Plaintiff S99/2016 v Minister for Immigration and Border Protection - [2016] FCA 483

FEDERAL COURT OF AUSTRALIA
Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483
SUMMARY
In accordance with the practice of the Federal Court in cases of public interest, importance or complexity, the following summary has been prepared to accompany the orders made today. This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment which will be available on the internet at the Court’s website. This summary is also available there.
This proceeding commenced in the High Court and was referred for hearing and determination by this Court. As will be apparent, it required an urgent hearing and an urgent determination. By reason of the exemplary efforts of the parties, their legal advisors and the staff of the Court, for which I am grateful, that has been achieved.
The applicant is a young African woman. The respondents are the Minister for Immigration and Border Protection and the Commonwealth of Australia (collectively, the Minister).
The applicant arrived in Australia on 17 October 2013 having travelled by boat from Indonesia to Christmas Island. On arrival and by virtue of s 14 of the Migration Act 1958 (Cth) (the Act), the applicant was designated an “unlawful non‑citizen” and therefore an “unauthorised maritime arrival” within the meaning of s 5AA of the Act. On arrival, the applicant was detained by the Minister under s 189 of the Act. In the exercise of the power conferred by s 198AD of the Act, on 19 October 2013, the applicant was taken from Australia by an officer of the Minister and placed in the Republic of Nauru, a country designated to be a “regional processing country” under s 198AB(1) of the Act. Upon her removal from Australia, the applicant became a “transitory person” within the meaning of s 5 of the Act. She was detained in a detention centre in Nauru until November 2014. On being recognised as a refugee she was released from detention and is awaiting resettlement. She has no independent means. She has been and remains dependant on the Minister for food, shelter, security and healthcare.
Despite the nomenclature used by the Act to describe her, the applicant remains entitled to the protection of Australian law. Principally, that is because the Minister is bound by the law and, as my reasons explain, the Minister and the applicant are parties to a relationship recognised and enforced by the law out of which legal rights and obligations flow.
The applicant claims that by reason of a legal relationship recognised by the common law, the Minister must take reasonable care of her. She claims to be a vulnerable woman in desperate circumstances. It is undeniable that she needs care. On 31 January 2016, she was raped whilst unconscious and suffering a seizure likely to have been caused by epilepsy. As a result of the rape she is pregnant. The fact that she needs an abortion is not in contest. However, the medical evidence is that an abortion for the applicant is not straightforward. There are significant risks for the applicant because of her neurological condition, her poor mental health and the physical and psychological complications caused by a procedure to which she was subjected as a young girl.
Expert medical evidence says that an abortion for the applicant should only be conducted where (broadly speaking) the treating doctors have available the following resources:
(i)the neurological expertise of a neurologist and EEG diagnostic equipment;
(ii)the mental health expertise of a psychologist and other professionals with experience in trans-cultural issues;
(iii)the gynaecological expertise of a gynaecologist experienced in dealing with the consequences of the procedure experienced by the applicant as a young girl; and
(iv)the expertise of an anaesthetist experienced with newer, safer anaesthetic drugs and anaesthetic techniques and familiar with anaesthesia in an MRI facility.

The Minister accepts that without his assistance the applicant cannot procure an abortion. An abortion for the applicant is not available in Nauru. It would not be safe and legal. The medical evidence is that an abortion in Australia would be safe, in the sense that the medical resources I have identified are available. However, the Minister has refused to bring the applicant to Australia.
The Minister has the legal capacity to bring the applicant to Australia for a temporary purpose. But the Minister has a policy. It is that a “transitory person” like the applicant, will not be brought to Australia other than in exceptional circumstances. The Minister does not regard the applicant’s circumstances as exceptional.
Nevertheless, the Minister is willing to assist. He has assumed responsibility for the Applicant’s care and has made an abortion available to the applicant in Papua New Guinea. For that purpose, the applicant was taken to Port Moresby. That is where she is now.
In this proceeding the applicant alleges that an abortion in Papua New Guinea would be neither safe nor legal. Relying on the evidence of her medical experts, she claims that the absence of the medical resources in Papua New Guinea of the kind earlier listed, exposes her to grave risk. She also contends that an abortion in Papua New Guinea is illegal and would expose her to criminal liability.
Relying upon the existence of a legal relationship between her and the Minister recognised by the law of negligence, the applicant claims that the Minister has a duty of care to procure for her a safe and lawful abortion. She does not say that an abortion must be procured for her and conducted in Australia, but does say that the discharge of the Minister’s duty could be readily achieved in Australia. She apprehends that the Minister will fail to discharge that duty. She seeks declarations and orders designed to preclude the Minister from failing to discharge the duty of care she claims he has.
The Minister denies the existence of a duty of care to the applicant. He also says that if a duty of care exists, the procuring of an abortion for the applicant in Papua New Guinea is both safe and lawful and would discharge any obligation owed. Additionally, the Minister contends that if there is a duty of care and an apprehended breach of it, the courts are powerless to grant the applicant injunctive relief. For that and other reasons, the Minister contends that the proceeding should be dismissed.
Complex issues are called up for determination, including:
·is the applicable law, Australian law or Papua New Guinean law?;
·is a duty of care established?;
·if so, is there an apprehended breach of that duty?;
·does s 474 of the Act preclude the Court from granting injunctive relief?
·if not, is it appropriate that an injunction be granted? and;
·should declarations be made as well or instead?

For the reasons which follow, I have decided that:
·the Minister has a duty of care to the applicant to exercise reasonable care to discharge the responsibility he assumed to procure for her a safe and lawful abortion;
·the abortion in Papua New Guinea made available to the applicant is attended by safety and lawfulness risks that a reasonable person in the Minister’s position would have avoided, and thus that the procuring of the abortion by the Minister did not discharge his duty of care;
·there is reasonable apprehension that the Minister will fail to discharge his duty of care;
·the Court is not precluded by s 474 of the Act from issuing injunctions in cases like the present;
·it is appropriate that declarations be made; and
·injunctions should issue to restrain the Minister from failing to discharge his duty of care to exercise reasonable care to discharge the responsibility he assumed to procure for the applicant a safe and lawful abortion.

The orders I will make will preclude the Minister from procuring an abortion in Papua New Guinea in the discharge of his duty of care but do not require the applicant to be brought to Australia.
There are other claims made by the Applicant including that:
·she is owed a fiduciary duty by the Minister;
·that the Minister’s decisions not to bring her to Australia for an abortion should be set aside as legally unreasonable; and
·that the Minister’s failure to procure for her a safe and legal abortion would exceed the power conferred by s 198AHA of the Act and s 61 of the Constitution.

None of those claims succeed.
BROMBERG J
6 MAY 2016
MELBOURNE

FEDERAL COURT OF AUSTRALIA
Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483

File number: VID 305 of 2016

Judge: BROMBERG J

Date of judgment: 6 May 2016

Catchwords:
NEGLIGENCE – applicant, a refugee, raped on Nauru during or shortly after seizure and fell pregnant – on her request, respondents agreed to procure for applicant a termination of pregnancy – applicant taken to Papua New Guinea for proposed abortion – applicant alleged legal risk attendant upon abortion in PNG arising out of its criminal law dealing with abortion — applicant alleged medical risk attendant upon abortion in PNG, arising out of unavailability of medical equipment, experience, and expertise alleged to be required in order to adequately guard against risk

NEGLIGENCE – duty of care – whether respondents owed duty of care to applicant to exercise reasonable care in procuring for her a safe and lawful abortion – if so, whether procurement of abortion in PNG discharged duty – if not, whether breach of duty apprehended – discussion of Stavar multi-factorial approach to determination of existence of novel duty of care – consideration of authorities relating to duties of care in connection with exercise or non-exercise of statutory powers – consideration of statutory setting – consideration of relationship of applicant and respondents – consideration of circumstances of applicant’s removal to Nauru, her detention on Nauru, and her continued presence on Nauru having been accepted as a refugee – consideration of respondents’ involvement in the foregoing, including its provision of settlement and health services – discussion of circumstances of applicant’s travel to PNG and respondents’ involvement in same – application of multi-factorial approach in determination whether duty of care existed – consideration, in particular, of consistency of putative duty with statutory scheme, of policy, of vulnerability, of control, and of assumption of responsibility – duty of care found to exist, to exercise reasonable care in procuring for the applicant a safe and lawful abortion
NEGLIGENCE – apprehended breach – whether apprehended breach established – consideration of applicable standard of care – rejection of submission that standard of care determined by reference to medical services available in PNG – application of Shirt formula – evaluation of legal risks of PNG abortion – magnitude of legal risk high to extreme; probability of risk materialising low, but not far-fetched or fanciful – evaluation of medical risks of PNG abortion – magnitude of medical risk high to extreme; probability of materialisation of risk material, and neither trivial nor insignificant – consideration of expense, difficulty and inconvenience – consideration of policy against bringing unauthorised maritime arrivals to Australia – whether respondents procured safe and lawful abortion in PNG in discharge of duty – abortion procured in PNG did not discharge duty – apprehended breach established

NEGLIGENCE – statutory authorities – consideration whether, were proper law that of PNG, application of that law would result in foreign (i.e. Australian) statutory authorities being treated in same way as domestic authorities for purpose of determination of existence of duty – application of PNG law would not so result

NEGLIGENCE – remedy –consideration of whether declarations ought be made – consideration of whether injunctions should issue

PRIVATE INTERNATIONAL LAW – whether law of tort PNG or Australia – discussion of test for determination of lex loci delicti – consideration of significance of alleged tort being apprehended and one of omission – identification of respondents’ act giving applicant her cause for complaint – act of procurement of abortion, not performance of abortion, subject matter of complaint – proper law that of Australia

EVIDENCE – consideration, in obiter, of presumption that foreign law identical to domestic law in absence of evidence of content of foreign law – presumption would apply in this case

MIGRATION – whether s 474 of the Migration Act 1958 (Cth) precluded issue of injunctive relief in proceedings other than judicial review proceedings – consideration of extrinsic material – discussion of authorities concerning ss 476A and 486A – consideration of principle of legality – s 474 did not have effect of precluding injunctive relief in proceedings other than judicial review proceedings

EQUITY – whether respondents breached a fiduciary duty arising out of same facts as gave rise to putative duty of care – consideration of guardian/ward fiduciary duty cases – respondents did not breach any fiduciary duty as may exist

Legislation:
Constitution, s 61

Criminal Code Act 1974 (PNG), ss 225, 226, 280, 312

Explanatory Memorandum, Migration Legislation Amendment (Judicial Review) Bill 2001 (Cth)

Explanatory Memorandum, Migration Legislation Amendment Bill (No 1) 2001 (Cth)

Federal Court of Australia Act 1976 (Cth), ss 23, 37AF

Judiciary Act 1903 (Cth), s 44

Migration Act 1958 (Cth), ss 5, 5AA, 14, 189, 197AB, 198AA, 198AB, 198AD, 198AE, 198AHA, 198B, 474, 476A, 484, 486A, Div 8 Pt 2 Subdiv B,

Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)

Migration Legislation Amendment (Judicial Review) Bill 2001 (Cth)

Migration Legislation Amendment Act (No 1) 2001 (Cth)

Migration Litigation Reform Act 2005 (Cth)

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Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1
Cubillo v Commonwealth (2001) 112 FCR 455
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D'Orta‑Ekenaike v Victoria Legal Aid (2005) 223 CLR 1
Dyno Wesfarmers Ltd v Knuckey [2003] NSWCA 375
Federal Commissioner of Taxation v Unit Trend Services Pty Ltd (2013) 250 CLR 523
Fernando v Minister for Immigration and Citizenship (2007) 165 FCR 471
Graham Barclay Oysters Pty Limited v Ryan (2002) 211 CLR 540
Graigola Merthyr Company, Limited v Mayor, Aldermen and Burgesses of Swansea [1928] Ch 235
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Hoffmann v Boland [2013] NSWCA 158
Hopkins v AECOM Australia Pty Ltd (No 3) [2014] FCA 1043
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41
Hunter and New England Local Health District v McKenna (2014) 253 CLR 270
Hunter Area Health Service v Presland (2005) 63 NSWLR 22
Hurst v State of Queensland (No 2) [2016] FCAFC 151
Jackson v Spittall (1870) LR 5 CP 542
John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503
Kent v Griffiths [2001] 1 QB 36
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M(K) v M(H) (1992) 96 DLR (4th) 289
Makawe Pty Limited v Randwick City Council [2009] NSWCA 412
Mastipour v Secretary, Department of Immigration & Multicultural & Indigenous Affairs [2003] FCA 952
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Michael v Chief Constable of South Wales Police [2015] AC 1732
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427
Minister for Immigration and Multicultural and Indigenous Affairs v VFAD (2002) 125 FCR 249
Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169
MM Constructions (Aust) Pty Ltd v Port Stephens Council [2012] NSWCA 417
Mutual Life & Citizens’ Assurance Co Ltd v Evatt (1968) 122 CLR 556
MZYYR v Secretary, Department of Immigration and Citizenship (2012) 129 ALD 331
Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331
Nicholls v Michael Wilson & Partners Ltd (2010) 243 FLR 177
Nocton v Lord Ashburton [1914] AC 932
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Parramatta City Council v Lutz (1988) 12 NSWLR 293
Patsalis v The State of New South Wales [2012] NSWSC 267
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Plaintiff M168/10 v Commonwealth (2011) 85 ALJR 790
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Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491
Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330
S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2005) 84 ALD 257
SBEG v Secretary, Department of Immigration and Citizenship (No 2) (2012) 292 ALR 29
Secretary, Department of Immigration and Multicultural and Indigenous Affairs v Mastipour (2004) 207 ALR 83
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Sutherland Shire Council v Becker [2006] NSWCA 344
Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55
The Council of the Shire of Sutherland v Heyman (1985) 157 CLR 424
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The Ministry of Defence v Radclyffe [2009] EWCA Civ 635
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Tusyn v State of Tasmania (2004) 13 Tas R 51
University of New South Wales v Moorhouse (1975) 135 CLR 1
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Vowles v Evans [2003] 1 WLR 1607
Wallace v Kam (2013) 250 CLR 375
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White v Jones [1995] 2 AC 207
Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515
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Date of hearing: 28 and 29 April 2016

