DBE17 (by his litigation guardian Marie Theresa Arthur) v Commonwealth of Australia

The case of DBE17 (by his litigation guardian Marie Theresa Arthur) v Commonwealth of Australia involves a claim for damages for unlawful imprisonment relating to immigration detention. The proceedings were commenced under Part IVA of the Federal Court of Australia Act 1976 (Cth) against the Commonwealth. The Commonwealth has applied for orders that the proceeding should be summarily dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) or r 26.01(1)(a) and (c) of the Federal Court Rules 2011 (Cth), and for summary judgment in its favour. It has also applied for orders to strike out the applicant's Statement of Claim in its entirety or in part, pursuant to r 16.21 of the Rules, and seeks costs in the matter. The Commonwealth contends that s 196(1) prescribes three alternative end points, its language is intractable, and detention is lawful unless and until one of the events in s 196(1) occurs.

The central legal issue in this case is the construction of s 31A of the Federal Court of Australia Act 1976 (Cth), which sets out the circumstances in which the Court may dismiss a proceeding for want of prosecution or for failing to comply with an order. The Court was required to determine whether the applicant's proceeding falls within the scope of s 31A, and whether the Commonwealth's application for summary judgment should be granted. The Court was also required to decide whether the applicant's Statement of Claim should be struck out in whole or in part, and whether the Commonwealth is entitled to costs.

The Court dismissed the Commonwealth's interlocutory application. It found that the eight time periods pleaded in the alternative at [21] reflect the applicant's identification of the spectrum of time in which it would be ‘reasonably practicable’ for the visa purpose to be pursued and carried into effect. There is nothing intrinsically impermissible in such a pleading, as the applicant submits. The Court held that it is to be expected that a person in the applicant’s position might plead a range of factual periods as “reasonably practicable” periods, given the “information asymmetry” between the applicant and the Commonwealth about visa processing methods. The Court held that there was no apparent reason why costs should not follow the event, but the parties would be given some time to attempt to agree orders on costs. If the parties could not agree, they would have an opportunity to file short submissions on the question. The matter would be listed for a case management hearing at an early date convenient to the parties and the Court, and the parties would be expected to work cooperatively in the interim to propose a set of orders to prepare the matter for trial.

The Court made orders dismissing the respondent’s interlocutory application, setting deadlines for the parties to file proposed agreed orders on the questions of costs, and for the parties to confer on appropriate orders to progress the matter to trial. The matter was to be listed for a case management hearing on a date to be fixed after 24 July 2020.