Hassan (formerly described under the pseudonym AFX21) v Minister for Home Affairs

[2024] FCA 527

FEDERAL COURT OF AUSTRALIA

Hassan (formerly described under the pseudonym AFX21) v Minister for Home Affairs

[2024] FCA 527

SUMMARY

In accordance with the practice of the Federal Court in some cases of public interest, the following summary has been prepared to accompany the orders made today.  This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court.  The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment which will be available on the internet at the Court’s website together with this summary.

The applicant, Mr Yasir Hassan, is a citizen of Somalia.  On 18 December 2019, Mr Hassan was brought to Australia from Papua New Guinea (PNG) for treatment of his mental health issues.  The applicant was one of a cohort of critically ill individuals transferred from offshore immigration detention to Australia for urgent medical treatment.  Those transferees are known colloquially as medevac transferees.

The first to fourth respondents are respectively:  the Minister for Home Affairs; the Minister for Immigration, Citizenship and Multicultural Affairs; the Commonwealth; and the Secretary of the Department of Home Affairs.

On 21 January 2020, the applicant made a request for his removal from immigration detention in Australia to PNG under s 198(1) of the MigrationAct 1958 (Cth). That section provides that an “officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed”.  However, the applicant was removed to the United States of America only on 11 August 2021, over 500 days after his initial request.  The applicant continues to reside in the United States.

In this proceeding, the applicant seeks damages for an alleged breach of a purported duty of care owed to him by the respondents in failing to limit the duration of his detention to that required for the purpose of removal to PNG as soon as reasonably practicable from the time of his written requests of 21 January and 2 June 2020.  The question is novel as the duty of care for which the applicant contends has not hitherto been recognised by any Australian court.  The applicant also seeks aggravated and exemplary damages.  This proceeding was heard as the “lead or test case” for other applicants in similar circumstances. 

The Court dismissed the application with the question of costs reserved. 

First, the Court held that no duty of care known to the common law of Australia was alleged. Recognition of a duty to the effect pleaded would create incoherence with the operative provisions of the Migration Act because (among other things) the applicant’s detention could be both lawful under and required by the Migration Act while also in breach of the duty of care. The Court therefore held that the applicant’s claim failed at the threshold stage because no duty of care was owed by any of the respondents to the applicant in the terms alleged.

Secondly and in any event, the Court found that, even if a duty of care as alleged was owed at common law by all or some of the respondents, the applicant had not established the factual allegations on the basis of which he contended that the respondents were in breach of their duty of care, save that it was agreed by the parties that no steps were taken to remove him between January 2020 and February 2021.  In particular, the Court found that the applicant had not proved his claim that there was no system established by the respondents to administer requests by medevac transferees for their return to regional processing countries.  To the contrary, the Court considered that the evidence established, on the balance of probabilities, that a system to administer requests for the return of such persons did exist between 18 December 2019 and 16 February 2021. 

Thirdly, the Court found that the applicant had not established that the respondents’ conduct caused him to suffer any loss and damage of the kind alleged.  Even if the applicant could establish that “but for” the respondents’ conduct the applicant would have been removed from Australia to PNG prior to 20 March 2020, the Court considered that the respondents’ scope of liability would not extend to the harm so caused.  This is because the Court found that the PNG border restrictions in response to the COVID-19 pandemic limited the respondents’ capacity to remove the applicant from Australia after 20 March 2020 and were an intervening act which broke the chain of causation.

In reaching these conclusions, the Court recognised the personal impact upon the applicant of spending over 500 days in immigration detention at (primarily) the Melbourne Immigration Transit Accommodation, Avon compound.  The Court accepted that the applicant had clearly endured a terrible ordeal which it was right to acknowledge.  This Court considered that this was all the more appropriate where the applicant had not committed any crime, was brought to Australia only for the temporary purpose of receiving medical treatment, and had mental health issues throughout the duration of his detention.

Justice Perry

20 May 2024

Sydney

FEDERAL COURT OF AUSTRALIA

Hassan (formerly described under the pseudonym AFX21) v Minister for Home Affairs [2024] FCA 527

File number(s):

NSD 52 of 2021

Judgment of:

PERRY J

Date of judgment:

20 May 2024

Catchwords:

MIGRATION – where applicant was medically evacuated to Australia from offshore immigration detention in Papua New Guinea for urgent medical treatment – where applicant requested his removal to PNG under s 198(1) of the Migration Act 1958 (Cth) – where applicant was removed to the USA over 500 days after his request

TORT – whether respondents owed the applicant a duty of care in failing to limit the duration of his detention to that required for the purpose of removal as soon as reasonably practicable from the time of his request – discussion of principles for determining whether a duty of care exists – where no duty of care known to the common law is alleged – where a duty of care in the terms pleaded would create incoherence with operative provisions of the Migration Act – application dismissed

TORT – whether respondents in breach of any duty of care – whether respondents had failed to establish any system for administering requests for return under s 198B of the Migration Act

CHOICE OF LAW – where purported breach of duty of care was an omission – where applicant contends that the applicable law is the common law of Australia unmodified by statute – where s 80 of the Judiciary Act 1903 (Cth) directs the Court to apply common law principles of choice of law – where civil liability laws of Victoria, as the place where the omission assumed significance, apply

TORT –whether harm comprising deprivation of liberty, and mental distress and anxiety was caused by the alleged negligent omission for the purposes of s 51 of the Wrongs Act 1958 (Vic) – where framing of question of causation by reference to loss of a chance to be returned is misconceived in law – whether but for the alleged breach, the applicant would have been removed before border restrictions were imposed by PNG in response to the COVID-19 pandemic – where COVID-19 pandemic border restrictions broke the chain of causation – whether responsibility for the harm should be imposed on the respondents

DAMAGES – whether general claim for damages is capped by s 28G of the Wrongs Act – whether claim for mental distress and suffering barred by s 28LE of the Wrongs Act – whether damages in relation to loss of freedom should be awarded on a “per day” basis

EVIDENCE – whether Australian Human Rights Commission report admissible under the business records exception to hearsay rule in s 69 of the Evidence Act 1995 (Cth)

Legislation:

Australian Human Rights Commission Act 1986 (Cth)

Evidence Act 1995 (Cth) ss 59, 69, 140, Dictionary

Federal Court of Australia Act 1975 (Cth) s 37M

Judiciary Act 1903 (Cth) ss 79, 80

Migration Act 1958 (Cth) ss 4AA, 5, 13, 14, 42, 46A, 91X, 189, 196, 198, 198AD, 198AE, 198AH, 198B

Migration Amendment (Repairing Medical Transfers) Act 2019 (Cth)

Public Services Act 1999 (Cth) ss s 7, 20(1)

Wrongs Act 1958 (Vic) ss 28B, 18C, 28G, 28LB, 28LC, 28LE, 28LF, 51

Cases cited:

Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552

Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corp (1985) 1 NSWLR 561

AS v Minister for Immigration and Border Protection [2016] VSCA 206; (2016) 312 FLR 67

AZC20 v Minister for Home Affairs [2021] FCA 1234

AZC20 v Secretary, Dept of Home Affairs (No 2) [2023] FCA 1497

Blunden v Commonwealth [2003] HCA 73; (2003) 218 CLR 330

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512

Bulsey v Queensland [2015] QCA 187

Burgess v Commonwealth of Australia [2020] FCA 670; (2020) 276 FCR 548

CAL No 14 Pty Ltd (t/as Tandara Motor Inn) v Motor Accidents Insurance Board [2009] HCA 47; (2009) 239 CLR 390

Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112

Charan v Nationwide News Pty Ltd [2018] VSC 3

Commonwealth v AJL20 [2021] HCA 21; (2021) 273 CLR 43

Commonwealth v Mewett (1997) 191 CLR 471

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; (2007) 162 FCR 466

Cubillo v Commonwealth of Australia (No 2) [2000] FCA 1084; (2000) 103 FCR 1

Distillers Co (Biochemicals) Ltd v Thompson [1971] AC 458 at 468 quoted in Amaca Pty Ltd v Frost [2006] NSWCA 173; (2006) 67 NSWLR 635

DIZ18 (by her litigation representative DJA18) v Minister for Home Affairs (No 2) [2022] FCA 898

Electricity Networks Corporation v Herridge Parties [2022] HCA 37; (2022) 276 CLR 271

Falzon v Minister for Immigration and Border Protection [2018] HCA 2; (2018) 262 CLR 333

Fernando v Commonwealth of Australia [2014] FCAFC 181; (2014) 231 FCR 251

Guo v Commonwealth of Australia [2017] FCA 1355; (2017) 258 FCR 31

Goldie v Commonwealth [No 2] [2004] GCA 156; (2004) 81 ALD 422

Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540

Hampton Court Ltd v Crooks [1957] HCA 28; (1957) 97 CLR 367

Hansen Beverage Co v Bickfords (Aust) Pty Ltd [2008] FCA 406; (2008) 75 IPR 505

Harvey v Singer Manufacturing Co Ltd 1960 SC 155

John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503

Jones v Dunkel (1959) 101 CLR 298

Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522

Martens v Stokes [2012] QCA 36; [2013] 1 Qd R 136

Monaghan v Australian Capital Territory [No 2] [2016] ACTSC 352; (2016) 315 FLR 305

MZZHL v Commonwealth of Australia [2021] FCA 600

NSW Land and Housing Corp v Watkins [2002] NSWCA 19; (2002) Aust Torts Reports 81-641

NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; (2023) 97 ALJR 1005

Okwume v Commonwealth of Australia [2016] FCA 1252

Plaintiff M96A/2016 v Commonwealth (2017) 261 CLR 582; [2017] HCA 16

Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517

Roach v Page (No 15) [2003] NSWSC 939

Roach v Page (No 27) [2003] NSWSC 1046

Roads and Traffic Authority of NSW v Dederer [2007] HCA 43; (2007) 234 CLR 330

Robtelmes v Brenan (1906) 4 CLR 395

Ruddock v Taylor [2003] NSWCA 262; (2003) 58 NSWLR 269

Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612

Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121

Stradford (A Pseudonym) v Judge Vasta [2023] FCA 1020

Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 226 FCR 555

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

Sutherland Shire Council v Heyman (1985) 157 CLR 424

Sydney Water Corporation v Turano [2009] HCA 42; (2009) 239 CLR 51

Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537

Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538

W v Home Office [1997] Imm AR 302; [1997] EWCA Civ 1052

WAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1625

Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375

Williams v Minister, Aboriginal Land Rights Act 1983 (1999) 25 Fam LR 86; [1999] NSWSC 843

Division:

General Division

Registry:

New South Wales

National Practice Area:

Administrative and Constitutional Law and Human Rights

Number of paragraphs:

214

Date of last submissions:

27 October 2023

Date of hearing:

6–7 December 2023

Counsel for the Applicant:

Mr J F Gormly

Solicitor for the Applicant:

Hall & Wilcox

Counsel for the Respondents:

Mr P Herzfeld SC, Mr C Tran, Ms N Wooton (for written submissions) and Mr R Harvey (for oral submissions)

Solicitor for the Respondents:

Australian Government Solicitor

ORDERS

NSD 52 of 2021

BETWEEN:

YASIR HASSAN (FORMERLY DESCRIBED UNDER THE PSEUDONYM AFX21)
Applicant

AND:

MINISTER FOR HOME AFFAIRS
First Respondent

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Second Respondent

COMMONWEALTH OF AUSTRALIA
Third Respondent

SECRETARY OF THE DEPARTMENT OF HOME AFFAIRS
Fourth Respondent

order made by:	PERRY J
DATE OF ORDER:	20 May 2024

THE COURT ORDERS THAT:

1. At the applicant’s request, his name in this proceeding is no longer suppressed.

2. In place of the pseudonym, AFX21, the title of the applicant in the proceeding is amended to “Yasir Hassan (formerly described under the pseudonym AFX21)”.