Registry: Victoria

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 529

Counsel for the Applicant: Mr R Merkel, QC, with him Mr E Nekvapil and Mr OM Ciolek

Solicitor for the Applicant: National Justice Project Ltd., Allens Linklaters as town agents

Counsel for the Respondents Mr G Kennett, SC, with him Mr P Knowles and Mr A Yuile

Solicitor for the Respondents Australian Government Solicitor

Table of Corrections

11 May 2016 In the appearances, the Counsel for the Applicant and Solicitor for the Applicant have been corrected

19 May 2016 Catchwords have been added to the cover sheet

23 May 2016 Redactions made

ORDERS

VID 305 of 2016

BETWEEN:
PLAINTIFF S99/2016

Applicant

AND:
MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

THE COMMONWEALTH OF AUSTRALIA

Second Respondent

JUDGE:

BROMBERG J

DATE OF ORDER:

6 MAY 2016

THE COURT DECLARES THAT:
1.It would be a breach of the Respondents’ duty of care to exercise reasonable care to discharge the responsibility that they assumed to procure for the Applicant a safe and lawful abortion where:
(a)the abortion is procured so that it takes place in any location where a person who participates in an abortion is exposed to criminal liability; or
(b)the abortion is procured so that it takes place in a hospital or other medical facility that does not have, or that cannot make available to the treating doctor or doctors who perform the abortion:
(i)the neurological expertise and neurological facilities referred to in the expert medical report of Associate Professor Ernest Somerville dated 19 April 2016, together with his expert medical report dated 27 April 2016; and
(ii)the psychiatric expertise, and other resources including cross-cultural expertise, referred to in the expert medical report of Professor Louise Newman dated 18 April 2016, together with her email dated 27 April 2016; and
(iii)the anaesthetic expertise and anaesthetic facilities referred to the expert medical report of Dr Gregory Purcell dated 20 April 2016; and
(iv)the gynaecological expertise and experience, and the gynaecological facilities, referred to in the expert medical report of Professor Caroline de Costa dated 19 April 2016, together with her expert medical report dated 27 April 2016, and the expertise, experience and facilities referred to in the expert medical report of Dr Miriam O’Connor dated 20 April 2016, together with her expert medical report dated 27 April 2016.

AND THE COURT ORDERS THAT:
2.On or before 15 May 2016, the Respondents cease to fail to discharge the responsibility that they assumed to procure for the Applicant a safe and lawful abortion.
3.Unless otherwise agreed in writing between the legal representative of the Applicant and the Respondents, upon the Respondents discharging their duty of care to exercise reasonable care to procure for the Applicant a safe and lawful abortion:
(a)the abortion not be procured so that it takes place in Papua New Guinea; and
(b)the abortion not be procured so that it takes place in any location where a person who participates in an abortion is exposed to criminal liability; and
(c)the abortion not be procured so that it takes place in a hospital or other medical facility that does not have, or that cannot make available to the treating doctor or doctors who perform the abortion:
(i)the neurological expertise and neurological facilities referred to in the expert medical report of Associate Professor Ernest Somerville dated 19 April 2016, together with his expert medical report dated 27 April 2016; and
(ii)the psychiatric expertise, and other resources including cross-cultural expertise, referred to in the expert medical report of Professor Louise Newman dated 18 April 2016, together with her email dated 27 April 2016; and
(iii)the anaesthetic expertise and anaesthetic facilities referred to in the expert medical report of Dr Gregory Purcell dated 20 April 2016; and
(iv)the gynaecological expertise and experience, and the gynaecological facilities, referred to in the expert medical report of Professor Caroline de Costa dated 19 April 2016, together with her expert medical report dated 27 April 2016, and the expertise, experience and facilities referred to in the expert medical report of Dr Miriam O’Connor dated 20 April 2016, together with her expert medical report dated 27 April 2016.

4.On or before 13 May 2016, the Respondents file and serve any submission in relation to the costs of the application.
5.If the Respondents file and serve any submission in relation to costs pursuant to Order 4, then on or before 20 May 2016 the Applicant file and serve any submission in reply.
6.Should no submission as to costs be made pursuant to Order 4, the Respondents pay the Applicant’s costs of and incidental to the application.
7.On the grounds set out at s 37AG(1)(a) and (c) of the Federal Court of Australia Act 1976 (Cth), publication of the following information be prohibited under s 37AF of the Federal Court of Australia Act 1976 (Cth), until further order or six months from today, whichever first occurs:
(a)the name of the Applicant.
(b)the age of the Applicant.
(c)the applicant’s country of origin, and the country in which she lived before she came to Australia.
(d)the identification number of the boat on which the Applicant first arrived in Australia.
(e)the procedure that the Applicant had when she was seven years old.

8.There be liberty to apply to extend or vary Order 7.
9.Unless otherwise agreed in writing between the legal representatives of the Applicant and the Respondents, the Respondents, whether by their officers, servants, agents, contractors or otherwise, take no step, on or before 5:00 pm on 15 May 2016, to remove the Applicant from Papua New Guinea.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
BROMBERG J:

Introduction [1]

The Negligence Claim [18]

The Essence of the Negligence Claim [18]

The Statutory Setting [29]

Migration Act [29]

Agreements as between the Commonwealth and Nauru [36]

Conditions relating to detention of asylum seekers on Nauru [44]

Agreements as between the Commonwealth and Service Providers in relation to provision of services to refugees in Nauru [50]

Settlement services [53]

Health services [60]

Education services [68]

The Salient Facts [70]

Proper law of the tort [158]

Applicable principles [159]

Discussion—lex loci delicti [175]

What if the applicable law is that of Papua New Guinea? [183]

Is there a Duty of Care? [200]

Legal Principles [200]

Exercise of Statutory Duty [210]

Assumption of Responsibility [232]

Application of Legal Principles to the Facts [243]

Is Apprehended Breach Established? [279]

Foreseeability, Magnitude and Probability of the Risks [284]

Legal Setting [284]

The Medical Setting [305]

Neurological expertise [315]

Mental health care [337]

Gynaecological expertise [351]

Anaesthesia [360]

An Interdisciplinary Approach [364]

The harm if no abortion was procured [368]

Discussion [378]

Relief [409]

Section 474 of the Act [409]

Cases concerning ss 476A and 486A [413]

Extrinsic materials [428]

Other cases [434]

General principles of interpretation [448]

Declaratory Relief [460]

Should an Injunction be Granted? [467]

Miscellaneous issues. [503]

The Fiduciary Duty argument [504]

Legal unreasonableness [519]

Exceeding limits of power [524]

