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Chan, Y.K. v Minister for Immigration, Local Government & Ethnic Affairs & Commonwealth of Australia

Chan, Y.K. v Minister for Immigration, Local Government & Ethnic Affairs & Commonwealth of Australia

Case [1991] FCA 495 9 August 1991

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Re: CHAN YEE KIN
And: THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS and THE
COMMONWEALTH OF AUSTRALIA
No. V G36 of 1989
FED No. 495
Damages - Judicial Review - Migration - Practice and Procedure/Pleading -
Tort
103 ALR 499
(1991) 31 FCR 29

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Einfeld J.(1)

CATCHWORDS

Damages - unlawful detention - damages for most of period statute barred - claim relates to last five days of detention of about ten months - whether assessment can take account of suffering and losses in period statute barred - causal nexus with tort

Judicial Review - unlawful administrative decision-making - application statute barred - whether consideration of same facts permissible at common law to found action for damages for tort

Migration - detention for the purpose of deportation - judicial invalidation of deportation order - damages for losses and suffering due to detention - liability of decision-makers in tort and for breach of statutory duty

Practice and Procedure/Pleading - facts for statute barred judicial review application embodied in common law action for damages for tort

Tort - breach of statutory duty - principle in Beaudesert Shire Council v Smith (1969) 120 CLR 145 - misfeasance in public office - whether required elements include ultra vires acts, mala fides, knowledge of unlawfulness, and malice - false imprisonment/arrest - trespass - assault - whether actions available for unlawful administrative decisions - causal nexus with damage

Migration Act 1958 sections 21A(7), 38

The Constitution section 55

Federal Court of Australia Act 1976 sections 19(1), 32

Federal Court Rules Order 13 rule 2(1)

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) section 4(1)

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) sections 5(4), 9(2)

Judiciary Act 1903 section 39B

Administrative Decisions (Judicial Review) Act 1977

Limitation of Actions Act 1958 (Vic) sections 5, 34(1)

Pickering v James (1873) LR 8 CP 489

Weldon v Neal (1887) 19 QBD 394

Chichester v Marine Board of South Australia (1910) SASR 22

Farrington v Thomson (1959) VR 286

Beaudesert Shire Council v Smith (1969) 120 CLR 145

Kitano v The Commonwealth (1973) 129 CLR 151

Takaro Properties Ltd v Rowling (1978) 2 NZLR 314 On appeal (1988) 1 AC 473

Philip Morris Inc v Adam P. Brown Male Fashions Pty Ltd (1981) 148 CLR 457

Lonrho Ltd v Shell Petroleum Co Ltd No. 2 (1982) AC 173

Bradshaw v Hair Transplant Pty Ltd (1986-7) 70 ALR 503

Metropolitan Oils (Pty) Ltd v Beringer (1987) 71 ALR 327

Macksville and District Hospital v Mayze (1987) 10 NSWLR 708

Park Oh Ho v Minister for Immigration, Local Government and Ethnic Affairs (1988) 81 ALR 288

State of Western Australia v Bond Corporation Holdings Ltd and Ors (1991) ATPR 41-095

Yuen Kun Yeu v Attorney General of Hong Kong (1988) 1 AC 175

Kodak (Australasia) Pty Ltd v Commonwealth (Lockhart J unreported 16 December 1988)

Calveley v Chief Constable of the Merseyside Police (1989) 2 WLR 624

Zoneff v…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Chan, Y.K. v. Minister for Immigration, Local Government & Ethnic Affairs & Commonwealth of Australia [1991] FCA 495 (103 ALR 499; (1991) 31 FCR 29)
Case: [1991] FCA 495
Decision Date: 09 AUGUST 1991

CaseChat Overview and Summary

In the case of Chan, Y.K. v Minister for Immigration, Local Government & Ethnic Affairs & Commonwealth of Australia, the Federal Court was tasked with determining the appropriate compensation for the plaintiff, who had been unlawfully detained by the defendant. The plaintiff claimed damages for the latter part of his detention, which was approximately ten months, but sought damages only for the last five days. The key legal issue was whether the court could assess the damages based on the suffering and losses incurred during the entire period of detention, even though the statute of limitations barred most of the claim. The central question was whether there was a causal nexus between the unlawful detention and the tort for which damages were being claimed.

The court found that the causal nexus was present, as the unlawful detention was a continuous tort, and the damages for the last five days could be assessed in the context of the entire period of detention. The court ruled that the damages should reflect the entire experience of the plaintiff, including the period that was statute-barred. This approach allowed for a more comprehensive assessment of the damages, considering the totality of the plaintiff's suffering and losses. The court concluded that the damages should be calculated based on the entire period of unlawful detention, even if the claim for most of that period was barred by the statute of limitations. This decision underscores the importance of considering the entire course of an unlawful detention when assessing damages for a tort.

Orders