Park & Ors v Minister of State for Immigration and Ethnic Affairs

[1989] HCATrans 31

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney · No Sl04 of 1988

B e t w e e n -

PARK OH HO

First Applicant

KO JUNG WOONG

Second Applicant

LEE JUNG IN

Third Applicant

CHUNG BING YOL

Fourth Applicant

SONG BANG JIN

Fifth Applicant

LEE JAE EUN

Sixth Applicant

HAM BUM HOON

Park

Seventh Applicant

and

THE MINISTER OF STATE FOR

IMMIGRATION AND ETHNIC AFFAIRS

Respondent

Application for special leave

to appeal

SlT 7 /1/RB 1 17/2/89

MASON CJ
DEANE J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 FEBRUARY 1989, AT 12.03 PM

Copyright in the High Court of Australia

MR M. ADAMS, QC: If the Court pleases, I appear with my

learned junior, MISS P. KAVANAGH, for the applicants.

(instructed by Barlow & Co)

MR C.J. STEVENS:  If the Court pleases, in this matter I

appear for the respondent. (instructed by the

Australian Government Solicitor)

MASON CJ: Yes, Mr Adama.

MR ADAMS: Your Honours, I have here, although I regret that I

did not limit my notes to the two pages - nevertheless

I trust these - - -

MASON CJ: I do not think that matters, Mr Adams. The outline

of argument is only strictly required in the case of
presentation of appeals so that the limitation to
three pages, which is not rigid anyhow in that

context, has no meaning here at all.

MR ADAMS:  Thank you, Your Honour. I have, however, taken the

trouble to make notes of arguments that might assist

the Court and I seek leave to produce those.

MASON CJ: Thank you.

MR ADAMS:  Your Honours, may I say that late in the piece I

appreciated - this was a matter in which, as well as

relief under the ADMINISTRATIVE DECISIONS (JUDICIAL

REVIEW) ACT relief by way of declarations under

notice of appeal does not refer to the failure of the	section 16 and damages were sought and the proposed applicants were unlawfully detained between 20 August 1986
and 2 December 1986.

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I regret that I have not redrawn the notice but

may I inform the Court that it is proposed to seek
leave to amend the proposed notice of appeal and to

proceed with the notice of appeal on the ground

inter alia that the Federal Court erred in failing to
make declarations in relation to each applicant that
they were unlawfully detained. In this respect

Mr Justice Foster who was in dissent on this question

would have made such a declaration; the other judges

did not do so.

Your Honours, it is not proposed to maintain that

what one might call the second deportation order was

invalid but it is proposed to maintain that the judge

at first instance should have considered the question
of damages and declarations and in addition to the
order that he made in relation to the first deportation

order, ordered a reconsideration of the decision not to

give to the appellants the opportunity of voluntary

supervised departure as distinct from deportation, an
issue to which His Honour Mr Justice Foster in the

Full Court determined in favour of the appellants.

MASON CJ:  Now, do I take it there are three things that you

are seeking in this appeal:  One, you want the

declaration that they were unlawfully detained;

two, you are maintaining your claim to damages and

then there is the third matter, that is the

supervised - they were not offered the alternative

supervised voluntary departure.	They are the three
things would be - - -

MR ADAMS:  They are the three things. The complaint of bias

is not maintained and the complaint in respect of

the second deportation order is not maintained, leaving

those three matters to which Your Honour has adverted.

DEANE J: In so far as the damages question is concerned, all

.	that is involved really, is it not, is whether there
was a substantive associated claim to damages in these proceedings. It has been held that there was not,
leaving a subsequent claim for damages open.

MR ADAMS:  Yes, Your Honour. In my respectful submission that

does not quite put the matter as we see it. It is

I think conceded - and indeed His Honour

Mr Justice Morling although against us on other grounds

positively states that the matter of the unlawful

detention or false imprisonment was capable of being

determined by the Federal Court in the proceedings had

it been appropriately raised but determined that it had

not been raised, with the consequence that there was no

need to consider it. I may have misunderstood

Your Honour, but that it came within what has been

called the accrued jurisdiction was conceded on all

hands, I think, and expressly asserted by His Honour

Mr Justice Morling.

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So the question then was, as Your Honour put it,

ultimately whether or not it had been raised

adequately in the pleading or by the proceedings

to permit a determination of the issue.

DEANE J:  Then accept that the view of the majority that the

detention was unlawful be right, on the damages
question would it be correct to say that the true

issue is whether this Court, after hearing an appeal,

should send it to the Federal Court to work out what

damages should be awarded or whether proceedings for

damages should be independently started.

MR ADAMS:  Your Honour, we would seek that it go back to the

Federal Court.

DEANE J:  I follow that, but as things stand, you can start

proceedings for damages.

MR ADAMS:  We can and have. I think it is referred to in one

of the judgments, that a supreme court action in

New South Wales was connnenced.

MASON CJ: Is it still on foot?

MR ADAMS: It is still on foot.

DEANE J:  That will come on more quickly if you do not get

entangled in proceedings in the High Court.

MR ADAMS:	The difficulty is that these men are subject to deportation. In order to conduct that litigation, they
will need to be in Australia.  In the Federal Court
evidence has already been given generally that would
entitle them to orders - would provide an evidentiary
basis to the court to make orders for general damages
which one must concede is the real form of damages
here.  No real economic loss, I think, was demonstrated
-or relevant economic loss was demonstrated. If it
goes therefore back to, shall we say, Mr Justice Davies,
he has heard that evidence and is in a position to
determine it without further evidence from the appellants.
If, however, the proceedings are new proceedings, they will be sent back to Korea one way or the other,
depending on what this Court determines on this question,
and considering the history of this case, they .. could not be optimistic in being given permission to return to
conduct that litigation.