Issues associated with mandatory injunctions [527]
INTRODUCTION

This proceeding commenced in the High Court and was referred for hearing and determination by this Court. As will be apparent, it required an urgent hearing and an urgent determination. By reason of the exemplary efforts of the parties, their legal advisors and the staff of the Court, for which I am grateful, that has been achieved.
The applicant is a young African woman. The respondents are the Minister for Immigration and Border Protection and the Commonwealth of Australia (collectively, “the Minister”).
The applicant arrived in Australia on 17 October 2013 having travelled by boat from Indonesia to Christmas Island. On arrival and by virtue of s 14 of the Migration Act 1958 (Cth) (“the Act”), the applicant was designated an “unlawful non‑citizen” and therefore an “unauthorised maritime arrival” within the meaning of s 5AA of the Act. On arrival, the applicant was detained by the Minister under s 189 of the Act. In the exercise of the power conferred by s 198AD of the Act, on 19 October 2013, the applicant was taken from Australia by an officer of the Minister and placed in the Republic of Nauru, a country designated to be a “regional processing country” under s 198AB(1) of the Act. Upon her removal from Australia, the applicant became a “transitory person” within the meaning of s 5 of the Act. She was detained in a detention centre in Nauru between 19 October 2013 and 11 November 2014. On being recognised as a refugee she was released from detention and is awaiting resettlement. She has no independent means. She has been and remains dependant on the Minister for food, shelter, security and healthcare.
Despite the nomenclature used by the Act to describe her, the applicant remains entitled to the protection of Australian law. Principally, that is because the Minister is bound by the law and, as my reasons explain, the Minister and the applicant are parties to a relationship recognised and enforced by the law out of which legal rights and obligations flow.
The applicant claims that by reason of a legal relationship recognised by the common law, the Minister must take reasonable care of her. She claims to be a vulnerable woman in desperate circumstances. It is undeniable that she needs care. On 31 January 2016, she was raped whilst unconscious and suffering a seizure likely to have been caused by epilepsy. As a result of the rape she is pregnant. The fact that she needs an abortion is not in contest. However, the medical evidence is that an abortion for the applicant is not straight-forward. There are significant risks for the applicant because of her neurological condition, her poor mental health and the physical and psychological complications caused by a cultural practice to which she was subjected as a young girl.
Expert medical evidence says that an abortion for the applicant should only be conducted where (broadly speaking) the treating doctors have available the following resources:
(i)the neurological expertise of a neurologist and EEG diagnostic equipment;
(ii)the mental health expertise of a psychologist and other professionals with experience in trans-cultural issues;
(iii)the gynaecological expertise of a gynaecologist experienced in dealing with the consequences of the cultural procedure experienced by the applicant as a young girl; and
(iv)the expertise of an anaesthetist experienced with recent, safer anaesthetic drugs and anaesthetic techniques and familiar with anaesthesia in an MRI facility.
The Minister accepts that without his assistance the applicant cannot procure an abortion. An abortion for the applicant is not available in Nauru. It would be both unsafe and illegal. The medical evidence is that an abortion in Australia would be safe, in the sense that the medical resources I have identified are available. However, the Minister refuses to bring the applicant to Australia.
The Minister has the legal capacity to bring the applicant to Australia for a temporary purpose. But the Minister has a policy. It is that a “transitory person” like the applicant, will not be brought to Australia other than in exceptional circumstances. The Minister does not regard the applicant’s circumstances as exceptional.
Nevertheless, the Minister is willing to assist. He has assumed responsibility for the Applicant’s care and an abortion is available for the applicant in Papua New Guinea. For that purpose, the applicant was taken to Port Moresby. That is where she now is.
In this proceeding the applicant alleges that an abortion in Papua New Guinea would be neither safe nor legal. Relying on the evidence of her medical experts, she claims that the absence of the medical resources in Papua New Guinea of the kind earlier listed, exposes her to grave risk. She also contends that an abortion in Papua New Guinea is illegal and would expose her to criminal liability.
Relying upon the existence of a legal relationship between her and the Minister recognised by the law of negligence, the applicant claims that the Minister has a duty of care to procure for her a safe and lawful abortion. She does not say that an abortion must be procured for her and conducted in Australia, but does say that the discharge of the Minister’s duty could be readily achieved in Australia. She apprehends that the Minister will fail to discharge that duty. She seeks declarations and orders designed to preclude the Minister from failing to discharge the duty of care she claims he has.
The Minister denies the existence of a duty of care to the applicant. He also says that if a duty of care exists, the procuring of an abortion for the applicant in Papua New Guinea is both safe and lawful and would discharge any obligation owed. Additionally, the Minister contends that if there is a duty of care and an apprehended breach of it, the courts are powerless to grant the applicant injunctive relief. For that and other reasons, the Minister contends that the proceeding should be dismissed.
Complex issues are called up for determination, including:
·is the applicable law, Australian law or Papua New Guinean law?;
·is a duty of care established?;
·if so, is there an apprehended breach of that duty?;
·does s 474 of the Act preclude the Court from granting injunctive relief?
·if not, is it appropriate that an injunction be granted? and;
·should declarations be made as well or instead?
For the reasons which follow, I have decided that:
·the Minister has a duty of care to the applicant to exercise reasonable care to discharge the responsibility he assumed to procure for the applicant a safe and lawful abortion;
·the abortion made available to the applicant in Papua New Guinea is not safe or lawful and was not procured in discharge of the Minister’s duty of care;
·there is reasonable apprehension that the Minister will fail to discharge his duty of care;
·the Court is not precluded by s 474 of the Act from issuing injunctions;
·it is appropriate that declarations be made; and
·injunctions should issue to restrain the Minister from failing to discharge his duty of care to exercise reasonable care to discharge the responsibility he assumed to procure for the applicant a safe and lawful abortion.
The orders I will make will preclude the Minister from procuring an abortion in Papua New Guinea in the discharge of his duty of care, but do not require the applicant to be brought to Australia.
There are other claims made by the Applicant including that:
·she is owed a fiduciary duty by the Minister;
·that the Minister’s decisions not to bring her to Australia for an abortion should be set aside as legally unreasonable; and
·that the Minister’s failure to procure for her a safe and legal abortion would exceed the power conferred by s 198AHA of the Act and s 61 of the Constitution.
None of those claims succeed.
THE NEGLIGENCE CLAIM
The Essence of the Negligence Claim
In order to understand the applicant’s claim it is necessary to start with her pleadings. In her amended statement of claim, the applicant pleaded (from [2]–[4]) the involvement of the Minister in her removal to Nauru, in her detention there, and in her day-to-day existence before and after having been accepted as a refugee. She pleaded, from [5]–[7], the fact of her rape and pregnancy, the existence of present harm, and the likelihood of future harm associated therewith. At [9] it is alleged that the applicant cannot have a safe and lawful abortion in Nauru and at [11] the facts leading to the applicant being in Papua New Guinea, including the Commonwealth’s involvement therein, are pleaded.
All of those facts lead to an allegation that the Commonwealth is under a duty of care (at [12]). The duty was put in a number of ways:
(1)at [12(a)], “to procure a safe and lawful abortion for [the applicant]”;
(2)at [18(b)], “to take all reasonable steps to ensure that [the applicant] has a safe and lawful abortion”;
(3)at [39] of the written submissions, “to ensure that reasonable care is taken of the Applicant to avoid serious harm of a kind which the Commonwealth or its agents are reasonably able to control and avoid”;
(4)at heading D(iii) of the written submissions, “to exercise its power to procure a safe and lawful abortion for her,” and in the same way at [104] except specifying that the abortion is to be in Australia.
I will return to the various ways in which the duty has been put.
At [13], the applicant’s medical circumstances are pleaded. At [14] it is alleged that particular expertise is necessary in order that an abortion that is performed be a safe abortion. At [15] facts relating to the lawfulness of abortion in Papua New Guinea are pleaded. Those facts lead to the allegation that an abortion meeting the conditions set out in [14] cannot be obtained in Papua New Guinea, but can in Australia.
On the basis of the duties pleaded and other facts, particularly those in [14] and [15], relief relevantly sought by the applicant in her amended statement of claim, as orally modified in the course of hearing, is as follows:
B.A declaration that the proposed abortion of the applicant in Papua New Guinea will:
(i)not be a safe or a lawful abortion and will not satisfy the conditions in paragraph 14 above; and
(ii) be in breach of the said duty of care.
C.A mandatory injunction requiring the Commonwealth to procure for the applicant a surgical abortion at a teaching hospital in Australia.
D.Alternatively to C, a mandatory injunction requiring the Commonwealth to procure for the applicant a surgical abortion [otherwise than in Nauru or PNG, and meeting certain conditions].
E.An injunction restraining the Commonwealth from procuring or causing the applicant’s return to Nauru prior to taking all reasonable steps to ensure that the applicant has a safe and lawful abortion that meets the conditions set out in paragraph 14 above.
F.Alternatively, a mandatory injunction requiring the Commonwealth to procure for the Applicant a surgical abortion [otherwise than in Papua New Guinea, and meeting certain conditions].
G.Alternatively to F, an injunction restraining the Commonwealth from failing to procure for the Applicant a surgical abortion both at a place other than in Papua New Guinea and in a hospital [meeting certain conditions].
While in written submissions the duty on occasion was put in non-delegable terms, none of the relief related to ensuring that care was taken, or to a failure to ensure that care was taken. And, none of the evidence went to showing, for example, that the Papua New Guinean doctors would fail to take reasonable care. Rather, all of the relief relates to requiring the “procurement” of an abortion of a particular kind or the “taking of reasonable steps” to procure an abortion of a particular kind. The applicant’s complaint, as it seems to me, is not that an abortion on Papua New Guinea will be performed negligently, but instead that even a non-negligently-performed abortion on Papua New Guinea would breach the Minister’s duty. For the purposes of this proceeding it seems to me to be unnecessary to consider whether the Minister’s duty is non-delegable.

