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

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 Elcom Credit Union Ltd (1990) 94 ALR 445

Kumar v Minister for Immigration, Local Government and Ethnic Affairs (1991) 100 ALR 439

HEARING

MELBOURNE

#DATE 9:8:1991

Counsel and solicitor B.A. Keon-Cohen instructed
for the applicant by J.E. Ketelhohn

Counsel and solicitor R.R.S. Tracey instructed
for the respondents by Australian Government Solicitor

JUDGE1

This matter came before the Court as an application and statement of claim by Chan Yee Kin (the applicant) seeking declarations that the decision on 20 May 1982 of the Minister (first respondent) to deport him from Australia and certain other decisions and conduct in relation to his detention at Maribyrnong Detention Centre from 15 April 1982 to 21 February 1983 (the detention) were void or unlawful. A declaration was also sought to invalidate a claim by the Commonwealth of Australia (second respondent) for fees for the detention, and injunctions were requested to restrain any efforts to recover these fees. Damages, including exemplary damages, plus interest, were sought for losses and sufferings as a result of the detention and the unlawful decisions which brought it about.

The statement of claim alleged that the detention was unlawful, and amounted to false imprisonment, assault and trespass, inter alia in that it was beyond the Minister's powers under the Migration Act. The deportation order was said to be vitiated by various administrative law defects including denial of natural justice, unreasonableness and that it was made for improper purposes and on irrelevant considerations. Simultaneously with this claim, in matter number VG 37 of 1989, the applicant had brought proceedings for judicial review of the same decisions and conduct. This was said to be the basis for invoking this Court's jurisdiction in the present matter.
No objection to jurisdiction was originally made in the defence or the respondents' argument. The defence in essence merely denied the allegations of fact and the second respondent filed a cross-claim for the detention fees ($9,956) pursuant to section 21A(7) of the Migration Act 1958 as it then stood. This claim was said to be "the costs of maintaining the applicant while he was in custody from 21 May 1982 to 20 February 1983". The second respondent said that section 32 of the Federal Court Act and the incidental or accrued jurisdiction of the Court give the Commonwealth the right to make this cross-claim.
In the light of the unusual and extensive range of relief being sought, the respondents suggested during the hearing of this matter that the correct respondents may not be before the Court. Accordingly at the end of the hearing I gave directions designed to clarify the position. This resulted in the applicant filing a notice of motion for leave to substitute an amended application and statement of claim for those previously filed.
Apart from some presently inconsequential amendments, these added three additional respondents who it is agreed were the officers of the first respondent's department or of the Australian Federal Police at the relevant times who made all or some of the decisions or performed all or some of the actions under consideration. In addition, the applicant's amended pleading added a claim of vicarious liability, asserted the jurisdiction allegedly being energised and named the particular Minister for Immigration who was in office at the relevant time in 1982-3. Why this latter step was taken was not adequately explained and is revealed as at best tenuous by his being stated as holding a portfolio which did not exist at the time that particular Minister held office.
The existing respondents do not expressly consent to the addition of the new parties, although they do not seriously object to them. There is no true evidence to support their inclusion, the only thing I have being an affidavit from the applicant's solicitor giving his opinions or arguments on the matter. However, I do not believe that the matters raised in this case should be determined by way of an argument about parties. The Commonwealth is or would be responsible for all those now desired to be named. It certainly did not disavow before me vicarious or other liability for the actions of the various people named in the amended application. All of the people are in essence alleged to have acted, and they appear and presumably claim to have acted, in the course of carrying out their various duties, responsibilities and obligations. The suggestion that the particular Minister, who may since have left the Parliament altogether, might be personally liable for damages, is particularly quaint. What happens to a successful applicant if a former Minister is impecunious or deceased?
It should not be necessary for the Court to spend time on questions such as this. I shall therefore only deal with and seek to resolve the matters of principle at present and leave so much of the notice of motion as relates to parties and additional relief to be dealt with in the light of the conclusions reached. In other respects I shall proceed on the basis that leave to amend should be granted. However, as the amended application includes a large number of duplicated and what appear to be unnecessary and irrelevant claims, I think I should hear further argument on the proposed amendment when these issues of principle have been resolved.
The applicant's personal history and situation have already been well aired in litigation. Keely J held at first instance ((1987-8) 14 ALD 172) that the applicant was entitled to refugee status and overturned the determination of a delegate of the Minister to the contrary. A Full Court of this Court ((1987-8) 15 ALD 751) reversed Keely J's decision but the Full Court's decision was set aside by the High Court ((1989) 169 CLR 879; 87 ALR 412) and Keely J's original decision was restored. A separate application for judicial review of the Minister's refusal of a temporary entry permit was granted by Keely J but reversed by the Full Court. There was no appeal to the High Court from that decision.
It is therefore not necessary to set out the basic history again here. It will suffice for present purposes to record that the case as commenced concerned two matters arising out of the detention. One was that the detention was illegal and that the applicant should therefore be entitled to damages for false imprisonment, trespass and assault. The second was that the fees charged by the Commonwealth for the detention are ultra vires section 55 of the Constitution because they amount to a tax imposed other than by a tax statute.
A few particular facts need to be noted. The applicant was arrested by immigration officials on 15 April 1982 and the detention followed. The department says that this was preparatory to the intended deportation of the applicant but no deportation order was issued or signed until 20 May 1982 and a warrant for the custody of the applicant was not issued until the following day. The parties agreed that all except the last five days of the detention are now statute barred for the respective claims of the parties. This limited the applicant's claim for damages to five days wrongful detention and the Commonwealth's claim for fees for the detention to $190. With some urging from the Court, the Commonwealth commendably withdrew this claim during the hearing.
During the course of the hearing the respondents developed two major arguments: first, that the Court lacks jurisdiction to award damages for losses and suffering due to the detention; and second, that in any event, to the extent that they exist as recognised causes of action, none of the applicant's asserted legal bases for the award of damages are available in this type of case. Thus the true questions for determination and the respective claims of the parties are:

1. Whether this Court has the jurisdiction to award damages for an unlawful administrative detention

2. If so, whether the applicant has made out a cause of action

3. If so, whether and what damages and interest should be awarded

As the arguments proceeded, it became sensible that I should deal with the first two of these matters as separate and preliminary issues.
Jurisdiction
The applicant asserts jurisdiction under six headings. I have already mentioned that the present application for damages was launched on the same day as and simultaneously with the application for judicial review of the same decisions. As the judicial review application was out of time, a notice of motion to extend the time under section 11(3) of the Administrative Decisions (Judicial Review) Act 1977 was also filed. Notwithstanding that this motion was refused by Northrop J on 14 December 1989, the applicant first argues that the action for damages is jurisdictionally justified by the accrued or pendent jurisdiction established by the filing of the application for judicial review.
The second basis asserted is that both the original and amended applications sought injunctions to prevent the Commonwealth pursuing its claim for fees for the applicant's detention. The actions in tort are thus again said to attract the pendent jurisdiction, even though the Commonwealth abandoned this claim during the hearing. As an aid to jurisdiction this was, as I see it, an artificial or "bootstraps" action that in truth could only have arisen if at all in reply. In substance it was no different to a successful defence to the cross-claim. I cannot see how this can form a basis for jurisdiction for the damages claim.
The third claimed ground of jurisdiction is said to be the Federal Court of Australia Act, although no express grant of jurisdiction was relied on. What was really put was that the Act authorises the Court to grant the relief sought by the exercise of such incidental powers as are necessary to permit the exercise of its statutory jurisdiction. To what statutory jurisdiction an award of damages would be incidental, additional to the other grounds raised, was not specified.
The fourth ground of jurisdiction advanced is claimed to be the 1987 cross-vesting legislation. This argument proceeds as follows:

1. The Victorian Supreme Court can grant damages for the types of tort involved here.

2. Section 4(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic) (the Victorian Cross-Vesting Act) gives the Federal Court jurisdiction to deal with such cases.

