DRB18 v Minister for Home Affairs - [2018] FCA 1163

FEDERAL COURT OF AUSTRALIA
DRB18 v Minister for Home Affairs [2018] FCA 1163

File number: VID 878 of 2018

Judge: BROMBERG J

Date of judgment: 25 July 2018

Catchwords:
NEGLIGENCE – application for interlocutory injunction requiring the provision to the applicant of urgent medical treatment – duty of care owed by respondents to an applicant brought to Nauru under the Migration Act 1958 (Cth)

PRACTICE AND PROCEDURE – principles relevant to the grant of an interlocutory injunction – whether a serious question to be tried – where the balance of convenience lies – whether action proposed by respondents dispenses with the need for orders – injunction granted to require the respondents to provide the applicant with urgent medical treatment

Legislation: Migration Act 1958 (Cth)

Cases cited: BAF18 as litigation representative for BAG18 v the Minister for Home Affairs [2018] FCA 1060

Date of hearing: 25 July 2018

Registry: Victoria

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 43

Counsel for the Applicant: Mr M Albert with Mr A White

Solicitor for the Applicant: Russell Kennedy Lawyers

Counsel for the Respondents: Ms C Fitzgerald

Solicitor for the Respondents: Australian Government Solicitor

ORDERS

VID 878 of 2018

BETWEEN:
DRB18

Applicant

AND:
MINISTER FOR HOME AFFAIRS

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

JUDGE:

BROMBERG J

DATE OF ORDER:

25 JULY 2018

UPON THE UNDERTAKING OF THE APPLICANT BY HIS COUNSEL:
(a)to submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of the interlocutory order or undertaking or any continuation (with or without variation) thereof; and
(b)to pay the compensation referred to in (a) to the person there referred to.

THE COURT ORDERS THAT UNTIL THE HEARING AND DETERMINATON OF THE APPLICATION OR FURTHER ORDER:
1.In this order “Medical Treatment” means medical assessment and treatment provided by a specialists ophthalmologist in a tertiary level hospital facility in accordance with the recommendation of Dr Nima Pakrou dated 16 July 2018.
As soon as reasonably practicable the Respondents take all necessary and reasonable steps to identify the hospital facility which can provide the Applicant with the Medical Treatment at the earliest reasonably available opportunity and take all reasonable steps to ensure that the Applicant is provided the Medical Treatment.
2.The Respondents provide to the Applicant’s solicitor two days’ written notice of any intent to take steps to return the Applicant to Nauru.

THE COURT FURTHER ORDERS THAT:
3.Pursuant to s 37AF(1) of the Federal Court of Australia Act 1976 (Cth), on the ground in s 37AG(1)(c) of that Act, publication of the name of the Applicant (who is to be referred by the pseudonym DRB18) be prohibited.
4.The proceeding be listed for a Case Management Hearing on a date to be fixed after 14 September 2018.
5.The costs of the…

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.

Keep reading for free

Create a free CaseChat account to read DRB18 v Minister for Home Affairs 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: [2018] FCA 1163
Decision Date: 25 July 2018

CaseChat Overview and Summary

In DRB18 v Minister for Home Affairs, the applicant, a refugee detained on Nauru under the Migration Act 1958 (Cth), sought an interlocutory injunction compelling the respondents, the Minister for Home Affairs and others, to provide him with urgent medical treatment. The Federal Court was tasked with determining whether it should intervene to ensure the applicant received necessary medical care, given his deteriorating health conditions. The applicant argued that the respondents, having assumed responsibility for his detention, owed him a duty of care that included ensuring his access to urgent medical treatment.

The court had to decide whether a serious question was being tried regarding the respondents' duty of care, whether the balance of convenience favoured the applicant, and if the respondents' proposed actions obviated the need for an injunction. The applicant contended that the respondents had failed to provide adequate medical care, leading to his health crisis, and that without an injunction, he would be unable to access necessary treatment. The respondents argued that they had taken reasonable steps to provide medical care but did not accept a duty to provide urgent treatment.

The court concluded that there was a serious question to be tried regarding the respondents' duty of care towards the applicant. It found that the balance of convenience favoured the applicant, as the potential harm from not receiving urgent medical treatment outweighed any inconvenience to the respondents. The court also determined that the respondents' proposed actions did not adequately address the applicant's urgent medical needs. Consequently, the court granted the injunction, requiring the respondents to provide the applicant with urgent medical treatment. This decision underscored the court's recognition of the respondents' responsibility for the applicant's well-being while in their custody.

Orders