That entails, as I also discuss below at [171]–[182], that the applicant’s complaint is really that the Minister’s procurement of an abortion to be performed in Papua New Guinea failed to discharge his duty of care to provide a “safe and lawful abortion”. And, it entails the continuing complaint that, if the Minister fails to procure an abortion that is “safe and lawful” in the sense alleged in the applicant’s pleading, he will continue to fail to discharge his duty of care.
In other words, the focus of the applicant’s allegations is on the Minister’s duty, thus far undischarged, to “take all reasonable steps” to ensure that the applicant has access to a safe and lawful abortion, or to “procure” for her a safe and lawful abortion. “Procure for,” in this sense, means “make available to.” It does not mean “procure” in the sense of “effect an outcome.” The applicant, of course, retains human agency. She might choose not to undergo an abortion that has been procured. On the applicant’s case, the discharge of the Minister’s duty does not require that the applicant actually undergo an abortion; it requires only that he make available to the applicant a safe and lawful abortion, should she choose to undergo it.
Thus, and again I refer to reasons that I have given below at [171]–[182], the essence of the applicant’s case is this:
(1)the Minister’s duty is to exercise reasonable care in the discharge of the responsibility that he assumed to procure for the applicant a safe and lawful abortion (within the meaning of her pleading);
(2)the abortion that has been made available to her on Papua New Guinea is not safe and lawful. Nor did its procurement constitute the exercise of reasonable care in the discharge of the Minister’s assumed responsibility. In consequence, there was, by that procurement, no discharge of the Minister’s duty of care;
(3)there is a reasonable apprehension that the Minister will fail to discharge the putative duty of care; and
(4)relief, including injunctive relief, should be provided to address that apprehended failure.
There is no breach of the putative duty of care pleaded. That, it seems to me, is because it is recognised that the time by which the putative duty of care must be discharged has not yet arrived. Accordingly, a complete cause of action in negligence has not yet accrued. In that event, as the applicant’s submissions recognise, a quia timet injunction would need to be issued if any injunctive relief is held to be appropriate.
Even if the applicant’s pleading was somewhat inexact, the applicant and respondents joined issue on all matters of fact and law in respect of which there was real contest. The way I have summarised the case is, I think, consistent with how it would have been understood by the Minister on the basis of the way in which the trial was run.
In the absence of prejudice—and I cannot see that any party has been prejudiced—I am prepared to address the parties' cases as they were advanced at trial rather than as they were pleaded (to the extent there is a difference).
The Statutory Setting
Migration Act
Under s 198AD(2), unauthorised maritime arrivals must be taken, as soon as is reasonably practicable, to a “regional processing country.” For that purpose, officers were empowered to place the applicant on a vehicle or vessel, restrain her on a vehicle or vessel, remove her from the place at which she was detained or from a vehicle or vessel, and use such force as was necessary and reasonable (s 198AD(3)).
Regional processing countries are countries designated by the Minister under s 198AB(1). On 10 September 2012, the then Minister had designated Nauru as a regional processing country under s 198AB(1).
The purpose of the regional processing scheme, which had the above consequences for the applicant, was the following (s 198AA):
Subdivision B—Regional processing
198AA Reason for Subdivision
This Subdivision is enacted because the Parliament considers that:
(a)people smuggling, and its undesirable consequences including the resulting loss of life at sea, are major regional problems that need to be addressed; and
(b)unauthorised maritime arrivals, including unauthorised maritime arrivals in respect of whom Australia has or may have protection obligations under the Refugees Convention as amended by the Refugees Protocol, should be able to be taken to any country designated to be a regional processing country; and
(c)it is a matter for the Minister and Parliament to decide which countries should be designated as regional processing countries; and
(d)the designation of a country to be a regional processing country need not be determined by reference to the international obligations or domestic law of that country.
However, the scheme need not necessarily have applied to the applicant: s 198AE permitted the Minister, if he thought it to be in the public interest to do so, to determine in writing that s 198AD did not apply to an unauthorised maritime arrival. Various procedural requirements applied in respect of such a determination including the obligation to lay the determination and the reasons for it before both Houses of Parliament (subs 198AE(4)–(6)).
Section 198AHA of the Act deals with arrangements in relation to the regional processing functions of a country. Specifically, the Commonwealth may:
(a)take, or cause to be taken, any action in relation to the arrangement or the regional processing functions of the country;
(b)make payments, or cause payments to be made, in relation to the arrangement or the regional processing functions of the country;
(c)do anything else that is incidental or conducive to the taking of such action or the making of such payments.
Subsection 198AHA(3) provides that subs (2) is intended to ensure that the Commonwealth has capacity and authority to take action, without affecting the lawfulness of the action. Subsection (4) provides that nothing in s 198AHA limits the Commonwealth’s executive power. Subsection (5) defines terms, as follows:
action includes:
(a) exercising restraint over the liberty of a person; and
(b) action in a regional processing country or another country.
arrangement includes an arrangement, agreement, understanding, promise or undertaking, whether or not it is legally binding.
regional processing functions includes the implementation of any law or policy, or the taking of any action, by a country in connection with the role of the country as a regional processing country, whether the implementation or the taking of action occurs in that country or another country.
As Gageler J noted in Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 90 ALJR 297 at [181], s 198AHA(3) clarifies that s 198AHA(2) is directed to nothing other than conferring statutory capacity or authority on the Executive Government to undertake action which is or may be beyond the executive power of the Commonwealth in the absence of statutory authority.
Section 198B provides that “an officer may, for a temporary purpose, bring a transitory person to Australia from a country or place outside Australia”. The applicant is a transitory person: there is no issue that the section may apply to her. Subsection (2) provides thus:
(2)The power under subsection (1) includes the power to do any of the following things within or outside Australia:
(a)       place the person on a vehicle or vessel;
(b)       restrain the person on a vehicle or vessel;
(c)       remove the person from a vehicle or vessel;
(d)       use such force as is necessary and reasonable.
Agreements as between the Commonwealth and Nauru
On 3 August 2013 a Memorandum of Understanding was executed on behalf of the Governments of Australia and Nauru (“MOU”). The MOU noted, inter alia, that Australia “appreciate[d] the acceptance by the Republic of Nauru to host Transferees in Nauru, including at one or more Regional Processing Centres or under community-based arrangements, and to provide Transferees who the Republic of Nauru determines to be in need of international protection with settlement opportunities.”
Clause 6 of the MOU, under the heading “Guiding Principles,” provided that the Commonwealth would “bear all costs incurred under and incidental to this MOU as agreed between the Participants”. By cl 7 the Commonwealth “may” transfer and Nauru “will” accept transferees. Administrative measures giving effect to the MOU were to be settled between the parties (cl 8). By cll 10–11 Nauru “will” host one or more Regional Processing Centres and “may” also host transferees under other arrangements including community-based arrangements.
By cl 12, transferees determined to be in need of international protection may settle in Nauru, subject to agreement between participants as to arrangements and numbers. Such agreement was to be reviewed on a 12-monthly basis. By cl 13, the Commonwealth would assist Nauru in settling in third countries those persons determined to require international protection but who were not permitted to settle in Nauru under cl 12. By cl 14, those persons not determined to need international protection might be returned, with the Commonwealth’s assistance, to their country of origin or a third country.
Clauses 21–22 provided for communications concerning day-to-day operations of the MOU to be between the Secretary for Justice and Border Control of Nauru and the Australian Department of Immigration of Citizenship, and for the establishment of a Joint Committee, to meet regularly, with responsibility for the oversight of practical arrangements required to implement the MOU.
On 11 April 2014, a document entitled “Administrative Arrangements for Regional Processing and Settlement Arrangements in Nauru” was executed on behalf of Australia and Nauru (“Administrative Arrangements”). The Administrative Arrangements provided, inter alia, that:
(1)the Commonwealth would bear all costs under and incidental to the MOU, excluding certain presently-irrelevant costs (cl 1.1);
(2)the Commonwealth would conduct initial checks for transferees (cl 2.2.1) and that transferees would undergo a health assessment before being transferred to Nauru (cl 2.2.2);
(3)the Commonwealth would lodge applications with Nauru for “Regional Processing Centre visas” for transferees under the applicable Nauruan regulations (cl 2.2.6);
(4)Transferees would, on arrival at Nauru, be escorted by “Service Providers”, with assistance from Nauruan officials, to a regional processing centre (cl 3.4);
(5)Refugee status determinations would be made under Nauruan law (cl 5.2.1);
(6)the Commonwealth would engage and fund contractors, including interpreters, to assist in the refugee status determination process (cl 5.2.2);
(7)merits review would be provided by Nauru (cl 5.3.1), with the cost of merits review to be met by the Commonwealth (cl 5.3.2);
Clause 4 of the Administrative Arrangements dealt with arrangements for regional processing centres. As the applicant is no longer in such a centre, having been accepted as a refugee, that is not necessary to set out in great detail. However, it is worthwhile noting the following matters:
(1)the “Operational Manager” of a centre would be appointed by Nauru and would have the day-to-day management of the centre (cl 4.1.2);
(2)the Operational Manager would be supported by “Service Providers and Staff Members,” who would provide welfare, care, security, health and medical, education, counselling, interpreter services and other relevant services (cl 4.1.3);
(3)the Commonwealth would appoint a “Programme Coordinator” whose responsibility was to manage all Australian officers and services contracts in relation to a centre, in close liaison with the Operational Manager (cl 4.1.4);
(4)the Operational Manager, with assistance from Service Providers, would monitor the welfare, conduct, and safety of transferees (cl 4.1.6). Service Providers would be contracted to provide adequate security to ensure the safety of those residing in the centre and the safety of the centre (cl 4.3.1).
There were various Service Providers. On 24 March 2014 the Commonwealth and Transfield Services (Australia) Pty Ltd (“Transfield”) entered into a “Contract in relation to the Provision of Garrison and Welfare Services at Regional Processing Countries.” On 2 September 2013, Transfield and Wilson Parking Australia (1992) Pty Ltd (“Wilson Security”) entered into a “Subcontract Agreement General Terms and Conditions in relation to the Provision of Services on the Republic of Nauru”. That was in effect until 28 March 2014. On 28 March 2014 Transfield and Wilson Security entered into another contract entitled “Subcontract Agreement General Terms and Conditions in relation to the provision of Services on the Republic of Nauru.” The services provided under the two Wilson Security subcontracts were substantially the same. Approval was given by the Commonwealth for entry into both subcontracts.
The Commonwealth also entered into a contract with “Save the Children Australia”, the employees and contractors of which provided services relating to the welfare and engagement of transferees. It contracted with International Health and Medical Services Pty Ltd (“IHMS”), the employees and contractors of which provided health screening and assessment services, preventative health care, integrated primary health care, health advice, and referral to secondary and tertiary health services. It contracted with Craddock Murray Neumann Lawyers Pty Ltd, the employees and contractors of which assisted transferees in making protection claims in Nauru. And, as I explain in more detail below, it contracted with “Adult Multicultural Education Services” (trading as “AMES”) the employees and contractors of which provided settlement services to eligible refugees in Nauru.
Conditions relating to detention of asylum seekers on Nauru
It is not necessary for me to say a great deal in relation to the conditions of detention on Nauru. It is not in contest that the applicant is not in detention and has not been for some time. Also, it was admitted that the Commonwealth “participated in the detention, maintenance and care of the applicant while her claim for refugee status was being processed … and paid for all aspects of her detention, care and maintenance during that time.”
Nevertheless, the applicant relied upon the conditions of her detention as going to the degree of control exercised by the Commonwealth over her during that time. So, some further detail is required.
The applicant referred me to the exposition of the facts by Gordon J in M68 at [279]–[346]. Gordon J was in dissent in the result but most of the facts that her Honour there set out were agreed in a special case put before the High Court or in any event would not have been controversial on the face of documents available to her Honour (relevantly, most of which were also before me). At [353], her Honour concluded that the Commonwealth, by its acts and conduct, detained the Plaintiff outside of Australia. Drawing from her earlier exposition, her Honour relied upon acts and conduct of the Commonwealth, being:
(1)making the directions on 29 July 2013 and 15 July 2014, pursuant to s 198AD(5) of the Migration Act, with respect to regional processing countries to which particular classes of unauthorised maritime arrivals must be taken and stipulating that Nauru was such a country;
(2)signing the MOU with Nauru, whereby the Commonwealth could decide to transfer unauthorised maritime arrivals to Nauru, would bear all costs incurred under or incidental to the MOU, would put in place and participate in the Administrative Arrangements and the day-to-day practical arrangements for the implementation of the MOU on Nauru and would assist Nauru in removing Transferees not found to be in need of international protection;
(3)removing the Plaintiff from Christmas Island to Nauru pursuant to s 198AD(2) of the Migration Act on 22 January 2014 and, for the purposes of effecting that removal, exercising powers in s 198AD(3) of the Migration Act;
(4)applying to the Nauruan Justice Secretary, without the consent of the Plaintiff, for the grant of a RPC Visa to the Plaintiff and paying to Nauru the fee payable for the grant of the RPC Visa to the Plaintiff, whilst knowing that the RPC Visa specified that the Plaintiff had to reside at the Nauru RPC and that the RPC Act also required the Plaintiff to reside at the Nauru RPC;
(5)on the Plaintiff’s arrival on Nauru, first the Service Providers contracted by the Commonwealth (with the assistance of Nauruan officials) escorting the Plaintiff to transport and taking her to the Nauru RPC and, then, the Commonwealth officials providing all the relevant documentation relating to the Plaintiff to Staff Members at the Nauru RPC;
(6)having the power to contract with, contracting with, and paying for, Transfield to provide the Nauru RPC;
(7)providing the “security infrastructure” at the Nauru RPC, which includes “perimeter fencing, lighting towers and an entry gate”;
(8)having the power to contract with, contracting with, and paying for, Transfield to ensure that the security of the perimeter of the Nauru RPC is maintained at all times in accordance with policies and procedures as notified from time to time by the Commonwealth;
(9)“requiring” Transfield to “exercise use of force” within the Nauru RPC in certain circumstances;
(10)having significant governance responsibilities and control at the Nauru RPC, including participation in the Joint Committee, participation in the Joint Working Group, the power to appoint the Operational Manager responsible for the day-to-day operation of the Nauru RPC, the power to appoint the Programme Coordinator responsible for managing all Australian officers and services contracts in relation to the Nauru RPC and the power to appoint the provider of the Nauru RPC;
(11)having contracted for, and having, the power to terminate (at its own discretion) the contract for the provision of the Nauru RPC and to “Step In” and take over the Nauru RPC; and
(12)having contracted for, and having, the power to control the content of and compliance with the OPC Guidelines.
With few exceptions, all of the documents to which Gordon J referred in her exposition of the facts at [282]–[346] were before me. I was not provided with a copy of the Asylum Seekers (Regional Processing Centre) Act 2012 (Nauru) (“RPC Act”), which Gordon J discussed at [314]–[318], nor with a copy of the “RPC Rules”, which Gordon J discussed at [319]–[320]. Also, for reasons that are not clear to me, paragraphs 5 and 6 of the M68 special case, which was in evidence before me, are among those excised. They record that on certain dates the Minister made directions concerning where unauthorised maritime arrivals were to be taken. I cannot imagine why that is controversial, but in any event I do not rely on those matters. The matters that are italicised in the above extract are those in respect of which I do not have evidence, and upon which I do not rely. The un‑footnoted facts to which Gordon J referred in her exposition were set out in the Special Case Pursuant to Rule 27.08 put before the High Court, which special case (subject to some excisions) was also before me.
Gordon J held that Plaintiff M68 was being detained by the Commonwealth. She was in the minority in that result. French CJ, Kiefel and Nettle JJ held at [36] that the plaintiff was detained by Nauru and not the Commonwealth. Keane J’s conclusion was substantially the same (at [239]). However, Keane J also said that the Commonwealth’s arrangements “procured or funded or caused restraints over the plaintiff’s liberty”. Bell J held that the Commonwealth “exercised effective control” over the detention of transferees, and that the plaintiff’s detention was, “as a matter of substance, caused and effectively controlled by the Commonwealth parties” (at [93]). Gageler J held that the Commonwealth had procured the plaintiff’s detention (see [173]–[175]). Gordon J held that the Commonwealth “detained the Plaintiff” (at [353]).