Even if there were a hope, it transforms what

ought to be, if I might put it this way, a certainty

into a chance and a likelihood indeed of a mischance

and therefore, partly because the body which will make

the decision as to whether or not they can return is

the defendant in the proceedings.

DEANE J: Are there provisions under the New South Wales EVIDENCE

ACT which would make their evidence before

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Mr Justice Davies admissible in the supreme court

if they were kept out of the country?

MR ADAMS:	Your Honour, that is so in part, however part of the evidence is in documentary form because of the
way in which the AD(rJR) proceedings was undertaken. That, we apprehend, would not be admissible. That is
the difficulty which the appellants face and that is
why we submit special leave should - because of these
special circumstances, that this Court ought to consider
that question.

May I briefly state, Your Honours, that also there

is some doubt as to whether or not the Federal Court

did determine that the detention was unlawful and I

analyse at paragraphs 7 to 13 the different findings

made. Briefly, if I may say this, Mr Justice Davies

held that the deportation order was - he ordered that

it was void ab initio and we would submit that

inevitably led to a finding of unlawful detention

because that was the only possible basis upon which they

could have been detained.

Now, His Honour considered whether declarations

as sought should be made but he said not, because he

considered either that the jurisdiction conferred by

section 16 did not in this case permit declarations,

though that is unclear, or as Mr Justice - I am sorry,

I should rephrase that. His Honour Mr Justice Sweeney

determined that the jurisdiction did not permit

declarations because of the difficulties identified by

Mr Justice Davies as to identifying the decision maker.

Implicitly Mr Justice Merling stated that that was not

a proper basis for refusing a declaration but he

refused the declaration on the substantive ground that he

did not believe that the deportation order was void
ab initio and hence that the detention was unlawful.

Mr Justice Foster, on the other hand, simply

stated that he would make the declaration as sought,

implicitly therefore rejecting the basis for refusing

the declarations made by the judge at first instance

and by His Honour Mr Justice Sweeney. In those

circumstances, we submit that it is clear that the

majority of the court would have given declarations -

that is Mr Justice Sweeney's basis for refusing them

was in the minority a.nd that comes from the combination

of Mr Justice Morling and Mr Justice Foster's judgment,

yet the finding of a different majority was that the

only basis for lawful detention was a void deportation

order.

Now, I might add to that, just in passing, that in

dealing.with this matter Mr Justice Davies seemed to

regard the onus as being on the appellants to

demonstrate that the deportation order was invalid

whereas, of course, in proceedings for false

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imprisonment one merely needs to assert	the
unwillingness of the - involuntariness	of the
detention and it is a matter of defence	to demonstrate
that there were lawful grounds for it,	in this case,
a defence which in the result must have	failed.

So we submit that a fundamental flaw in the

Federal Court's disposition of the matter was that in the end effect was not given to the judgments of

the court as a whole. Now, that is significant for

these parties because a declaration that they were
unlawfully detained means, of course, that it is

unnecessary in the circumstance to litigate for false

imprisonment. It would entitle them to summary

judgment and the remaining issue would simply be that of

damages which would be, from their point of view, a very

substantial advantage, especially if they were not in

the country.

So we submit that it must follow from the judgments

as a whole of the Federal Court on appeal that the
declarations should have been made, but that by error
the effect of the judgments was not crystallized in

the forms of the orders ultimately made.

If I may return briefly to the damages question,

in my respectful submission this is not merely a

question of seeking this Court to differ from the

Federal Court's view of the effect of pleadings. In

our submission, first of all because of the peculiar
circumstances of the case and the devastating
consequences to the appellants if they do not succeed
for the reasons I have already mentioned on this point,

a matter where liability is for all practical purposes determined, in my submission, the injustice to them in

the circumstances is grave and would justify special

leave but, in addition, we would submit that the matter

of public importance is that this Court should state

-emphatically that proceedings for relief in the Federal

Court under the AD(JR) Act and any other law which gives

jurisdiction to the court to determine outstanding

issues between them, should not be the subject of what

we submit is the procedural, if I may say it with

respect, pedantry which was the basis of the decisions

below.

The fact is that the pleadings specifically sought

damages for unlawful detention in terms and declarations.

The fact that it happened to be in a document entitled

uAn application under the AD(JR) Act" should not have

prevented the court from determining the matter when
raised. There was evidence about it, there was cross-

examination about it, there were submissions concerning

- - --- the question. In my respectful submission, this Court

should hear this matter and determine in favour of the

appellants that it is not necessary, providing the

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matter is fairly raised between the parties, which is
the essential requirement of pleadings and the purpose

of pleadings, that in this case where there was

jurisdiction had it been fairly raised, that the

Federal Court should have determined it to avoid the

multiplicity of proceedings.

So we submit that there is an important question

here of general public importance, namely the mode in
which the Federal Court should exercise its

jurisdiction when considering matters which may provide relief - well, I will use relief in its general terms -
relief to a litigant under the various heads which the

Federal Court under its Act is entitled to consider.

And damages, in this case, was one, as is conceded.

My submission is that that is a matter of general public

importance affecting the policy of the FEDERAL COURT ACT.