3. The fifth further amended originating application, filed on 7 February 2023, be dismissed.

4. In the event that agreement between the parties as to the appropriate orders for costs is not reached:

   (a)the parties are to agree a timetable by 4:00pm on Monday 3 June 2024 in which short submissions on, and any evidence with respect to, costs are to be filed and served; and

   (b)subject to further order of the Court, any issue as to costs is to be determined on the papers.

5. Insofar as may be necessary, pursuant to rule 36.03(b) of the Federal Court Rules 2011 (Cth), the date by which any notice of appeal is to be filed be fixed as the date 28 days after final orders are made in respect of costs.

THE COURT NOTES THAT:

1. The parties are to use their best endeavours to agree costs.

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

REASONS FOR JUDGMENT

PERRY J:

1       INTRODUCTION	[1]
2       THE AGREED FACTS	[8]
3       THE ISSUES	[32]
4       EVIDENCE	[35]
4.1      The applicant’s evidence	[36]
4.2      The respondents’ evidence	[41]
4.3      Ruling on the admissibility of the Australian Human Rights Commission Report	[48]
5       DID THE RESPONDENTS OWE A DUTY OF CARE TO THE APPLICANT?	[56]
5.1      Relevant principles	[56]
5.2      The statutory regime	[69]
5.2.1        Relevant provisions for the bringing of transitory persons to Australia	[69]
5.2.2        Relevant provisions for the detention and removal of transitory persons in Australia	[71]
5.3      The applicant’s submissions on duty of care	[83]
5.4      The applicant has not established that the respondents owe him a duty of care	[88]
6       DID THE RESPONDENTS BREACH ANY DUTY OF CARE?	[103]
6.1      Did the respondents, between 18 December 2019 and 16 February 2021, establish a system to administer requests for return to regional processing countries by medevac transferees, such as the applicant?	[108]
6.1.1        The applicant’s submissions	[108]
6.1.2        The applicant has failed to establish that no system existed for the administration of requests for return	[113]
7       WHAT IS THE GOVERNING LAW?	[141]
7.1      The parties’ contentions	[141]
7.2      Victorian law applies	[147]
8       DID ANY BREACH OF DUTY CAUSE THE APPLICANT HARM?	[161]
8.1      Relevant statutory provisions concerning causation	[164]
8.2      The parties’ submissions on causation	[168]
8.3      The applicant has not established causation	[176]
8.3.1        Factual causation	[178]
8.3.2        Scope of liability	[181]
9       DOES A STATUTORY LIMIT AND/OR BAR APPLY TO THE APPLICANT’S CLAIM?	[193]
10     DAMAGES	[205]
11     CONCLUSION	[214]

1. INTRODUCTION

2. The applicant, Mr Yasir Hassan, is a citizen of Somalia.  On 18 December 2019, Mr Hassan was brought to Australia from Papua New Guinea (PNG) for treatment of mental health issues.  The applicant was one of a cohort of critically ill individuals transferred from offshore immigration detention to Australia for urgent medical treatment.  Those transferees are known colloquially as medevac transferees.

3. The first to fourth respondents are respectively:  the Minister for Home Affairs; the Minister for Immigration, Citizenship and Multicultural Affairs; the Commonwealth; and the Secretary of the Department of Home Affairs.

4. On 21 January 2020, the applicant made a request for his removal from immigration detention in Australia to PNG under s 198(1) of the MigrationAct 1958 (Cth). That section provides that an “officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed”.  However, the applicant was removed to the United States of America only on 11 August 2021, over 500 days after his initial request.  The applicant continues to reside in the United States.

5. By his fifth further amended originating application, the applicant seeks damages for an alleged breach of a purported duty of care owed to him by the respondents in failing to limit the duration of his detention to that required for the purpose of removal to PNG as soon as reasonably practicable from the time of his written requests of 21 January and 2 June 2020.  The question is novel as the duty of care for which the applicant contends has not hitherto been recognised by any Australian court.  The applicant also seeks aggravated and exemplary damages.  Finally, while the applicant sought declaratory relief in his fifth further amended originating application, in oral submissions his counsel, Mr Gormley, confirmed that declarations were no longer sought:  Transcript (T)-87–88.

6. For the reasons which follow, the application must be dismissed.  In summary, first, no duty of care known to the common law of Australia is alleged and recognition of a duty to the effect pleaded would create incoherence with the operative provisions of the Migration Act. The claim, therefore, must fail at the threshold stage because no duty of care was owed by any of the respondents to the applicant in the terms alleged. Secondly, even if a duty of care as alleged was owed at common law by all or some of the respondents, the applicant has not established the factual allegations on the basis of which he contends that the respondents were in breach of their duty of care, save that it is agreed that no steps were taken to remove him between January 2020 and February 2021.  In particular, the applicant has not proved that there was no system established by the respondents to administer requests by medevac transferees for their return to regional processing countries.  To the contrary, the evidence establishes, on the balance of probabilities, that a system to administer requests for the return of such persons did exist between 18 December 2019 and 16 February 2021 (the relevant period).  Thirdly and in any event, the applicant has not established that the respondents’ conduct caused the applicant to suffer any loss and damage of the kind alleged.  Even if the applicant could establish that “but for” the respondents’ conduct the applicant would have been removed from Australia to PNG prior to 20 March 2020, in my view the respondents’ scope of liability would not extend to the harm so caused.  In particular, the Court found that the PNG border restrictions in response to the COVID-19 pandemic limited the respondents’ capacity to remove the applicant from Australia after 20 March 2020 and were an intervening act which broke the chain of causation.

1. In so finding, I do not seek to deny or underplay the personal impact upon the applicant of spending over 500 days in immigration detention at (primarily) the Melbourne Immigration Transit Accommodation (MITA), Avon compound.  The applicant has clearly endured a terrible ordeal which it is right to acknowledge.  This is all the more so where the applicant has not committed any crime, was brought to Australia only for the temporary purpose of receiving medical treatment, and had mental health issues throughout the duration of his detention.

2. Finally, I note that the applicant was formerly known as AFX21, but has requested to have his name used in these proceedings: T-2.28–33. The respondent had no objection with that course: T-5.3–4. Section 91X of the Migration Act prohibits the Court from publishing a person’s name where a proceeding relates to a person in their capacity as an applicant for a protection visa or a protection-related bridging visa, or a person whose protection visa or protection-related bridging visa has been cancelled. This proceeding does not fall into any of those categories, even though the applicant has sought asylum and been recognised as a refugee in PNG. In circumstances where s 91X of the Migration Act does not apply to the applicant and the applicant has requested the use of his name in the proceeding in conjunction with his pseudonym, I am satisfied that it is appropriate that he be named in this judgment.

3. THE AGREED FACTS

4. The following facts were agreed by the parties in their statement of agreed facts filed on 22 September 2023 (SAF) or were otherwise not in issue.

5. The applicant was born in Somalia in 1988 and obtained Somalian citizenship at birth.

6. On 13 September 2013, the applicant arrived at Christmas Island as an unauthorised maritime arrival.  As an unauthorised maritime arrival seeking asylum, he was detained by an officer of the Department of Home Affairs under s 189(3) of the Migration Act. On 28 October 2013, the applicant was taken to Manus Island, PNG, under s 198AD of the Migration Act.

7. On 15 July 2014, a Direction was made under s 198AD(5) of the Migration Act which directed officers to take unauthorised maritime arrivals, who had previously been taken to PNG and brought to Australia as a transitory person for the temporary purpose of undertaking medical treatment, back to PNG when they no longer needed to be in Australia for medical treatment (the 2014 s 198AD(5) Direction).

8. On 23 October 2015, the Government of PNG recognised the applicant as a refugee.

9. The Secretary was notified on 15 November 2019 under then s 198E(2) of the Migration Act that the applicant was a “relevant transitory person”.  On 22 November 2019, a Medical Officer of the Commonwealth (MOC) recommended the applicant’s transfer from PNG to Australia for treatment of his mental health issues. On 28 November 2019, the Minister for Immigration approved the applicant’s transfer from PNG to Australia under then s 198E of the Migration Act.

10. On 5 December 2019, the Migration Amendment (Repairing Medical Transfers) Act 2019 (Cth) repealed former ss 198C to 198J of the Migration Act. On the following day, an officer of the Department approved the applicant’s medical transfer to Australia for a temporary purpose under s 198B of the Migration Act. That provision confers power on an officer of the Department to bring transitory persons into Australia for a temporary purpose.

11. On 13 December 2019, the applicant signed an Agreement of Medical Transfer. At the same time, the applicant was given a Transfer Information Sheet and Property Management Information Sheet. The applicant was brought to Australia on 18 December 2019 under s 198B. On arrival at Brisbane airport, he was taken into immigration detention because he was an “unlawful non-citizen” under s 189(1) of the Migration Act, and subsequently received treatment for his mental health issues. As an unauthorised maritime arrival, he was barred from making a valid application for a visa by force of s 46A of the Migration Act, absent the exercise by the Minister of a non-compellable statutory discretion.

12. On 21 January 2020, the applicant attended an interview with United States authorities for potential resettlement in the United States under the US Refugee Admissions Program (USRAP).

13. On 21 January 2020 at 4.19pm, the applicant made a written request under s 198(1) of the Migration Act to be removed from Australia to PNG. It is agreed between the parties that, between that date and 16 February 2021, no steps were taken to give effect to the applicant’s request for removal from Australia while he remained in immigration detention. It is also accepted by the parties that the applicant continued to receive treatment for his mental health issues throughout this period.

14. I note that the applicant also requested removal to Somalia at an interview with Gary Jeffery, a Status Resolution Officer (SRO), on 10 February 2020.  However, the applicant withdrew that request at a meeting with the VIC Removals Team on 19 February 2020 at the MITA.

15. On 23 March 2020, a State of Emergency was declared in PNG in response to COVID-19.

16. On 2 June 2020, the applicant made a further request under s 198(1) of the Migration Act to be removed to PNG. That request precipitated various chains of correspondence between the applicant and persons from the Department concerning his removal from Australia. In particular, on 9 June 2020, the Australian Border Force (ABF) sent a letter to the applicant in response to feedback provided regarding the applicant’s request for return to PNG.  The applicant sent emails on 10 June 2020 addressed to “PNG High Commission” regarding his request to return to PNG and on 23 June 2020, to the PNG Immigration & Citizenship Service Authority addressed to “Mkitai” also regarding his request to return to PNG.

17. On 22 January 2021, the applicant filed the originating application in this proceeding seeking declaratory relief and a writ of habeas corpus for illegal detention arising from the Ministers’ alleged failure to comply with the duty to remove him as soon as reasonably practicable. He claimed that this duty had been triggered by ss 198AD(2) and 198(1) of the Migration Act. The applicant also sought interlocutory orders for his immediate release and mandamus for his return to PNG by an Amended Application for Interlocutory Relief, filed on 23 February 2021. The Minister for Immigration filed evidence relevant to the removal duties issue deposing (among other things) to the difficulties of returning the applicant to PNG because of the COVID-19 pandemic.

18. Between 5 April 2020 and 27 May 2021, the International Health and Medical Services (IHMS) assessed the applicant as Category 1 under Pre Transfer/Return Medical Assessment Criteria.  I explain these criteria later below.

19. On 15 February 2021, the applicant told his SRO that he wanted to get out of detention, to go to the United States, to return to PNG, or to go into the Australian community.  On 16 February 2021, the Department requested approval from PNG to return the applicant to PNG.  PNG gave in principle endorsement for the Department to return the applicant there on 25 February 2021.  On 2 March 2021, the Department sought clarification from PNG regarding quarantine and entry requirements for the applicant’s return.  The Department also sought an opinion on 10 March 2021 from a MOC as to whether the temporary purpose for which the applicant was brought to Australia was complete.

