Halyday v Commonwealth

Case [2025] FCA 330

FEDERAL COURT OF AUSTRALIA

Halyday v Commonwealth [2025] FCA 330

File number(s): ACD 14 of 2024
Judgment of: BROMWICH J
Date of judgment: 8 April 2025
Catchwords:

PRACTICE AND PROCEDURE – application for summary dismissal or, alternatively strike out of pleadings – where applicant claims breach of duty of care owed by the Commonwealth in not removing a non-citizen – purpose of pleadings – HELD: proceeding summarily dismissed, with costs

TORTS – coherence of novel duty of care with statutory framework – duty of care applicable to decisions made under the Migration Act 1958 (Cth)
Legislation:

Federal Court Act 1976 (Cth) ss 31A, 31A(2), 31A(3)

Migration Act 1958 (Cth) ss 65, 501, 501(1), 501(2), 501(3), 501(6)

Public Governance and Accountability Act 2013 (Cth) ss 23, 25

Federal Court Rules 2011 (Cth) rr 8.03(1), 8.05(1), 13.01(1)(a), 16.01A, 16.02, 16.02(1)(d). 16.07, 16.21, 26.01, Part 16
Cases cited:

Crimmins v Stevedoring Committee [1999] HCA 59; 200 CLR 1

EOX17 v Commonwealth [2018] FCA 1656

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

Perera v Genworth Financial Mortgage Insurance Pty Ltd (t/as Genworth) [2017] NSWCA 9; 94 NSWLR 83

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

Tran v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1628
Division: General Division
Registry: Australian Capital Territory
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 45
Date of hearing: 8 April 2025
Counsel for the Applicant: The applicant appeared in person with a support person
Counsel for the Respondent: Ms P Clingan
Solicitor for the Respondent: Maddocks

ORDERS

ACD 14 of 2024
BETWEEN:

SHARYN HALYDAY

Applicant
AND:

COMMONWEALTH OF AUSTRALIA

Respondent

ORDER MADE BY:

BROMWICH J

DATE OF ORDER:

8 APRIL 2025

THE COURT ORDERS THAT:

1.Summary judgment of the proceeding be entered in favour of the respondent, pursuant to s 31A of the Federal Court Act 1976 (Cth) and r 26.01 Federal Court Rules 2011 (Cth).

2.The applicant pay the respondent’s costs, to be taxed if not agreed.

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


REASONS FOR JUDGMENT

BROMWICH J:

  1. This is an interlocutory application by the respondent, the Commonwealth of Australia, for summary judgment of the whole or part of this proceeding under s 31A of the Federal Court Act 1976 (Cth) (FCA Act) and r 26.01 Federal Court Rules 2011 (Cth) (Rules). In the alternative, the Commonwealth seeks an order that the pleadings be wholly struck out, or wholly set aside, under r 16.21 and r 13.01(1)(a) of the Rules, respectively. 

  2. The applicant, Ms Sharyn Halyday, commenced this proceeding on 18 March 2024, filing an originating application (OA), statement of claim (SOC) and concise statement (CS).  The central thrust of the case she brings is that the Commonwealth, by reason of its failure to administer migration laws properly, breached a duty of care and is liable in tort for negligence…

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Details
AGLC
Halyday v Commonwealth [2025] FCA 330
Case
[2025] FCA 330
Decision Date

CaseChat Overview and Summary

In Halyday v Commonwealth, the applicant, Halyday, brought a claim against the Commonwealth, alleging a breach of the duty of care owed by the Commonwealth in not removing a non-citizen from Australia. The Commonwealth applied for the proceeding to be summarily dismissed or, alternatively, for the applicant's pleadings to be struck out. The case before the court was to determine whether the proceeding should be summarily dismissed in favor of the Commonwealth.

The central legal issue in this case was whether the applicant's claims were coherent with the statutory framework and whether a duty of care was applicable to decisions made under the Migration Act 1958 (Cth). The court considered the principles in relation to summary judgment and the coherence of the applicant's claims with the statutory framework. The court examined whether the applicant had a reasonable prospect of successfully prosecuting the proceeding.