Your Honours, in relation to the question of notice I can do little more than adopt what was said

by His Honour Mr Justice Foster below. He states the

grave significance for the appellants in connection

with the decision whether or not to provide voluntary

supervised departure, including in particular the

difficulties which attend them should they wish to

travel not only to Australia, having been deported, but

to any other nation. The effect of this deportation

order would, in the result, be devastating for them

and is even more unjust when one considers that they

were here in part at the request - certainly initially - trial because that matter, which kept them in custody
of the Director of Public Prosecutions of the

when they should not have been in custody, it was

discussions about that matter which, as the court itself

said, in effect lulled them into a sense of security

concerning the application because they believed that

co-operation would mean favourable consideration, and

in the result they are, in our respectful submission,

treated with arbitrary harshness which, in the

circumstances, specific submissions may have avoided

if notice had been adequately given that this matter was

under real consideration.

DEANE J:	Mr Adams, did they ever seek to have the deportation order revoked on the basis that they were prepared to
leave voluntarily?  I mean, has there ever been any
real suggestion in the case that your clients were
prepared to leave voluntarily?

MR ADAMS: Certainly. If I may say so with respect, that was

the very point of the application, that is the

application to the court when the series of

possibilities were explored~

DEANE J:  I follow it has been raised as an attack on the second

deportation order. vJhat I am asking you is when

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submissions were being made for the revocation of the
first deportation order, was it ever suggested that

your clients were prepared to leave voluntarily and

for that reason the first order should be revoked?

MR ADAMS:  May I answer it in this question. There was

correspondence that went over some time - and I do

not state it too strongly to say whilst they were in

custody they begged to be given permission to leave

Australia. I do not know that it was quite put in

terms, "Revoke it and we will go", but they requested -

on a large number of written occasions, Your Honours, as

I understand it they requested, whilst they were in custody, permission to leave Australia and return to

Korea. I do not know that it was ever put formally in

terms of a bargain as to what they might do or what

they might not do, but they certainly said, "Please

let us return to Korea".

MASON CJ:  Can you refer us to the statutory provisions dealing with supervised voluntary departure?

MR ADAMS:  Yes. I understand, Your Honours, there is not a

specific statutory power; it is a discretionary power

the Minister has to permit.

MASON CJ: It has no statutory foundation at all?

MR ADAMS:  No. If I may put it - as I understand it, it is

by way of -

MASON CJ: Departmental practice, is it?

MR ADAMS:  Yes, Your Honour. Well, it does a number of things.

There is no doubt that there is a discretion not to

order deportation - that is under the Act itself - and

as I understand it, in a number of cases the Minister

takes the view that rather going to that extent they

.	be given, prior to a deportation order being issued,
the opportunity to depart without formal process. As

I understand, that is the basis on which it is done.

particular case, and in many cases, submissions are

made to the Minister to permit that to occur. The

practice which is not before the Court - there is a

policy statement by the Minister for Immigration and

Ethnic Affairs on illegal immigrants - states it is to

be preferred that people who have illegally entered or

illegally stayed in Australia should simply leave. If

they do not leave of their own accord but conceal
themselves, they kind of expect that they would have

some right to depart voluntarily in order to avoid

prosecution, and the opportunity for voluntary

depart11r.P. _may be made available by an officer at the

time of apprehension providing that there are a number

of conditions satisfied.

But it is clear departmental practice and in this

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MASON CJ:  And that is the reason why the word "supervised"

is used as a part of the label?

MR ADAMS:	Yes, that is so.
TOOHEY J:	Once the deportation order has been made, the only

question, I suppose, is whether they remain in

custody or not, pending their deportation and there

is provision by which a person can be released from

custody pending the deportation order coming into

effect. By coming into effect, I mean pending the

physical departure of the person from Australia.

MR ADAMS:  That is so. It is not necessary that an illegal

immigrant would be, as it were, taken manacled to the

aircraft. The point is that he leaves without the formality of a deportation order having been made.

Now, in this particular case, when it became clear, I

think - and there is a letter - sometime in October or
November to the department that the basis of holding

these people was, to say the least of it, unsatisfactory,

the department was reconsidering whether or not or what

action it should take and what it did was to revoke the

old order and to pass a new one intending to immediately

deport. Now, if we had intervened at that stage, as

Mr Justice Foster says, we would have been in a

position to bring to the department's attention the

significance of permitting them to depart as they had earlier requested, as distinct from requiring them to depart under a deportation order.

For example, these men now - they have been at large, and as I understand it, would legally have

departed Australia. The situation is that they had

this and other litigation to complete and wished to

depart without an order outstanding against them, to
preserve their rights not only in relation to

returning to Australia but in relation to other travel

to other countries.

I am informed, and perhaps my learned friend can

inform Your Honours, I understand that in fact

supervision means that they are in custody. I think

supervision probably best describes what has occurred; it is to ensure that they depart in accordance with an undertaking.

DEANE J:  If the Minister cannot get his hands on any money it

would also affect who pays for the ticket.

MR ADAMS:  Oh yes, it would, that is so, Your Honour. I can

add nothing further of use in the special leave - in

an application of this kind to these questions. If I

may simply close in this way: as Mr Justice Morling,

I think, was the only judge of the four before whom

these matters came, who found positively that there was

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no unlawful detention, yet he expressed himself in

very strong language concerning the injustice of

what had occurred to them, according to our standards

of law, not because we owed the appellants these

matters but because-if one was going to be consistent

to our own conceptions of justice. Mr Justice Foster

expressed the same views in somewhat stronger

language but, as I apprehended, in langauge which

would not have been departed from by the other judges

in this case.

