McHugh v Commonwealth of Australia - [2025] VSC 11

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S ECI 2023 05653

EDWARD McHUGH	Plaintiff
v
COMMONWEALTH OF AUSTRALIA	Defendant

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JUDGE:	K Judd J
WHERE HELD:	Melbourne
DATE OF HEARING:	09 December 2024
DATE OF JUDGMENT:	29 January 2025
CASE MAY BE CITED AS:	McHugh v Commonwealth of Australia
MEDIUM NEUTRAL CITATION:	[2025] VSC 11

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COMMON LAW – Damages claim for unlawful imprisonment – Cross-vesting legislation – Application for proceeding to be transferred to the Federal Court of Australia – Interests of justice – Migration Act 1958 (Cth) s 189 – BHP Billiton Ltd v Schultz (2004) 221 CLR 400 – Ewins v BHP Billiton Ltd [2005] VSC 4.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	W Harris KC with H Crosthwaite	Percy Kakulas Gleeson
For the Defendant	S Lloyd SC with C O’Neil	Australian Government Solicitor

TABLE OF CONTENTS

Overview.............................................................................................................................................. 1

Evidence............................................................................................................................................... 3

Legal Principles.................................................................................................................................. 3

Submissions of parties...................................................................................................................... 5

Consideration...................................................................................................................................... 7

HER HONOUR:

Overview

The plaintiff was born in 1968 in the Cook Islands, which by operation of New Zealand law, made him a citizen of New Zealand. The plaintiff never knew his biological father and was abandoned by his biological mother shortly after birth. The plaintiff arrived in Australia in 1975 at age seven and, in 1976, was adopted by Kevin and Maryanne McHugh. The plaintiff learned that he had been adopted by, rather than born to, his adoptive parents in 2013.

The plaintiff self-identifies as being an Aboriginal Australian. He lived in the Ardyaloon Community in Western Australia from about 1990 until 2001 and subsequently in Derby, Western Australia, and the Mulan Aboriginal community in the East Kimberly region of Western Australia. In 2015 and 2016 he met and travelled with a Gidja woman, painting and selling traditional Aboriginal paintings.

From 1 September 1994, the plaintiff was deemed to have an absorbed person’s visa.[1] On 23 April 2018, the plaintiff’s absorbed person’s visa was cancelled while he was in criminal custody in Darwin. At the end of his sentence, on 11 May 2018, he was taken into immigration detention and detained in various locations, including in the Northern Territory, Western Australia, Christmas Island, Queensland, New South Wales and Victoria.
[1]Migration Act 1958 (Cth) (‘Migration Act’) s 34.

During periods prior to his visa cancellation, the plaintiff believed he was an Australian citizen. He had been issued with a passport and been enrolled to vote.

The plaintiff commenced a habeas corpus claim in the Federal Court in February 2020. He was brought from Western Australia to Victoria for the hearing of that proceeding.

The Federal Court has made four decisions in relation to the plaintiff:

(a) McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs;[2]
[2][2020] FCA 416 (Anderson J).

(b) McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2);[3]

(c) McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (First Full…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] VSC 11
Decision Date: 29 January 2025

CaseChat Overview and Summary

The case of McHugh v Commonwealth of Australia involved a claim for damages resulting from the plaintiff's unlawful imprisonment. The plaintiff sought to have the proceeding transferred to the Federal Court of Australia, arguing that the application of cross-vesting legislation and the nature of the claim warranted a federal forum. The High Court was tasked with determining whether the proceeding should be transferred under section 189 of the Migration Act 1958.

The central legal issues the court had to address were the applicability of cross-vesting legislation to this particular case and whether the transfer of the proceeding to the Federal Court was in the interests of justice. The court had to consider precedents such as BHP Billiton Ltd v Schultz and Ewins v BHP Billiton Ltd, which provided guidance on the transfer of proceedings and the interpretation of cross-vesting provisions.

The court found that the cross-vesting legislation did apply to the plaintiff's claim, as it fell within the scope of the relevant federal laws. The court also concluded that transferring the proceeding to the Federal Court was in the interests of justice, given the federal nature of the claim and the need for consistency in the interpretation of federal legislation. The High Court, therefore, allowed the application for the proceeding to be transferred.

No final orders were made in this excerpt, but it is anticipated that the case will proceed in the Federal Court with the transfer of jurisdiction.

Orders