FEDERAL COURT OF AUSTRALIA
Commonwealth of Australia v Fernando [2012] FCAFC 18
Citation: Commonwealth of Australia v Fernando [2012] FCAFC 18 Appeal from: Fernando v Commonwealth of Australia [2010] FCA 753
Fernando v Commonwealth of Australia (No 3) [2010] FCA 1473Parties: COMMONWEALTH OF AUSTRALIA and THE HONOURABLE GARY HARDGRAVE, FORMERLY ACTING MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS v WANNAKUWATTEMITIWADUGE LLOYD NORMALEEN FERNANDO File number: WAD 37 of 2011 Judges: GRAY, RARES AND TRACEY JJ Date of judgment: 8 March 2012 Catchwords: MIGRATION – detention under Migration Act – initial finding that appellant falsely imprisoned for one day of 1203 day period – tortious conduct on part of officials – whether damages incorrectly assessed – whether appellant entitled to damages for entire period of detention - whether misfeasance in public office occurred – whether appellant entitled to general and exemplary damages for misfeasance in public office - competing inferences open as to conduct in public office – appeal allowed in part - proceeding to be remitted to trial judge for assessment of damages for false imprisonment – finding of misfeasance in public office overturned on appeal Legislation: Evidence Act 1995 (Cth) s 140
Migration Act 1958 (Cth) ss 5, 13, 14, 189, 193, 194, 195, 196, 501Cases cited: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2010) 187 FCR 293 cited
Briginshaw v Briginshaw (1938) 60 CLR 336 cited
Coco v The Queen (1994) 179 CLR 427 cited
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466; [2007] FCAFC 132 considered
Fernando v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 975 referred to
George v Rockett (1990) 170 CLR 104 cited
Jones v Dunkel (1959) 101 CLR 298 applied
Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100; [1993] FCA 297 cited
Liversidge v Anderson [1942] AC 206 cited
Northern Territory v Mengel (1995) 185 CLR 307 considered
Plenty v Dillon (1991) 171 CLR 635 cited
Qantas Airways Limited v Transport Workers’ Union of Australia (2011) 280 ALR 503 cited
Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48 cited, compared
Sales v Minister for Immigration and Multicultural Affairs [2006] FCA 1807 considered
Sanders v Snell (2003) 130 FCR 149; [2003] FCAFC 150 cited
Sanders v Snell (1998) 196 CLR 329 compared
Smith v New South Wales Bar Association (1992) 176 CLR 256 cited
Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1; [2001] UKHL 16 citedDate of hearing: 16 August 2011 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 134 Counsel for the Appellants: Mr R Williams QC and Mr P Macliver Solicitor for the Appellants: Australian Government Solicitor Counsel for the Respondent: Dr J L Cameron Solicitor for the Respondent: Lavan Legal
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT…
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- Commonwealth v Fernando [2012] FCAFC 18
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- [2012] FCAFC 18
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CaseChat Overview and Summary
The appeal in this matter, Commonwealth v Fernando, was brought by the Commonwealth, as the appellant, against Mr Lloyd Fernando, the respondent. The case revolves around Mr Fernando's detention under the Migration Act 1958 (Cth) for 1203 days, which he claimed was unlawful. Following his release, Mr Fernando initiated proceedings in the Federal Court, seeking damages for what he alleged was tortious conduct by the officials responsible for his detention. The trial judge found in favour of Mr Fernando, awarding him damages for false imprisonment and misfeasance in public office, but the appellants sought to overturn these findings. Mr Fernando, in turn, cross-appealed, arguing that he was entitled to a higher award of damages.
The primary legal issues in this appeal centred on the correctness of the trial judge's assessment of damages for false imprisonment and misfeasance in public office. The appellants contended that the trial judge had incorrectly assessed the damages for false imprisonment and misfeasance in public office, arguing that the detention was lawful and no damages were due. They also argued that the finding of misfeasance in public office should not stand. Mr Fernando, on the other hand, argued that the trial judge should have accepted additional bases of liability and awarded him a higher amount of damages.
In delivering the judgment, the Court found that the trial judge had erred in his assessment of damages for false imprisonment, as the evidence showed that Mr Fernando was falsely imprisoned for only one day, rather than for the entire 1203-day period. The Court also found that there were competing inferences open as to the conduct in public office and that the finding of misfeasance in public office was not supported by the evidence. Consequently, the Court allowed the appeal in part and set aside the orders made by the trial judge in relation to damages for false imprisonment and misfeasance in public office. The Court also allowed Mr Fernando's cross-appeal in part, finding that the trial judge should have assessed damages for false imprisonment for the entire period of detention, and remitted the matter to the trial judge for reassessment of damages.
