Miringaorangi v Commonwealth of Australia
[2018] FCA 392
•14 March 2018
FEDERAL COURT OF AUSTRALIA
Miringaorangi v Commonwealth of Australia [2018] FCA 392
File number: NSD 178 of 2018 Judge: GRIFFITHS J Date of judgment: 14 March 2018 Catchwords: MIGRATION – application under s 476 of the Migration Act 1958 (Cth) for relief in respect of an alleged unlawful detention of the applicant by the respondents
PRACTICE AND PROCEDURE – whether the issue of liability should be heard separately from the issue of relief – where the determination of liability involves a Constitutional question as to whether the applicant’s detention by the respondents exceeded the limitations imposed by Chapter III of the Constitution – whether the matter should proceed by way of pleadings – whether the matter should be heard by a Full Court or by a single Judge
Legislation: Constitution
Federal Court of Australia Act 1976 (Cth), s 20(1A)
Migration Act 1958 (Cth)
Federal Court Rules 2011 (Cth), r 8.05
Date of hearing: 14 March 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 14 Counsel for the Applicant: Mr D Hughes Solicitor for the Applicant: Legal Aid NSW Counsel for the Respondents: Ms A Mitchelmore Solicitor for the Respondents: Australian Government Solicitor ORDERS
NSD 178 of 2018 BETWEEN: THOMAS GRANT MIRINGAORANGI
Applicant
AND: COMMONWEALTH OF AUSTRALIA
First Respondent
MINISTER FOR HOME AFFAIRS
Second Respondent
JUDGE:
GRIFFITHS J
DATE OF ORDER:
14 MARCH 2018
THE COURT ORDERS THAT:
1.The applicant file an amended application seeking leave to file a Statement of Claim, in a form to be annexed to the amended interlocutory application, on or before 4 April 2018.
2.The respondents notify the applicant and the Court of whether they consent to or oppose the application for leave to file the proposed Statement of Claim by 4pm on 11 April 2018.
3.If the respondents oppose the application for leave to file the proposed Statement of Claim, the matter is listed for directions before Justice Griffiths at 9.30am on 17 April 2018 at 9:30am.
4.If the respondents consent to the application for leave to file the proposed Statement of Claim:
a.the respondents are to file and serve a Defence by 4pm on 26 April 2018;
b.the applicant is to file any reply by 4pm on 3 May 2018; and
c.the matter is listed for directions before Justice Griffiths at 9.30am on 8 May 2018.
5.The hearing of this matter scheduled for 16 March 2018 at 10:15am is vacated.
6.Liberty to apply on two days’ notice.
7.Costs reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GRIFFITHS J:
These proceedings were commenced in the Federal Circuit Court of Australia pursuant to an application under section 476 of the Migration Act 1958 (Cth) (Migration Act). The applicant sought various Constitutional and public law relief in respect of what he maintained was an unlawful detention of him by the respondents. He sought an order that he be released from detention as well as various other remedies.
The matter was transferred to this Court by Judge Emmett on 13 February 2018. The matter came before me as the docket judge on 20 February 2018, at which time I made various orders with a view to the application being heard expeditiously, having regard to the fact that the applicant maintained that he was being unlawfully detained. An order was made at that time for the application to be heard on 16 March 2018 by a Court comprising three judges because of the significance of the issues it raised. As part of those case management orders, the parties were directed to seek to agree an agreed statement of facts.
The orders made on 20 February 2018 were varied on 22 February 2018, in a way that I need not describe. On 1 March 2018, the orders of 20 February 2018 were further varied with a view to the matter still proceeding to a hearing on 16 March 2018.
There then occurred some developments, which are reflected in an affidavit affirmed by Carl Freer on 12 March 2018. Mr Freer is the applicant’s instructing solicitor and is employed by Legal Aid NSW. Mr Freer said that he had been advised on 9 March 2018 that the applicant’s criminal justice stay certificate, which according to the respondents was the basis for his ongoing detention, had been cancelled, and in the circumstances, it was intended to have the applicant removed to his country of origin on 13 March 2018.
The applicant provided a proposed amended application, which reflected the fact that he was no longer in detention. The amended application sought, for the first time, a declaration that the applicant’s detention by the respondents in the specified period between 12 June 2015 and 9 March 2018 was unlawful, and for the first time, the applicant sought damages for what he alleged was false imprisonment. The applicant also filed an interlocutory application which sought leave to file the amended application as described, and sought an order that the following question be heard separately by the Court on 16 March 2018:
Whether the circumstances of the applicant’s detention by the Executive between 12 June 2015 and 9 March 2018 (inclusive) exceeded the limitations imposed by Chapter III of the Commonwealth Constitution.