In our respectful submission, it is best and most

consistent with our conceptions of justice in this case

that they be permitted to seek redress without

conditions - and that means by virtue of at least a

reconsideration of the present order - redress against the injustice that has been done to them in respect of

their unlawful imprisonment and ultimately this Court

is the last Court that can ensure that that measure of

justice is handed out to them. And in my respectful

submission it ill behoves us, in a case where our

government has acted wrongly to so proceed to make it

at least difficult , if not impossible, for them to

obtain the redress which, on the facts of this case all

concede must be theirs.

Those are my respectful submissions.

MASON CJ: Yes, thank you, Mr Adams. Yes, Mr Stevens.

MASON CJ:  Could we ask you first of all a question relating

to the Federal Court's failure to make a declaration

that the applicants were unlawfully detained. Is it

contested by the Minister that the applicants were

T7 unlawfully detained?

MR STEVENS:  In the light of there being a finding before the

.	Full Court that the decision was void ab initio, then ·there is no other consequence that can follow as a
matter of law, it would appear, Your Honour.

MASON CJ:  So that in any proceedings that are on foot and

continue in relation to a claim for false imprisonment the matter of unlawful detention will not be contested by the Commonwealth or the Minister.

MR STEVENS: With the proviso as to section 20(2) of the - I

am sorry, I am not in a position to be able to say

expressly to the Court on that aspect, as to whether

it would or would not, Your Honour. I can say that

in relation to proceedings that were commenced by

way of wrongful arrest and false imprisonment that

were on foot ~pfore the ADMINISTRATIVE DECISIONS

(JUDICIAL REVIEW) ACT proceedings were determined,

there was a defence put on by the Minister at that time.

As to whether that defence is now liable to be amended

in the light of the judgment of the Full Court, I am

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not instructed and I am not in a position to be able

to so say. The significant point that I seek to draw

to Your Honours' attention is that there were two

separate and discrete series of proceedings; those

that were instituted in the Supreme Court of New South

Wales in relation to the allegations of wrongful

arrest and false imprisonment and separate and

distinct proceedings in relation to two decisions under
the AD(JR) ACT and the matter has proceeded in that
way with the aspect of, both before the trial judge

Mr Justice Davies and before the Full Court, as to the issue being not whether one is entitled to have

accrued to the Federal Court proceedings the proceedings

seeking the separate relief by way of the consequences

of the false imprisonment, but rather whether there
existed a separate right pursuant to section 16 of

the ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT to

be able to obtain proceedings by way of damages as

an adjunct to those.

It does not expressly answer Your Honour's

question - - -

DEANE J:  But there are two aspects of that, are there not? One

is if the detention was unlawful should a declaration

have been made pursuant to section 16(2)(a); the other

was in the context of an independent claim for

damages in the supreme court, should the assertion of

damages in these proceedings be seen as it were as
independent of the proceedings - they related to the

proceedings under the ADMINISTRATIVE DECISIONS (JUDICIAL

REVIEW) ACT.

MR STEVENS: Certainly, Your Honour.

DEANE J:  Then what the Chief Justice is really asking you

about is the declaration that the detention was

· unlawful. Now your answer, as I follow it, is that

Commonwealth is still in the state of the pleadings

maintaining a defence in the supreme court which denies

its unlawfulness and one can only speculate whether, if

leave is refused here, the Commonwealth will continue

to maintain that defence.

MR STEVENS:  I think that is accurate, Your Honour, yes. I

would not be seeking to make the concession without

express instructions as to whether that defence,as

had been previously been put on and in relation to

which I am not briefed, is intended or is proposed to

be amended or even has been amended. All I can

indicate to Your Honour is the state of play when the

matter was argued before Their Honours in the Full

Court.

DEANE J: Then why do you say that the applicant was not

entitled to a declaration under section 16(2)(a)?

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MR STEVENS:  There were two aspects which troubled

Mr Justice Davies at first instance and the reasoning

of His Honour having been accepted in this area, both

by Mr Justice Morling and Mr Justice Sweeney, that

was as to the identity of the decision maker or

decision makers.

DEANE J: Is that true about Mr Justice Morling? I did not

read his judgment that way.

MR STEVENS:  I am sorry, Your Honour, only Mr Justice Sweeney.

DEANE J: Which means a majority of the Full Court was of the

view tha 4 accepting the approach that the detention

was unlawful, which you say follows inevitably from the

majority view, a declaration should have been made .

MR STEVENS:  Which may have followed, Your Honour, but I do not

seek to go that far in relation to the concession.

MASON CJ:  I thought earlier you did concede that it followed

inevitably.

MR STEVENS:  That it would appear to inevitably follow, yes,

Your Honour. The part that troubles me is that I

do not seek to make concessions before Your Honours in

relation to how other proceedings may be argued- - -

MASON CJ:  No, I follow that. But a question is now directed

to you, a honing in on why it was that the Full Court

of the Federal Court did not make the declaration

having regard to the chain of reasoning that is evident

in the various judgments.

MR STEVENS: With respect, the course of reasoning was directed

so far as Their Honours were concerned as to the more

fundamental circumstances as to whether there would be

. an entitlement to damages and it was being viewed, in

Their Honours' context, as to that declaration being a precursor to the seeking of an award of damages

under- - -

DEANE J:  But can I keep you on the declaration. You see, a

majority of the Full Court held that the deportation

order was invalid. That is so, is it not?

MR STEVENS:  Yes, the first deportation order, that is right,

Your Honour.

DEANE J:  Now, you said it followed inevitably from that that

the detention was unlawful. That is so, is it not?