20. On 12 March 2021, the Department proposed return of the applicant to PNG on 23 March 2021 and informed PNG that the applicant was assessed as fit for travel without a medical or security escort.  In furtherance of his planned removal, on 18 March 2021, the applicant was transferred by a commercial flight from Victoria to Queensland where he was held in Operational Quarantine initially in the Brisbane Alternative Place of Detention (APOD) Meriton Hotel and later that day, in the Brisbane Immigration Transit Accommodation (BITA).

21. On 19 March 2021, the Department booked a room for the applicant at the Holiday Inn in Port Moresby from 23 March 2021 until 6 April 2021 for the purpose of hotel quarantine.  On the same day, the Department booked an Air Niugini flight for the applicant departing from Brisbane and arriving in Port Moresby on 23 March 2021.

22. However, on 20 March 2021, PNG suggested to the Department that the applicant’s return be delayed, on account of the spike in COVID-19 cases in PNG and the announcement of PNG’s National Isolation Strategy.  On 21 March 2021, the applicant underwent a COVID-19 PCR test, which produced a negative result.  He was released on 24 March 2021 from Operational Quarantine and moved into general population at the BITA.

23. On 25 March 2021, a Direction was made under s 198AD(5) of the Migration Act which directed officers to take unauthorised maritime arrivals to PNG in prescribed circumstances, or, in any other case, directed officers to take an unauthorised maritime arrival to the Republic of Nauru (the 2021 s 198AD(5) Direction).

24. On 26 March 2021, the Department requested approval to remove the applicant to Nauru.  Nauru approved that request on 29 March 2021.  However, the applicant sought injunctive relief restraining his removal to that country.  Thereafter, the respondents gave an undertaking to the Court not to take any steps to effectuate any removal to Nauru before the injunction application was determined.

25. On 20 April 2021, PNG’s Chief Migration Officer confirmed approval for the Department’s return of the applicant to PNG, subject to entry approval by the PNG State of Emergency Controller.  On 21 April 2021, the Department proposed return of the applicant to PNG on 13 May 2021.  On 3 June 2021, the PNG State of Emergency Controller approved the applicant’s entry to PNG.  The Department subsequently undertook steps to arrange for the applicant’s removal as follows:

26. The applicant attended a consultation with a Mental Health Nurse on 4 June 2021.

27. On 9 June 2021, the Department obtained a Statement of Identity from PNG.

28. On 9 June 2021, the Department booked a room for the applicant at the Holiday Inn in Port Moresby from 21 June 2021 until 5 July 2021 for the purpose of hotel quarantine.

29. An IHMS registered nurse assessed the applicant as fit to travel on 11 June 2021.

30. On 11 June 2021, the Department booked a Qantas flight for the applicant from Melbourne to Sydney on 21 June 2021.

31. On 15 June 2021, the Department booked an Air Niugini flight for the applicant from Sydney to Port Moresby on 21 June 2021.

32. On 15 June 2021, the Department obtained uplift approval from Qantas for the applicant’s flight to Sydney on 21 June 2021.

33. On 16 June 2021, the Department obtained uplift approval from Air Niugini for the applicant’s flight to Port Moresby on 21 June 2021.

34. On 16 June 2021, the Department arranged Serco escort services for the applicant’s flight from Melbourne to Sydney on 21 June 2021.

35. On 16 June 2021, the Department arranged Serco escort services to transfer the applicant from the Sydney Domestic Airport Terminal to the Sydney International Airport on 21 June 2021.

36. On 17 June and again on 18 June 2021, the applicant refused to undertake COVID-19 tests.  As a result, the Department cancelled arrangements for the planned removal on 21 June 2021.

37. On 8 July 2021, the applicant was approved for resettlement in the United States, and departed Australia for the United States on 11 August 2021, where he remains.

38. THE ISSUES

39. By a document filed on 26 September 2023, the parties agreed that there were ten outstanding issues raised by the dispute, namely:

40. Did the respondents owe a duty of care to limit the duration of the applicant’s detention to that required for the purpose of removing the applicant to PNG as soon as reasonably practicable from the time of his written requests of 21 January and 2 June 2020 to be returned?

41. Between 18 December 2019 and 16 February 2021, had the respondents established a system to administer requests for return to regional processing countries by medevac transferees such as the applicant?

42. If the answer to issue two is “no”, was the failure to establish such a system in breach of the respondents’ (alleged) duty of care?

43. Was the respondents’ failure to take steps to remove the applicant to PNG from the time of his requests for return to 16 February 2021 in breach of their duty of care?

44. Did any breach of duty cause foreseeable harm to the applicant in the form of loss of freedom from 21 January 2020 to 17 June 2021 and/or mental distress and anxiety?

45. Were the respondents’ attempts to remove the applicant to PNG between 16 February 2021 and 16 June 2021 frustrated by the applicant himself?

46. Did the 2021 s 198AD(5) Direction give the respondents’ authority to take the applicant to Nauru?

47. Do the civil liability laws of Victoria and/or Queensland apply to the applicant’s claim and, if so, to what effect?

48. Is the applicant entitled to compensatory damages and, if so, in what amount?

49. Is the applicant entitled to aggravated and exemplary damages, and if so, in what amount?

50. The parties now accept that, owing to subsequent developments in the evidence, issue seven no longer needs to be determined.  Likewise, the parties no longer press issue six, as the applicant no longer maintains any claim for damages after he refused to cooperate with authorities on 17 June 2021.  Nor do the respondents contend that the applicant frustrated the Department’s attempts to remove him prior to 17 June 2021.  Those issues can therefore be put to one side.

51. The remaining eight issues fall into six general categories, which is how I have structured the balance of these reasons.

52. Does a duty of care in the terms proposed by the applicant exist (issue one)?

53. If such a duty of care exists, has the duty been breached (issues two, three and four)?

54. Which law governs the dispute (issue eight)?

55. Has the applicant established that the alleged breach caused loss or damage (issue five)?

56. Does a statutory limit and/or bar apply to the applicant’s claim (issue eight)?

57. What is the amount, if any, of damages for which the respondents severally or jointly are liable (issues nine and ten)?

58. EVIDENCE

59. Both parties relied on a significant volume of documentary evidence, in addition to the statement of agreed facts.  However, no witnesses were required for cross-examination.

4.1The applicant’s evidence

1. The applicant relied on the following affidavits, subject to certain limitations the subject of agreement between the parties or of rulings:

2. six affidavits of the applicant, Mr Yasir Hassan, affirmed 22 January 2021, 13 February 2021, 14 February 2021, 29 March 2021, 21 June 2021 and 20 April 2023; and

3. three affidavits of Ms Chloe Taylor, solicitor for the applicant, affirmed on 4 May 2022, 4 May 2022, and 16 May 2023.

4. In addition, the applicant read a number of affidavits which were originally filed, but ultimately not read, by the respondents.  The respondents advised less than a week before commencement of the trial that they would not seek to read various affidavits filed by them, despite the affidavits having been included in the Court Book.  Counsel for the applicant understandably explained at the commencement of the hearing that this forensic decision had caught the applicant by surprise, and had led to the unusual situation where the applicant read certain affidavits (or parts thereof) filed by the respondents (T-18.27–43).  These were as follows:

5. five affidavits of Ms Alana Sullivan, affirmed on 26 February 2021, 15 March 2021, 26 March 2021, 22 April 2021, and 22 August 2023 (excluding [5]–[11] and the heading above [5]).  Ms Sullivan has been employed by the Department since November 2016 and is the First Assistant Secretary for the Integrity, Security and Assurance team in the Chief Operating Officer Group of the Department.  From August 2020 to October 2022, Ms Sullivan was First Assistant Secretary, Regional Processing and Resettlement Taskforce within the National Resilience and Cyber Security Group of the Department.  She was previously in senior roles relating to regional processing and resettlement from December 2016 and had responsibility for regional processing operations, program, policy, contracts, resettlement and returns.

6. the affidavit of Mr Gregory Wood, affirmed on 1 March 2021.  Mr Wood is employed by the Department as a SRO within the Status Resolution Network at the MITA detention facility; and

7. the affidavit of Mr Gary Jeffery, affirmed on 28 July 2023. Mr Jeffery is also a SRO within the Status Resolution Network at the MITA detention facility.  He was the SRO assigned to the applicant from the time of his arrival at the MITA until 12 March 2021.

8. In addition, the applicant tendered:

9. Paragraphs 6 and 12 of the affidavit of Mr Cameron Retallick, affirmed on 25 August 2022 in relation to the proceeding NSD60/2021 which were provisionally received in evidence.  Mr Retallick is an Australian Government Solicitor lawyer with conduct of the matter for the respondents;

10. four documents referred to in the Notice to Produce called upon on 6 December 2023; and

11. a bundle of relevant documents comprised of clinical records and mental health assessments.

12. In my view, the tender of paragraphs 6 and 12 of Mr Retallick’s affidavit should be refused on the basis that the applicant did not adequately explain their relevance.

13. No expert medical evidence was led.

4.2The respondents’ evidence

1. The respondents relied upon the affidavits of a number of witnesses which were read, subject to certain limitations the subject of agreement between the parties or of rulings made at the hearing.  That evidence was as follows.

2. First, the respondents read the affidavit of Mr Ashley Eastwood, affirmed on 28 July 2023.  Mr Eastwood is a Complex Status Resolution Case Officer (Complex SRO) in the Immigration Integrity and Community Protection Division of the Status Resolution Branch within the Department.  He was promoted to that role in June 2018 after working in the Status Resolution Branch as a SRO largely since July 2007.

3. Secondly, the respondents read the affidavit of Ms Jennifer Green affirmed on 28 July 2023 (Green affidavit).  Ms Green is the Superintendent of Detention Operations Victoria and Tasmania in the Detention Operations branch of the ABF.  The ABF is an agency within the portfolio of the Department.  Detention Operations:

   is responsible for the placement and movement of detainees within the Immigration Detention Network, in conjunction with the Departmental contractor, Serco Australia Pty Ltd (Serco), which provides facilities and detainee services, including the security, welfare, transport, escort and garrison services in the immigration detention facilities operated by the Department.  The Department contracts health services to International Health Medical Services Pty Ltd (IHMS).

   (Green affidavit at [3].)

4. Ms Green commenced her position in November 2018 and in that role was at all relevant times “responsible for overseeing the operational management of immigration detention facilities and Alternative Places of Detention (APODs) in Victoria, and the detainees within those facilities” (emphasis omitted).  Her affidavit responded to certain paragraphs of the applicant’s affidavit affirmed on 20 April 2023.

5. Thirdly, the respondents read the affidavit of Ms Kate Kruse affirmed on 4 August 2023, who is an inspector in Detention Health Operations within the ABF.  Ms Kruse has held this role since March 2020.  She also held a variety of roles since commencing with the Department in 2008 including, relevantly, Border Force Supervisor in the Detention Health Operations section of the ABF between February 2016 and January 2020.  She gave evidence about how Detention Health and IHMS operated between 2019 to 2021.

6. Finally, the respondents read the affidavit of Mr Jason Jackson, affirmed on 16 August 2023 who commenced his employment with the Department in July 2011.  Mr Jackson has held the role of an Acting Inspector in Detention Governance, Strategy and Standards within the ABF since 27 July 2023.  His substantive position is Border Force Supervisor (APS6), which he has held since 2016.  As an Acting Inspector, his responsibilities included training, managing, and supporting staff within the immigration detention network, providing input into various briefs and reports, managing responses to external scrutiny bodies, providing procedural guidance on detention related matters, and interrogating and reporting on various departmental IT systems.

