Zheng v Commonwealth of Australia (No 3)

[2020] NSWSC 1347

Supreme Court

New South Wales

Medium Neutral Citation:

Zheng v Commonwealth of Australia (No 3) [2020] NSWSC 1347

Hearing dates:

29 May 2020

Date of orders:

2 October 2020

Decision date:

02 October 2020

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

The Court orders that:

(1) The proceedings are dismissed.

(2) Costs are reserved.

Catchwords:

PRACTICE AND PROCEDURE – Application for summary dismissal – Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 14.28 – Defective pleadings – No reasonable prospects of success – Where the plaintiff seeks to bring an action in negligence against the Commonwealth of Australia in respect of an unlawfully cancelled visa and subsequent detention

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D

Migration Act 1958 (Cth), s 116

Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28

Cases Cited:

Banque Commerciale SA En Liquidation v Akhill Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279

Behrooz v Secretatry, Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36

Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937

Council of the Shire of Sutherland v Heyman (1985) 157 CLR 424

Doherty v State of New South Wales [2010] NSWSC 450

Howard v Jarvis [1958] HCA 19; 98 CLR 177

Kuhl v Zurich [2011] 243 CLR 361, per French CJ and Gummow J

New South Wales v Klein [2006] NSWCA 295

O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71

Price v State of New South Wales [2011] NSWCCA 341

Roads & Traffic Authority of NSW v Dederer (2007) 234 CLR 330

Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118

Sullivan v Moody [2001] HCA 59; [2001] 207 CLR 562

Tame v New South Wales [2002] 211 CLR 317

Watiwat v Dixon (No 2) [2017] NSWSC 1242

Zheng v Commonwealth of Australia [2017] NSWSC 795

Texts Cited:

Garling J, ‘Civil Liability Act 2002 – Burdens for a Defendant’ (Speech, New South Wales Bar Association Personal Injury Conference, 15 March 2014).

Category:

Procedural and other rulings

Parties:

Xu Zheng (Plaintiff)
Commonwealth of Australia (Defendant)

Representation:

Counsel:
M Hutchings (Defendant)
W Oliver (Plaintiff)

Solicitors:
Self Represented (Plaintiff)
Sparke Helmore Lawyers (Defendant)

File Number(s):

2016/237975

Publication restriction:

Nil

Judgment

1. HER HONOUR: By amended notice of motion filed 1 April 2019, the defendant seeks an order that the plaintiff’s third amended statement of claim dated 8 August 2017 be struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW); or, in the alternative, that the proceedings be dismissed pursuant to UCPR 13.4(1)(b) or (c).

2. The plaintiff is Xu Zheng. The defendant is the Commonwealth of Australia. The plaintiff relied upon her affidavit dated 5 June 2019. The defendant relied upon the affidavit of Alice Bolt dated 23 April 2018, and two affidavits of Rachel Jane Walls dated 15 February 2019 and 31 May 2019.

3. The plaintiff resides in China and does not speak fluent English. Mr Warren Oliver, her partner, appeared on her behalf. He has an enduring power of attorney. On 14 June 2019, Mr Ming Lu, the plaintiff’s nephew, appeared on her behalf and she had the benefit of a Mandarin interpreter (T 1.19-26). At other times during the hearing of these proceedings, the plaintiff appeared via audio link and consented to Mr Oliver speaking for her. Mr Hutchings of counsel appeared for the defendant.

Procedural history

Federal Circuit Court proceedings

4. On 21 March 2014, the plaintiff commenced proceedings in the Federal Circuit Court of Australia against the Minister for Immigration and Border Protection.

5. On 4 July 2014, by consent, the Federal Circuit Court made the following order:

“A writ of certiorari shall issue removing the record of the visa cancellation decision, being the decision of the delegate dated 4 March 2014 to cancel the applicant’s subclass 600 visa, into the Court to be quashed.”

The current proceedings in this Court

6. On 8 August 2016, the plaintiff commenced these proceedings. On 3 February 2017, she filed her first amended statement of claim (“ASC”). On 17 July 2017, the plaintiff filed a second amended statement of claim (“2ASC”). On 8 August 2017, the plaintiff filed a third (“3ASC”). It is the 3ASC which is the subject of the defendant’s motion.

The decision of Zheng v Commonwealth of Australia [2017] NSWSC 795

7. On 20 June 2017, Harrison J handed down judgment in Zheng v Commonwealth of Australia [2017] NSWSC 795 (“Zheng No 1”) in relation to the ASC.