The differences as between the various judgments on this question were, however, as to the conclusions of ultimate facts that ought to follow from fairly uncontroversial precursor facts. The content of the various documents put before the High Court and of the facts agreed in the special case were not in dispute. The dispute centred on whether those facts properly led to the conclusion that the Commonwealth detained the plaintiff on Nauru. The answer was that it did not. But that does not render incorrect the facts as summarised by Gordon J. Nor did it render incorrect the 12 points that I have quoted above from her Honour’s judgment. In my opinion, those twelve points are also supported by the evidence before me (with the exception I have noted in relation to the italicised portions). They describe, non‑exhaustively, the Commonwealth’s involvement in the applicant’s detention on Nauru.
Agreements as between the Commonwealth and Service Providers in relation to provision of services to refugees in Nauru
After the applicant ceased to be detained on Nauru, many of the facts set out under the previous heading ceased to apply to her. However, the Commonwealth continued to have involvement in the conditions of the applicant’s existence on Nauru. It admitted that it paid for and continues to pay for her accommodation on Nauru. It admitted that it paid all of the applicant’s visa and other fees payable in respect of her residence in Nauru. What is more, it admitted that it had provided certain settlement services to the applicant, as I will now detail.
The Commonwealth agreed with Nauru in the Administrative Arrangements to meet “Settlement support costs” for those settled in Nauru. “Service Providers” would ensure that refugees had access to health, education, counselling, interpreters, and other relevant services for day to day living (cl 6.2.3). A “Service Provider” was defined as a company or organisation/entity contracted to provide a service at a centre or in relation to transferees.
Ms Nerys Jones, a Commonwealth public servant, gave evidence of contracts with such service providers. She deposed that the Commonwealth had entered into agreements for contracted parties to provide “health and settlement services” for persons accepted as refugees by Nauru ([6]).
Settlement services
By letter of intent dated 16 May 2014, and letter of extension dated 18 July 2014, the Commonwealth agreed with “Save the Children Australia” to provide settlement services to refugees in Nauru.
On 5 December 2014, the Commonwealth entered into an agreement with AMES in place of Save the Children Australia to provide settlement services to refugees in Nauru.
AMES is the lead member of a consortium contracted to provide these services. The other member of the consortium is “Multicultural Development Association.” Together, they trade under the name “Connect Settlement Services” (“Connect”) in Nauru.
The settlement services contract requires Connect to provide services including the following: needs assessments and case management; English language training; local cultural orientation; access to vocational training; links to services including for education, health and employment services and vocational training; allocating accommodation and accommodation support; income support management; and links to other services and social and religious activities as required to assist refugees to integrate into Nauruan society.
Ms Jones deposed that each refugee is assigned case managers by Connect to assist in transition to living in the Nauruan community. Connect’s case managers carry out initial needs assessments and develop Settlement Support Plans for each refugee. Connect is required to ensure that case managers regularly meet with refugees and update the plan with the aim of developing independence and self-agency for each refugee. Ms Jones deposed that the contract envisages that most refugees will have their settlement needs met, including the removal of all support including income support, and exit the service within 6-12 months.
All of the foregoing services are funded by the Commonwealth. In relation to accommodation, the Commonwealth sources or constructs accommodation and pays rent and utilities for that accommodation, and Connect manages the accommodation arrangements.
Connect is also responsible for reporting any incidents of which it becomes aware to the Department of Immigration and Border Protection. The Department manages the performance of Connect through contract management processes. Thus, neither the Department nor the Australian Border Force in Nauru has direct contact with refugees for the purpose of settlement service delivery.
Health services
By Heads of Agreement for the Provision of Settlement Health Services on Nauru, dated 2 December 2014, the Commonwealth contracted with IHMS to establish and maintain a “Settlement Health Clinic,” being a health clinic staffed and run by IHMS and funded by the Commonwealth.
The Clinic is located at the Republic of Nauru Hospital. It is accessible by refugees in Nauru at no cost. It is staffed by IHMS General Practitioners, Registered Nurses, Mental Health Nurses, a Counsellor, and an Obstetrician. Psychiatrist and Psychologist services are also available, through IHMS. The Clinic dispenses medications as required. Interpreters are accessible to support consultations, and are arranged by the Department. Health care is otherwise available to refugees at the Republic of Nauru Hospital at no cost.
IHMS is responsible, through its medical professionals, to treat those refugees who use the Clinic in accordance with professional obligations. IHMS is also required by contract to obtain informed consent to health care. As Ms Jones deposed, “[w]here the Department is advised by IHMS that medical treatment required for a refugee is not available on Nauru, the Department will facilitate the availability of treatment options either on Nauru or elsewhere through procedures established between the Department and IHMS.”
Relevantly, the agreement between IHMS and the Commonwealth provides that the IHMS is to provide health services in a manner that promotes objectives including “address[ing] the health needs of individual Refugees to a standard broadly commensurate with Nauruan standards” (cl A.1.1(g)), and “effectively manag[ing] risks associated with the Services” (cl A.1.1(h)). Services are to be provided through the Clinic on a needs-basis (cl A.2.2).
That includes “Primary Health Services (available to Refugees for the duration of the Agreement, or as advised by the Department) [including] facilitation of timely transfer of Refugees for urgent medical care not available in Nauru, location and extent of which to be agreed by the Department … .” (cl A.2.2(a)(vii)).
It also includes “Specialist Services”, involving the “develop[ment of referral] procedures to specialist services in conjunction with the Republic of Nauru Hospital” and “facilitation of specialist visits – leveraging off specialist visits to the Nauru Offshore Processing Centers where possible – based on Refugee need and/or as agreed by the Department” (cl A.2.2(c)).
The Settlement Clinic is open during business hours six days per week. Refugees are also able to access the Nauru Hospital. In particular, after-hours care is available for refugees who otherwise use the Clinic. The Nauru Hospital participates in an “Overseas Medical Referral” program which allows members of the Nauruan community, or refugees, to be referred overseas for medical treatment not available at the Nauru Hospital. When a refugee is referred under this program, the Operations Section processes the referral and, in the event it is approved, facilitates the medical transfer. The Commonwealth has no involvement when Nauruans are referred under the Overseas Medical Referral program.
Interestingly in the context of this case, IHMS was also responsible for ensuring that, in performing its obligations under the agreement, it complied and ensured compliance with “all applicable laws, including those applicable to Nauru and those Australian laws that are applicable to the Services or the Site” (cl 15.1.1).
Education services
The Commonwealth has entered into an agreement with the Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane trading as “Brisbane Catholic Education” to provide education support services to the Government of Nauru. Those services are provided to Nauruan children and children on regional processing centre visas and temporary settlement visas.
The applicant, being an adult, does not access these services. However, adult English language education and other adult education, including vocational training, is provided or facilitated by Connect.
The Salient Facts
It is necessary to record other salient facts and convenient to do that in chronological order. The evidence was almost entirely uncontroversial. There was a contest as to whether the applicant had consented to be taken from Nauru to Papua New Guinea and the quality of that consent. I will make some findings as to that issue. Otherwise, unless indicated to the contrary and insofar as the evidence dealt with the facts, the evidence which I recount is accepted.
Providing a full description of the evidence raises some sensitivity. Some of the facts concern information which is the subject of a non‑publication orders made by me pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth). The information the subject of those orders is:
(a)       the name of the Applicant.
(b)the boat identification number of the boat on which the Applicant first arrived in Australia.
(c)       the age of the Applicant.
(d)the country from which the Applicant came [applicant’s ethnicity], and the country in which the Applicant lived prior to her arrival in Australia.
(e)       the procedure that the Applicant had when she was seven years old.
In view of the non-publication order, I have prepared two versions of my reasons for judgment, a redacted version for publication on the internet and a complete version which is to be provided to the parties.
The applicant is of XXXXX XXX ethnicity. She was born in XXXXX and is currently about XX years of age. At the age of about seven, she was subjected to XXXXX XXXX XXXX XXXX. An examination by Dr O’Connor, to whose evidence I shall later return, revealed a XXXX XXXXX X which Dr O’Connor defined as:
XXXXX XXXXX XXXXX XXXXX XX XXXXX XXXX XXXXX XXXX XXXXX X XXXXX X XXXXX X XXXXX XXX XXXXX XXXXX XXXXX XXXX X XXXXX XXXXX X
When the applicant was about 16, she witnessed her sister being murdered. She began to suffer seizures soon after. She had some schooling in XXXXX X and learned some English from watching TV. While 16, she was taken to XXXXX XX where her father had arranged her marriage to a 45 year old man with other wives. She was mistreated. She was severely abused, physically, sexually, and emotionally. She said she was bashed and beaten by her first husband. She described the marriage as “very bad”. After several years and when pregnant with her first and only child, the applicant ran away to XXXXX X where her mother lived. Her son was born there.
The applicant’s mother arranged her divorce from her first husband. The applicant met and married a second husband about two years later. Her second marriage was better. She returned to XXXX with her second husband, but her first husband tried to force her to return to him. Her first husband accused her of adultery and threatened to inform the government and XXX XXX. Assisted by her second husband, the applicant fled, fearing that she would be killed by stoning. She left her son with her mother. She sought refuge in Australia, where she thought she could be safe. With that objective, she travelled to Indonesia and then by boat to Australia. The applicant’s son remains in XXXX in the care of the applicant’s mother.
When taken from Australia to Nauru, the applicant was detained in a camp called “Regional Processing Centre – 3” (“RPC3”). The Minister participated in the detention, maintenance and care of the applicant whilst her claim for refugee status was being processed and paid for all aspects of her detention, care and maintenance during that period.
Whilst at RPC3, the applicant was housed in tented accommodation. She said she was provided with food and security by guards from “Wilson Security”. She described her conditions there as very tough but secure. Health services were also provided to the applicant. IHMS records show that the applicant attended the IHMS clinic regularly, usually at least weekly and often more frequently. Appointments categorised as “mental health” commenced in November of 2013 and became regular thereafter. Furthermore, a case worker was allocated to the applicant whilst she resided at RPC3. She was also given the assistance of a lawyer to help her apply for refugee status. As I have said, it is admitted that the Commonwealth participated in the detention, maintenance, and care of the applicant, and paid for all aspects of her detention. I have already described the level of the Commonwealth’s involvement in the applicant’s detention.
On 11 November 2014, the applicant was found by Nauruan authorities to be a refugee within the meaning of the Convention relating to the Status of Refugees, as amended by the Protocol relating to the Status of Refugees (“the Refugees Convention”), and was granted a temporary settlement visa. At that point the applicant was given a document that confirmed that she had been given refugee status. From that time, she could travel anywhere on the island of Nauru. The document she was given did not enable her to leave Nauru.
As a refugee, she moved out of RPC3 and first lived in a house that she shared with eight other women. The Commonwealth has paid and continues to pay for the applicant’s accommodation on Nauru. She had also been given a card that she used to obtain cash. She said that she was given an allowance of $200 but did not specify the period of time the $200 related to. Often because she was sick, the applicant’s case manager from Connect, Ms Bernice Beaucaine, would bring her money. The money provided was used for basic needs such as food and clothing. The applicant met with Ms Beaucaine often.
The applicant found life in the house provided to her very difficult. The main difficulty was security. Thieves came in and stole the residents’ belongings. As a result, the applicant was moved to other premises which she was told would be safer. Security guards were provided in the new premises but were ineffective. The guards were “always drunk”. In the applicant’s evaluation these premises were less safe.
I will deal with the medical evidence about the applicant in more detail later, but it is not in contest that the applicant suffers from epilepsy or a psychogenic disorder and has regular seizures. At the time that she lived outside of RPC3, the applicant had seizures often. The applicant could only describe what people told her about her seizures because she does not remember what happened to her whilst experiencing a seizure. If she experienced a seizure, people would call “emergency” and she would be given help. Sometimes she would be taken to the Settlement Clinic and sometimes she would be taken to the Republic of Nauru Hospital (“the Hospital”). Ordinarily, the applicant obtained her medicine from the Settlement Clinic. On occasions she was admitted into the Settlement Clinic and discharged after a day.
For the purposes of this proceeding, the Minister has admitted that in about February 2016, the applicant was raped while or shortly after suffering a seizure and became pregnant as a result. Other evidence, to which I shall shortly refer, suggests that the applicant was raped on 31 January 2016. The Minister has further admitted, again for the purpose of this proceeding only, that the applicant has suffered physical and mental harm and continues to suffer mental harm as a result of having been raped.
The applicant deposed that whilst having a seizure she was raped. She has no recollection of the rape itself. She realised she had been raped after it had happened. She came to that realisation because there was blood “in my body … and also … a lot of … male discharge”. The applicant later reported to Dr O’Connor that the effects of the rape were vaginal bleeding and a painful perineum with no other physical injuries.
Further details of the rape are contained in a report produced by Connect on 31 January 2016. At approximately 12 noon on that day, the applicant contacted the on-call case manager to report that she had been raped. She told her case manager that she had stepped outside of her room to make a phone call and became unconscious due to a seizure. Transport to the Nauru Hospital was arranged by Connect. After initial medical testing, an assessment was conducted at the Hospital together with an initial counselling session conducted by the Victims Support Service. Thereafter, the applicant was taken to the Nauruan police force where she made a statement.
Dr Joseph Songco has been employed as a medical doctor by IHMS at the Settlement Clinic since May 2015. He deposed that he saw the applicant at the Settlement Clinic on 7 March 2016. She told him that she had missed her period. He asked whether she was pregnant and the applicant said she was not. There is some controversy as to whether Dr Songco asked the applicant to take a pregnancy test but the applicant did agree to an ultrasound being conducted and that occurred. Medical records show that an ultrasound was conducted on 18 March 2016. The ultrasound confirmed that the applicant was pregnant.
Also on 7 March 2016, Mr George Newhouse, the applicant’s solicitor, emailed Dr John Brayley concerning the applicant. Dr Brayley is the Chief Medical Officer and Surgeon General of the Australian Border Force. Mr Newhouse attached a video of the applicant. He said that “[she] is at risk of serious injury. She is fitting regularly and cannot safely even cook for herself because she has fitted in the middle of cooking with the potential for a fire and burns.” He said that “[s]he requires urgent trauma and psychological care, an assessment by a neurologist in relation to her fits and this should take place in Australia.” He said that “[the applicant] was raped after collapsing after a Grand mal Fit. She has not been adequately cared for as a consequence. … It is obvious that she needs treatment in Australia.”
On 8 March 2016, Dr Brayley said to Mr Newhouse that he had forwarded Mr Newhouse’s email with attachments to a Regional Medical Director at IHMS.
Also on 8 March 2016, Dr Brayley emailed Mr Newhouse again and said that he had had a detailed conversation with Dr Peter Rudolph, the Medical Director for Offshore Centres. Dr Brayley said that Dr Rudolph had previously looked at the applicant’s case but was “following up again today,” and would provide to Dr Brayley an update. Dr Brayley said that he would be in touch with Mr Newhouse shortly – probably the following morning.
On 9 March 2016, Dr Rudolph emailed Dr Brayley concerning the applicant. The subject matter of the email was the applicant’s seizures and how they ought to be diagnosed. Dr Rudolph said (inter alia) as follows:
As we discussed previously, the diagnosis of epilepsy is essentially a clinical diagnosis in Nauru as there is no access to EEG services; nor is there access to EEG services at PIH [Pacific International Hospital, Port Moresby]. I suppose that Mr Newhouse and Dr Newman need to be aware that [the applicant] is now a Nauruan refugee who will receive good quality primary care and mental health support via the Settlement clinic but will be reliant on the Nauru Hospital for specialist services in accordance with Nauru community standard – and there are obvious limitations when compared to Australian standards.