The court found that the applicant's claims were incoherent with the statutory framework and that the applicant had no reasonable prospect of successfully prosecuting the proceeding. The court granted the Commonwealth's application for summary judgment and dismissed the proceeding in its entirety in favor of the Commonwealth. The court also ordered the applicant to pay the Commonwealth's costs.

In summary, the court dismissed the applicant's claims against the Commonwealth, finding that they were incoherent with the statutory framework and that the applicant had no reasonable prospect of successfully prosecuting the proceeding. The court granted the Commonwealth's application for summary judgment and ordered the applicant to pay the Commonwealth's costs.

Orders

Orders of the court

1. Summary judgment of the proceeding be entered in favour of the respondent, pursuant to s 31A of the Federal Court Act 1976 (Cth) and r 26.01 Federal Court Rules 2011 (Cth).

2. The applicant pay the respondent’s costs, to be taxed if not agreed.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The defects identified above mean that the Commonwealth’s interlocutory application has to succeed in some way, and the issue for adjudication is whether that success should be manifested, in one of the following cascading outcomes:(a)the entire proceeding being the subject of summary judgment in favour of the Commonwealth, which has the same effect as if the proceeding had gone to trial, and wholly failed, and been wholly dismissed; or (b)some of the entire proceeding being the subject of summary judgment in favour of the Commonwealth, which has the same effect as if the proceeding had gone to trial, and some of it wholly failed, and been partially dismissed; or (c)some or all of the OA and SOC being set aside or struck out, without leave to re-plead; or(d)some or all of the OA and SOC being set aside or struck out, with leave to re-plead (such re-pleading being opposed by the Commonwealth).Principles in relation to summary judgment The proper way to determine this application is to consider first the question of summary judgment. As I find that wholly succeeds, there is no point in proceeding further to consider the alternative relief sought by the Commonwealth. Section 31A(2) and (3) of the FCA Act provide:(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. Section 31A is intended to relax the stringency of the common law test for summary dismissal as described in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. It follows that if the higher General Steel threshold of a case being hopeless or bound to fail, then an application for summary judgment must succeed. The exemplar of that point being reached is a case for which no cause of action is established. It is convenient to reproduce what I said about the summary dismissal power in s 31A, which is largely although not entirely reflected in r 26.01 of the Rules, and how that power has been interpreted, in Tran v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1628 at [2]-[3]:The Minister’s application for the appellant’s appeal to be summarily dismissed under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) requires the Court to be satisfied that the appellant has no reasonable prospects of successfully prosecuting it, a familiar phrase that is best taken as it is without further gloss: Spencer v Commonwealth of Australia[2010] HCA 28; 241 CLR 118 at [58]. Certainty of failure is not required, so that the bar is lower under the Act than previously existed at common law, as typified by General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 .The authorities dealing with s 31A are well known and the principles well established: see Spencer at [49]–[60], especially at [52]–[53]; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd[2008] FCAFC 60; 167 FCR 372 at [121] –[132] ; see also the helpful summary of Spencer and a number of the other key cases by Perry J in Riva NSW Pty Ltd v Official Trustee in Bankruptcy[2017] FCA 188 at [44] –[50]. Among the key points to be derived from Spencer in particular is that caution is required. That is especially so in cases where evidence can have a material bearing on the allegations relied upon, and where questions of fact and degree are important. Neither of those are common features of judicial review proceedings at either the trial or appeal stage. The power is clearly exercisable when the pleading discloses no reasonable cause of action and the deficiency is incurable, such as by re-pleading: Spencer at [22]. A failure to re-plead a reasonable cause of action despite an opportunity to do so may properly suggest that none exists, but the existence of one and the pleading of one remain distinct concepts: Spencer at [23].Summary of the applicant’s claims

Ratio Decidendi

Legal Principle Established

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