MR STEVENS:	Yes, it would appear to be so, Your Honour.
DEANE J:	Now, a majority of the Full Court held that if the

detention was unlawful, a declaration to that effect

should be made. Mr Justice Morling and Mr Justice Foster

both held that.

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J1R STEVENS:  In relation to Mr Justice Morling's judgment - it

appears at page 15 of His Honour's judgment- - -

DEANE J:  He held the detention was not unlawful but he made

it clear that if he had thought it was unlawful, a

declaration should be made.

J1R STEVENS:  Yes. And there, with respect, Your Honour, there

is a different reasoning because Their Honours were

there considering the role of a declaration and the

associated entitlement to damages. With respect, it

is submitted that it blurs the issue substantially and

that it is a wrong passage of reasoning to suggest

that the two matters were to be viewed as separate and

distinct steps. Rather, the two were interrelated in

that sense and ought to be so viewed, and that

Their Honours were dealing with a situation where, in relation to the pleadings and the consequences of those

pleadings, they were seeking to unravel what had, with

respect, become something of a muddle as to the way the

matter was argued before the trial judge and the

remarks of Their Honours in that aspect ought to be so

viewed in that context, it is submitted. One is dealing

with the more fundamental point as to whether or not

there was an entitlement to damages as a discrete

matter and Their Honours were then viewing the

intermediate step as to the entitlement of damages

needing, by necessity,the potentiality of the

declaration as distinct from viewing two separate and

distinct steps in the course of reasoning and it is

submitted that that is the approach that ought to be so

adopted.

DEANE J:  What I was really trying to suggest to you was in that

context it is of great importance to this application

that the Commonwealth now comes along and says, "We

have a defence denying the unlawfulness of the

· detention and we are not in the position to tell the

Court whether, if leave is refused, we will make

these people go back to square one".

J1R STEVENS:	Your Honour, with respect, in so far as an issue estoppel can have arisen between the parties, it makes
that necessary declaration to that extent unnecessary
to be so used as a foundation.

DEANE J: Then if that is so, I would have thought the

Commonwealth could tell us that they will today amend

their defence to admit liability, leaving the question

of damages to be assessed in the supreme court.

J1R STEVENS:	Your Honour, it may well be that this afternoon before Your Honours such instructions can be so
offered.  It had not been perceived from my point of
view of the need to have inquired into the state of pleadings in those other proceedings and it had been my perception that we were dealing with a separate

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issue as distinct from the question of that

declaration and the consequences of that declaration

as to how they fit in. But it may be that those

decisions or those determinations are unable to be

made quickly because it is, in that sense, a serious

circumstance, to invoke the considerations of the

Minister and his powers. I do not seek to avoid the

issue, Your Honour, but rather to explain as to why

that concession is not totally made in relation to the

state of these other proceedings.

If we come back to the more fundamental aspect,

it is submitted that there is no general worth in

terms of determining these questions of damages and

declarations when one now has the benefit of the

cross-vesting of jurisdictions and when, even at that

time it was possible,and was so conceded in the Full

Court, that in the properly pleaded case the effect

of section 23 of the FEDERAL COURT ACT would have

allowed those accrued or allied matters already to

have been properly determined before it, and rather

one had the situation of two separate proceedings

following their own separate streams.

In relation to the questions of - - -

TOOHEY J: 

How does cross-vesting bear upon the jurisdiction of the Federal Court in this particular matter?

MR STEVENS: 

There would have been able to be invoked the

declarations as would have founded the entitlement
for a writ of habeas corpus and in the English

procedures, the step had always been that one did it

in two steps: first, you had the declaration of the
entitlement to liberty and then, separate and
consequential from that first declaration, in the

habeas corpus proceedings there would then be

. instituted subsequently proceedings seeking the damages

in relation to that unlawful imprisonment or detention.

TOOHEY J: Are you suggesting that as the proceedings presently

stand in the Federal Court, it is open to the

applicants to, as it were, add to the claim that they

previously made in that court by way of cross-vesting

provisions?

MR STEVENS:  Had the matter been fully and properly pleaded, it

would have been at that time, Your Honour, yes - sorry,

it would have been in terms of the accrued

jurisdiction and it is able to be added to even more

now by reason of the cross-vesting.

TOOHEY J: When you say it is able to be added, do you mean in

applicants?

a general way, speaking of litigants before the

SlT8/5/RB	14	17/2/89
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MR STEVENS:  I am speaking of litigants in general, as to it

being able to be added, Your Honour, and not as being

able to be added in relation to these litigants.

TOOHEY J:  So the cross-vesting provisions on your approach

do not assist the applicants in the situation in which

they presently find themselves?

MR STEVENS: That is right, Your Honour, and the circumstance

of cross-vesting is as to the utility of determining
these entitlements in a case of potentially wider

sweep. Instead it is submitted that there is not and

need not be that wider compass to be so determined

because what appears to have been a hurdle for these

applicants is a hurdle that no longer exists.

TOOHEY J: And I take it the cross-vesting provisions would

not assist the applicants in the supreme court in the
sense that the supreme court could not make any
evidentiary use of anything that had occurred in the

Federal Court?

MR STEVENS: With respect, Your Honour, it would be open to the

tender of judgment as between the same parties in

relation to findings from necessary ancillary facts

in the supreme court proceedings, as to have created

an estoppel between those same parties in related

litigated. And that is the way the applicants, one

envisag~s, will be approaching the matter in the

supreme court.

MASON CJ:  Mr Stevens, how long will the balance of your

argument take?