Weinberg J, a member of the Full Court in Hurst, was also a member (with Black CJ and Sundberg J) of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v VFAD (2002) 125 FCR 249. As the headnote to that case states, the central issue on the appeal was whether the power conferred by s 23 of the Federal Court of Australia Act 1976 (Cth) (“Federal Court Act”) to make interlocutory orders could be exercised to order the release, on a temporary basis, of persons in immigration detention. The question was whether s 196(3) of the Act abrogated the s 23 power in relation to persons kept in immigration detention. The Full Court rejected the proposition that it did (at [104]).
At [103], Black CJ, Sundberg and Weinberg JJ referred to the judgment of Isaacs J in Macfarlane but only for the proposition that in a suitable case a quia timet injunction might be “possible as preventive”. There is no reference made to the observation of Isaacs J set out in Hurst. Nor is there any suggestion in the following discussion about the power conferred upon this Court by s 23, that a different test for the grant of an injunction (or a quia timet injunction), applies in relation to an injunction sought against the executive. At [98]–[101], the Full Court said (emphasis added):
[98]In general terms, therefore, the High Court has held that the power conferred upon this Court by s 23 may be exercised in any proceeding in which this Court has jurisdiction. That power is subject only to the limits specifically identified by the High Court, particularly the limits to which reference was made in Patrick, as set out above. It is at least implicit in what was said in that case that the section should be construed as conferring power on this Court to ensure that it can exercise effectively the jurisdiction which it otherwise possesses. That conclusion is generally consistent with the broad ambit of the power conferred upon this Court in its original jurisdiction by ss 19 and 21.
[99]It should be noted that the wide interpretation accorded to s 23 by the High Court is, in general terms, consistent with the approach traditionally taken to the power of superior courts of record to grant interlocutory injunctions. Such injunctions may be granted to protect equitable rights and, in what is sometimes described as the “auxiliary jurisdiction”, to restrain the threatened infringement of some legal right (that is, some breach of contract, tort or invasion of statutory right).
[100]Historically, injunctive relief would only be granted to protect a right that was proprietary in nature, in circumstances where damages would not be an adequate remedy. It is now no longer necessary to demonstrate that the legal right which is threatened is proprietary: Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at 258 [27]; Egan v Willis (1998) 195 CLR 424 at 438 [5] and Cardile at 395 [30 ], citing Bradley v Commonwealth (1973) 128 CLR 557.
[101]In modern times, there is nothing peculiar about the notion that an interlocutory injunction can be granted by the courts to restrain what is said to be an unlawful detention. In M Aronson and B Dyer, Judicial Review of Administrative Action (2nd ed, 2000), the learned authors observe (p 670): “There is no reason in principle against the possibility of terminating an imprisonment by means of a mandatory injunction, but no decision expressly so holds.”
The challenge to the following order made by the primary judge was dismissed:
Until the hearing and determination of the proceeding or until further order the respondent, whether by his servants, agents or howsoever otherwise, be restrained from continuing to detain the applicant in immigration detention under the Migration Act 1958 (Cth).
Since Al-Kateb v Godwin (2004) 219 CLR 562, some of the reasoning in VFAD is no longer good law. But the observations made on s 23 of the Federal Court Act and the power to grant injunctions, are unaffected. I do not consider that the principles for the grant of quia timet injunctions collected by Bennett J in Apotex, cease to be the applicable principles where an injunction is sought against the Commonwealth. I will apply those principles.
The imminence of harm is a factor that needs to be considered. “Imminent”, in this context means that the injunction must not be issued prematurely. Whilst that question is directed to the prospect of harm, I should say something first about the prospect of breach. No submissions were made (and perhaps the urgency with which this matter came on provides a justification) as to when (assuming the existence of the duty of care), the Minister is obliged to discharge his duty to procure an abortion for the applicant. It will only be at that time, assuming no effective discharge of the duty beforehand, that a breach of the duty will have occurred.
The evidence was not expressly directed to that issue. However, it is a fair inference that the duty, being a duty to take reasonable care in relation to a matter concerning the applicant’s health, entails the obligation to procure an abortion as soon as is reasonably possible. I say that including because it is admitted by the Minister that whilst the applicant continues to carry her pregnancy she is suffering mental harm. There was also uncontested evidence that by reason of cultural and religious practice applicable to the applicant, no abortion may be performed if the pregnancy is carried beyond 16 weeks. The best evidence I have as to the date of the rape is that it occurred on 31 January 2016. If that is accurate, then 22 May 2016 is the last day on which an abortion may be performed. It seems to me therefore that even if a generous view is taken as to what is a reasonable time for the Minister to procure a safe and lawful abortion and, allowing for a grace period of, say, a week, a safe and lawful abortion must be procured on or before 15 May 2016 in order for the Minister to avoid breaching his duty of care. I so find.
I proceed on that assumption to consider the imminence of harm. The answer is fairly obvious. I do not regard it as premature to grant an injunction now, in relation to the risk of harm that has probably already manifested to some extent but which will be manifest within one or two weeks.
Whilst the degree of probability of harm is not an absolute standard, the aim being “justice between the parties, having regard to all the relevant circumstances”, the probability should nevertheless be evaluated and considered. As the Full Court said in Hurst, the degree of seriousness of the injury must also be considered.
I have already given consideration to both the probability and the magnitude of the apprehended injury in applying the Shirt formula. That assessment was performed through a frame not inappropriate for adoption here. Consistently with my earlier findings at [307]–[372] and [274] and [289], I consider that the magnitude of the medical risks are high to extreme whilst the probability of occurrence is material to very significant. As for the risks of prosecution or conviction, the magnitude is high to extreme whilst the probability of occurrence is very low.
All in all, that provides a strong foundation for the grant of a quia timet injunction. An additional factor in support of an injunction is the concession made by the Minister that the nature of any hardship that may be imposed on the Minister by the grant of an injunction is not a significant factor against an injunction being granted in this case. It is also admitted by the Minister that damages would not provide a sufficient remedy to the applicant. That is a potent consideration in favour of an injunction. The advice of Lord Hanworth MR in Graigola Merthyr (see [458]) that it is better to restrain in time than to seek a remedy after the injury has been inflicted, is wiser still where the infliction of injury will be irremediable.
The Minister submitted that he had not behaved wantonly or unreasonably. That consideration is sourced from Redland Bricks Ltd v Morris [1970] AC 652 at 665–666. It relates specifically to the grant of a mandatory injunction. I do not propose to grant a mandatory injunction but note that, in this country, Redland Bricks is not without its critics: Meagher, Gummow & Lehane (5^th ed., 2015) at [21.440] and [21.465]; ICF Spry, The Principles of Equitable Remedies (6^th ed., 2001) at 547.
Further, I have at [402] made observations about the implausibility of the position taken by Mr Nockels. Those observations do not support the proposition that there has been no unreasonable conduct. Save for the form of any injunction to be issued, which I will shortly address, there are no other considerations which were relied upon by the Minister.
To my mind, the totality of those considerations, examined through the frame of doing justice between the parties, favour the grant of a prohibitive injunction. If it had been necessary to apply what I consider to be the stricter approach propounded by Isaacs J in Macfarlane, I would have nevertheless arrived at the same conclusion. To my mind this is a clear case of apprehended breach and the risks of harm are sufficiently grave for me to conclude that the prospect of injury is clear should the duty of care not be discharged.
The terms of an injunction should clearly identify what is required of the person subject to it. The formulation of an effective and clearly-worded restraint is not without difficulty in the context of this case. I am presently resistant to the form of prohibitory injunction that the applicant seeks as follows:
G.Alternatively to F, an injunction restraining the Commonwealth from failing to procure for the Applicant a surgical abortion both at a place other than in Papua New Guinea and in a hospital certified as appropriate for that abortion by:
(a)a specialist gynaecologist, who is a fellow of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists;
(b)a specialist neurologist, who is a fellow of the Royal Australasian College of Physicians;
(c)a specialist psychiatrist, who is a fellow of the Royal Australian and New Zealand College of Psychiatrists; and
(d)a specialist anaesthetist, who is a fellow of the Australian and New Zealand College of Anaesthetists.
I prefer the following formulation:
(1)On or before _______________, the Respondents cease to fail to discharge the responsibility that they assumed to procure for the Applicant a safe and lawful abortion.
(2)Upon the Respondents discharging their duty of care to exercise reasonable care to procure for the Applicant a safe and lawful abortion:
(a)the abortion not be procured so that it takes place in Papua New Guinea; and
(b)the abortion not be procured so that it takes place in any location where a person who participates in an abortion is exposed to criminal liability; and
(c)the abortion not be procured so that it takes place in a hospital or other medical facility that does not have, or that cannot make available to the treating doctor or doctors who perform the abortion:
(i)the neurological expertise and neurological facilities referred to in the expert medical report of Associate Professor Ernest Somerville dated 19 April 2016, together with his expert medical report dated 27 April 2016; and
(ii)the psychiatric expertise, and other resources including cross-cultural expertise, referred to in the expert medical report of Professor Louise Newman dated 18 April 2016, together with her email dated 27 April 2016; and
(iii)the anaesthetic expertise and anaesthetic facilities referred to in the expert medical report of Dr Gregory Purcell dated 20 April 2016; and
(iv)the gynaecological expertise and experience, and the gynaecological facilities, referred to in the expert medical report of Professor Caroline de Costa dated 19 April 2016, together with her expert medical report dated 27 April 2016, and the expertise, experience and facilities referred to in the expert medical report of Dr Miriam O’Connor dated 20 April 2016, together with her expert medical report dated 27 April 2016.
Injunctions in that form, are grounded in the declaration I propose to make which, in turn, is referrable to the findings I have made and in particular those at [380] which are based on the expert medical evidence which I have accepted. The expert reports provide a clear understanding of the expertise and other resources which the treating doctors performing a safe abortion may need to access. I propose, however, to provide the parties with an opportunity to speak to the orders before finally determining the form in which they are to be made. I will also hear the parties further as to an appropriate date by which the Minister’s duty must be discharged.
Finally the applicant also sought an injunction restraining the Minister from returning her to Nauru prior to procuring for her a safe and lawful abortion. I do not propose to make an order to that effect. In the light of the orders to be made, I do not consider it necessary even if it were the case that the making of such an order was appropriate.
MISCELLANEOUS ISSUES.
A number of issues do not arise for determination.
The Fiduciary Duty argument
The applicant alleged in her pleadings that the Minister owes her a fiduciary duty. It may be inferred from [20]–[22] of the statement of claim that the duties for which she contends are:
(1)a duty not to act otherwise than in her best interests ([20(a)]);
(2)a duty to act in her best interests ([20(b]); and
(3)a duty to procure for her a safe and lawful abortion ([22]).
However, in my judgment, the applicant really only seeks to establish the first two duties with a view to establishing the third and its negative: that the Minister not procure any abortion that is not safe and lawful. There is no call to consider any wider manifestation of those putative duties.
I asked senior counsel for the applicant in opening whether this claim was advanced. I was told they were not withdrawn, but that ultimately the applicant “see[s] this as a duty of care case,” so that if the facts necessary to establish a duty of care case were not established, that may mean that neither would be the other claims. Nothing was said on the issue in closing submissions by either party. There is a fair basis for thinking that the claim was not pressed. But if it was pressed, I would have held that no fiduciary duty existed, for reasons that follow.
I was not taken to authority recognising the existence of a fiduciary duty as between people in the circumstances of the parties to this proceeding. However, the classes of fiduciary relationships are not closed (Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 68 (Gibbs CJ)), and it is of course open to the applicant to seek to establish the existence of a duty in this case notwithstanding its novelty.
For the most part the recognised categories of relationship have a commercial flavour (e.g., lawyer and client, company director and company, partner and partner, agent and principal). But, not always: it is recognised, for example, that the relationship of guardian and ward is fiduciary: Clay v Clay (2001) 202 CLR 410 at 428–430; Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417 at 420–421 (Dixon J); Tusyn v State of Tasmania (2004) 13 Tas R 51 at [10] (Blow J). There may well be a fair argument that the facts of the present case establish a relationship sufficiently analogous to that existing between guardian and ward that the relationship between the applicant and the Minister should also be seen as fiduciary in nature.
But that would not suffice for the applicant. As the guardian/ward cases disclose, not every duty arising as between parties to a fiduciary relationship is a fiduciary duty. In Paramasivam v Flynn (1998) 90 FCR 489, the appellant alleged that he had been sexually assaulted by the respondent some years prior, and that those sexual assaults constituted breach of a fiduciary duty owed by the respondent to the appellant. A single judge of the Supreme Court of the Australian Capital Territory had entered judgment against the appellant on the basis that the claim was commenced outside of relevant limitation periods and on the basis that it had not been shown that it was just and reasonable to extend the limitation period. On appeal, Miles, Lehane and Weinberg JJ were called upon to assess whether the primary judge had erred in considering the strength of the equitable claim for breach of fiduciary duty.
Their Honours recognised that the guardian/ward relationship may give rise to duties typically characterised as fiduciary—not to allow duty and interest to conflict and not to make an unauthorised profit (at 504). However, the Court continued by noting that the interests that fiduciary doctrines “have hitherto protected are economic interests” (at 504). The appellant’s claim was novel, which did not condemn it but did require that any advance in the law such as to cover the appellant’s claim must be “justifiable in principle.” Their Honours held that the advance put before them was not easily justifiable (at 505):
Here, the conduct complained of is within the purview of the law of tort, which has worked out and elaborated principles according to which various kinds of loss and damage, resulting from intentional or negligent wrongful conduct, are to be compensated. That is not a field on which there is any obvious need for equity to enter and there is no obvious advantage to be gained from equity's entry upon it. And such an extension would, in our view, involve a leap not easily to be justified in terms of conventional legal reasoning.
Their Honours doubted that a parent/child relationship was rightly described as “fiduciary” (contraM(K) v M(H) (1992) 96 DLR (4th) 289). They discussed the judgment of the High Court in Breen v Williams (1996) 186 CLR 71, which considered whether a doctor owed fiduciary duties to a patient to disclose medical records to that plaintiff. In holding that a doctor did not owe such duties, Dawson and Toohey JJ said this (at 93, 94):
... it is the law of negligence and contract which governs the duty of a doctor towards a patient. This leaves no need, or even room, for the imposition of fiduciary obligations. Of course, fiduciary duties may be superimposed upon contractual obligations and it is conceivable that a doctor may place himself in a position with potential for a conflict of interest—if, for example, the doctor has a financial interest in a hospital or a pathology laboratory—so as to give rise to fiduciary obligations ... But that is not this case.
Gaudron and McHugh JJ said this (at 110):
In our view, there is no basis upon which this Court can hold that Dr Williams owed Ms Breen a fiduciary duty to give her access to the medical records. She seeks to impose fiduciary obligations on a class of relationship which has not traditionally been recognised as fiduciary in nature and which would significantly alter the already existing complex of legal doctrines governing the doctor-patient relationship, particularly in the areas of contract and tort. As Sopinka J remarked in Norberg v Wynrib [[1992] 2 SCR 226 at 312; (1992) 92 DLR (4th) 449 at 481]: 'Fiduciary duties should not be super imposed on these common law duties simply to improve the nature or extent of the remedy.'
Those passages, with others from Breen and other cases, were relied upon by the Court in Paramasivam in order to conclude, at 507–508 thus:
… [A] fiduciary claim, such as that made by the plaintiff in this case, is most unlikely to be upheld in Australian courts. Equity, through the principles it has developed about fiduciary duty, protects particular interests which differ from those protected by the law of contract and tort, and protects those interests from a standpoint which is peculiar to those principles.