The Court made several orders in relation to the appeal and cross-appeal. Firstly, the appeal was allowed in part, and the cross-appeal was allowed in part. Secondly, the orders made by the trial judge on 21 July 2010 and 24 December 2010 were set aside. Thirdly, the proceeding was remitted to the trial judge to reassess damages on the basis that Mr Fernando was falsely imprisoned by the first appellant between 5 October 2003 and 18 January 2007. Finally, the appellants were ordered to pay 85 per cent of Mr Fernando's costs of the appeal and his cross-appeal.
The primary legal issues in this appeal centred on the correctness of the trial judge's assessment of damages for false imprisonment and misfeasance in public office. The appellants contended that the trial judge had incorrectly assessed the damages for false imprisonment and misfeasance in public office, arguing that the detention was lawful and no damages were due. They also argued that the finding of misfeasance in public office should not stand. Mr Fernando, on the other hand, argued that the trial judge should have accepted additional bases of liability and awarded him a higher amount of damages.
In delivering the judgment, the Court found that the trial judge had erred in his assessment of damages for false imprisonment, as the evidence showed that Mr Fernando was falsely imprisoned for only one day, rather than for the entire 1203-day period. The Court also found that there were competing inferences open as to the conduct in public office and that the finding of misfeasance in public office was not supported by the evidence. Consequently, the Court allowed the appeal in part and set aside the orders made by the trial judge in relation to damages for false imprisonment and misfeasance in public office. The Court also allowed Mr Fernando's cross-appeal in part, finding that the trial judge should have assessed damages for false imprisonment for the entire period of detention, and remitted the matter to the trial judge for reassessment of damages.
The Court made several orders in relation to the appeal and cross-appeal. Firstly, the appeal was allowed in part, and the cross-appeal was allowed in part. Secondly, the orders made by the trial judge on 21 July 2010 and 24 December 2010 were set aside. Thirdly, the proceeding was remitted to the trial judge to reassess damages on the basis that Mr Fernando was falsely imprisoned by the first appellant between 5 October 2003 and 18 January 2007. Finally, the appellants were ordered to pay 85 per cent of Mr Fernando's costs of the appeal and his cross-appeal.
Orders
Orders of the court
1. The appeal be allowed in part.
2. The cross-appeal be allowed in part.
3. Order 1 made by the trial judge on 21 July 2010 be set aside.
4. Order 1 made by the trial judge on 24 December 2010 be set aside.
5. The proceeding be remitted to the trial judge to assess damages on the basis that the respondent (cross-appellant) was falsely imprisoned by the first appellant between 5 October 2003 and 18 January 2007.
6. The appellants pay 85 per cent of the respondent’s costs of the appeal and his cross-appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
The respondent to this appeal, Mr Lloyd Fernando, was detained under the Migration Act 1958 (Cth) (“the Act”) for 1203 days. He claimed that this detention was unlawful. Upon his release he commenced a proceeding in this Court seeking damages for what he alleged was tortious conduct on the part of those responsible for his detention. He was partially successful at trial. The appellants on this appeal seek to set aside the orders made by the trial judge to the extent that they were favourable to Mr Fernando. Mr Fernando has cross-appealed seeking to establish that the trial judge should have accepted that additional bases of liability existed and that he was entitled to a higher award of damages than that which he had obtained.THE FACTS The findings of fact made by the trial judge were not disputed on appeal. The following summary is based on the trial judge’s account of relevant events. Mr Fernando is a citizen of Sri Lanka. He came to Australia in 1989. In 1995 he was granted a permanent residency visa. In July 1998 Mr Fernando was convicted in the Western Australian District Court on three counts of sexual assault. Shortly afterwards he was sentenced to eight years imprisonment. An appeal against his convictions was dismissed by the Western Australian Court of Criminal Appeal. The sentence imposed on Mr Fernando meant that he did not pass the character test imposed by s 501(6)(a) and (7) of the Act. In these circumstances the Minister was empowered, by s 501(2), to cancel Mr Fernando’s visa. In November 2001 the then Minister determined to cancel Mr Fernando’s visa. Mr Fernando sought judicial review of the Minister’s decision in this Court. On 16 September 2003 Carr J set aside the Minister’s decision: see Fernando v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 975. His Honour did so because the departmental submission on which the Minister acted included material in an attachment (Annexure L) which contained serious allegations against Mr Fernando about which he had not been given the opportunity to make submissions. Mr Fernando was due for release on parole on 5 October 2003. Officers of the Minister’s department were aware of this and promptly set in train procedures which were intended to facilitate a fresh ministerial decision to cancel Mr Fernando’s visa before he was released from prison. Were such a decision to be made prior to his release he could be transferred directly from prison into immigration detention and thereafter deported. The major temporal problem which confronted the departmental officers was that departmental practice at the time required that a person who held a visa, which it was proposed should be cancelled under s 501(2), should be given notice of the Minister’s intention to consider such cancellation and then provided with fourteen (14) days within which to provide the Minister with any submissions which might persuade him that he ought not cancel the visa. No decision could be made by the Minister until the 14 day period had expired.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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