Moder v Commonwealth of Australia

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.