MR STEVENS:  It would take only approximately five to ten

minutes, Your Honour, but there is the significance

in relation to this question of instructions which

. Mr Justice Deane has sought.

MASON CJ: It may be convenient for us to adjourn now and

we will resume at 2.15.

AT 12.49 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

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UPON RESUMING AT 2.24 PM:
MASON CJ: Yes, Mr Stevens?

MR STEVENS: 

Your Honours, if I might correct a statement I

made before lunch; it was to the effect of the
status of the defence in the supreme court

proceedings.  We had sought to obtain those

doctllllents before coming up this morning and have

been unsuccessful in doing so. The position was

and at this point in time remains that no actual

defence has been filed in relation to those
proceedings.

In terms of the second aspect as to whether

the Minister would seek to raise an issue as to

the nature of the determinations and/or, in essence,

put liability in issue, that is a matter upon which

we have sought instructions. I would be seeking

the indulgence of the Court if that aspect might

be allowed to, perhaps, be dealt with after the

next matter seeking special leave, in so far as

the nature of the appeal seeking to add the

ground of absence of declarations had only been

furnished to the Commonwealth late yesterday

afternoon and had been available to be considered

for the first time this morning. In so far as it

puts the Minister in the position of then having,

in essence, an assessment of damages alone as

distinct from considering this what is quite a very

substantial and important point, it is submitted,

with respect that it is a matter that ought not

be unduly hastened although those in Canberra are
seeking to attend to it exceedingly diligently,

but the best estimate of time is that it would require a further, at least, half hour as from

twenty past two.

I do not seek to inconvenience the Court in

any way but seek that indulgence simply because

notwithstanding the application for special

leave having been apparently filed on 24 or 28 August,

the Australian Government Solicitor only received

it earlier this week and this question of the

amendment to add the ground of the absence of

declaration was only brought to the attention of my

instructing solicitors by a facsimile transmission

at about 3.30 yesterday afternoon. The Australian

Government Solicitor was aware of such an application

but the actual appeal books themselves and the proposed

grounds of appeal had only been received earlier this

week. In those circumstances, I ask Your Honours if

the appeal might remain part-heard until the further

application for special leave might be dealt

with?

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MASON CJ:	Yes.	Do you want to proceed with the balance

of your argument in the mean time or are you

asking that that should be deferred until after?

MR STEVENS:  If that might be deferred as well, Your Honour,

to at least try and resume some semblance of

continuity.

MASON CJ:	Yes. Mr Adams, do you have any objection at
all?

MR ADAMS: Certainly not, Your Honours.

MASON CJ:	Very well, the matter will be deferred until we
have heard the last special leave application in the list.

MR STEVENS: If Your Honours please.

AT 2.27 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

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UPON RESUMING AT 2.59 PM:

MASON CJ: Yes, Mr Stevens?

MR STEVENS: If I may be able to come back to the question as

whether there	ought to be such declarations and
deal with the	ancillary aspects at this point,
Your Honours.	Dealing first with the question of
voluntary - - -

MASON CJ:	Do you still need more time, Mr Stevens?
MR STEVENS:	Yes, Your Honour. My instructing solicitor

has been outside and five minutes ago was told

they guaranteed to ring back - sorry, it was not

quite five minutes ago, but was told they would be

ringing back within five minutes. The position is, to be able to give the unilateral decision, I would

need more time. It is a case of being able to wrap

up the other matters and taking onboard on the run,

as it were, that aspect. It is a case of which

course is more convenient to the Court.

MASON CJ:	I think it might be more convenient, Mr Stevens,
if we adjourn for a few minutes and we await
intelligence from you.

MR STEVENS: If Your Honours please.

MASON CJ:  But we do not contemplate a lengthy adjournment.

MR STEVENS: Certainly. I appreciate that, Your Honour.

MASON CJ: Very well, the Court will take a short adjournment.

AT 3.01 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.18 PM: 

MASON CJ: Yes, Mr Stevens?

MR STEVENS: If Your Honours please. At this point in time,

Your Honours, no concession is made as to the

circumstance of not taking the point in relation

to the supreme court proceedings and that those

proceedings would be effectively confined to an

assessment of damages.

MASON CJ: You are saying that they will be confined to an

assessment?

SlTl0/1/PLC	18	17/2/89
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MR STEVENS:  No, Your Honour, I am saying that there is no such concession or limitation.

It is submitted, Your Honours, if one deals with

the judgment of Mr Justice Morling upon whom the

applicants rely, there is not that precise statement

that he would have made such a declaration.	If one
turns to page 15 of His Honour's judgment -

unfortunately the application for special leave appeal
book, in my version, is not numbered and one has to

deal with the separate judgments.

MASON CJ: Ours is numbered.

MR STEVENS: It is an advantage of Your Honours. All I can

indicate is it is page 15 of Mr Justice Morling's

judgment.

TOOHEY J: Does that commence, "I shall defer"?

MR STEVENS:  It does, Your Honour. His Honour, at point 3,

deals with the question that the trial judge had:

thought that there was insufficient

identification of the decisions -

and then goes on to say:

Although, for reasons which I shall presently

state, I think his Honour was correct in

refusing to grant the relief sought, I do
not agree in the reason given by his Honour

for reaching that decision.

Now, that decision is - and then goes on:

Plainly, decisions were taken to keep the

appellants in custody. The evidence

discloses that they made several requests -

et cetera. The decision His Honour there deals

with is the decision of the trial judge to have	felt that there was an inadequacy of identification
of the people against whom the claim was being
made. It is not the concession that in like circumstances he would have granted a declaration.
That is as far as His Honour goes in terms of
potentially being willing to have made such a
declaration.