3. Section 19(1) of the Federal Court of Australia Act vests in the Court the original jurisdiction granted by laws of the Commonwealth Parliament.

4. Section 9(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) (the Commonwealth Cross-Vesting Act) grants jurisdiction to the Federal Court over matters conferred on that Court by the Victorian Cross-Vesting Act.

5. Thus the Federal Court gains original jurisdiction to deal with Victorian cases of this kind even without a transfer of an existing Victorian case by the Victorian Supreme Court.

The fifth base for jurisdiction is said to be section 39B of the Judiciary Act 1903. The argument is that as this section permits this Court to grant an injunction requiring the applicant's release, there is a pendent jurisdiction to award damages for the unlawful conduct which interned him and which required an injunction to reverse. Thus a declaration that the conduct was unlawful would also be justified. As I see it, the problem with this argument is that the declaration can only be made where the Court already has jurisdiction, and the injunction cannot be issued or even asked for here because the applicant has long since been released. An injunction was not necessary to secure his release and was certainly not part of the proceedings in which the damages are sought.
Finally. The applicant claims that the respondents have by their conduct and delay waived their right to object to competency or are estopped from doing so. No particulars were given except that the defence did not contain an objection to jurisdiction. In my opinion, this type of objection to jurisdiction cannot be waived so that a non-existent jurisdiction can be conferred by consent. The Court still has to be satisfied that it has jurisdiction to entertain the application being made and to grant the relief being sought.
The respondents' submissions are that:

1. There being no federal proceeding now before the Court by reason of the refusal of Northrop J. to extend the time for the primary judicial review proceedings, the current proceedings cannot be attached, associated, incidental or accrued to anything within the Court's jurisdiction.

2. The cross vesting legislation could only operate through an application under section 5(4) of the Commonwealth Cross-Vesting Act, permitting a transfer of litigation from the Federal or Family Court to a State or Territory Supreme Court.

At the time of the written submissions after the hearing, the respondents were considering whether to apply under section 5(4). I have received no information from the respondents as to their decision in the matter, but this submission seems to misconstrue the legislation or the matter presently under consideration. The applicant submits that the case now before the Court is part of the original jurisdiction of the Federal Court by reason of the operation of the Commonwealth and Victorian Cross-Vesting Acts and of the Federal Court of Australia Act. The fact that this case could be transferred from the Federal Court to the Victorian Supreme Court is not presently to the point.
Accrued Jurisdiction
In the consideration by a Full Court of this Court of Park Oh Ho v Minister for Immigration, Local Government and Ethnic Affairs (1988) 81 ALR 288, Morling J said at 310:

It would have been permissible for the appellants to have joined with their claims for relief under the Judicial Review Act additional claims for damages for false imprisonment or for other causes of action ... The court could have entertained those claims under its accrued jurisdiction ... and granted relief in respect of them notwithstanding that the claim for relief under the Judicial Review Act did not succeed. But such additional claims not having been made, the court did not have jurisdiction to award damages in the present cases ... no such claims were, in fact, pleaded or pursued at the trial.

See also Foster J at 317-8. In Kumar v Minister for Immigration, Local Government and Ethnic Affairs (1991) 100 ALR 439, Lockhart J held obiter at 445 that the Court had jurisdiction in an action under the Administrative Decisions (Judicial Review) Act and section 39B of the Judiciary Act to entertain a claim for damages for false arrest and imprisonment.