In Cubillo v Commonwealth (2001) 112 FCR 455, one of the issues was whether the Director of Native Affairs or the Commonwealth owed fiduciary obligations to Aboriginal children removed from their families. As in Paramasivam, a finding that fiduciary duties were owed to the appellant was not enough for success. As the Court held at [462], “the fact that one person is in a fiduciary relationship with another does not mean that all aspects of their relationship are necessarily governed by equitable principles”. The Court continued thus (at [463]):
On the appellants’ case, the fiduciary duties owed by the Commonwealth and the Directors were largely co-extensive with the scope of the Commonwealth’s duty of care to the appellants. So, too, the alleged breaches of fiduciary duty were largely co-extensive with the alleged breaches of the Commonwealth’s duty of care. … As the reasoning in Pilmer v Duke Group suggests, Australian law has set its face firmly against the notion that fiduciary duties can be imposed on relationships in a manner that conflicts with established tortious and contractual principles.
And, their Honours continued as follows at [465]–[466]:
Insofar as the appellants’ case on fiduciary duties is co-extensive with their case on breach of duty of care, it faces two insurmountable obstacles. … The second obstacle is that, in any event, the appellants’ claims are, to use the language of Paramasivam v Flynn, within the purview of the law of torts. As the High Court has held, there is no room for the superimposition of fiduciary duties on common law duties simply to improve the nature and extent of the remedies available to an aggrieved party. If it had been the case that the removal and detention of the appellants were not authorised by the Ordinances (or otherwise justified by law), those who caused the removal or detention would be guilty of tortious conduct and liable at common law. There would be no occasion to invoke fiduciary principles.
Similar statements were made by a Full Court of the Supreme Court of South Australia (Doyle CJ, Duggan and White JJ) in State of South Australia v Lampard-Trevorrow (2010) 106 SASR 331. The appellant sought damages for loss arising from being placed into foster care without the consent of his parents. The Court discussed (at [327]–[330]) Cubillo and Paramasivam. Their Honours quoted (at [332]) passages from Breen and at [331] the following extract from Tusyn at [11]:
However, when the fiduciary relationship of guardian and ward exists, it does not necessarily follow that the guardian owes the ward a fiduciary duty to take reasonable care for the ward's physical safety. One needs to distinguish between moral duties, non-fiduciary duties imposed by law, and fiduciary duties.
In the end, the Court held that the Aborigines Protection Board did not owe to the appellant fiduciary duties as alleged. As is apparent from [337], significant in that reasoning was that the putative duties “[were] not proscriptive duties, which such duties usually are, but duties of affirmative action, which fiduciary duties usually are not”. The Court relied upon Breen at 113, whereat Gaudron and McHugh JJ said the following, in distinguishing the Canadian position (citations omitted):
… Australian courts only recognise proscriptive fiduciary duties. … In this country, fiduciary obligations arise because a person has come under an obligation to act in another's interests. As a result, equity imposes on the fiduciary proscriptive obligations—not to obtain any unauthorised benefit from the relationship and not to be in a position of conflict. If these obligations are breached, the fiduciary must account for any profits and make good any losses arising from the breach. But the law of this country does not otherwise impose positive legal duties on the fiduciary to act in the interests of the person to whom the duty is owed.
The final case that I mention in this connection is Webber v New South Wales (2003) 31 Fam LR 425. The plaintiff alleged that, while a state ward in the care of the defendant, he had been sexually and physically assaulted. He advanced a negligence claim and also sought equitable damages for breach of fiduciary duty. The defendant sought to strike out the latter claim. Dunford J granted the application. His Honour noted (at [25]) that in Hospital Products Mason J identified the “critical feature” of fiduciary relationships as being that the fiduciary “undertakes or agrees to act for or on behalf of or in the interest of another person in the exercise of a power or discretion which will affect the interest of that other person in a legal or practical sense.” On the other hand, said Dunford J (at [29]), “a parent or guardian does not act on behalf of, or exercise a power or discretion affecting the interests of, a child or ward in a legal or practical sense,” except with certain irrelevant exceptions. In particular, “he or she does not exercise a power or discretion affecting the interests of that other person when failing to provide proper care, nurture or supervision of the child or ward”. At [34], Dunford J identified that no conflict of interest or unauthorised profit-making was alleged, and that instead that the plaintiff alleged “simply a failure to take reasonable care.” That, his Honour held, enlivened tortious principles, not equitable ones. Summarising, at [47], his Honour said this:
… I am satisfied that even if one person stands in a fiduciary relationship to another, such as guardian and ward, the fiduciary duties which arise from such relationship and breach of which gives rise to a right to equitable compensation:
a)are confined to cases where the fiduciary acts for, or exercises a discretion on behalf of, the other party;
b)concern economic or proprietorial rights only, including possible confidential information (which is itself really a form of property);
c)are proscriptive and not prescriptive; and
d)are not a substitute or alternative description for breaches of duty owed in tort or contract arising out of the same facts or circumstances.
The latter two principles, and in particular the final one (which has really been the focus of my discussion above), are enough, in my judgment, to dispose of the applicant’s fiduciary duty argument. What is alleged is that the Minister would expose the applicant to risk of harm in failing to discharge a duty that he assumed to procure for her a safe and lawful abortion. Allegations of that kind are in the purview of the law of tort. As in Paramasivam, there is not obvious advantage to be gained from the superimposition of equitable duties.
It seems to me that Paramasivam and Cubillo are sufficiently analogous to the present case that, if the applicant were able to establish a fiduciary duty by reference to the similarity of a guardian/ward relationship to the relationship she has with the Minister, the limitations on fiduciary duties arising therefrom would nevertheless defeat this aspect of her claim.
Legal unreasonableness
At [23]–[26] of her amended statement of claim, the applicant pleaded that on 14 April 2016, she had applied to the Minister for an exercise of power under s 198AHA or s 198B such that she was brought to Australia for the purpose of enabling her to receive a safe and lawful abortion. It was pleaded that it would be legally unreasonable for the Minister to refuse that application, and that any decision to that effect would be invalid. The applicant also sought that the following decisions should be set aside as legally unreasonable:
(i)the Minister’s decision that the applicant should go to Papua New Guinea rather than Australia for an abortion; and
(ii)the Minister’s decision on 26 April 2016 that he would not follow IHMS’s Third RMM (which recommended Australia as the location of her treatment), and would instead continue to procure for her an abortion at PIH.
On 27 April 2016 I caused an email to be sent to the parties saying that I wished to hear submissions as to whether, in the light of s 476A of the Act, this Court had jurisdiction to deal with that part of the applicant’s case that raises whether it is legally unreasonable for the respondents to refuse (or have refused) to exercise powers under s 198AHA or s 198B of the Act. The Minister submitted that, because of s 476A, there was no jurisdiction. As to the possibility of s 44 of the Judiciary Act 1903 (Cth) being a source of jurisdiction, the Minister said as follows:
The judicial review aspects of the Applicant’s claim were not a part of the Applicant’s case in the High Court. They were only added when the statement of claim was filed in this Court. It is possible that s 44(2) of the Judiciary Act 1903 (Cth) might overcome part of this problem, if it is taken that the Federal Court, on remitter, is exercising the same jurisdiction as the High Court (Plaintiff P1/2003 v Ruddock (2007) 157 FCR 518 at [98], [108]–[109]). However, the difficulty with that argument is that, if the judicial review claim had been part of the Applicant’s case in the High Court, it could not have been remitted to this Court: s 476B(2). Further, s 476B, like s 494AB, is expressed to have effect despite any other law, and expressly overrides s 44 of the Judiciary Act. In the face of these provisions, remitter cannot create a power to add further claims which are beyond this Court’s jurisdiction and which could not themselves have been part of a remitted matter. It is submitted that the reasoning in Plaintiff P1/2003 does not apply directly in those circumstances and the limits on jurisdiction outlined above render the Applicant’s claims in paragraphs [23]-[27] of the statement of claim, and the prayer for relief in paragraph F, incompetent.
The reference to “F” of the relief was to the applicant’s original statement of claim. In the amended statement of claim, the reference would be to paragraph “H”.
The applicant did not make submissions against the proposition that I had no jurisdiction. In the course of hearing some suggestion was made that the applicant might commence a proceeding alleging legal unreasonableness in the Federal Circuit Court and then seek to have it transferred to this Court and joined with this proceeding. However, I was advised on 2 May 2016 that the applicant no longer intended to take that course.
I regard the legal unreasonableness claims as not pressed. In the absence of argument on the s 44 Judiciary Act point, I decline to express a view.
Exceeding limits of power
At [12(b)], the applicant pleaded that for the Minister to fail to procure for her a safe and lawful abortion would constitute an excess by him of the limits of the power conferred by s 198AHA of the Act and s 61 of the Constitution.
Very little was said on the question in the applicant’s written submissions. The essence is at [146], namely that “the Commonwealth will exceed its power if it purports to engage in the commission of a tort or a breach of the [Papua New Guinean] Criminal Code”. Nothing was said to the point in oral submissions. I am in no position to make a finding that the Minister’s conduct breached the criminal law of another country. Thus, this claim rises or falls with the tort claim. Putting aside the Criminal Code, if there was no tort then (on the applicant’s submissions) there is no excess of power. If there is a tort, then the excess of power argument might succeed but ex hypothesi the applicant is already entitled to relief due to the tort. The relief would be the same: an injunction restraining the commission of the tort.
In the circumstances, I propose to say nothing further on the issue.
Issues associated with mandatory injunctions
The Minister made two submissions concerning mandatory injunctions. The first can be summarised by saying that the test for mandatory injunctions is strict (c.f. Redland Bricks), that such injunctions are rare, and that the test is in this case unfulfilled. The second can be summarised by saying that the Court would not issue a mandatory injunction where mandamus would not lie (c.f. Plaintiff M168/10 v Commonwealth (2011) 85 ALJR 790 at [37]).
I do not propose to issue a mandatory injunction. The applicant’s case was that she apprehended a tort, constituted by the failure by the Minister to exercise due care in discharging the responsibility that he assumed to procure for her a safe and lawful abortion. I am satisfied that the apprehended tort should be restrained. My relief will restrain the Minister from failing to discharge his duty.
In that light, it is not necessary to consider the Minister’s submissions that I outlined at [527] above.