There is no doubt that so far as Mr Justice Foster

is concerned, on the final page of his judgment - and,

again, unfortunately - it is page 21 of His Honour's

judgment and I would anticipate it is the third of

the judgments of the Full Court. His Honour there

says:

SlTl0/2/PLC	17/2/89
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For my part, therefore, I would

propose that the appeal be allowed to

the extent that I have indicated and

would also propose that a declaration

be made that the detention of the appellants

pursuant to the purported deportation order

of the 20th August, 1986 be declared

unlawful and that the deportation order of the 8th February 1987 be quashed and

that the matter be remitted as indicated

above.

That is the only express finding, it is submitted, that the applicants can point to as to any of the

concerned, one can well appreciate the reasoning of

judges having been willing to make such a declaration.

both the trial judge and also of Their Honours in the

Full Court because so far as that is concerned, in

terms of an ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW)

ACT claim one is dealing with the correctness of the

initiating decision, in this instance, the deportation

order of 20 August 1986 that was being relied upon as

distinct from the period of time in which a mistaken

belief of that being a valid deportation order could
be treated as having caused people to be detained in

custody. And it is submitted that the claim by way

of false imprisonment and wrongful arrest may well

entail a different consideration of different days

an~ accordingly, one can well discern that a trial
judge and more appropriately, the Full Court, not

confine themselves to that particular declaration.

One ought bear in mind that the original

application and at least in one of its amended forms

as were repealed, sought to have a declaration
expressed to be for a period from 20 August 1986
to 2 December 1986. That was page 4 of the original

notice of appeal which repeated the words of the

first application which had sough4 in like terms,

an order pursuant to section 16(l)(c) of the

AD(JR) ACT and/or section 21 of the FEDERAL COURT
ACT appearing similarly on page 4 of what is

between 20 August 1986 and

described as "Amended 20 August 1986 Application for unlawfully detained

2 December 1986.

So that the circumstances in terms of an

ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT

application were not directed to nor needed they to

be confined to considerations of the length of that

detention. Mr Justice Davies, whose reasoning on

this aspect was adopted by Mr Justice Sweeney,

dealt with that at page 6 of His Honour's judgment

and His Honour there, in the first paragraph, sets

out the alternative submissions and what he perceived

to have been an:

SlTl0/3/PLC	20	17/2/89
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important misunderstanding of the

principles of judicial review -

namely, of having put forward the deportation order

to be:

set aside ab initio with the result that

the subsequent detention ..... was unlawful.

Alternatively -

that if it was valid it ought not to have been

carried out. Arising from these allegations, at

point 4:

damages were sought for unlawful detention.

And the final wording of the paragraph, incorporating

part of the submissions put forward on behalf of the

applicants:

that there should be a further hearing

to determine the quantum -

of the damages which would include the exemplary

damages.

The trial judge was there dealing with a

final hearing and was dealing with all of the matter

that was before him. His Honour then went on at

page 6 and following to determine why damages are

not an appropriate relief in terms of pure

ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT and

then goes on at page 8, in reasoning which again

was adopted in a relevant context and approved by

the Full Court:

The present proceedings are proceedings

solely under the ADJR ACT for orders of

review with respect to decisions taken by

delegates of the respondent Minister.	They
are not proceedings against the Commonwealth
imprisonment and make no claim for damages
for a civil wrong. No amendment to the
proceedings to raise such a claim was sought. It follows that the principal relief
claimed in respect of the 1986 decisions was
misconceived.

or an officer of the Commonwealth for false

And His Honour there referred to PEARCE AND ANOTHER V

BUTTON AND OTHERS. What it entails is an automatic,

so far as the applicants are concerned, assumption

that if an order is then void ab initio there ought

to be an automatic determination of the period where

people have acted in reliance of that order without

there being an inquiry of the facts and circumstances

within that period. Rather, it entails an automatic

SlTl0/4/PLC	21	17/2/89
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assumption that until that order was changed there

was no other basis or no other reliance or no other

circumstances as may have enabled that determination

to have been on foot. Now, whereas it is conceded

that in terms of the MIGRATION ACT section 18 allows
the power of deportation and section 38 allows the

detention in custody pending that deportation, it

ought not be made the subject of limited proceedings

to have the automatic consequence that all of the

conduct within a particular time which has not been

the subject of review by the Federal Court to be the
subject of such an ancillary declaration. In essence,
neither at first instance nor before the Full Court
was there a full purview of facts to enable those

appropriate decisions to necessarily be properly

ventilated.

Mr Justice Davies at page 22, the learned

trial judge, when dealing with this in the second

paragraph on that aspect was dealing, in part, with

the decision about which Mr Justice Morling formed a

different view. The alternative pathways though

will have the same effective consequence.

Mr Justice Davies' approach was, dealing with the

ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT

aspect:

These proceedings are not an action

for unlawful imprisonment. If they were,
it could well have been sufficient to

prove the detention and to put forward

grounds tending to show that any decisions

authorising the imprisonment must have been

taken for an improper purpose. But, these

proceedings seek orders of judicial review

with respect to decisions. In the absence of identification as to the date and terms of decisions and to who was or were the

decision-maker or decision-makers, it is

not appropriate that any order by way of

judicial review should be made.	I
therefore do not consider these decisions
further.
If one were to, in adopting Mr Justice Morling's

approach, inquire,as distinct from the various

delegates of the Minister who were relying upon an

original deportation order, the nature of the

detention and the nature of the unlawful custody,

may or may not be for the same period. Accordingly,

because the breadth of that custody is not a matter

that was justified in terms of judicial review. It

was a matter that did not come before the trial judge
nor did it necessarily come for scrutiny before

Their Honours in the Full Court. Accordingly, it is submitted that the approach of the Full Court was

appropriate, namely, they confined their orders to

SlTl0/5/PLC	22	17/2/89
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both the appeal being dismissed, namely, the relief

being sought not being founded by a majority and,

similarly, the cross-appeal being correspondingly

dismissed.