1. The respondents also tendered:

2. a notice to admit, dated 23 June 2023;

3. the respondents’ tender bundle, filed on 25 August 2023;

4. an agreed position statement provided to the Court on 3 September 2021; and

5. a letter from Mr Cameron Retallick of the Australian Government Solicitor to Ms Chloe Taylor of Hall & Wilcox requesting particulars, and an email from Ms Taylor to Mr Retallick in response.

4.3Ruling on the admissibility of the Australian Human Rights Commission Report

1. At the hearing, I reserved my ruling on the admissibility of one piece of evidence.  The Australian Human Rights Commission (AHRC) entitled “Inspection of Australia’s immigration detention facilities 2019 Report” (the AHRC Report) which was annexed to the affidavit of Ms Taylor affirmed on 4 May 2022.  The applicant seeks to rely on this as evidence of the conditions in which he was detained, which in his submission is relevant to the question of whether any breach of duty caused foreseeable harm to him, and to the quantum of any damages to be awarded.

2. The respondents submit that the AHRC Report is not admissible to prove the truth of the contents of the AHRC Report by reason of the rule against hearsay evidence in s 59 of the Evidence Act 1995 (Cth) does not fall within the business record exemption under s 69 of the Evidence Act. Section 69 relevantly provides:

   (1)This section applies to a document that:

   (a)either:

   (i)is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or

   (ii)at any time was or formed part of such a record; and

   (b)contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.

   (2)The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made:

   (a)by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or

   (b)on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.

3. The term “business” is defined in the Evidence Act to include (among other things) a reference to a profession, calling, occupation, trade or undertaking, and an activity engaged in or carried on by the Crown in any of its capacities: see cl 1 of Part 2 of the Dictionary to the Evidence Act.

4. The core issue between the parties is whether the AHRC Report is a business record within the definition of s 69(1)(a)(i) of the Evidence Act. In short, I agree with the respondents that the report is not properly characterised as a business record, and therefore is not admissible for a hearsay purpose.

5. The authorities make clear that, where the function of an organisation is to produce certain publications or reports, the publication by the organisation of such a report is not properly a business record for the purposes of s 69 of the Evidence Act. For example, in Roach v Page (No 15)[2003] NSWSC 939 at [5]–[6] and [8], Sperling J, in holding that an extract from the Australian Mushroom Growers’ Association Journal did not satisfy s 69(1)(a)(i), reasoned that:

   The records of a business are the documents (or other means of holding information) by which activities of the business are recorded.  Business activities so recorded will typically include business operations so recorded, internal communications, and communications between the business and third parties.

   On the other hand, where it is a function of a business to publish books, newspapers, magazines, journals (including specialised professional, trade or industry journals), such publications are not records of the business.  They are the product of the business, not a record of its business activities.  Similarly, publications kept by a business such as journals or manuals (say, for reference purposes) are not records of the business.

   …

   The approach may be tested in a commonsense way.  It cannot have been intended that newspapers, magazines and journals (publication of any kind produced and/ or received in the course of a business undertaking) would be evidence of whatever was stated in them.

6. His Honour further explained in the subsequent decision of Roach v Page (No 27) [2003] NSWSC 1046 at [11] with respect to representations made on websites that:

   The thinking behind [s 69] is clear enough.  Things recorded or communicated in the course of the business and constituting or concerning business activities are likely to be correct.  There is good reason for the courts to afford to such records the same kind of reliability as those engaged in business operations customarily do.  The same is not true of publications made for wider dissemination, for entertainment, for advertising or for public relations purposes.  Such publications are justifiably received with healthy scepticism.

7. Justice Middleton applied Sperling J’s analysis in Roach (No 15) in the decision of Hansen Beverage Co v Bickfords (Aust) Pty Ltd [2008] FCA 406; (2008) 75 IPR 505 at [133] in holding that “[t]he concept of a business record is an internal record, kept in an organised form accessible in the usual course of business, actually recording the business activities themselves and does not include the product of the business itself”.  (I note that the decision in Hansen was overturned on appeal on an unrelated basis.)  It is true that some doubt has been expressed in the authorities as to whether a strict dichotomy exists between “business records”, on the one hand, and reports which are a “product of the business” on the other: see, eg, Charan v Nationwide News Pty Ltd [2018] VSC 3 at [463] (J Forrest J). Nonetheless, there is little doubt that the publishing of certain reports, books, or journals, where an organisation exists to produce those documents, are not business records. Those documents are an aspect of the function of the business itself which are, in this case, provided pursuant to the AHRC reporting functions under the Australian Human Rights Commission Act 1986 (Cth). They are not a record of the AHRC’s activities. It follows that the AHRC Report on immigration detention facilities is not a business record for the purposes of s 69 of the Evidence Act and is inadmissible hearsay.

8. Ultimately, most of the topics relied upon by the applicant in the AHRC Report were the subject of direct evidence from witnesses in this proceeding in any event.  In oral submissions, the respondents indicated that they objected to the report entering into evidence, not because they necessarily disagreed with any contents of the report, but rather because they had not checked the accuracy of the report.  Further, as outlined below, the respondents accept the majority of the applicant’s evidence with respect to the conditions of his detention.  In those circumstances, it seems unlikely that the AHRC Report would have played any significant role in the disposition of the issues.

9. DID THE RESPONDENTS OWE A DUTY OF CARE TO THE APPLICANT?

5.1Relevant principles

1. The first issue is whether the respondents owed a duty of care to limit the duration of the applicant’s detention to that required for the purpose of his removal to PNG as soon as reasonably practicable from the time of his written request of 21 January 2020.  The relevant principles by which it is determined whether a duty of care exists were not in issue and may be summarised as follows.

2. First, as the applicant contends, the existence of a statutory duty does not necessarily preclude the existence of a common law duty of care.  As Mason J held in Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 459:

   it has been generally accepted that, unless the statute manifests a contrary intention, a public authority which enters upon an exercise of statutory power may place itself in a relationship to members of the public which imports a common law duty to take care.

   (Emphasis added.)

3. Secondly, in order for a court to determine whether a duty of care co-exists with a statutory duty, the starting point is the statutory regime as a whole, “including powers which have not been exercised but are interconnected with powers which have been exercised”:  Electricity Networks Corporation v Herridge Parties [2022] HCA 37; (2022) 276 CLR 271 at [26]. As the High Court explained in Herridge Parties at [20] (quoting with approval Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 at [146] (Gummow and Hayne JJ)):

   The starting point for analysis of any common law duty of care that might be owed by any statutory authority must always be the particular statutory framework within which the statutory authority operates:

   “The existence or otherwise of a common law duty of care allegedly owed by a statutory authority turns on a close examination of the terms, scope and purpose of the relevant statutory regime.  The question is whether that regime erects or facilitates a relationship between the authority and a class of persons that, in all the circumstances, displays sufficient characteristics answering the criteria for intervention by the tort of negligence.”

   (Emphasis in original.)

4. Where that question is answered in the affirmative, Gummow and Hayne JJ held in Graham Barclay Oysters at [147] that “the common law imposes a duty in tort which operates alongside the rights, duties and liabilities created by statute.”  Conversely, their Honours explained at [147]–[148]:

   In some instances, a statutory regime may itself, in express terms or by necessary implication, exclude the concurrent operation of a duty at common law.  An example is provided by Sullivan v Moody [(2001) 207 CLR 562 at [62]]. The Court there said:

   “The statutory scheme that formed the background to the activities of the present respondents was, relevantly, a scheme for the protection of children.  It required the respondents to treat the interests of the children as paramount.  Their professional or statutory responsibilities involved investigating and reporting upon, allegations that the children had suffered, and were under threat of, serious harm.  It would be inconsistent with the proper and effective discharge of those responsibilities that they should be subjected to a legal duty, breach of which would sound in damages, to take care to protect persons who were suspected of being the sources of that harm.”

   However, … the discernment of an affirmative legislative intent that a common law duty exists, is not, and has never been, a necessary pre-condition to the recognition of such a duty.  This may be contrasted with the action for breach of statutory duty, the doctrinal basis of which is identified as legislative intention.

   (Emphasis added.)

5. In other words, a duty of care will not be recognised if it would give rise to inconsistent obligations in the performance of a statutory function or competing claims upon the exercise of the power.  Equally, a duty is unlikely to be found to exist where it would “cut across” the objects of the statute or potentially cause the persons in whom the powers are vested to adopt “a more cautious and defensive approach to their duties”:  Cubillo v Commonwealth of Australia (No 2) [2000] FCA 1084; (2000) 103 FCR 1 at [1258] and [1237] (O’Loughlin J), quoting with approval Williams v Minister, Aboriginal Land Rights Act 1983 (1999) 25 Fam LR 86; [1999] NSWSC 843 at [775] (Abadee J).

6. Thirdly, “[r]easonable foreseeability of the class of injury is an essential condition of the existence of a legal obligation to take care for the benefit of another”, as well as being relevant to breach of the duty and remoteness of damage:  Sydney Water Corporation v Turano [2009] HCA 42; (2009) 239 CLR 51 at [45]. However, reasonable foreseeability “is to be understood and applied with due regard to the consideration that, in the context of the issue as to duty of care, it is bound up with the question of whether it is reasonable to require a person to have in contemplation the risk of injury that has eventuated”:  Turano at [45]. In line with this, reasonable foreseeability is not the only relevant condition. As Gummow and Hayne JJ held in Graham Barclay Oysters at [149]:

   An evaluation of whether a relationship between a statutory authority and a class of persons imports a common law duty of care is necessarily a multi-faceted inquiry.  Each of the salient features of the relationship must be considered.  The focus of analysis is the relevant legislation and the positions occupied by the parties on the facts as found at trial.  It ordinarily will be necessary to consider the degree and nature of control exercised by the authority over the risk of harm that eventuated; the degree of vulnerability of those who depend on the proper exercise by the authority of its powers; and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute.

   (Citations omitted; emphasis added.)

7. Similarly, Gleeson CJ in Graham Barclay Oysters at [9] considered that, while reasonable foreseeability is “a necessary condition for the existence of a duty of care … it is not sufficient.”  His Honour continued:

   In the case of a governmental authority, it may be a very large step from foreseeability of harm to the imposition of a legal duty, breach of which sounds in damages, to take steps to prevent the occurrence of harm.  And there may also be a large step from the existence of power to take action to the recognition of a duty to exercise the power. Issues as to the proper role of government in society, personal autonomy, and policies as to taxation and expenditure may intrude.

8. In the fourth place, the fact that mandamus will issue to compel the performance of a public duty does not mean that any duty of care exists.  As Gleeson CJ observed in Graham Barclay Oysters at [9]:

   Even where a statute confers a specific power upon a public authority in circumstances where mandamus will lie to vindicate a public duty to give proper consideration to whether to exercise the power, it does not follow that the public authority owes a duty to an individual, or a class of persons, in relation to the exercise of the power.

   (Citations omitted.)

9. Similarly, McHugh J in Graham Barclay Oysters at [79] explained that:

   Mandamus lies for breach of a duty owed to the public.  Any person with a sufficient interest in the performance of the duty may bring an action for mandamus requiring that the public authority comply with the conduct that is the subject of the duty.  But common law duties are owed to individuals.  Unless the proper inference from the statute is that an individual has “a personal right to the due observance of the conduct, and consequently a personal right to sue for damages if he be injured by a contravention”, breach of the statutory duty does not sound in damages.

   (Citations omitted; emphasis added.)