However, none of these statements avail the applicant here because their Honours' routes to jurisdiction have not been followed in this case. The judicial review proceedings to which it is alleged that the action for damages attaches here were not in fact ever validly commenced because they were out of time and leave to extend time was refused. I reject the rather difficult concept that jurisdiction for the damages action could be founded by attaching it to the same or similar claims brought in common law proceedings as are statute barred by the Administrative Decisions (Judicial Review) Act.
As it seems to me, it is doubtful whether in any event this would be a case for the accrued jurisdiction. Here the amendment of the applicant's pleadings to add and change parties is relevant. The damages in question are now being sought, under the amended application, primarily against parties other than the Commonwealth. This is not a case where, as Lockhart J put it in Kumar, "the factual matrix surrounding the (accrued state matters being suggested) is inseverable from the federal components of the applicant's claim": Philip Morris Inc v Adam P. Brown Male Fashions Pty Ltd (1981) 148 CLR 457. In fact, the assertions which the amended statement of claim makes to prove the unlawfulness of the relevant decision-making here are quite different to the allegations made to support the torts and to the evidence presented to me to prove the damages alleged. Unlike in Kumar where the handcuffing of the applicant was claimed to have vitiated the arrest, here the facts alleged to support the tortious claims would not have been inseparable from those that would have been relied on to support the application for judicial review if it had not been statute barred.
Cross-Vesting Legislation
Most commentators have said that the intention of the cross-vesting legislation was to ensure that the jurisdiction of any Court in the scheme is vested in every other Court in the scheme, so that no genuine legal proceeding could fail for want of jurisdiction in one place that could be exercised somewhere else: see articles at 62 ALJ 328 and 698. This means that every case that can be commenced in the Victorian or any other State Supreme Court, such as for example every accident or defamation case, can be commenced in the Federal Court. Thus the Federal Court sheds all its previous constitutional and other limitations and becomes a court of general jurisdiction embracing all the civil jurisdiction of State and Territory Supreme Courts. Cf Kodak (Australasia) Pty Ltd v Commonwealth (Lockhart J unreported 16 December 1988) where a matter within the jurisdiction of a State Court could not be heard in the Federal Court because the State Supreme Court had gained its jurisdiction to deal with the matter through federal legislation. It was therefore not a "State matter" within the meaning of sections 3 and 4(1) of the relevant State Cross-Vesting Act.

Whether this case is actually heard in the Federal Court is subject to a decision as to transfer under section 5 of the Commonwealth Cross-Vesting Act. But it is actually common ground between the parties here that because the Victorian Supreme Court can entertain the damages claim, the Federal Court may do so as well. Although I think that this position requires further consideration, I shall for the present assume that it is an available basis for finding jurisdiction.
Availability of damages
The torts identified by the applicant as entitling him to damages are:

1. The principle defined in Beaudesert Shire Council v Smith (1969) 120 CLR 145.

2. Breach of statutory duty.

3. False imprisonment, trespass and assault.

4. Misfeasance in public office.

To succeed under any of these headings, the applicant must first show that at least one of the respondents' decisions manifested a judicially reviewable error of law. This task has yet to be undertaken, and the respondents' desire to be heard on this matter has been expressly reserved. I shall therefore only examine for now whether these claims are available in principle and seek to resolve the question as to whether and in what circumstances unlawful administrative decision-making can be attended by damages for an appropriate breach.
Beaudesert
The so-called Beaudesert principle was specifically and for the first time pleaded in the amended application. Proposed paragraph 25A states:

In the premises, the Applicant has suffered harm and loss in consequence of the unlawful, intentional and positive acts of the first Respondent as a Minister of the Crown, and/or of the third, fourth and fifth named Respondents, as officers of the secondnamed Respondent, and the Applicant claims damages and exemplary damages therefor.

In Beaudesert, the High Court (Taylor, Menzies and Owen JJ.) said at 156 that:

... independently of trespass, negligence or nuisance but by an action for damages upon the case, a person who suffers harm or loss as the inevitable consequence of the unlawful intentional and positive acts of another is entitled to recover damages from that other.