8. The plaintiff’s ASC claim against the Commonwealth was effectively divided into two parts, both in tort. The first claimed damages for false imprisonment, and the second claimed damages for negligence.

9. In Zheng No 1, Harrison J first addressed the issue of false imprisonment. He concluded that the plaintiff had no cause of action arising from the legality or otherwise of her detention. His Honour noted that it has never been part of the plaintiff’s case that anyone committed the tort of misfeasance in public office ([10]).

10. However, his Honour was not satisfied that the plaintiff had no possible cause of action based upon a breach of the Commonwealth’s duty to take reasonable care for her safety while in detention. Although the matter was not properly pleaded, he granted the plaintiff an opportunity to replead that part of the ASC ([16]).

11. Harrison J then made some pertinent comments under the heading “Miscellaneous”, which are worth repeating here. At [19] he said:

“[19] It is apparent from submissions made to me by Ms Zheng and by her partner Mr Oliver on her behalf that the events that give rise to these proceedings have been distressing and upsetting for Ms Zheng and her family. This is not in my estimation a case in which a minor slight or insult has led to a disproportionate or obsessive reaction to what occurred. It seems to me that at the centre of Ms Zheng’s concerns is the fact that a little more care and patience, not to say forbearance, in the circumstances at the airport on 4 March 2014 may well have, and on one view certainly would have, avoided this entire misunderstanding. I have no doubt that Ms Zheng’s limited English contributed significantly to what happened. She was evidently unable to communicate sufficiently with her interviewers to make it clear that she had a place to stay and that her visit was legitimate. So much is apparent from the final consent orders made in the Federal Court. It is a matter of substantial regret that Ms Zheng could not have been spared the terrible ordeal of 151 days in detention and deportation, and the subsequent and ongoing unpleasant vicissitudes of litigation, when a little more patience and care might well have avoided everything that went wrong in her case.”

12. I respectfully adopt these comments.

13. In Zheng No 1, Harrison J made orders striking out paras [7] to [13] inclusive of the ASC filed on 3 February 2017 and granted leave to the plaintiff, within 28 days, to replead so much of her cause of action against the defendant as is framed in negligence or breach of duty.

Current amended notice of motion

14. On 14 June 2019, the defendant’s amended notice of motion filed 1 April 2019 was listed before me for hearing. As the defendant’s amended notice of motion had been adjourned on a number of occasions, I relisted it for hearing before me on 12 July 2019 at 10.00 am. I also made an order that the defendant’s solicitor was to write to the plaintiff, Mr Oliver and Mr Lu by email, setting out in careful detail the defects in the plaintiff’s 3ASC by 5.00 pm Australian time on 28 June 2019, with liberty to apply on 3 days’ notice.

15. On 28 June 2019, the defendant’s solicitor, by email, wrote to the plaintiff, Mr Oliver and Mr Lu setting out the reasons why it did not consider the 3ASC to have properly articulated a cause of action in negligence (Ex 1). The contents of the letter are essentially the subject of the defendant’s submissions, which are referred to later in this judgment.

16. On 11 July 2019, my associate telephoned Mr Lu enquiring whether the plaintiff would be appearing via audio link from China, and whether she had made arrangements for an interpreter to attend the hearing. Mr Lu informed my associate that the plaintiff was unable to afford the assistance of an interpreter and would be representing herself.

17. On 12 July 2019, the plaintiff appeared via audio link. As I was having difficulty in understanding her, I granted leave to Mr Oliver to speak on her behalf.

18. Mr Oliver explained that the plaintiff has been trying to obtain legal assistance in Australia, but that no one had been so far willing to assist with the case. In order to allow the plaintiff to obtain an interpreter and legal assistance, I specially fixed the defendant’s notice of motion filed 1 April 2019 for hearing before me on 4 October 2019. This hearing was to proceed save for exceptional circumstances. If the plaintiff wished to rely upon a further amended statement of claim, it was to be served on the defendant’s solicitor by 27 September 2019 and a copy emailed to my associate. Costs were reserved. I directed the defendant’s solicitor to notify the plaintiff and Mr Oliver of these orders, and noted that the plaintiff was required to provide an interpreter for the hearing on 4 October 2019.

19. On 4 October 2019, the plaintiff appeared via audio link without an interpreter. The matter was stood over for hearing before me on 13 March 2020. I referred to plaintiff to the NSW Bar Association’s Legal Assistance Referral Scheme for pro bono assistance to advise the plaintiff of her prospects of success and the redrafting of the 3ASC.