10. Fifthly, in Roads and Traffic Authority of NSW v Dederer [2007] HCA 43; (2007) 234 CLR 330 at [43], Gummow J (with Callinan and Heydon JJ relevantly agreeing at [270] and [283] respectively) observed that:

    First, duties of care are not owed in the abstract.  Rather, they are obligations of a particular scope, and that scope may be more or less expansive depending on the relationship in question.  Secondly, whatever their scope, all duties of care are to be discharged by the exercise of reasonable care.  They do not impose a more stringent or onerous burden.

    (Emphasis added.)

11. Finally, as the High Court explained in Herridge Parties at [20], with respect to formulating a duty of care:

    it is important to keep in mind the distinction between the existence and content of the duty (who owes the duty, whom do they owe the duty to, and what kind of risks of harm must they take reasonable care to minimise or avoid?) and questions of breach (what were the reasonable precautions required in the circumstances, and did the person discharge the duty?).

    (Citations omitted.)

12. It follows that it is an error to conflate duty and breach.  An example is the case of Turano.  In that case, the water authority had laid a water main in a trench parallel to a public road.  The disturbance to the soil affected the flow of drainage causing intermittent water-logging which, in turn, allowed the introduction of a pathogen affecting the root system of a nearby eucalyptus tree.  A person sustained fatal injuries when the tree fell onto the car which he was driving.  His widow, on her own behalf and on behalf of their two children who sustained injuries in the incident, brought proceedings in negligence.

13. The High Court in a unanimous judgment held that no legal duty of care was owed by the water authority because it was not reasonably foreseeable that the authority’s conduct in laying the water main would have the consequence of a tree’s collapse which resulted in injury to a road user: at [53]. However, in allowing the appeal, the Court also held at [48] that:

    … when it came to considering the liability of Sydney Water, Beazley JA [in the Court of Appeal] stated the duty in absolute terms:  not to compromise the integrity of the culvert drainage system.  It was a duty called into existence because it was foreseeable that laying a water main in a trench that acted as a conduit for water could have “an effect on the surrounding area such as might cause harm”.  Neither the formulation of the duty nor the anterior inquiry as to foreseeability addressed the risk of injury to Mrs Turano or a class of persons of which she was a member.  In terms, it was a strict duty requiring that Sydney Water preserve the existing drainage in the vicinity of its installation in order to prevent a foreseeable risk of shortening the life of surrounding vegetation.  Stated in this way the force of Sydney Water’s complaint, that the scope of the duty was derived by reasoning backwards from the events that occurred, can be seen.  It was not a duty requiring Sydney Water to take reasonable care to avoid injury to road users in carrying out its works.  The majority’s conclusion of breach was inevitable having regard to the formulation of the scope of the duty.

5.2The statutory regime

5.2.1Relevant provisions for the bringing of transitory persons to Australia

1. Transitory persons may be brought to Australia for a temporary purpose as was the case with respect to the applicant. Specifically, s 198B of the Migration Act provides that:

   (1)An officer may, for a temporary purpose, bring a transitory person to Australia from a country or place outside Australia.

   (2)The power under subsection (1) includes the power to do any of the following things within or outside Australia:

   (a)place the person on a vehicle or vessel;

   (b)restrain the person on a vehicle or vessel;

   (c)remove the person from a vehicle or vessel;

   (d)use such force as is necessary and reasonable.

   (3)In this section, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force.

   (Emphasis in original.)

2. A “transitory person” is defined in s 5(1) (definition para (aa)) relevantly to include “a person who was taken to a regional processing country under section 198AD”. It was not in issue that PNG was a regional processing country under s 198AD or that the applicant was brought to Australia on 18 December 2019 in the exercise of that power. The power conferred by s 198B to bring a person to Australia is an exception to the general rule under s 42(1) of the Migration Act that a person cannot enter or remain in Australia without a visa: see s 42(2A)(ca); Plaintiff M96A/2016 v Commonwealth (2017) 261 CLR 582; [2017] HCA 16 at [13] (Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ).

5.2.2Relevant provisions for the detention and removal of transitory persons in Australia

1. As the High Court joint judgment in Plaintiff M96A/2016 at [18] explained, the Migration Act has the effect that any transitory person brought to Australia for a temporary purpose must be kept in immigration detention whilst in Australia. Specifically, s 189(1) imposes an obligation on an officer who “knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non‑citizen” to detain that person.  An unlawful non-citizen is a non-citizen who is in the migration zone (relevantly Australia) but does not hold a current visa:  see the definitions of “lawful non-citizen” and “unlawful non-citizen” in ss 13 and 14 of the Migration Act respectively. It follows that the category of unlawful non-citizen is broader than and includes unauthorised maritime arrivals who have not been granted a visa: Plaintiff M96A/2016 at [16] (Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ).

1. Section 196(1) limits the duration for which an unlawful non-citizen may be held in immigration detention, providing that:

   An unlawful non‑citizen detained under section 189 must be kept in immigration detention until:

   (a)he or she is removed from Australia under section 198 or 199; or

   (aa)an officer begins to deal with the non‑citizen under subsection 198AD(3); or

   (b)he or she is deported under section 200; or

   (c)he or she is granted a visa.

2. With respect to sub-s (aa), s 198AD(3) confers power on an officer to take steps to remove an unauthorised maritime arrival from Australia for the purposes of s 198AD(2). Section 198AD(2), in turn, provides that an officer “must, as soon as reasonably practicable, take an unauthorised maritime arrival to whom this section applies from Australia to a regional processing country.”

3. By virtue of s 198AH(1), the obligation under s 198AD(2) applies only to a person to whom ss 198AH(1A) or (1B) applies. Relevantly, s 198AH(1) and (1A) provide for the return of persons who no longer need to be in Australia for a temporary purpose. Those sections provide that:

   (1)Section 198AD applies, subject to sections 198AE, 198AF and 198AG, to a transitory person if, and only if, the person is covered by subsection (1A) or (1B).

   (1A)     A transitory person is covered by this subsection if:

   (a)the person is an unauthorised maritime arrival who is brought to Australia from a regional processing country under section 198B or repealed section 198C for a temporary purpose; and

   (b)the person is detained under section 189; and

   (c)the person no longer needs to be in Australia for the temporary purpose (whether or not the purpose has been achieved)

4. The scope of this section is further defined by s 198AH(2) as follows:

   Subsection (1) of this section applies whether or not the transitory person has been assessed to be covered by the definition of refugee in Article 1A of the Refugees Convention as amended by the Refugees Protocol.

   (Emphasis in original.)

5. However, s 198AD does not apply to an unauthorised maritime arrival if the Minister thinks it is in the public interest and determines, in writing, that s 198AD does not apply: s 198AE(1). It is common ground between the parties that, by reason of the Minister’s determination under s 198AE dated 28 July 2013 (2013 Exemption Instrument), s 198AD did not apply to the applicant from the date of his request for removal on 21 January 2020. In essence, that instrument provides that s 198AD does not apply where a person makes a request for removal to a country to which they have a right of entry.

6. Secondly, in circumstances where s 198AD does not apply, s 198 imposes a general duty on officers to remove unlawful non-citizens where they so request and a specific duty to remove those brought here for a temporary purpose where they no longer need to be here for that purpose. Those sub-sections provide that:

   (1) An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed.

   (1A)In the case of an unlawful non-citizen who has been brought to Australia under section 198B or repealed section 198C for a temporary purpose, an officer must remove the person as soon as reasonably practicable after the person no longer needs to be in Australia for that purpose (whether or not the purpose has been achieved).

7. The joint judgment in Plaintiff M96A/2016 at [14], explained that ss 198(1) and 198AD(2):

   do not have concurrent operation because s 198AD applies to unauthorised maritime arrivals, and s 198(11) provides that s 198 does not apply to an unauthorised maritime arrival to whom s 198AD applies. In other words, the provisions of s 198 will only apply where s 198AD does not apply.

   (Emphasis added.)

8. As earlier explained, it is common ground that it was the duty under s 198(1) which was engaged when the applicant requested removal on 21 January 2020. In this regard, the joint judgment in Plaintiff M96A/2016 at [16] proceeded in obiter dicta on the basis of a submission that “s 198(1), properly construed by reference to its consensual character, would not permit removal of an unlawful non-citizen to a place contrary to his or her wishes”.

9. The consequence of this statutory regime is, as explained in the joint judgment in Plaintiff M96A/2016 at [20], that:

   In the case of a transitory person, therefore, the detention must continue until: (i) removal under s 198 (the first event); (ii) the beginning of the process of removal to a regional processing country under s 198AD (the second event); or (iii) the making by the Minister of a determination under s 46B(2), allowing an application for a visa, which is then made and granted. In the case of each of the first or second event, under ss 198 and 198AD, it is a condition that removal must occur as soon as reasonably practicable after the person no longer needs to be in Australia for the temporary purpose.

10. Thirdly, the purpose for the temporary detention in Australia of a transitory person is different from the temporary purpose for which a person can be brought to Australia.  The purpose for which a transitory person is detained during medical treatment is “the purpose of subsequent removal from Australia”:  Plaintiff M96A/2016 at [27] (Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ). Pursuant to the provisions set out above, that removal may occur relevantly as soon as reasonably practicable after the transitory person no longer needs to be in Australia for medical treatment, or as soon as reasonably practicable after asking the Minister to be removed: ibid. Nonetheless and significantly, even where there has been a failure to remove a person “as soon as reasonably practicable”, the person’s detention will remain lawful and the appropriate remedy for any such breach of the statutory duty is mandamus:  Commonwealth v AJL20 [2021] HCA 21; (2021) 273 CLR 43 at [51]–[52] (Kiefel CJ, Gageler, Keane and Steward JJ).

11. Finally, the constitutionally permissible period of detention of an alien who does not have permission to remain in Australia comes to an end “when there is no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future”:  NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; (2023) 97 ALJR 1005 at [55].

5.3The applicant’s submissions on duty of care

1. First, as set out above, the parties agree that the 2013 Exemption Instrument operated such that s 198AD ceased to apply to the applicant from the date of his request for removal on 21 January 2020. As such, it is common ground that an officer was under a duty under s 198(1) of the Migration Act to remove the applicant as soon as reasonably practicable after the applicant’s request for removal on 21 January 2020.

2. The applicant contends that each of the respondents were also under a duty of care formulated in the following terms:

   to limit the duration of the applicant’s detention to that required for the purpose of removal of the applicant to PNG as soon as reasonably practicable from the time of the applicant’s written requests of [21] January 2020 and 2 June 2020 to be returned.

   (Second Further Amended Statement of Claim at [22].)

3. As the duty of care pleaded adopts the language of s 198(1) (“as soon as reasonably practicable” following a request), the applicant submits that the alleged statutory duty and the common law duty of care are concurrent.  In other words, in the applicant’s submission, a breach of one duty would necessarily be a breach of the other.  Furthermore, while mandamus is available to remedy a breach of the statutory duty (as confirmed by the High Court in AJL20), the applicant submits that mandamus does not provide an avenue for compensation for the harm caused while the applicant was detained for a period which was not necessary for the purpose of removal due to the respondents’ breach of the duty.

4. Secondly, the applicant submits that the statutory functions and powers of the respondents in relation to the applicant’s continued detention in Australia created a relationship which displays the “salient features” for the purposes of establishing the alleged duty of care.  The applicant emphasised, in particular, the degree and nature of the respondents’ control and the degree of the applicant’s vulnerability to the proper exercise by the respondents of their powers:  citing Graham Barclay Oysters at [149]–[150] (Gummow and Hayne JJ). The relevant salient features may be summarised as follows.

5. There was a foreseeable risk of harm to the applicant from his continued detention, namely, loss of freedom, and resulting mental distress and anxiety.

6. The parties were:

   [in] a relationship of extreme control, both in the actual restraint inherent in the applicant’s detention and the applicant’s dependence on the respondent for his day to day existence in detention; and in the vulnerability of the applicant in his reliance on the respondents to comply with their statutory duties to remove him to PNG to end his detention.