The decision seems never to have been applied since it was given but despite its rejection in England: Lonrho Ltd v Shell Petroleum Co Ltd No. 2 (1982) AC 173, it seems still to be accepted in Australia: Kitano v The Commonwealth (1973) 129 CLR 151; Macksville and District Hospital v Mayze (1987) 10 NSWLR 708 where Kirby P. said at 724 that there were also "other Australian decisions" supporting the principle. I have not been able to find any myself.
However, in Kitano Mason J at 173-5 did not embrace the thesis with great enthusiasm, preferring simply to decline a discussion of the principle on the ground that Beaudesert was binding on him. His Honour also expanded the prerequisites of the principle somewhat - and therefore limited its availability - by saying that the act must be something more than a breach of statutory duty with resulting damage. First, the act must have been truly tortious, presumably meaning 'wrongful'. Then, either its inevitable consequence must have been to cause damage or there must have been an intention to cause harm. The linking of these last two requirements as alternatives or cumulatives seems to suggest that if the first limb is relied on, the inevitability of damage must be such as to imply an intention to cause the damage.
The respondents object to this claim at the threshhold on the ground that it is statute barred. It was first sought to be made in a telephone directions hearing on 2 November 1990 when the notice of motion to amend was first returnable. The amendment was then permitted in the sense of allowing it to be considered in principle, subject to the right of the respondents to make this objection. It is common ground that all the acts upon which the applicant relies occurred before February 1983. So did all the administrative decisions which would be relied on to found the causes of action.
The Limitation of Actions Act 1958 (Vic) (the Victorian Limitations Act) which applies to this claim provides for a 6 year limitation period (s.5). Hence on its face this action would be out of time. However, the situation is complicated by the fact that it is sought to be added by way of amendment to an existing proceeding that was commenced within time.
Order 13 rule 2 of this Court's rules provides:

(1) The Court may, at any stage of any proceeding, on application by any party or of its own motion, order that any document in the proceeding be amended, or that any party have leave to amend any document in the proceeding, in either case in such manner as the Court thinks fit.

(2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings.

(3) Where there has been a mistake in the name of a party, sub-rule (1) applies to the person intended to be made a party as if he were a party.

In Metropolitan Oils (Pty) Ltd v Beringer (1987) 71 ALR 327 and in Bradshaw v Hair Transplant Pty Ltd (1986-7) 70 ALR 503 at 505, Toohey J when a member of this Court decided that the rule in Weldon v Neal (1887) 19 QBD 394 still operated in Australia. This means that in the absence of a statutory provision or rule to the contrary, an amendment to a pleading which would add a cause of action otherwise statute barred may not be permitted. See also Zoneff v Elcom Credit Union Ltd (1990) 94 ALR 445 per Hill J who followed the same course "as a matter of comity". Their Honours regarded Order 13 rule 2(1) of this Court's rules as inadequate to displace the rule in Weldon v Neal, although Toohey J in Bradshaw, which was decided after, although reported before, Beringer, was inclined in the opposite direction and Hill J in Zoneff was obviously reluctant to hold otherwise. In State of Western Australia v Bond Corporation Holdings Ltd and Ors (1991) ATPR 41-095, French J held at page 52,532, after reviewing the cases, that not only does Order 13 rule 2 not abrogate Weldon v Neal, a rule of Court which sought to permit new causes of action under section 82 of the Trade Practices Act out of time "would raise a question as to the power of the Court by rule to extend the time limit prescribed by a law of the Commonwealth".
The applicant takes up the respondents' contention that Order 13 rule 2 must be read subject to Weldon v Neal, and argues that the common law is subject to section 34(1) of the Victorian Limitations Act. This provides:

Abrogation of the rule in Weldon v Neal (1887) 19 QBD 394 34(1) If a court would, but for the expiry of any relevant period of limitation after the day a proceeding in the court has commenced, allow a party to amend a document in the proceeding, the court must allow the amendment to be made if it is satisfied that no other party to the proceeding would, by reason of the amendment be prejudiced in the conduct of that party's claim or defence in a way that could not be met by an adjournment, an award of costs or otherwise.