On 13 March 2018, my Associate sent an email to the parties indicating that, in the light of recent developments, there would be a further case management hearing to be held today, 14 March 2018, at 2.15pm. The Court invited the parties to assist it by addressing six matters as follows:
(1)What is the respondents’ attitude to the interlocutory application and, in particular, whether the matter should proceed by way of the proposed separate question?
(2)Having regard to the interlocutory application and the proposed amended application, should the matter now proceed by way of pleadings and the parties having an opportunity to adduce additional evidence?
(3)Is it appropriate to hear and determine the issue of liability separate from the issue of relief, including damages, in circumstances where there is a well settled principle that Constitutional issues should only be determined if necessary?
(4)Is it still appropriate for the matter to be heard by a Court constituted by three Justices, particularly taking into account the possible need to make findings of fact?
(5)What is the present urgency of the matter and is it appropriate that the interlocutory application, and any separate question as proposed therein, be heard this Friday at 10:15am?
(6)Should the hearing this Friday be vacated?
The Court also noted there is an agreed statement of facts contained within the Court Book, but that it did not address the issue of damages.
The respondents filed a helpful written outline of their attitude to the above six issues, and Ms Mitchelmore of counsel appeared before me today on behalf of the respondents. Mr Hughes of counsel appeared on behalf of the applicant.
Mr Hughes submitted that, contrary to the views expressed by the respondents, the scheduled hearing on 16 March 2018 should proceed, and the Court should, in his submission, hear and determine the proposed separate question. Mr Hughes made further oral submissions in favour of the applicant’s position, although he confirmed that the applicant had now been removed from Australia, and there had been some difficulties in getting recent instructions from him.
In their written outline of submissions, the respondents point out, correctly in my view, that the position has changed significantly with the proposal to amend the application so as to raise a claim for damages for false imprisonment. As they point out, a statement of claim is ordinarily required for that purpose, having regard to r 8.05 of the Federal Court Rules 2011 (Cth). I also accept their submission that there does not appear to be any reason as to why that process should not be adopted here.
The respondents also indicated that, as matters stood at present and having regard to some issues with the agreed statement of facts, the issue of whether or not there should be a separate question should be deferred for the moment until such time as the applicant’s new proposed case is properly pleaded. Some of the difficulties with the current agreed statement of facts is that they only address the period up to 2 March 2016 and not thereafter, and they also do not deal adequately with issues such as the practicability of the applicant being removed to his country of origin because of various health issues, as well as the nature and character of some periods of the applicant’s detention when he was convicted and sentenced for offences committed while he was in immigration detention. I am persuaded with the respondents’ submission that it would be premature, and indeed unwise, to proceed to hear the proposed separate question this Friday, 16 March 2018, not the least because the agreed statement of facts at present would, in my respectful view, provide an inadequate basis for that question to be determined.
In my view, the parties ought to be directed to have the case now proceed by way of pleadings, with the applicant required to put on a statement of claim and the respondents then provided with an opportunity to put on its defence.
Ms Mitchelmore has foreshadowed that, insofar as the claim for false imprisonment is concerned, the respondents are likely to point to the relevance of s 154 of the Migration Act. There is a further matter which weighs with me, and that is the well-settled principle that Constitutional issues should only be determined if necessary. The respondents submitted that the issue of liability should not be divorced from issues of relief, and that the settled principle referred to above is another reason supporting why the separate question should not proceed to be heard and determined on Friday 16 March 2018, having regard to these recent developments.
One of the other matters that the Court also invited comments on was whether the matter would now best proceed by way of a single Judge hearing the matter, as opposed to a Full Court. That was a proposal that was supported by the respondents. Mr Hughes did not indicate a position one way or the other. It seems to me, however, that it is now appropriate for the matter to proceed by a single Judge, not the least because findings of fact may need to be made. This will require the Chief Justice to give consideration to whether he will revoke the direction that was given under s 20(1A) of the Federal Court of Australia Act 1976 (Cth). In the light of all of this, it seems to me that the scheduled hearing for this Friday 16 March 2018 should not proceed, that the hearing should be vacated, and that a timetable be put in place to reflect the matters that I have outlined above, including the desirability of the matter now proceeding by way of pleadings.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths. Associate:
Dated: 14 March 2018
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