   This extreme control is inherent in the lawful and mandatory nature of the detention of the applicant as an ‘unlawful non-citizen’. The respondents similarly had control of the duration of the applicant’s detention in its statutory duties, and practical capacity, to effect the removal of the applicant.

   (Applicant’s submissions on outstanding factual and legal issues (AS) [25]-[26].)

7. The only control which the applicant had to end his detention was to request his removal (which he did repeatedly to no avail).  His experience in detention, his “persistent but ineffective efforts to be returned, and his similarly ineffective complaints” to Australian public authorities including the police, the Commonwealth Ombudsman, the ABF, the PNG authorities and Serco, highlight the applicant’s vulnerability, dependence and reliance on the respondents.

8. The respondents assumed responsibility for the applicant’s detention to end as soon as reasonably practicable after his requests for return pursuant to ss 198(1) and 198AD(2) of the Migration Act.

9. Further, the applicant relied upon:

   (a)the Agreement of Medical Transfer signed by the applicant on 13 December 2019; and

   (b)the Transfer Information Sheet;

   which were given to him before he was transferred to Australia and asserted that his stay in Australia and detention would be temporary.

10. In particular, the applicant submits that the Court should relevantly consider whether “the power vested by statute in a public authority… give it such a significant and special measure of control over the safety of the person or property of citizens as to impose upon the authority a duty of care”:  Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512 at [102] (Gaudron, McHugh and Gummow JJ). As their Honours continued in Brodie, a measure of control of such a nature “may oblige the particular authority to exercise those powers to avert a danger to safety … In this regard, the factor of control is of fundamental importance”:  ibid.

5.4The applicant has not established that the respondents owe him a duty of care

1. The respondents’ submission that no duty of care exists is, with respect, plainly correct for the following reasons.

2. As the respondents submit, the duty of care which the applicant formulates is, with respect, misconceived as a matter of law.  In Dederer at [49], Gummow J held that “while duties of care may vary in content or scope, they are all to be discharged by the exercise of reasonable care” (emphasis in original).  The pleaded duty is not one to take reasonable care.  Instead, the duty alleged is in absolute terms, requiring the respondents to “limit the duration of the applicant’s detention”, and is for a specified outcome, namely, the return of the applicant to PNG as soon as reasonably practicable.  However, as earlier explained, it is well-established that it is an error to conflate these separate elements of a claim in negligence:  see, eg, CAL No 14 Pty Ltd (t/as Tandara Motor Inn) v Motor Accidents Insurance Board [2009] HCA 47; (2009) 239 CLR 390 at [68] (Hayne J); Turano at [48] (French CJ, Gummow, Hayne, Crennan and Bell JJ); Herridge Parties at [20] (Kiefel CJ, Gageler, Gordon, Edelman and Steward JJ.). As Gummow and Hayne JJ held in Graham Barclay Oysters at [192]:

   A duty of care that is formulated retrospectively as an obligation purely to avoid the particular act or omission said to have caused loss, or to avert the particular harm that in fact eventuated, is of its nature likely to obscure the proper inquiry as to breach.  That inquiry involves identifying, with some precision, what a reasonable person in the position of the defendant would do by way of response to the reasonably foreseeable risk.

   (Citations omitted.)

3. The fact that the duty of care is said to arise only once a request for removal is made does not, with respect, address these fundamental difficulties: cf applicant’s submissions in reply at [6].

4. In this regard, as the respondents submit, the pleaded duty of care is analogous to that pleaded in DIZ18 (by her litigation representative DJA18) v Minister for Home Affairs (No 2) [2022] FCA 898 which Wheelahan J held had not been properly pleaded. In that case, the duty of care alleged was said to be a “non-delegable duty of care to ensure that the Applicant received medical services adequate to treat medical conditions such as dehydration and infection/sepsis and, if necessary, transfer to a tertiary hospital with adequate paediatric care”:  DIZ18 at [7]. Justice Wheelahan, however, held that no duty to take reasonable care was alleged; rather the pleaded duty in absolute terms to achieve a specified outcome “conflated duty and breach”, contrary to High Court authority: at [33](a).

5. It follows for this reason alone that the application must be dismissed.

6. Further, and in any event, the pleaded duty is inconsistent with the statutory regime which, as earlier held, is the starting point for analysis where it is alleged that a duty of care coexists with a statutory regime:  see, eg, Cubillo at [1237] (O’Loughlin J). Rather in my view the Migration Act, by necessary implication, excludes the concurrent operation of a duty of care.

7. First, the pleaded duty would create an incoherence in the statutory regime because the applicant’s detention could be lawful under the Migration Act while being in breach of the duty of care. It was not in issue that the applicant’s detention was lawful pursuant to ss 189 and 196 of the Migration Act during the entirety of the relevant period. No claim was therefore made for mandamus; nor was a claim made for false imprisonment: see AJL20 at [49] (Kiefel CJ, Gageler, Keane and Steward JJ).

8. Despite being otherwise authorised (and required) by the Migration Act, on the applicant’s case his detention was nonetheless contrary to the law of negligence. Furthermore, as the applicant’s detention was lawful under the Migration Act, habeas corpus would not be available to seek his release: AJL20 at [61]–[63] (Kiefel CJ, Gageler, Keane and Steward JJ); cf AZC20 v Secretary, Dept of Home Affairs (No 2) [2023] FCA 1497 where Kennett J found the applicant’s detention exceeded the constitutional limitation. Equally, it must follow that, if the duty of care existed and there was an ongoing breach by reason of the person thereby “wrongfully” remaining in detention, the Court would be unable to grant injunctive relief to prevent the ongoing breach because it would require the Court to order release a person from immigration detention contrary to the statutory duty imposed on a Commonwealth officer to detain that person.

9. It follows, in my view, that the present is a case “where to find a duty of care would so cut across other legal principles as to impair their proper application and thus lead to the conclusion that there is no duty of care of the kind asserted”:  Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 at [53].

10. Secondly, the common law duty for which the applicant contends would, as the respondents submit, place officers of the Commonwealth in an invidious position: they may either be in breach of their obligation under s 189 to detain a person who they reasonably suspect is an unlawful non-citizen; or they may risk the Commonwealth incurring civil liability by reference to an uncertain obligation to “limit the duration of detention” to “that required for the purpose of removal”.  Yet, as the High Court held in Sullivan v Moody at [55], “[a] duty of the kind alleged should not be found if that duty would not be compatible with other duties which the respondents owed.” This may also give rise to the concern, as explained above, that to impose a duty of care in the terms alleged may cause officers charged with the authority and duty to detain under s 189 to adopt “a more cautious and defensive approach to their duties”:  Cubillo at [1258] (O’Loughlin J).

11. Thirdly, the pleaded duty would “cut across” the objects of the Migration Act, and in particular s 198. It is well-established that “[a]s a sovereign nation, Australia has the sole right to decide which non-citizens shall be permitted to enter and remain in this country”:  see, eg, Falzon v Minister for Immigration and Border Protection [2018] HCA 2; (2018) 262 CLR 333 at [92] (Nettle J); see also Robtelmes v Brenan (1906) 4 CLR 395 at 400 (Griffiths CJ). This sovereign right is given effect through the mechanisms created by the Migration Act for controlling those aliens to whom permission to enter is granted and, as an aspect of this, providing for detention of aliens to prevent their unauthorised entry into the Australian community or to facilitate removal. Indeed, French J in WAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1625 at [56] observed “[t]he removal obligation for which s 198 provides does not seem to have been enacted for any purpose protective of the rights of detainees.  Rather it facilitates the expeditious removal from Australia of unlawful non-citizens”. It follows that no duty on officers to take care for the benefit of non-citizens related to non-performance of the duty to remove in s 198(1) can be implied consistently with the purpose of that statutory duty.

12. This view receives some support from the decision in AS v Minister for Immigration and Border Protection [2016] VSCA 206; (2016) 312 FLR 67. In that case, the Victorian Court of Appeal considered whether s 4AA of the Migration Act (“detention of minors a last resort”) gave rise to an independent and actionable statutory duty.  That question is, of course, different from the question as to whether a duty of care exists because it is necessary to establish an intention by the Parliament that the statutory duty be actionable.  Nonetheless, the posited duty of care in this case is difficult to reconcile with the finding by the Court of Appeal that the “statute discloses an intention not to permit any person … to challenge or otherwise call into question the decision, the making or not making of which is said to be capable of founding the claimed private statutory cause of action”:  at [33] (Warren CJ, Osborn and Beach JJA) (emphasis added).

13. Fourthly, the potential indeterminacy of any liability arising from the pleaded duty of care weighs against the existence of the duty.  Indeed, in Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552, Gaudron, McHugh, Gummow and Hayne JJ one of those reasons which persuaded their Honours that the relevant duty did not exist was that if the relevant duty of care existed in relation to the appellants, then the respondents must owe a similar duty to “the many thousands, perhaps hundreds of thousands, of persons” within a similar class: at [67]. Similarly and salient to this case, in W v Home Office [1997] Imm AR 302; [1997] EWCA Civ 1052, the English Court of Appeal noted that it was “less likely that a duty of care will be imposed on a person exercising his public duty” where the recognition of the duty of care “would [be] likely to lead to the bringing of a substantial number of cases, and a diversion of the public servants concerned away from their duties contrary to the general public’s interest”.  I consider that if I recognised the existence of the pleaded duty, there is a real risk that a substantial number of other cases would be brought arising from a similar duty of care.  This is because this application was brought as the “lead or test case” for a cohort of four applicants and no doubt would set a precedent for many other individuals.

1. Second, the applicant pleaded that “[b]y reason of the breaches of duty the applicant’s detention was extended resulting in the foreseeable harm to the applicant”:  Second Further Amended Statement of Claim at [24].

8.1Relevant statutory provisions concerning causation

1. At common law, establishing negligence required a determination of causation which involved two questions: “a question of historical fact as to how particular harm occurred; and a normative question as to whether legal responsibility for that particular harm occurring in that way should be attributed to a particular person”:  Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 at [11].

2. Civil liability statutes, “which [are] substantially replicated in each … Australia State”, “now [require] that the two questions be kept distinct”:  Wallace v Kam at [12]. In circumstances where the applicable law is the law of Victoria, the relevant law determining causation is s 51 of the Wrongs Act 1958 (Vic). Section 51(1) provides:

   A determination that negligence caused particular harm comprises the following elements—

   (a)that the negligence was a necessary condition of the occurrence of the harm (factual causation); and

   (b)that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

   (Emphasis in original.)

3. I outline the relevant legal principles concerning those statutory provisions in greater detail below.  For present purposes, it suffices to note that the factual causation element turns upon an application of the “but for” test of causation:  Wallace v Kam at [16], namely:

   [A] determination in accordance with s 5D(1)(a) [the substantial replica of s 51(1)(a) of the Wrongs Act] that negligence was a necessary condition of the occurrence of harm is nothing more or less than a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absent the negligence.

4. The second element, the scope of liability, involves answering a “normative question”, being whether it is “appropriate” for the negligent person’s liability to extend to the harm:  Wallace v Kam at [22].  The answer to that question turns, amongst other things, on the foreseeability of the harm suffered at the time of the breach: Wallace v Kam at [24].

8.2The parties’ submissions on causation

1. The applicant claims harm on two bases arising from his detention:  (1) deprivation of liberty; and (2) mental distress and anxiety.

