SU v Commonwealth of Australia - [2014] NSWSC 241

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: SU v Commonwealth of Australia [2014] NSWSC 241
Hearing dates: 5 March 2014
Decision date: 19 March 2014
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:
(1) The defendants' notice of motion filed 27 August 2013 is dismissed.
(2) Costs are reserved.

Catchwords: PRACTICE AND PROCEDURE - application for summary dismissal - whether statement of claim should be summarily dismissed or proceed to trial - arguable case demonstrated; TORTS - false imprisonment/unlawful detention - whether it is arguable that detention of persons under the Crimes Act 1914 (Cth) in an adult correctional facility constitutes false imprisonment/unlawful detention where the minor persons are also detained as unlawful non-citizens under the Migration Act 1958 (Cth) - whether it is arguable that being held under a different form of custody rather than another form of custody can constitute false imprisonment/unlawful detention
Legislation Cited: Bail Act 1978 (NSW), ss 4, 6, 14, 15, 17, 20
Crimes Act 1914 (Cth), ss 3W, 23C, 23F
Crimes (Administration of Sentences) Act 1999 (NSW), ss 4, 72, 232, 233, 249, 250, 252, 252A
Extradition (Foreign States) Act 1966 (Cth), ss 17, 18, 26
Federal Court of Australia Act 1976 (Cth), s 31A
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99
Mental Health (Criminal Procedure) Act 1990 (NSW), ss 24, 27
Migration Act 1958 (Cth), ss 5, 189, 196, 233C, 250
Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 14.28
Cases Cited: Christie v Leachinsky [1947] AC 573
DPP v Carr [2002] NSWSC 194; (2002) 127 A Crim R 151
Johnstone v State of New South Wales [2010] NSWCA 70; (2010) 202 A Crim R 422
Minister for Immigration and Multicultural and Indigenous Affairs v VFAD [2002] FCAFC 390; (2002) 125 FCR 249
O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71
Re Esperalta [1987] VR 236
Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612
Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118
State of New South Wales v Radford [2010] NSWCA 276; (2010) 79 NSWLR 327
State of New South Wales v TD [2013] NSWCA 32; (2013) 83 NSWLR 566
State of New South Wales v Williamson [2011] NSWCA 183
Texts Cited: Carolyn Sappideen and Prue Vines, Fleming's Law of Torts (10th ed 2011, Lawbook Co)
Category: Interlocutory applications
Parties: SU bhnf BA (First Plaintiff)
BS bhnf BA (Second Plaintiff)
Commonwealth of Australia (First Defendant)
Stephen Michael Vasquez (Second Defendant)
Representation: Counsel:
P Strickland SC/A Canceri (Plaintiffs)
P Semmler QC/A Berger (Defendants)
Solicitors:
O'Brien Solicitors (Plaintiffs)
Australian Government Solicitor (Defendants)

File Number(s): 2012/283102
Publication restriction: Nil

Judgment

HER HONOUR: By amended notice of motion filed 27 August 2013, the first and second defendants seek firstly, an order pursuant to Part 14 r 14.28(1)(a) of the Uniform Civil Procedure Rules 2005 (NSW) that the whole of the amended statement of claim filed 11 June 2013 be struck out; and secondly, an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NSWSC 241
Decision Date: 19 March 2014

CaseChat Overview and Summary

The applicants, SU and others, brought proceedings against the Commonwealth of Australia, challenging the legality of their detention under the Crimes Act 1914 (Cth) and the Migration Act 1958 (Cth). The case was heard by the Federal Circuit Court, where the applicants sought to prevent their continued detention. The court was required to determine whether the applicants had demonstrated an arguable case that would allow the matter to proceed to trial, rather than being summarily dismissed.

The primary legal issue was whether the applicants had shown that their detention under the two Acts constituted false imprisonment or unlawful detention. The court considered whether the detention of minor persons as unlawful non-citizens under the Migration Act, in addition to their detention under the Crimes Act, created a scenario where false imprisonment or unlawful detention was arguable. The court also needed to decide whether the distinction between different forms of custody could be sufficient to constitute false imprisonment or unlawful detention.

The court found that the applicants had established an arguable case for the relief sought. The judges concluded that the detention of the applicants under both the Migration Act and the Crimes Act, and the potential for different forms of custody to be considered, presented a situation where false imprisonment or unlawful detention could be argued. This was sufficient to allow the case to proceed to a full hearing. The court dismissed the Commonwealth's application for summary dismissal.

In summary, the court held that the applicants had demonstrated an arguable case, and therefore the matter would proceed to trial. The court rejected the Commonwealth's argument for summary dismissal and allowed the applicants' claims to continue.

Orders