Director-General of Security v Aix20

Link copied
Case Copied 23 min read

FEDERAL COURT OF AUSTRALIA

Director-General of Security v AIX20 [2024] FCA 88

Application for leave to appeal from: AIX20 v Director-General of Security [2023] FCA 1344
File number: VID 1004 of 2023
Judgment of: MORTIMER CJ
Date of judgment: 15 February 2024
Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal – application for stay of proceedings – where primary judge dismissed an application for summary dismissal – where novel duty of care alleged in negligence claim – where declaration sought in judicial review application – whether sufficient doubt attends decision of primary judge – whether substantial injustice if leave not granted – leave to appeal refused  
Legislation:

Australian Security Intelligence Organisation Act 1979 (Cth)

Federal Court of Australia Act 1976 (Cth) s 24(1A)

Migration Act 1958 (Cth) s 501(6)(g)

Federal Court Rules 2011 (Cth)

Cases cited:

Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564

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

Bux Global Ltd v Hooke [2018] FCA 882

Cran v New South Wales [2004] NSWCA 92; 62 NSWLR 95

Fuller-Wilson v State of New South Wales [2018] NSWCA 218

Johnson TilesPty Ltd v Esso Australia Ltd [2000] FCA 1572; 104 FCR 564

Knowles v Commonwealth of Australia [2022] FCA 741

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v MB [2021] FCAFC 194

Minister for the Environment v Sharma [2022] FCAFC 35; 291 FCR 311

NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134

Neimann v Electronic Industries Ltd [1978] VR 431

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

State of New South Wales v Spearpoint [2009] NSWCA 233

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

Division: General Division
Registry: Victoria
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 40
Date of hearing: 6 February 2024
Counsel for the Applicant: Mr P Herzfeld SC with Ms A Hammond
Solicitor for the Applicant: Australian Government Solicitor
Counsel for the Respondent: Mr E Nekvapil SC with Ms E Brumby
Solicitor for the Respondent: Victoria Legal Aid

ORDERS

VID 1004 of 2023
BETWEEN:

DIRECTOR-GENERAL OF SECURITY

Applicant
AND:

AIX20

Respondent

ORDER MADE BY:

MORTIMER CJ

DATE OF ORDER:

15 FEBRUARY 2024

THE COURT ORDERS THAT:

1.The application for leave to appeal filed on 15 November 2023 be dismissed.

2.The application for a stay of proceeding VID711/2022 be dismissed.

3.The applicant pay the respondent’s costs, to be taxed in default of agreement.

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


REASONS FOR JUDGMENT

MORTIMER CJ:

  1. The applicant in this proceeding, the Director-General of Security, seeks leave to appeal from orders of the primary judge in AIX20 v Director-General of Security [2023] FCA 1344, refusing an application for summary dismissal of both of the causes of action brought in VID711/2022 by the respondent to this application, identified by the pseudonym of AIX20. The Director-General also sought…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Director-General of Security v Aix20 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
[2024] FCA 88
Decision Date

CaseChat Overview and Summary

In the matter of Director-General of Security v Aix20, the court addressed an application for leave to appeal against the dismissal of a claim for summary dismissal, as well as a judicial review application. The primary judge had dismissed both the negligence claim and the judicial review application, ruling that neither met the threshold for proceeding to trial. The Director-General of Security sought leave to appeal this decision, arguing that the primary judge erred in not granting summary dismissal to both claims. The legal issues centred on whether the primary judge's decision was attended by sufficient doubt and whether substantial injustice would be caused if the appeal was not granted.

The court considered the principles guiding the grant or refusal of leave to appeal under section 24(1A) of the Federal Court of Australia Act 1976. It emphasised the policy of restraint in appeals from interlocutory decisions unless there was sufficient justification. The court noted that the primary judge recognised that a novel cause of action in negligence did not necessarily protect a party from summary dismissal, but acknowledged that the common law is organic and developing. It was held that the primary judge's decision was not attended by sufficient doubt, as it was open to the respondent to argue on reasonable grounds that the common law should recognise a wider scope of liability. Moreover, the court found that substantial injustice would not result if the appeal was not granted, as the Director-General could continue to focus on the discovery process and the respondent's resources would not be unduly diverted.

In light of the above, the court dismissed the application for leave to appeal and the application for a stay of proceedings. The Director-General was ordered to pay the respondent's costs, to be taxed in default of agreement. This outcome reflects the court's adherence to the principles of finality and efficient administration of justice, which favour proceedings continuing to trial after a primary decision on an interlocutory application.