I reject this argument. The whole of the Victorian Limitations Act is not binding on this Court or this action. Federal legislation which provides for litigants in different States or Territories to acquire or lose rights in the Federal Court on different bases must be construed as narrowly as possible so as to limit the differences. I do not accept that Order 13 rule 2 of the Federal Court rules must be read subject to section 34(1) for cases emanating in Victoria.
Although the first instance decisions to which I have referred are not binding on me, it must be acknowledged that the proposition in Weldon v Neal has now built up a consistent head of acceptance. There appear to be no contrary decisions. I think that this should dissuade me at first instance from branching out on my own. The morality or justice of the common law position is not in issue. It is simply a question of whether the terms of the relevant rule can be said to displace it. It should be noted in this connection that section 34(1) was inserted into the Victorian Limitations Act in 1986. The equivalent explicit rule has been in force in the Supreme Courts of New South Wales (Pt 20 r 4(1)) and Western Australia (O. 21 r 5(2)) for about 20 years. The problem has been discussed in a number of decisions of State Courts, in addition to the cases in this Court which I have cited, yet Order 13 rule 2 has not been changed.
I reject the applicant's submission that I should either not follow or overrule Weldon v Neal. Despite the fact that much of the applicant's argumentation on this matter is weighty and persuasive in terms of objective justice, it seems to me that if Weldon v Neal is to be overturned, it cannot or should not be done at first instance in this case. I therefore hold that this claim is statute barred.
2. Breach of statutory duty
It has been established for more than 100 years that a failure to comply with a statutory duty may give rise to a liability to pay damages. In a small number of cases, public officers have been held liable for damages under this heading: Pickering v James (1873) LR 8 CP 489; Chichester v Marine Board of South Australia (1910) SASR 22, although the House of Lords has recently firmly dismissed the concept in relation to a statutory duty to afford a fair hearing: Calveley v Chief Constable of the Merseyside Police (1989) 2 WLR 624. As it seems to me, the legislative intention in each statute would need to be examined. In addition there is a need to balance the protection of liberty and due process with the need for public officials to carry out their obligations honestly and in good faith free from the fear of actions for damages, either against themselves or their employers who would normally be vicariously liable.
The breaches alleged in the amended statement of claim relate to section 38 of the Migration Act. This provides an obligation on the Minister to bring a proposed deportee before a magistrate or other prescribed authority within 48 hours of arrest and thereafter as provided for. However, none of them appears to me to provide a cause of action such as to found the claim for damages made here. In the course of argument the applicant implied that this was a difficult matter for him to argue. I agree. I see no basis for such a claim to succeed in this case.
3. False arrest/imprisonment, trespass and assault
There is no doubt that these are torts and that they could be committed by all or some of the respondents. But the question is whether they can be litigated in relation to the five days detention in issue here. The case being suggested is that they may be established through proof that the decisions to detain and associated decisions were judicially reviewable. Although the applicant is prevented by law from having these decisions declared unlawful through judicial review, he says that he should nevertheless be permitted to establish a case for judicial review as a basis for a claim for damages in tort.
No decision of a court or academic writing was advanced, and I know of nothing, to support the contention that a judicial invalidation of an administrative decision on the basis of and under the principles embodied in the Administrative Decisions (Judicial Review) Act 1977 can be sought in a common law action brought in this Court. Moreover, although I have never been very impressed by the legal strength or by the logic of excluding potentially legitimate claims on "floodgates" arguments, it must be asked why, if this were permissible, would anyone in custody preparatory to deportation ever pursue judicial review alone?
4. Misfeasance in public office
