FEDERAL COURT OF AUSTRALIA
Plaintiff M83A/2019 v Morrison (No 2) [2020] FCA 1198
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Details
- Case
- [2020] FCA 1198
- Decision Date
CaseChat Overview and Summary
In the case of Plaintiff M83A/2019 v Morrison (No 2), the applicants, who were detained on Nauru, sought to hold the respondents, who included the Attorney-General, liable for misfeasance in public office. The applicants contended that the respondents had acted with reckless indifference in the implementation of Australia’s regional processing arrangements. The applicants sought to amend their pleadings to reflect that the respondents had acted with wilful blindness rather than reckless indifference. The respondents applied for the proceeding to be dismissed and for their pleadings to be struck out. The Court was required to determine whether the applicants’ pleadings were sufficient to establish the requisite mental element for the tort of misfeasance in public office. The Court found that the applicants had not pleaded the requisite mental state for the tort of misfeasance in public office. The Court found that the applicants’ pleaded facts did not allege that the respondents acted with wilful blindness, but rather with mere negligence or reckless indifference. The Court found that this did not satisfy the mental element required for the tort of misfeasance in public office. The Court found that the applicants’ proposed amendments to their pleadings would not satisfy the requisite mental element either. The Court found that the applications for summary judgment and to strike out the applicants’ pleadings should be granted. The Court found that the applicants had not established a prima facie case for misfeasance in public office, and that their pleadings were insufficient to meet the requisite mental element for the tort. The Court ordered that the applicants’ pleadings be struck out, and that judgment be entered in favour of the respondents. The Court also ordered that the parties file proposed agreed orders on the costs of the proceeding, or, in the absence of agreement, file written submissions on the appropriate costs orders to be made in the proceeding.
Orders
Orders of the court
1. Pursuant to r 16.21 of the Federal Court Rules 2011 (Cth), the whole of the Further Amended Statement of Claim filed on 8 November 2019 be struck out.
2. Leave to the applicants to file and serve any further amended statement of claim be refused.
3. Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth), there be summary judgment in the proceeding in favour of the respondents.
4. On or before 4 pm on 11 September 2020, the parties:
(a) file proposed agreed orders on the costs of the proceeding (including reserved costs); alternatively
(b) in the absence of agreement, file written submissions, limited to 5 pages, on the appropriate costs orders to be made in the proceeding, together with any affidavit material in support of those submissions and each party’s proposed form of order.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Nonetheless, and applying appropriate caution as the authorities require, I have determined that the proceeding should be summarily dismissed, and judgment entered in favour of the respondents. Although in light of those conclusions the alternative orders may not be necessary, given the reasons for my conclusions, I consider it is also appropriate the Court order that the entirety of the FASOC be struck out, with no leave to re-plead. My reasons for reaching these conclusions are narrower than the various bases put forward by the respondents, but I am firmly persuaded the respondents are correct in the central submission which grounded both of their applications, relating to the requisite state of mind required for the tort of misfeasance in public office.SOME FACTUAL BACKGROUND In order to understand the factual context in which the allegations against the respondents arise, it is necessary to set out some of the pleaded factual background for each of the lead applicants. The broader factual framework, concerning Australia’s regional processing arrangements with Nauru, is not in dispute and is summarised in Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; 257 CLR 42. Insofar as necessary, I also adopt what was said in the Court’s reasons on the separate question application: Plaintiff M83A/2019 v Morrison [2020] FCA 334. The first applicant alleges that he is a national of Cameroon. The respondents have admitted that he arrived on a ship, having held a “maritime crew visa” which would otherwise have entitled him to enter Australia, but which was declared to have “ceased” two days before the ship he was on arrived at the port of Darwin. He was detained under s 189 of the Migration Act on 31 October 2013. On or about 31 October 2013, the first applicant made a request to a Commonwealth officer that he be returned to Thailand, but on (or shortly before) 9 November 2013 the first applicant was taken to Nauru pursuant to s 198AD of the Migration Act. The respondents admit that shortly before the first applicant’s arrival date in Nauru, a Commonwealth officer applied for what is described as an “RPC visa”, said to be granted pursuant to reg 9 of the Immigration Regulations 2013 (Nr). The respondents admit that visa was in force for approximately three months, and further three-month visas were issued to the first applicant under reg 9 of the 2013 regulations, and then its successor, reg 9 of the Immigration Regulations 2014 (Nr). The respondents admit that on 20 January 2017 the first applicant was found to be a refugee under the Refugees Convention Act 2012 (Nr) and thereafter he no longer held an RPC visa, but held a different kind of visa. It is not disputed that the first applicant was detained at what is called Regional Processing Centre 2 (or RPC2) in Nauru until 4 March 2018, when he was (to use the language in the respondents’ defence) “discharged into community based accommodation” in Nauru. He remained in Nauru until 6 August 2019, when he was brought to Australia. The pleaded facts do not address the basis on which he was brought to Australia.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Fernando was a misfeasance case put primarily on the basis of reckless indifference, rather than actual knowledge of excess of power, with an intent to harm a person: at [112]. At [115], the Court described what Mr Fernando had to prove in the following way:In the context of the present case this required him to establish that the Acting Minister knowingly acted in excess of his power in the knowledge that the cancellation of Mr Fernando’s visa would cause him injury or would be likely to do so or that the Acting Minister acted with reckless indifference to the possibility that he lacked power to make the cancellation decision when he did.(Emphasis added.) That kind of description was repeated by the Full Court at [121], where Mr Fernando’s contention was described again:[H]e contended that the Acting Minister proceeded to make the decision with reckless disregard to the question of whether or not he had the necessary jurisdiction to do so.(Emphasis added.) This is the language of wilful blindness, not any “lesser” mental state. I accept that in McKellar, Weinberg J used the phrase on which the applicants rely. At [257], his Honour said:At the very least, it must be pleaded that the minister has recklessly disregarded the means of ascertaining the extent of his or her power — see Mengel at CLR 347, and not that he has merely acted with “reckless indifference” to the applicants, as pleaded. Mere negligence in failing to appreciate that the minister is exceeding his powers is not sufficient for this tort. That finding was made after a finding in [256] to the effect that “it is not sufficient to plead that the minister ought to have known that he was exceeding his powers or contravening designated Commonwealth laws”. The distinction his Honour was drawing was the same as the one drawn in Mengel. His Honour was not suggesting there was some lesser kind of deliberateness which could satisfy the mental element of the tort. A further, and additional, submission made by the applicants, at least in relation to MIPO 1 and MIPO 2, is that the individual respondents:(a)“considered the obligation to afford procedural fairness to the Applicants and the Group Members and decided not to afford it to them”; and(b)“were reckless as to whether it was lawful to cause, direct, authorise or fail to prevent Commonwealth officers applying or requesting RPC visas in circumstances where there was no statutory or executive power to do so”. These contentions appear to refer to the allegations in the particulars of each of the mental state pleadings for these MIPOs (see [79] and [81] above) that the respondents “considered and disregarded” the unlawfulness of the conduct, whether their own (in directing etc) or that of the Commonwealth officers (in, for example, not affording procedural fairness). Those pleadings appear to read as an allegation that the respondents “considered and disregarded” the potential or prospective unlawfulness of the conduct. I accept the respondents’ submission that these kinds of allegations do not reach the level of misfeasance: even if made out, they could not satisfy the element of reckless indifference or wilful blindness.
Ratio Decidendi
Legal Principle Established
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