Habib v Commonwealth of Australia (No 2) [2009] FCA 228
PRACTICE AND PROCEDURE – summary judgment – whether defects in pleading incapable of being cured – whether leave to replead should be granted
CONSTITUTIONAL LAW – executive power – s 61 of the Constitution – circumstances in which exercise of executive power amenable to review
EQUITY – fiduciaries – whether Commonwealth owes fiduciary duty to its nationals – whether content of any such duty justiciable
TORTS – negligence – whether Commonwealth owes duty of care to its nationals – misfeasance in a public office – whether aiding and abetting commission of criminal offence amounts to misfeasance – harassment – whether tort of harassment extends to mental distress
Held: motion granted in part – pleading struck out – leave to replead granted
Geneva Convention (III) relative to the Treatment of Prisoners of War (opened for signature 12 August 1949) 75 UNTS 135 (entered into force 21 October 1950) art 130 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (opened for signature 12 August 1949) 75 UNTS 287 (entered into force 21 October 1950) art 147
[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.
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AGLC
Habib v Commonwealth (No 2) [2009] FCA 228
Case
[2009] FCA 228
Decision Date
CaseChat Overview and Summary
The Commonwealth has applied for judgment in relation to the claims made by Mr. Habib against them, under section 31A of the Federal Court of Australia Act 1976 (Cth). Mr. Habib has brought claims against the Commonwealth, alleging wrongful arrest, torture, extraordinary rendition, mistreatment, and defamation. The Commonwealth argues that even if all the facts alleged by Mr. Habib are proven, he has no reasonable prospect of success in his claims. The Commonwealth also seeks to strike out parts of Mr. Habib's pleadings, arguing that they do not disclose a reasonable cause of action.
The primary legal issue before the court is whether Mr. Habib's claims have a reasonable prospect of success. The court must assess the merits of Mr. Habib's claims, assuming all the facts alleged are proven. The court must consider whether, even on this assumption, Mr. Habib can succeed in his claims against the Commonwealth. The court also considers whether parts of Mr. Habib's pleadings should be struck out as disclosing no reasonable cause of action.
The court found that Mr. Habib's claims lacked a reasonable prospect of success. Despite assuming all facts alleged by Mr. Habib are true, the court determined that his claims could not succeed on the basis of public international law, which did not recognise the alleged causes of action at the time of the events. The court also found that certain parts of Mr. Habib's pleadings did not disclose a reasonable cause of action and were struck out. The court exercised its discretion under section 31A with caution, considering the importance of the right to a fair trial and the need to balance this with the potential for protracted and expensive litigation.
The court ordered that the parties provide agreed short minutes of order or, if necessary, each party provide their own short minutes of order. The proceeding was listed for further directions.
Orders
Orders of the court
1. The parties provide agreed short minutes of order consonant with this judgment to his Honour’s Associate on or before 20 March 2009, or in the event that agreement cannot be reached, each party provide its own short minutes of order.
2. The proceeding be listed for further directions at 9.30 am on 14 April 2009.
Note:
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
PERRAM J
The Commonwealth applies pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) for judgment in relation to all but one part of Mr Habib’s case on the basis that the proceedings have no reasonable prospect of success. Section 31A provides:Summary judgment (1)The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:(a)the first party is prosecuting the proceeding or that part of the proceeding; and(b)the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.(2)The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:(a)the first party is defending the proceeding or that part of the proceeding; and(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:(a)hopeless; or(b)bound to fail;for it to have no reasonable prospect of success.(4)This section does not limit any powers that the Court has apart from this section. It will be seen that the provision requires an assessment of the prospect of Mr Habib’s proceeding being successful. If this prospect is less than reasonable the Court may give judgment on the proceeding to the respondent. The insertion of subsection (3) has altered the pre-existing position that only proceedings which are hopeless or bound to fail should be dismissed. Nevertheless, it is a jurisdiction to be exercised with caution: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 at 731 [45] per Rares J. The Commonwealth also applies to strike out various portions of the pleading pursuant to O 11 r 16 which relates to pleadings said not to disclose a reasonable cause of action or which are otherwise embarrassing. In relation to both s 31A and O 11 r 16 it is appropriate to assume in Mr Habib’s favour that he would succeed at trial in proving each and every allegation of fact contained in the pleading. The Commonwealth’s argument is that, even making that assumption, the proceeding cannot succeed.Mr Habib’s claims For present purposes the contents of the pleading may be summarised as containing the following sets of allegations:(a)allegations that Mr Habib was wrongfully arrested in Pakistan by the Pakistani and US governments in October 2001;(b)allegations of his torture whilst in Pakistan at the hands of the Pakistani authorities;(c)allegations of extraordinary rendition to Egypt and allegations of torture at the hands of Egyptian authorities;(d)allegations of his removal from Egypt to Afghanistan and thence to Guantanamo Bay;(e)allegations of mistreatment by the US government at Guantanamo Bay;(f)allegations that the Commonwealth was aware that Mr Habib was to be the subject of a rendition to Egypt and that, to the Commonwealth’s knowledge, this would most likely involve torture;(g)allegations that the Commonwealth made no effort to secure his release from Egypt notwithstanding its awareness that he was being, or was very likely being, tortured there;(h)allegations that the Commonwealth provided the Egyptian authorities with information and documents that the Commonwealth had obtained from Mr Habib’s home in Australia which the Commonwealth either knew or should have known would be used in his torture;(i)allegations that the Commonwealth failed to take any sufficient steps to procure his release from Guantanamo Bay;(j)allegations that an officer or officers of the Commonwealth interrogated Mr Habib in Guantanamo Bay whilst he was shackled to the floor;(k)allegations that following his return to Australia he was persecuted and harassed by the Commonwealth by its assisting the publisher of the Daily Telegraph in a defamation suit brought by Mr Habib against that publisher and, additionally, by denying him a passport;(l)allegations of defamation by the Commonwealth constituted, generally, by statements by its officials that Mr Habib was a terrorist.