2. As to the first basis, the applicant submits that the respondents’ breach of their duty of care both factually caused that loss of liberty, and that harm in those terms was a foreseeable consequence of that negligent act. With respect to factual causation, the applicant contends that, but for the alleged tortious breach (being the failure to take steps to remove the applicant to PNG when requested), the applicant would have been removed to PNG prior to the outbreak of the COVID-19 pandemic. With respect to scope of liability issues, the applicant contends that the loss of liberty resulting from the breaches was foreseeable, in light of the statutory scheme under which the applicant was detained. In particular, the applicant contends that his detention was foreseeable in circumstances where the continued detention of the applicant as an unlawful non-citizen in the migration zone was required by the Migration Act: see ss 14, 189(1), 196.

3. As to the second claim, the applicant submits that the respondents’ negligence factually caused or worsened his mental distress and anxiety.  He submits that the Court can be satisfied of this issue in the absence of expert evidence, relying, by way of example, on AZC20 v Minister for Home Affairs [2021] FCA 1234 at [167] (Rangiah J). He likewise submits that it was reasonably foreseeable that he would experience mental distress and anxiety as a consequence of his extended detention on four bases:

4. The applicant was brought to Australia for treatment of his mental ill-health.

5. The applicant made known his distress at being detained at least at the time of his removal request, and throughout his detention, to IHMS and to an IHMS psychiatrist.

6. The applicant demonstrated his distress at his continued detention in refusing to take meals from the detention centre mess for a period.  The applicant was transparent to Serco about the limited nature of his “hunger strike”.

7. The applicant’s distress was increasingly evident as his detention wore on, despite his efforts for it to end by being returned to PNG. The applicant even contemplated removal to his country of origin, Somalia, from which the PNG authorities had recognised the applicant to be a refugee.

8. The respondents submit that there are three reasons why the applicant cannot demonstrate causation with respect to both types of claimed harm.

9. First, the respondents submit that the applicant cannot satisfy the “but for” test.  In the respondents’ submission, two particular facts outlined above are salient in this respect:

10. the applicant requested removal only on 21 January 2020; and

11. PNG prohibited travel into the country, subject to some exceptions not presently relevant, on 20 March 2020, meaning there was only a two-month window in which the applicant could have been returned to PNG.

12. In light of those facts, the respondents submit that it could not be concluded, on the balance of probabilities, that had the process of removing the applicant commenced on 21 January 2020, he would have been removed to PNG by 20 March 2020. That is particularly so, in the applicant’s submission, in light of the general uncertainties occasioned by the outbreak of the COVID-19 pandemic.

13. Secondly, the respondents submit that the applicant has impermissibly pleaded damage in the form of loss of a chance.  Specifically, at [27] of the Second Further Amended Statement of Claim, the applicant claims that “[b]v reason of the breaches of the duty the applicant lost a chance to be returned to PNG”.  In the respondents’ submission, loss of chance is not cognisable in a negligence case such as the present:  citing Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537.

14. Thirdly, even if factual causation was established, the respondents submit that it is not “appropriate for the scope of the negligent person’s liability to extend to the harm so caused”: s 51(1)(b) of the Wrongs Act. In the respondents’ submission, that is because any damage sustained by its wrongdoing is too remote, and was not reasonably foreseeable. In particular, the respondents submit that it was not reasonably foreseeable that a failure to take steps to return the applicant in January and February 2020 would cause the applicant to be detained for a further year. In the respondents’ submission, that detention was caused by the COVID-19 pandemic and the PNG Government’s border closures in response to the pandemic. Both events were entirely outside of the control of the respondents, and, in their submission, were not reasonably foreseeable at the time of the breach.

8.3The applicant has not established causation

1. Even if a breach of the alleged duty of care could be established, I am not satisfied that any such breach caused the applicant damage in the relevant sense for the following reasons.

2. I will address this issue in terms of the two limbs of s 51(1) of the Wrongs Act. In short, my view is that neither factual causation, nor the scope of legal liability, has been established.

8.3.1Factual causation

1. In relation to the first form of causation identified, being that the respondents’ negligence meant that the applicant “lost a chance to be returned to PNG”, that framing of the case, with respect, is not correct in law.  As the High Court held in Tabet, the standard for assessing causation in negligence is not a loss of chance but the balance of probabilities:  cf a claim for economic loss.  As Hayne and Bell JJ explained in Tabet at [66], “[w]hat must be demonstrated (in the sense that the tribunal of fact must be persuaded that it is more probable than not) is that a difference has been brought about and that the defendant's negligence was a cause of that difference”: (emphasis added).  In Tabet, their Honours continued to state that (at [68]–[69]):

   … to accept that the appellant's loss of a chance of a better medical outcome was a form of actionable damage would shift the balance hitherto struck in the law of negligence between the competing interests of claimants and defendants.  That step should not be taken.  The respondent should not be held liable where what is said to have been lost was the possibility (as distinct from probability) that the brain damage suffered by the appellant would have been less severe than it was.

   It may be that other cases in which it might be said that, as a result of medical negligence, a patient has lost “the chance of a better medical outcome” (for example, a diminution in life expectancy) differ from the present case in significant respects.  These are not matters that need be further examined in this case.  It need only be observed that the language of loss of chance should not be permitted to obscure the need to identify whether a plaintiff has proved that the defendant's negligence was more probably than not a cause of damage (in the sense of detrimental difference). The language of possibilities (language that underlies the notion of loss of chance) should not be permitted to obscure the need to consider whether the possible adverse outcome has in fact come home, or will more probably than not do so.

   (Emphasis added; citations omitted.)

See also Tabet at [46], [58]–[59] (Gummow ACJ), [101] (Crennan J), [143], [152] (Kiefel J).

1. The appropriate standard to apply here is whether the respondents’ purported negligence, on the balance of probabilities, was the cause of the damage suffered by the applicant.  The language of loss of chance is not apt to answer that question.

2. The second form of causation pleaded by the applicant appears to engage with the “but for” test.  However, I consider that there is considerable force in the respondents’ submission that the applicant cannot establish, on the balance of probabilities, that if the Department had commenced taking steps to remove the applicant on 21 January 2020, he would have been removed from Australia to PNG prior to the PNG Government introducing border restrictions on 20 March 2020.  If one accepts, notwithstanding the evidential difficulties, that the applicant would have been removed to PNG prior to 20 March 2020 then, applying the rudimentary “but for” test, it would be open to find that, “but for” the alleged breach of the respondents, the applicant would not have been detained in Australia relevantly from the date of any such removal to 17 June 2021.  The critical issue that the applicant faces is in satisfying me that it is appropriate for the scope of the respondents’ liability to extend to the harm so caused.

8.3.2Scope of liability

1. Proceeding on the assumption that the applicant would have established factual causation, as outlined above, s 51(1)(b) of the Wrongs Act provides that a determination that negligence caused a particular harm requires satisfaction that “it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused”. That element involves a determination as to which consequences of the tort the respondent is answerable for, and which damage is too remote. For the purposes of determining the scope of liability, s 51(4) provides that “the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”

2. With respect to the New South Wales equivalent of this provision, the High Court in Wallace v Kam held at [23]–[24]:

   In a novel case, however, s 5D(4) makes it incumbent on a court answering the normative question posed by s 5D(1)(b) explicitly to consider and to explain in terms of legal policy whether or not, and if so why, responsibility for the harm should be imposed on the negligent party.  What is required in such a case is the identification and articulation of an evaluative judgment by reference to “the purposes and policy of the relevant part of the law”.  Language of “directness”, “reality”, “effectiveness” or “proximity” will rarely be adequate to that task.  Resort to “common sense” will ordinarily be of limited utility unless the perceptions or experience informing the sense that is common can be unpacked and explained.

   A limiting principle of the common law is that the scope of liability in negligence normally does not extend beyond liability for the occurrence of such harm the risk of which it was the duty of the negligent party to exercise reasonable care and skill to avoid.  Thus, liability for breach of a duty to exercise reasonable care and skill to avoid foreseeable harm does not extend beyond harm that was foreseeable at the time of breach.  In a similar way, “a person under a duty to take reasonable care to provide information on which someone else will decide upon a course of action is, if negligent, not generally regarded as responsible for all the consequences of that course of action” but “only for the consequences of the information being wrong”.  A useful example, often repeated, is that of a mountaineer who is negligently advised by a doctor that his knee is fit to make a difficult climb and who then makes the climb, which he would not have made if properly advised about his knee, only to be injured in an avalanche.  His injury is a “foreseeable consequence of mountaineering but has nothing to do with his knee”.

   (Emphasis added; citations omitted.)

3. Thus, as the High Court makes clear in Wallace v Kam, a person will only be rendered liable for the harm that was foreseeable at the time of breach.  Conversely, a person will not be rendered liable in negligence for harm which is not reasonably foreseeable.  To those general principles, the following should be added.

4. First, it is well-settled that, to establish liability, a tortfeasor must only establish that the class of injury (as opposed to the specific injury in question) is foreseeable:  Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112 at 120–121. Here, the question which arises is whether it was reasonably foreseeable that the respondents’ purportedly negligent omission would result in the applicant’s loss of freedom, and his mental distress and anxiety for the period that he was detained.

5. Secondly, it is also now well-settled that a respondent “may be liable even though he or she could not envisage the precise set of circumstances which produced harm of the foreseeable kind”:  RP Balkin and JL Davis, Law of Torts (LexisNexis Butterworths, 2013, Fifth Edition) at 323.  It is not necessary that the precise manner in which harm was sustained is foreseeable:  Chapman at 120. Ordinarily, where the damage that occurs is of a class, kind or category that is foreseeable, the fact that the “precise concatenation of circumstances which led up to the accident” was not envisaged will not dispose of a claim:  NSW Land and Housing Corp v Watkins [2002] NSWCA 19; (2002) Aust Torts Reports 81-641 at [90] (Heydon JA, with Hodgson JA agreeing at [130]), quoting with approval Harvey v Singer Manufacturing Co Ltd 1960 SC 155 at 172 (Lord Mackintosh).

6. Thirdly, in some circumstances, an intervening event may be regarded as the true cause or proper cause of any harm.  In those circumstances, the relevant causal chain will be broken, and the defendant will not be responsible for the ensuing consequences:  Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522 at 528; Chapman at 122. Whether the causal chain has been broken is a question of fact and degree, to be decided on the facts of each case.

7. I accept that it was reasonably foreseeable that a failure to take steps to remove the applicant from Australia would result in the applicant’s loss of freedom, and consequent mental distress and anxiety.  However, there are three reasons why I do not consider that the respondents’ liability would extend to the harm so caused.

8. First, the PNG border restrictions in response to the COVID-19 pandemic were an intervening act which broke the chain of causation.  I consider that these border restrictions limited the respondents’ capacity to remove the applicant from Australia after 20 March 2020.  This is demonstrated through the following events:

9. On 20 March 2020, the PNG Government published a gazette which declared that “[n]o person may enter the territory of [PNG]” except for individuals within specified exceptions.

10. On or before 30 March 2020, the PNG Emergency Controller issued National Emergency Order No. 1 which ordered that “[n]o person is permitted to board an aircraft or vessel bound for PNG unless: listed in schedule 2 of this Order; or provided an exemption in writing by the Emergency Controller”.

11. On 7 April 2020, National Emergency Order No. 7 came into effect and the Emergency Controller ordered that “[n]o person, including PNG Citizens and Permanent Residents are allowed to enter PNG, except by aircraft, and unless authorised by the Emergency Controller”, there was also an order in the same terms as made by 30 March 2020, identified above.

12. On 9 April 2020, National Emergency Order No. 12 amended Order No. 7 to repeal the above orders and replace them with orders concerning quarantining international travellers.

13. On 17 June 2020, the Emergency Controller ordered that “[n]o person is permitted to board an aircraft bound for PNG unless provided an exemption in writing by the Controller or his delegate”.  Various measures of a similar kind were in place until 18 March 2021.

14. Between 16 February 2021 and 20 March 2021, the Department took steps to return the applicant to PNG until the PNG Government suggested that the applicant’s return be delayed on account of the spike in COVID-19 cases in PNG.