20. On 10 March 2020, my associate emailed the Manager of Legal Assistance for the NSW Bar Association to follow up on the plaintiff’s pro bono referral. I accept that the plaintiff had received some prior pro bono assistance from the NSW Bar Association.

21. On 21 April 2020, my associate emailed the parties notifying them that as there was not enough time for them to provide written submissions, and in the interests of affording the plaintiff procedural fairness, the hearing on 24 April 2020 of the defendant’s notice of motion seeking to strike out the plaintiff’s 3ASC had been vacated and relisted for Friday, 22 May 2020. I made an order in respect of the filing and serving of submissions, and a further order that save for exceptional circumstances, the hearing of the defendant’s notice of motion would proceed.

22. By return email, the defendant’s solicitor advised that counsel was not available on 22 May 2020. The matter was then relisted for hearing of the defendant’s notice of motion on 29 May 2020. The defendant served short written submissions. The plaintiff did not serve any written submissions. The amended notice of motion was heard on that day.

Summary judgment and strike out proceedings

23. UCPR 13.4(1) provides that the Court may dismiss proceedings generally, or in relation to any claim for relief, in three circumstances: if the proceedings are frivolous or vexatious, if no reasonable cause of action is disclosed or if the proceedings are an abuse of the process of the Court.

24. UCPR 14.28(1) provides that the Court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading firstly, discloses no reasonable cause of action, defence or other case appropriate to the nature of the pleading; secondly, has a tendency to cause prejudice, embarrassment or delay in the proceedings; or thirdly, is otherwise an abuse of the process of the Court.

25. UCPR 14.28(2) provides that the Court may receive evidence on the hearing of an application for an order under subrule (1).

26. In O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71, the Court of Appeal applied the High Court decision of Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 (“Spencer”). In Spencer, the High Court was concerned with s 31A(2) of the Federal Court Act 1976 (Cth), but the following principles are of general application.

1. On a summary judgment application, the real issue is whether there is an underlying cause of action or defence, not simply whether one is pleaded ([23]).

2. The critical question can be expressed as whether there is more than a “fanciful” prospect of success (per French CJ and Gummow J at [25]), or whether the outcome is so certain that it would be an abuse of the process of the court to allow the action to go forward ([54]). Demonstration of the outcome of the litigation is required, not an assessment of the prospect of its success.

3. Powers to summarily terminate proceedings must be exercised with exceptional caution ([55]; see also French CJ and Gummow J at [24]).

27. For the purposes of this application, I have taken the plaintiff’s case at its highest. I accept that the plaintiff has not put her evidence in admissible form, but I shall briefly outline her version of events.

The plaintiff’s summary of events

28. The plaintiff says she was wrongfully detained for 151 days, during which time she was treated unfairly, causing serious physical and mental harm. She also alleges fraudulent conduct of charging double the appropriate amounts of fees and government debts, losses in relation to her missing personal belongings, abuse of power, obstruction of justice and threatening behaviour.

29. When the matter came before me on 12 July 2019, Mr Oliver outlined the errors the plaintiff says that the Department of Immigration made in relation to her stay in Sydney. Mr Oliver explained that the plaintiff’s visa was cancelled due to a misunderstanding. He says that the plaintiff was living with him in an apartment on top of a fruit shop in Dulwich Hill. At the time, Mr Oliver was also working at a smokehouse factory. Mr Oliver explained that the plaintiff and his mother, Joyce, used to regularly drive from the Dulwich Hill apartment to the smokehouse factory to bring Mr Oliver his lunch. The plaintiff says that when an immigration officer performed a “Google Earth search” on the Dulwich Hill address, he registered it as belonging to the fruit shop underneath, and deduced that the plaintiff’s regular commute between the addresses was a commute to work. The authorities concluded that the plaintiff was working in contravention of her visitor visa. Mr Oliver explained that the plaintiff had no reason to work, as he supported her, and she was happy to spend her days with his mother.

The defendant’s version of events

30. The immigration inspector’s report dated 5 April 2014 records that the plaintiff had previously been to Australia twice, on 17 August 2013 and 11 December 2013. The plaintiff spent a total of 365 day in Australia. On both occasions, she indicated on her incoming passenger card that her intended address was in Marrickville. An internet search revealed that this address was a small goods manufacturing business. When the plaintiff travelled to Australia on 4 March 2014, she indicated on the incoming passenger card an intention to stay at an address in Dulwich Hill for another 60 days.

