is no reasonable prospect of the applicant establishing the alleged duty of care. Secondly, he contends that the applicant’s judicial review claim has no reasonable prospect of success because the Court would decline to order declaratory relief due to lack of utility. I will deal with each in turn. In relation to the applicant’s negligence claim, the Director-General submitted that the fact that a duty of care is novel does not of itself immunise it from summary dismissal, citing Perera v Genworth Financial Mortgage Insurance Pty Ltd [2017] NSWCA 19; 94 NSWLR 83 at [32]-[34], [36], [38] and [46]. The Director-General submitted that the existence or otherwise of the alleged duty of care depended entirely on the statutory scheme (here, the ASIO Act), citing Electricity Networks Corporation v Herridge Parties [2022] HCA 37; 96 ALJR 1106 at [20] and [27]. The High Court stated at [27] that a duty cannot arise where it would be inconsistent or incompatible with the statutory powers or duties imposed on the statutory authority or it would be incoherent with the statutory framework. The Director-General submits that, in this case, the alleged duty of care would be inconsistent or incompatible with the statutory powers or duties imposed on the Director-General by the ASIO Act, and incoherent with the statutory framework of the ASIO Act. The Director-General submitted that, applying the principles stated by the High Court in Sullivan v Moody [2001] HCA 59; 207 CLR 562 at [60] and [62], the applicant has no reasonable prospect of establishing that a duty of care arose in the present case. The Director-General referred to ss 17, 25, 35 and 37 of the ASIO Act. The Director-General submitted that the Director-General is obliged to treat the interests of the public as paramount and this was irreconcilable with the interests of the individual; it would be inconsistent with the proper and effective discharge of the Director-General’s responsibilities if he were subjected to a legal duty, breach of which would sound in damages, to take care to protect persons who were suspected of being the sources of the security risk. The Director-General submitted that his role was analogous to the role of police in investigating persons who are suspected of committing a crime. He submitted that it has never been suggested that the police owe a duty of care to suspects, even though some cases have imposed a duty of care on police in other contexts. The Director-General submitted that Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4; [2018] AC 736 (a case cited by the applicant in his submissions), did not cast doubt on, indeed it affirmed, that the police do not owe a duty of care to suspects. In relation to Hill v Hamilton-Wentworth Regional Police Services Board [2007] SCC 41; [2007] 3 SCR 129, a decision of the Supreme Court of Canada cited by the applicant that held that police do owe a duty of care to suspects, the Director-General submitted that there was no reasonable prospect of that decision being followed in Australia.