I certify that the preceding five hundred and twenty-nine (529) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.
Associate:
Dated: 6 May 2016

File number:	VID 305 of 2016
Judge:	BROMBERG J
Date of judgment:	6 May 2016
Catchwords:	NEGLIGENCE – applicant, a refugee, raped on Nauru during or shortly after seizure and fell pregnant – on her request, respondents agreed to procure for applicant a termination of pregnancy – applicant taken to Papua New Guinea for proposed abortion – applicant alleged legal risk attendant upon abortion in PNG arising out of its criminal law dealing with abortion — applicant alleged medical risk attendant upon abortion in PNG, arising out of unavailability of medical equipment, experience, and expertise alleged to be required in order to adequately guard against risk NEGLIGENCE – duty of care – whether respondents owed duty of care to applicant to exercise reasonable care in procuring for her a safe and lawful abortion – if so, whether procurement of abortion in PNG discharged duty – if not, whether breach of duty apprehended – discussion of Stavar multi-factorial approach to determination of existence of novel duty of care – consideration of authorities relating to duties of care in connection with exercise or non-exercise of statutory powers – consideration of statutory setting – consideration of relationship of applicant and respondents – consideration of circumstances of applicant’s removal to Nauru, her detention on Nauru, and her continued presence on Nauru having been accepted as a refugee – consideration of respondents’ involvement in the foregoing, including its provision of settlement and health services – discussion of circumstances of applicant’s travel to PNG and respondents’ involvement in same – application of multi-factorial approach in determination whether duty of care existed – consideration, in particular, of consistency of putative duty with statutory scheme, of policy, of vulnerability, of control, and of assumption of responsibility – duty of care found to exist, to exercise reasonable care in procuring for the applicant a safe and lawful abortion NEGLIGENCE – apprehended breach – whether apprehended breach established – consideration of applicable standard of care – rejection of submission that standard of care determined by reference to medical services available in PNG – application of Shirt formula – evaluation of legal risks of PNG abortion – magnitude of legal risk high to extreme; probability of risk materialising low, but not far-fetched or fanciful – evaluation of medical risks of PNG abortion – magnitude of medical risk high to extreme; probability of materialisation of risk material, and neither trivial nor insignificant – consideration of expense, difficulty and inconvenience – consideration of policy against bringing unauthorised maritime arrivals to Australia – whether respondents procured safe and lawful abortion in PNG in discharge of duty – abortion procured in PNG did not discharge duty – apprehended breach established NEGLIGENCE – statutory authorities – consideration whether, were proper law that of PNG, application of that law would result in foreign (i.e. Australian) statutory authorities being treated in same way as domestic authorities for purpose of determination of existence of duty – application of PNG law would not so result NEGLIGENCE – remedy –consideration of whether declarations ought be made – consideration of whether injunctions should issue PRIVATE INTERNATIONAL LAW – whether law of tort PNG or Australia – discussion of test for determination of lex loci delicti – consideration of significance of alleged tort being apprehended and one of omission – identification of respondents’ act giving applicant her cause for complaint – act of procurement of abortion, not performance of abortion, subject matter of complaint – proper law that of Australia EVIDENCE – consideration, in obiter, of presumption that foreign law identical to domestic law in absence of evidence of content of foreign law – presumption would apply in this case MIGRATION – whether s 474 of the Migration Act 1958 (Cth) precluded issue of injunctive relief in proceedings other than judicial review proceedings – consideration of extrinsic material – discussion of authorities concerning ss 476A and 486A – consideration of principle of legality – s 474 did not have effect of precluding injunctive relief in proceedings other than judicial review proceedings EQUITY – whether respondents breached a fiduciary duty arising out of same facts as gave rise to putative duty of care – consideration of guardian/ward fiduciary duty cases – respondents did not breach any fiduciary duty as may exist
Legislation:	Constitution, s 61 Criminal Code Act 1974 (PNG), ss 225, 226, 280, 312 Explanatory Memorandum, Migration Legislation Amendment (Judicial Review) Bill 2001 (Cth) Explanatory Memorandum, Migration Legislation Amendment Bill (No 1) 2001 (Cth) Federal Court of Australia Act 1976 (Cth), ss 23, 37AF Judiciary Act 1903 (Cth), s 44 Migration Act 1958 (Cth), ss 5, 5AA, 14, 189, 197AB, 198AA, 198AB, 198AD, 198AE, 198AHA, 198B, 474, 476A, 484, 486A, Div 8 Pt 2 Subdiv B, Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) Migration Legislation Amendment (Judicial Review) Bill 2001 (Cth) Migration Legislation Amendment Act (No 1) 2001 (Cth) Migration Litigation Reform Act 2005 (Cth)
Cases cited:	"R" v Independent Broad-based Anti-corruption Commissioner (2016) 90 ALJR 433 AB v Western Australia (2011) 244 CLR 390 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Alexandrou v Oxford [1993] 4 All ER 328 Al-Kateb v Godwin (2004) 219 CLR 562 Amaca Pty Ltd v Frost (2006) 67 NSWLR 635 Amaca Pty Ltd v the State of New South Wales (2004) 132 LGERA 309 Annuity and Rent Charge (1744) 1 Eq Ca Abr 31; 21 ER 851 Apotex Pty Ltd v Les Laboratoires Servier (No 2) (2012) 293 ALR 272 Beyazkilinc v Manager, Baxter Immigration Reception andProcessing Centre (2006) 155 FCR 465 BHP Billiton Iron Ore Pty Ltd v National Competition Council (2007) 162 FCR 234 Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651 Breen v Williams (1996) 186 CLR 71 Brodie v Singleton Shire Council (2001) 206 CLR 512 Brookfield Multiplex Ltd v Owners Corporation Strata Plan No 61288 (2014) 254 CLR 185 Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649 Capital and Counties plc v Hampshire County Council [1997] QB 1004 Carey v Freehills (2013) 303 ALR 445 City of Kamloops v Nielsen (1984) 10 DLR (4th) 641 Clay v Clay (2001) 202 CLR 410 Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 Cubillo v Commonwealth (2001) 112 FCR 455 Distillers Co (Biochemicals) Ltd v Thompson [1971] AC 458 D'Orta‑Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 Dyno Wesfarmers Ltd v Knuckey [2003] NSWCA 375 Federal Commissioner of Taxation v Unit Trend Services Pty Ltd (2013) 250 CLR 523 Fernando v Minister for Immigration and Citizenship (2007) 165 FCR 471 Graham Barclay Oysters Pty Limited v Ryan (2002) 211 CLR 540 Graigola Merthyr Company, Limited v Mayor, Aldermen and Burgesses of Swansea [1928] Ch 235 Hedley Byrne and Co Ltd v Heller & Partners Ltd [1964] AC 465 Hoffmann v Boland [2013] NSWCA 158 Hopkins v AECOM Australia Pty Ltd (No 3) [2014] FCA 1043 Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 Hunter and New England Local Health District v McKenna (2014) 253 CLR 270 Hunter Area Health Service v Presland (2005) 63 NSWLR 22 Hurst v State of Queensland (No 2) [2016] FCAFC 151 Jackson v Spittall (1870) LR 5 CP 542 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 Kent v Griffiths [2001] 1 QB 36 L Shaddock & Associates Pty Ltd v Parramatta City Council (No 1) (1981) 150 CLR 225 M(K) v M(H) (1992) 96 DLR (4th) 289 Makawe Pty Limited v Randwick City Council [2009] NSWCA 412 Mastipour v Secretary, Department of Immigration & Multicultural & Indigenous Affairs [2003] FCA 952 Mercer v Commissioner for Road Transport and Tramways (New South Wales) (1936) 56 CLR 580 Michael v Chief Constable of South Wales Police [2015] AC 1732 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 Minister for Immigration and Multicultural and Indigenous Affairs v VFAD (2002) 125 FCR 249 Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169 MM Constructions (Aust) Pty Ltd v Port Stephens Council [2012] NSWCA 417 Mutual Life & Citizens’ Assurance Co Ltd v Evatt (1968) 122 CLR 556 MZYYR v Secretary, Department of Immigration and Citizenship (2012) 129 ALD 331 Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331 Nicholls v Michael Wilson & Partners Ltd (2010) 243 FLR 177 Nocton v Lord Ashburton [1914] AC 932 Paramasivam v Flynn (1998) 90 FCR 489 Parramatta City Council v Lutz (1988) 12 NSWLR 293 Patsalis v The State of New South Wales [2012] NSWSC 267 Perrett v Collins [1998] 2 Lloyd's Rep 255 Plaintiff M168/10 v Commonwealth (2011) 85 ALJR 790 Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319 Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 90 ALJR 297 Prisoners A to XX Inclusive v State of New South Wales (1994) 75 A Crim R 205 Puttick v Fletcher Challenge Forests Pty Ltd (2007) 18 VR 70 Puttick v Tenon Limited (2008) 238 CLR 265 Pyrenees Shire Council v Day (1998) 192 CLR 330 Redland Bricks Ltd v Morris [1970] AC 652 Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330 S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2005) 84 ALD 257 SBEG v Secretary, Department of Immigration and Citizenship (No 2) (2012) 292 ALR 29 Secretary, Department of Immigration and Multicultural and Indigenous Affairs v Mastipour (2004) 207 ALR 83 SGS v Minister for Immigration and Border Protection (2015) 34 NTLR 224 State of New South Wales v Fahy (2007) 232 CLR 486 State of South Australia v Lampard-Trevorrow (2010) 106 SASR 331 Stuart v Construction, Forestry, Mining and Energy Union (2010) 185 FCR 308 Stuart v Kirkland-Veenstra (2009) 237 CLR 215 Sullivan v Moody (2001) 207 CLR 562 Sutherland Shire Council v Becker [2006] NSWCA 344 Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55 The Council of the Shire of Sutherland v Heyman (1985) 157 CLR 424 The Council of the Shire of Wyong v Shirt (1980) 146 CLR 40 The Ministry of Defence v Radclyffe [2009] EWCA Civ 635 The Western Counties Manure Company v The Lawes Chemical Manure Company (1873–74) LR 9 Ex 218 Toomelah Boggabilla Local Aboriginal Land Council v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 69 FCR 306 Tusyn v State of Tasmania (2004) 13 Tas R 51 University of New South Wales v Moorhouse (1975) 135 CLR 1 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 Vowles v Evans [2003] 1 WLR 1607 Wallace v Kam (2013) 250 CLR 375 Watson v British Boxing Board of Control Ltd [2001] 1 QB 1134 Webber v New South Wales (2003) 31 Fam LR 425 White v Jones [1995] 2 AC 207 Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 X7 v Australian Crime Commission (2013) 248 CLR 92 ICF Spry, The Principles of Equitable Remedies (6th Ed., 2001) JD Heydon, MJ Leeming & PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (5th ed., 2015) R P Balkin, J L R Davis, Law of Torts (5th ed., 2013) S Deakin, A Johnston, & B Markesinis, Markesinis and Deakin’s Tort Law (6th ed., 2008)
Date of hearing:	28 and 29 April 2016
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	529
Counsel for the Applicant:	Mr R Merkel, QC, with him Mr E Nekvapil and Mr OM Ciolek
Solicitor for the Applicant:	National Justice Project Ltd., Allens Linklaters as town agents
Counsel for the Respondents	Mr G Kennett, SC, with him Mr P Knowles and Mr A Yuile
Solicitor for the Respondents	Australian Government Solicitor

Table of Corrections
11 May 2016	In the appearances, the Counsel for the Applicant and Solicitor for the Applicant have been corrected
19 May 2016	Catchwords have been added to the cover sheet
23 May 2016	Redactions made

Introduction	[1]
The Negligence Claim	[18]
The Essence of the Negligence Claim	[18]
The Statutory Setting	[29]
Migration Act	[29]
Agreements as between the Commonwealth and Nauru	[36]
Conditions relating to detention of asylum seekers on Nauru	[44]
Agreements as between the Commonwealth and Service Providers in relation to provision of services to refugees in Nauru	[50]
Settlement services	[53]
Health services	[60]
Education services	[68]
The Salient Facts	[70]
Proper law of the tort	[158]
Applicable principles	[159]
Discussion—lex loci delicti	[175]
What if the applicable law is that of Papua New Guinea?	[183]
Is there a Duty of Care?	[200]
Legal Principles	[200]
Exercise of Statutory Duty	[210]
Assumption of Responsibility	[232]
Application of Legal Principles to the Facts	[243]
Is Apprehended Breach Established?	[279]
Foreseeability, Magnitude and Probability of the Risks	[284]
Legal Setting	[284]
The Medical Setting	[305]
Neurological expertise	[315]
Mental health care	[337]
Gynaecological expertise	[351]
Anaesthesia	[360]
An Interdisciplinary Approach	[364]
The harm if no abortion was procured	[368]
Discussion	[378]
Relief	[409]
Section 474 of the Act	[409]
Cases concerning ss 476A and 486A	[413]
Extrinsic materials	[428]
Other cases	[434]
General principles of interpretation	[448]
Declaratory Relief	[460]
Should an Injunction be Granted?	[467]
Miscellaneous issues.	[503]
The Fiduciary Duty argument	[504]
Legal unreasonableness	[519]
Exceeding limits of power	[524]
Issues associated with mandatory injunctions	[527]