Although an agreed definition of such a tort has proved very difficult, for present purposes it may be accepted that such a cause of action exists and could extend to persons such as the respondents. In Farrington v Thomson (1959) VR 286, Smith J said at 293 that the action lies at the suit of a person who suffers damage from an act of a public officer which to the officer's knowledge amounts to an abuse of office. There is some dispute as to whether malice or mala fides is necessary. Smith J thought not, provided that the officer "acted with knowledge that what he did was an abuse of his office". Smith J said that it would sometimes be sufficient merely to prove a breach of duty even without knowledge or malice. In Calveley, the House of Lords suggested that it may be sufficient if the officer acted "without reasonable cause".
In a case such as this I doubt that the tort, if otherwise available, can be so minimally defined. If it were, what would distinguish a case so limited from almost every case of administrative error? On the other hand, I do not doubt that in principle the Minister, his departmental officers and the Australian Federal Police could in a given case act and conduct themselves in such a way as to constitute a civil wrong of this type. However, where a statute permits a custodial detention and there exist the necessary authorisations and circumstances which bring the statutory prerequisites into existence, the question is whether there is a basis or authority for upholding the contention that the mere invalidation of the administrative decisions on which the detention was based can without more establish such a cause of action.
The applicant does not claim that the actions or inactions of the named officers said to constitute evidence of breach of official duty were in a relevant sense ultra vires or malicious, or were done mala fide or with knowledge of legal error. I have been referred to no case or academic writing, and have found none myself, suggesting that anything remotely similar to this case would, or has ever been held to, entitle a victim to damages. For myself, I find it difficult to see how carrying out official duties and obligations in accordance with statute or appropriate authority can amount to breaches of those duties and obligations. Moreover, no one whom the law permits or requires to keep another in custody can be acting without reasonable cause or in breach of duty in doing so because someone else's decision intra vires is found to be otherwise tainted by a legal error.
If the custodian made or was associated with making the relevant decision maliciously or in bad faith, or in some way knew that the decision was erroneous in law, or if the custodian knew that the decision was so made by another, a basis may exist for the claim to succeed. But misfeasance involves the concept that an action is wrong. How can action which is prima facie authorised by law be relevantly wrong?
Moreover, only the Minister is actually accused here of acting beyond power or in breach of duty, presumably because only he is bound by the statute to comply with its terms. But to succeed in an action for tort, there must be a causal connection between the civil wrong and the damage alleged. I can find nothing in the applicant's case which, even in the case of the Minister, would provide that link between any misfeasance established and the five days suffering in question.
Characterisation of unlawful decision-making
As I read the cases, it is still an open question whether a public officer can be liable in damages for honest or inadvertent breach of duty. But it is very much more doubtful whether a public officer can be liable in damages for actions authorised by administrative decisions which on judicial review are held to be unlawful. In Macksville the matter was not decided either by the New South Wales Court of Appeal, or by the High Court when it refused special leave to appeal on 19 February 1988. In Park Oh Ho in the Federal Court, Sweeney J refuted such a suggestion at 297-8 whereas Morling and Foster JJ. each limited their observations obiter to matters of procedure and jurisdiction. On appeal, (1989) 88 ALR 517, the High Court seemed at 522 to suggest that damages could not be a remedy for an unlawful deportation order.
The applicant made a search of overseas authority for support for his proposition. I have read a number of the cases cited. They do not establish the viewpoint he argued. Both sides to this litigation quoted various passages from Professor H.W.R. Wade's authoritative work on Administrative Law (6th Ed. 1988). At pages 782-3, Wade says that:

... administrative action which is ultra vires but not actionable merely as a breach of duty will found an action for damages in any of the following situations:

(1) if it involves the commission of a recognised tort such as trespass, false imprisonment or negligence;

(2) if it is actuated by malice ...

(3) if the authority knows that it does not possess the power to take the action in question ... The decisions suggest that there is unlikely to be liability in the absence of all these elements, ... for example where a licensing authority cancels a licence in good faith but invalidly, perhaps in breach of natural justice or for irrelevant reasons. ... it seems probable that public authorities will be held to be free from liability so long as they exercise their discretionary powers in good faith and with reasonable care. Losses caused by bona fide but mistaken acts of government may have to be suffered just as much when they are invalid as when they are valid.

See also Davis: Administrative Law Treatise Vol. 3, p 487 approved in Takaro Properties Ltd v Rowling (1978) 2 NZLR 314 at 324 (Woodhouse J); Hotop: Principles of Australian Administrative Law (6th Edition) at p 487; Barton: Judicial Review of Administrative Action in the 1980s, Problems and Prospects (ed. Taggart) at p 130.

At best these writings and the cases cited establish a basis for advocating that if a public officer knowingly acts ultra vires or maliciously, a liability in tort may be attracted in a given case. Perhaps proof of knowledge may even be surplusage in some cases either because it is not necessary or because it should be implied. But I can find no support for the proposition than a genuine good faith decision of an administrator, which is held on administrative law principles or in the exercise of a supervisory jurisdiction to be legally erroneous, can attract a liability in tort for damages. This is so even if the alleged tortfeasor is the decision-maker, let alone if the two are different people.
If, as the applicant really conceded in argument is necessary, a new tort of this kind should now be enunciated, the matter will require careful consideration and definition. I do not accept, as would follow, that the reluctance of both courts and academics throughout the world to embrace this concept hitherto is to be explained as a reaction to tenderness for the feelings and pockets of administrators or for the public purse. There are in fact many reasons why the development of a general right of action of this kind may on balance be contrary to the public interest. Not least among them are the administrative delays that might be engendered by the need to protect every decision-maker from successful suit and the expense that would be caused to the public purse, one way or another, by the rash of actions that would almost certainly follow. See Yuen Kun Yeu v Attorney-General of Hong Kong (1988) 1 AC 175 and Rowling on appeal (1988) 1 AC 473, in both of which Lord Keith of Kinkel in the Privy Council at 198 and 501-3 respectively wrote of the policy implications involved.

As I comprehend present developments, to formulate the new tort now proposed would require a quantum leap in concept, principle and definition. This does not seem to me to be a task for the courts at this time. Whatever levels of informed public discussion there have been have all indicated that the extent of the wrong to be addressed is significantly outweighed by contrary community concerns. I hold that the mere invalidation of an administrative decision does not provide a cause of action or a basis for an award of damages.
Damages
In the circumstances, no decision is needed on this issue, but a few brief observations should be made to place the case in its full context and bare it for appellate review. The applicant suggests that ordinary and exemplary damages should be awarded in a very large sum. It was argued that although limited to loss and suffering for five days, the assessment should be made on the factual basis of a much longer period of detention during which much of the applicant's suffering and many of his losses accumulated. No authority was cited in support of this proposition, which although having some basis in the law of damages in other contexts, may have been very difficult to apply here.
The applicant gave a small amount of evidence on his losses and sufferings and a volume of medical and similar evidence together with a chronology was tendered, although counsel did not address on the issue of quantum or on the availability of exemplary damages. As presently advised, I remain to be persuaded that damages for the five days of the detention could have attracted a substantial award or that the conduct which led to the five days detention could, on established principles, have entitled the applicant to exemplary damages.
Conclusion
Assuming that the Court has the jurisdiction to entertain an action for damages for losses and sufferings sustained due to the consequences of administrative decisions unlawfully made, I find that no tort or other legal basis exists for the award of such damages in the absence of at least one relevant act or omission which is knowingly or otherwise than inadvertently ultra vires or was done mala fide, in the knowledge of the error of law or with malice. If, as I believe from the amended statement of claim, the applicant makes no such assertion, this application must fail at the threshhold.
Furthermore, there must be a causal nexus between the alleged wrong and the damage claimed. Again it seems to me that the amended statement of claim and the evidence presently submitted fail to bridge that gap.
In the circumstances I will hear the parties on the orders that should now be made, or procedures followed, to conclude this litigation at first instance, including what should be done with the notice of motion to amend the application and statement of claim, and costs on the application, the notice of motion and the cross-claim.

[1991] FCA 495

09 AUGUST 1991