Moder v Commonwealth of Australia

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SUPREME COURT OF QUEENSLAND

CITATION:

Moder v Commonwealth of Australia; Sochorova v Commonwealth of Australia [2012] QCA 92

PARTIES:

In Appeal No 5450 of 2011:

JOSEPH MODER
(appellant)
v
COMMONWEALTH OF AUSTRALIA
(respondent)

In Appeal No 5451 of 2011:

TEREZIE SOCHOROVA
(appellant)
v
COMMONWEALTH OF AUSTRALIA
(respondent)

FILE NO/S:

Appeal No 5450 of 2011
Appeal No 5451 of 2011
SC No 99 of 2011
SC No 659 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeals

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

13 April 2012

DELIVERED AT:

Brisbane

HEARING DATE:

17 October 2011

JUDGES:

Muir and Fraser JJA and Margaret Wilson AJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

In Appeal No 5450 of 2011:

1.    Appeal dismissed with costs.

In Appeal No 5451 of 2011:

1.    Appeal allowed.

.Set aside the order striking out the claim and statement of claim2.   

Instead, order that the statement of claim be struck out.3.   

Order that the appellant have leave to file and serve an amended statement of claim in respect of her claim for damages for negligence, which amended statement of claim may not include a claim for damages for personal injuries or be based on acts, omissions or alleged breaches of the provisions of the Migration Act 1958 (Cth) by the Migration Review Tribunal, within six weeks.4.

5.    The parties are to provide written submissions as to costs in accordance with Practice Direction No 2 of 2010 paragraph 52.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – SUMMARY JUDGMENT – where Moder brought an action in negligence claiming “secondary damages” for secondary economic loss and disruption to normal life by way of making good the loss and harm caused to Sochorova – where Moder’s claim and statement of claim were struck out by the primary judge – whether a cause of action was disclosed on his pleading – whether the claim and statement of claim were properly struck out

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PLEADING – STATEMENT OF CLAIM – where Sochorova brought an action based on negligence and misfeasance in public office – where her claim and statement of claim  were struck out – whether Sochorova’s claim for negligence ought to have been struck out by the primary judge – whether the primary judge was correct in striking out the claim for misfeasance in public office – whether Sochorova pleaded a viable cause of action – where leave was granted to file and serve an amended statement of claim in respect of her claim for damages in negligence, so far as it did not include a claim for damages for personal injuries

PROCEDURE – COURTS AND JUDGES GENERALLY – JUDGES – IMMUNITY FROM PROCEEDING – where Sochorova claimed that the conduct of members of the Migration Review Tribunal had demonstrated bad faith and misfeasance…

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Details
Case
[2012] QCA 92
Decision Date

CaseChat Overview and Summary

Moder, on behalf of Sochorova, brought an action against the Commonwealth of Australia seeking "secondary damages" for secondary economic loss and disruption to normal life, essentially to compensate for the loss and harm caused to Sochorova. The primary judge struck out Moder's claim and statement of claim, leading to an appeal. The appeal was heard by the Supreme Court of Queensland.

The court was tasked with determining whether Moder's statement of claim disclosed a cause of action in negligence and misfeasance in public office. The court also needed to decide if the primary judge was correct in striking out the claim and statement of claim, and whether Moder was entitled to leave to amend the statement of claim. Additionally, the court had to consider whether the Migration Review Tribunal members had immunity from liability and if the Commonwealth could be vicariously liable for the Tribunal members' torts.

The court found that the primary judge's decision to strike out Moder's claim and statement of claim was incorrect. The court held that Moder's pleading did not disclose a cause of action for misfeasance in public office, as the tort cannot be based on the conduct of multiple individuals or a department. However, the court allowed Moder leave to amend the statement of claim for negligence, provided it did not include a claim for personal injuries or be based on acts or omissions by the Migration Review Tribunal. The court dismissed Moder's appeal in part, and allowed it in part, setting aside the order striking out the claim and statement of claim, and ordering that the statement of claim be struck out, while granting leave to file an amended statement of claim.

The court ordered that the appellant have leave to file and serve an amended statement of claim within six weeks. The amended statement of claim must not include a claim for damages for personal injuries or be based on acts, omissions, or alleged breaches of the Migration Act 1958 (Cth) by the Migration Review Tribunal. The parties were also required to provide written submissions on costs in accordance with the relevant practice direction.

Orders

Orders of the court

In Appeal No 5450 of 2011:

1. Appeal dismissed with costs.

In Appeal No 5451 of 2011:

1. Appeal allowed.

.Set aside the order striking out the claim and statement of claim2.

Instead, order that the statement of claim be struck out.3.

Order that the appellant have leave to file and serve an amended statement of claim in respect of her claim for damages for negligence, which amended statement of claim may not include a claim for damages for personal injuries or be based on acts, omissions or alleged breaches of the provisions of the Migration Act 1958 (Cth) by the Migration Review Tribunal, within six weeks.4.

5. The parties are to provide written submissions as to costs in accordance with Practice Direction No 2 of 2010 paragraph 52.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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