Plaintiff S99/2016 v The Minister for Immigration and Border Protection & Anor

This matter came before the High Court of Australia concerning an urgent application for interlocutory relief. The plaintiff, identified as S99/2016, sought to restrain the Minister for Immigration and Border Protection and the Commonwealth of Australia from taking certain steps regarding the plaintiff's medical treatment. The plaintiff had been transferred from Nauru to Papua New Guinea, and the application was brought on an urgent basis due to this unexpected transfer.

The central legal issues before the Court were whether the defendants had assumed a sufficient degree of responsibility and control over the plaintiff to attract a duty of care, and consequently, whether interlocutory orders should be made to prevent the defendants from causing or being involved in a termination of the plaintiff's pregnancy in Papua New Guinea, and from removing the plaintiff from Papua New Guinea. The plaintiff argued that despite not being in formal detention, the circumstances of her transfer and the defendants' involvement in her medical care established an arguable case of assumed responsibility.

The Court considered the defendants' position that they lacked the power to compel the plaintiff to undergo any procedures or travel against her will, and that the interlocutory relief sought was therefore unnecessary. However, the Court noted that even if the defendants did not intend to take the actions the plaintiff sought to prevent, the plaintiff's case was sufficiently arguable on the footing of assumed responsibility to warrant interim relief. Given the urgency and gravity of the potential consequences for the plaintiff, and the absence of significant detriment to the defendants, the Court was satisfied that there was an arguable case for granting interim relief. The Court also determined that the matter would be more conveniently heard in the Federal Court and ordered that the proceedings be remitted there.

The Court made orders restraining the defendants, until 4.15 pm on 14 April 2016, or further order, from taking any steps to cause, procure, or otherwise be involved in a termination of the plaintiff's pregnancy in Papua New Guinea. The Court also indicated its inclination to make orders preventing the removal of the plaintiff from Papua New Guinea without her consent, noting that this would not adversely affect the defendants if their stated position of not intending to remove her was accurate.