Orders

Orders of the court

1. The application for leave to appeal filed on 15 November 2023 be dismissed.

2. The application for a stay of proceeding VID711/2022 be dismissed.

3. The applicant pay the respondent’s costs, to be taxed in default of agreement.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In relation to judicial review, the Director-General submitted the respondent “could be in no better position than he currently is, living freely in the Australian community” and that the declarations sought would have no impact on his legal rights or interests. The primary judge’s reasoning at [43] is described as relying “solely on speculation” as to possible scenarios where the declarations sought may have utility, such as job or visa applications or a ruling to put “beyond doubt” a hypothesised construction of s 501(6)(g) of the Migration Act 1958 (Cth). The Director-General submits that the disclaimer by the Director-General (to the Court, by way of agreement to notes in Court orders) of any such construction of s 501(6)(g) is sufficient. Senior counsel submitted that where the “non-prejudicial security assessment” is now the operative security assessment in relation to the respondent, it was improbable and unrealistic that the first and second ASAs could have any likely effect on the interests of the respondent in the future. He distinguished situations like Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564 where, in senior counsel for the Director-General’s words, “there has been a public traducing of reputation such that a public declaration can vindicate that”. My conclusion The primary judge recognised, as the Director-General submits, that a claim of a novel cause of action does not immunise a party from summary dismissal of that claim. Observations in authorities such as Perera v Genworth Financial Mortgage Insurance Pty Ltd [2017] NSWCA 19; 94 NSWLR 83 at [32] do not convey any wider proposition. What observations in cases like Minister for the Environment v Sharma [2022] FCAFC 35; 291 FCR 311 recognise however (see especially at [4], [211]-[213], [246] (Allsop CJ); [352]-[356], [362], [546], [580], [603], [633] (Beach J); [777] and [783] (Wheelahan J)) is that the common law is organic and developing. The proposition that a cause of action in negligence (see especially the observations of Beach J at [546] in Sharma) in a particular situation, or in respect of particular statutory powers (as here), has not yet been recognised does not foreclose the development of the common law in a way that might vindicate the arguments being made. In State of New South Wales v Spearpoint [2009] NSWCA 233 at [31], Beazley JA said:An application for summary dismissal is an extreme measure. It forever shuts a plaintiff out of an alleged claim. There is no case in Australia which says that a police officer is immune from suit in the sense that a police officer never can owe a duty of care. Although, as Allsop ACJ indicated during the course of argument, the cases may be rare where a duty of care is found, it was not established on this case that there could be no duty of care owed. And see Fuller-Wilson v State of New South Wales [2018] NSWCA 218 at [12]:[T]he primary judge was correct to conclude that the pleaded case would be dismissed in accordance with current authority. However, it is open to the appellants to argue, on reasonable grounds, that the common law in Australia should recognise a wider scope of liability. In that circumstance the better view is that the proceedings should not have been summarily dismissed.

Ratio Decidendi

Legal Principle Established

On this application, the Director-General contended the primary judge erred in refusing summary dismissal of both the negligence claim and the judicial review application; alternatively, his Honour erred in refusing summary dismissal of the negligence claim. Whichever alternative contention is considered, I consider leave to appeal should be refused.CONSIDERATION The principles governing the grant or refusal of leave to appeal under s 24(1A) are well established and were not in dispute. As is generally the case, it is their application to the primary judge’s reasoning, and the consequences of his Honour’s decision, where the dispute lies. Nevertheless, it is worth repeating that it is well established that the policy behind s 24(1A) is one aimed at the restraint of appeals from interlocutory decisions unless sufficient justification is shown. The Court has a wide discretion about when such justification is present, but nevertheless I respectfully agree with the observations of French J (as his Honour then was) in Johnson TilesPty Ltd v Esso Australia Ltd [2000] FCA 1572; 104 FCR 564 at [42] that:The time and resources of the Court and the parties should not lightly be taken up with appeals about decisions in connection with proceedings which do not finally determine the rights of the parties. Given the time and resources that have been applied to this leave to appeal application since it was filed, there is some irony in the Director-General’s application, in that a significant plank of the argument turns on the considerable time and resources that are likely to be employed if the primary judge’s orders are not disturbed. Absent this application, the Director-General would have been able to focus on meeting the timetable set out in the primary judge’s case management orders of 14 December 2023 in respect of the discovery process, and the (I infer) more limited resources of the respondent to this application would not have been diverted to defending the primary judge’s orders and reasons. It is also worth emphasising that although the factors of (a) attended by sufficient doubt to warrant the grant of leave, and (b) substantial injustice, are not statutory factors, they have been accepted as expressing the principal considerations which are likely, in most cases, to govern the exercise of discretion under s 24(1A). As McKerracher J observed in Bux Global Ltd v Hooke [2018] FCA 882 at [26], by reference to Neimann v Electronic Industries Ltd [1978] VR 431, it is generally appropriate for a court to be satisfied that both factors warrant the grant of leave, not just that an order may be attended by error. Plainly enough, error may ultimately be corrected by an exercise of a party’s right to appeal after final judgment. In my opinion, that is because of the policy to which French J referred, and the legislative preference, evidenced by a prohibition subject only to a grant of leave, that after a primary decision on an interlocutory application (including a summary dismissal application), considerations of finality and the effective and efficient administration of justice favour proceedings continuing to trial. This does not mean the discretion is narrow or highly constrained. Rather, it recognises the policy underlying the terms of the statute.Whether orders attended with sufficient doubt to warrant the grant of leave