15. Between 21 April 2021 and 17 June 2021, the Department took steps to return the applicant to PNG until the applicant refused to undertake a PCR COVID-19 test.

16. The periods of time identified at (6) and (7) are relevant to the scope of liability because, while the applicant does not claim that the respondents breached the alleged duty of care after 16 February 2021, the harm claimed encompasses the period up until 17 June 2021.  Further, while the applicant submits that the respondents could have sought an exemption for the applicant from the Emergency Controller, there is no evidence to suggest that this exemption would have been granted.  Indeed, the evidence available is that when the respondents sought to arrange the applicant’s return to PNG in March 2021, the PNG Government sought to delay this process due to COVID-19.

17. Therefore, I am satisfied that even if the respondents had complied with the alleged duty of care after 20 March 2020, but for the COVID-19 pandemic and border restrictions by PNG, the applicant would have been removed from Australia and would not have been detained until 17 June 2021.  As the respondents submit, I do not consider that the COVID-19 pandemic was reasonably foreseeable, nor were the unprecedented events which arose in response to it.

18. Secondly and relatedly, I do not consider that responsibility for the harm should be imposed on the respondents after 20 March 2020.  This is because the type of harm (being relevantly the applicant’s loss of liberty) was one which was ongoing and could have been remedied if the applicant had been returned to PNG.  However, after 20 March 2020, the respondents were not in a position to remedy any breach due to the COVID-19 pandemic.  Indeed, this issue is particularly evident with regard to the period between 16 February 2021 and 17 June 2021 where the respondents were taking active steps to return the applicant to PNG.  As a matter of legal policy, I do not consider that the respondents should be held responsible for this type of harm in those circumstances.

1. Thirdly, the harm pleaded by the applicant was for the period of detention from 21 January 2020 to 17 June 2021.  The applicant did not plead, as an alternative, the period of time from the date of potential removal (assuming it could be proved that this would have occurred prior to 20 March 2020) until 20 March 2020.  In circumstances where the applicant has not pleaded or produced evidence in respect of this specific period, I have not considered this narrower period of time for the purposes of the latter issues.

2. DOES A STATUTORY LIMIT AND/OR BAR APPLY TO THE APPLICANT’S CLAIM?

3. The fifth dispute between the parties concerns whether the Wrongs Act limits any damages which the applicant could otherwise claim. This dispute is reflected in the latter part of issue eight, being whether the civil liability laws of Victoria apply to the applicant’s claim, and if so to what effect.

4. In essence, the respondents submit that two aspects of the applicant’s claim are limited by the Wrongs Act, those being that:

5. the applicant’s general claim for damages is capped by s 28G of the Wrongs Act; and

6. the applicant’s claim for mental distress and suffering is barred by s 28LE of the Wrongs Act.

7. First, the question whether s 28G of the Wrongs Act applies hinges upon satisfaction of two statutory criteria: (1) the applicant seeks “an award of personal damages”, and Part VB applies to the claim; and (2) the applicant seeks a claim for non-economic loss, and that his damages are therefore capped by s 28G of the Wrongs Act.

8. With respect to the first component of that claim, Part VB of the Wrongs Act applies to “an award of personal injury damages” (subject to specified exceptions not presently relevant in s 28C). On the respondents’ submission, the applicant claims “personal injury damages” within the meaning of ss 28B and 28C of the Wrongs Act. Personal injury damages mean “damages that relate to the death of or injury to a person caused by the fault of another person”: s 28B. Injury, in turn, is defined in s 28B to mean:

   personal or bodily injury and includes—

   (a)       pre-natal injury; and

   (b)       psychological or psychiatric injury; and

   (c)       disease; and

   (d)       aggravation, acceleration or recurrence of an injury or disease;

   (Emphasis added.)

9. The respondents submit that the applicant’s claim for damages associated with “mental distress and anxiety” and “mental suffering” are a “psychological or psychiatric injury”, and are therefore personal injury damages such that Part VB of the Wrongs Act applies to the claim. That being so, the respondents submit that s 28G of the Wrongs Act applies to the claim. That provision provides:

   The maximum amount of damages that may be awarded to a claimant for non-economic loss is $577 050.

10. Non-economic loss is defined in s 28B to mean:

    any one or more of the following—

    (a)       pain and suffering;

    (b)       loss of amenities of life;

    (c)       loss of enjoyment of life;

11. In the respondents’ submission, the applicant’s claim for damages in relation to mental distress and anxiety are in respect of injuries for pain and suffering. Accordingly, the respondents submit that the applicant is seeking personal injury damages for non-economic loss and s 28G provides a maximum amount of damages which would be available to the applicant, at least with respect to his claim for pain and suffering.

12. The second of those claims, that the applicant’s claim for mental distress and suffering is barred by s 28LE of the Wrongs Act, is said to flow from Part VBA of the Wrongs Act. Part VBA applies to “claims for the recovery of damages for non-economic loss” subject to specified exceptions: s 28LC. Section 28LB defines non-economic loss in the same manner as s 28B above. Section 28LE then provides:

    A person is not entitled to recover damages for non-economic loss in any proceeding in a court in respect of an injury to a person caused by the fault of another person unless the person injured has suffered significant injury.

13. The term “significant injury” is defined in s 28LF of the Wrongs Act. Section 28FL(2) of the Wrongs Act relevantly provides that a psychiatric injury will only be a significant injury if the impairment has been assessed by an approved medical practitioner. The applicant has not adduced evidence of that kind. Accordingly, in the respondents’ submission, s 28LE has the effect of stripping out any claim for damages which is attributable to the applicant’s mental distress and suffering: citing Monaghan v Australian Capital Territory [No 2] [2016] ACTSC 352; (2016) 315 FLR 305 at [206]–[213] (Mossop AsJ).

14. In summary, the applicant submits that neither of these contentions should be accepted for the following reasons:

15. Damages are sought for mental suffering, distress and anxiety, and not for a “psychological or psychiatric injury”: see the definition of an injury in s 28B (Part VB) and s 28LB (Part VBA).

16. The applicant’s claim does not “relate to the… injury to a person”, and instead relates to a loss of freedom, meaning that it is not a claim for “personal injury damages” to which Part VB applies: ss 28B and 28C.

17. Similarly, the applicant’s claim is not “in respect of an injury to a person” for the purposes of the statutory bar in s 28LE (Part VBA).

18. As such, the applicant submits that neither s 28G of the Wrongs Act (Part VB) capping the quantum of damages, nor the limitation on claiming non-economic loss in s 28LE (Part VBA), applies to his claim. The applicant submits that it is well-established in Australian law that anxiety and distress are not recognised as a personal injury: citing Bulsey v Queensland [2015] QCA 187 at [85] (Fraser JA).

19. The central issue raised by this question is whether the harm claimed by the applicant (being loss of freedom, and consequent metal distress and anxiety) “relate to the… injury to a person” (Part VB) and/or is “in respect of an injury to a person” (Part VBA).  In circumstances where the claim must fail in any event for the reasons earlier held, and given the question of law is a serious one, I consider that it is preferable for this question to be resolved in a matter where it truly arises.

20. DAMAGES

21. The sixth and final issue concerns the quantum of damages able to be claimed by the applicant, had he been successful in establishing the elements of his negligence claim.

22. The applicant seeks the following damages:

23. $7,000 per day for the period 21 January 2020 to 17 June 2021, being 512 days and totalling $3,584,000;

24. $750,000 in aggravated damages; and

25. $500,000 in exemplary damages.

26. In view of my findings on the preceding issues, it is difficult to reach any conclusion on the question of damages, including the claim for aggravated and exemplary damages, that might have been awarded if the applicant had succeeded in establishing the existence of a duty of care known to the law and the elements of his cause of action.  Notwithstanding these difficulties, however, I consider it appropriate to make the following observations regarding the applicant’s claim for compensatory damages.

27. First, I accept the respondents’ submissions that the applicant would have remained in immigration detention following his request to return on 21 January 2020, while arrangements would have been made for the applicant’s removal.  Accordingly, the period of detention in purported breach of the duty of care would not encompass the total 512 days in respect of which damages are claimed.

28. Secondly, I do not accept that damages in relation to a loss of freedom should be awarded on a “per day” basis, contrary to the applicant’s submissions.  As Spigelman CJ held in Ruddock v Taylor [2003] NSWCA 262; (2003) 58 NSWLR 269 at [49]:

    Damages for false imprisonment cannot be computed on the basis that there is some kind of applicable daily rate.  A substantial proportion of the ultimate award must be given for what has been described as the initial shock of being arrested. (Thompson; Hsu v Commissioner of Police of the Metropolis [1998] QB 498 at 515.) As the term of imprisonment extends the effect upon the person falsely imprisoned does progressively diminish.

29. Thirdly, I consider that a total of $3,584,000 for general damages is disproportionate and out of alignment with previous awards.

30. The applicant submits that this daily rate is appropriate, as it is between the daily rate of $5,000 in Stradford (A Pseudonym) v Judge Vasta [2023] FCA 1020 (being an award of $35,000 of compensatory damages for seven days of false imprisonment) and $12,500 per day purportedly awarded in MZZHL v Commonwealth of Australia [2021] FCA 600. The rate cited by the applicant as underpinning the award of damages in MZZHL, with respect, appears to be based on a miscalculation.  The applicant in that case was awarded $350,000 which on a daily rate of $12,500 would be for 28 days of detention.  However, the applicant in MZZHL was detained for approximately 2-years.  Accordingly, MZZHL does not support the sum of damages claimed by the applicant in this proceeding.  Further, in neither case was the award for damages calculated on a daily rate basis.

31. In contrast, the respondent relies on the following authorities as guidance for appropriate awards:

Authority	Period in detention	Damages award
Okwume v Commonwealth of Australia [2016] FCA 1252	Less than 18 hours	$2,000
Goldie v Commonwealth [No 2] [2004] GCA 156; (2004) 81 ALD 422	3 days	$22,000
Ruddock* * An appeal to the High Court on liability was allowed: [2005] HCA 48; (2005) 222 CLR 612.	Two periods of 161 and 155 days (316 days in total)	$116,000
Burgess v Commonwealth of Australia [2020] FCA 670; (2020) 276 FCR 548	615 days	Nominal damages, but Besanko J would have otherwise awarded $125,000
MZZHL* * Noting that this award was set aside on appeal, but not on the basis of error as to quantum: [2021] FCAFC 191; (2021) 289 FCR 135	2 years	$350,000
Guo v Commonwealth of Australia [2017] FCA 1355; (2017) 258 FCR 31	Two periods of 940 and 93 days (1,033 days in total)	Nominal damages, but Jagot J would have otherwise awarded $380,000
Fernando v Commonwealth of Australia [2014] FCAFC 181; (2014) 231 FCR 251	1,203 days	Primary judge awarded nominal damages, but would have otherwise awarded $265,000 Justices Besanko and Robertson concluded on appeal that the “assessment seems to us to be low, but not so low as to indicate error”: at [113].

1. Assuming in the applicant’s favour that I had found that the statutory limit on compensatory damages did not apply, I consider that an award in the range of $100,000 to $150,000 would have been appropriate.  This falls in the range of the $116,000 awarded by the New South Wales Court of Appeal in Ruddock for 316 days of false imprisonment, and the $125,000 which would have been awarded by Besanko J for 615 days imprisonment in Burgess.

2. CONCLUSION

3. For these reasons, the application is dismissed.  The parties wish to be heard on costs.  I have therefore reserved costs pending the making of submissions by the parties in the event that agreement on costs cannot be reached.

I certify that the preceding two hundred and fourteen (214) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perry.

Associate:

Dated:       20 May 2024