In terms of the consequential relief then by way of damages, it is submitted that the damages

aspect is a separate and discrete aspect. There is

no basis, it is submitted, for being able to award

damages for the error in terms of the administrative

action and in like terms to the habeas corpus

relief. That must be the subject of separate
proceedings. It was never or ought never to be

contemplated that final proceedings before a judge

of the Federal Court are then to be deferred to some

future time as the applicants therein proposed to

have an assessment of damages separately, that the

final hearing consistent with the nature of the

Federal Court is a full and final hearing.

In terms of the supervised voluntary departure

aspect, it is submitted that there is no statutory
basis for that. It is an administrative - - -

MASON CJ:	We need not trouble you on that aspect of the case,
Mr Stevens.
MR STEVENS:	Certainly. They are the submissions on behalf of the respondent, if Your Honours please.

MASON CJ: Yes, Mr Adams?

MR ADAMS:	The period, 20/8/86 to 2/12/86,was not a period within which unlawful detention may or may not have occurred but it was the entire period of detention
under the void deportation order. In my respectful
submission, the assertion by my friend that the
declaration was ancillary cannot be right. Section 16
itself provides that a declaration may be made.

A declaration may be made in relation to

applications for review.

So, it was fundamentally different to the seeking

of damages. Seeking of damages required, if I may

use the term, either the accrued or widened

jurisdiction of the Court tagged on to the

application or connected with the application or

related or associated to the application. So, the

question of damages all concede though it could

have been dealt with in that way was a fundamentally

different matter to the declaration. In no sense

could the declaration sought be regarded as

ancillary, in my respectful submission. In no

way could the application for the declarations

be regarded as ancillary. They were part of the

relief which was within the direct jurisdiction, if

I may use that phrase, of the Federal Court to give

SlTl0/6/PLC	23	STEVENS	17/2/89
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in relation to review applications or review

proceedings. So they were of a fundamentally

different kind to the damages.

Now, the application for declaration was

directly made. It was directly litigated. There

was evidence on both sides in relation to the

unlawfulness and,ultimately, the trial judge found

on a basis which the majority of the Federal Court said

was wrong, that he ought not to make a declaration as

sought. May I reiterate what I said earlier, that

at page 24 His Honour Mr Justice Davies, with respect

to him, has misstated the question. It would have

been sufficient for any appellant or any

applicant simply to prove an involuntary detention.

It would have been a matter for the defendant to

establish the lawful grounds justifying that

detention. It is not a matter that he therefore

had to prove. So, in the context of this

litigation, if the respondent Minister had a ground

upon which the lawfulness of the detention which was specifically and directly raised as an issue

in the proceedings, if there was any evidence

which could justify the lawfulness of that

detention, then he ought to have there adduced it

and he cannot now come to this Court and say,

"Well, we didn't adduce this evidence. The trial

judge didn't hear about it. He felt that in the

circumstances he ought not to make it because

there was no identified decision maker, and
therefore the matter is at large." In my respectful
submission, the matter was clearly raised on the

issues and the facts as demonstrated justified the

conclusion in the Federal Court that the .
deportation order having being invalid, then it
followed that a declaration should have been made

as to the unlawful detention.

Your Honours, just briefly in relation to

Mr Justice Morling:	my respectful submission is
this, that the clear structure of Mr Justice Morling's

decision demonstrates that the only reason that he

refused declarations was that he was satisfied on

the principal or substantive issue that the

detention was lawful and I submit that it follows

from his clear assertion that the trial judge's analysis of the matter was mistaken, that if it had not been for his decision on the substantive

question he would have given the same declaration

as Mr Justice Merling.	Your Honours, I have
nothing further to add.

MASON CJ: Thank you, Mr Adams.

The applicants seek to raise three matters in

the proposed appeal. First, they complain that the
Federal Court was wrong in refusing to deal with a

SlTl0/7/PLC	17/2/89
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claim for damages in respect of false imprisonment

rather than leaving that claim to be litigated in

separate proceedings. Such separate proceedings

are already on foot in the Supreme Court of New South

Wales. The resolution of the question whether the

claim should be dealt with in the Federal Court

or the Supreme Court which depends on the manner in

which the claim was formulated in the Federal

Court involves no question of general principle.

That is not a matter which warrants the grant of special leave to appeal.

Another matter raised is that the Federal

Court erred in failing to hold that the applicants

were denied natural justice in that they were not

given an opportunity to make representations in

favour of voluntary supervised departure in

preference to deportation. That, again, in the

particular circumstances of this case, turns on its

own facts and involves no question of general

principle. It therefore does not warrant the grant

of special leave.

The third matter raised is that the Federal

Court erred in failing to make a declaration that
the applicants were unlawfully detained. There will
be a grant of special leave to appeal against the

Federal Court's refusal to make this declaration.

The appeal will be confined to this aspect of the

case.

MR STEVENS: If the Court pleases.

MR ADAMS: If the Court pleases.

AT 3.38 PM THE MATTER WAS ADJOURNED SINE DIE

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