31. At an interview on 17 August 2013, the plaintiff declared her address as being the Dulwich Hill address of the fruit shop owned by Mr Wu. When questioned about her employment, she stated that she was currently employed in China, but on six months leave. It was on this basis that the immigration inspector developed concerns about the plaintiff’s intention to work in Australia.

32. At the interview, the plaintiff further declared that her purpose in Australia had been to research universities for her son. However, she was unable to provide basic information on her research. The plaintiff also stated that she intended to register her son into either Sydney University or Melbourne University, but was unable to provide any information about the location or campuses of the universities. She was also unable to provide any information in relation to any tourist activities she undertook during her last visits. Based on that information, the immigration inspector was satisfied that there existed grounds for the cancellation of her visitor visa.

The pleading in the third amended statement of claim

33. This 3ASC pleads only the cause of action in negligence. The pleading is as follows.

34. The plaintiff is a citizen of the People’s Republic of China and was, from at the material point in time of March 2014 to June 2014, the holder of a valid temporary visitor allowing her to travel to and stay in Australia for the validity period of that visa (3ASC [1]).

35. The plaintiff now holds a bridging visa (subclass WA) allowing her to stay in Australia indefinitely until a decision is made on her application for a partner sponsored visa (3ASC [2]).

36. On or about 2 August 2013, the plaintiff was granted a multiple entry visitor (class FA, subclass 600) visa allowing her to travel to and stay in Australia for a period of not more than 3 months subject to her arriving in Australia no later than 23 July 2014 (3ASC [3]).

37. The defendant is a Crown entity in the right of the Commonwealth capable of suing and being sued in tort and contract pursuant to s 64 of the Judiciary Act 1903 (Cth) (3ASC [4]).

38. The defendant is at all times vicariously liable for the actions and omissions of the Commonwealth Minister of Immigration and Border Protection, the minister’s delegates, officers of the Australian Border Force, and the operators of Immigration detention centres in and outside of the territorial limits of Australia (3ASC [5]).

39. On or about 4 March 2014, the plaintiff travelled to Australia on the basis of her visa and arrived at Sydney International Airport (3ASC [7]).

40. On or about 4 March 2014, upon the plaintiff’s arrival at Sydney International Airport, and prior to her clearing customs, an officer of the defendant erroneously cancelled the plaintiff’s visa pursuant to s 116 of the Migration Act 1958 (Cth) (“the decision”) (3ASC [8]).

41. On or about 21 March 2014, the plaintiff applied for a review of the decision in the Federal Court. On or about 3 July 2014, the Minister for Immigration and Border Protection (“the Migration Minister”) conceded that the officer exercised her discretion under reg 2.43(j)(i) of the Migration Regulations 1994 (Cth) erroneously by applying the wrong test. On or about 4 July 2014, a writ of certiorari quashing the Migration Minister’s decision to cancel the plaintiff’s visa was issued into Court (3ASC [8](a)-(c)).

42. From 4 March 2014 to 2 August 2014, as a result of the decision to cancel the plaintiff’s visa, she was detained by the defendant in two immigration detention centres, first at the Villawood Detention Centre (“Villawood”) and later at Wickham Point Detention Centre (“Wickham Point”) in the Northern Territory pending deportation to China on 2 August 2014. Before her detention, the plaintiff was held in detention in Australia for a period of 151 days (3ASC [9]).

Duty of care

43. The plaintiff pleads that at all material times during which the defendant placed the plaintiff in detention, the defendant had a substantial degree of control and responsibility over the plaintiff such that the defendant assumed a duty of care for her (3ASC [9A]). The plaintiff pleads that the defendant owed her a duty to exercise reasonable care for her safety (3ASC [9B]) and that the defendant owed her a duty to provide reasonable medical care for her (3ASC [9C]).

Breach of duty of care

44. Under the heading “Breach of Duty to Exercise Reasonable Care for the Safety of the Plaintiff”, the plaintiff pleads that from 4 March 2014 to 2 August 2014, the defendant breached its duty to exercise reasonable care for her safety on the following bases.

1. On or about 4 March 2014, upon detaining the plaintiff, the defendant's delegate placed her into solitary confinement in a sealed room in Sydney International Airport.

2. On or about 4 March 2014, the defendant, via an officer of the Australian Border Force, interrogated the plaintiff, or caused her to be interrogated, for an extended period of 8 hours from 2.00 pm to 10.00 pm.

1. During the course of the interrogation, the defendant, via an officer of the Australian Border Force, denied the plaintiff, or caused her to be denied, any food during the entirety of the 8 hours.

2. During the course of the interrogation, the defendant, via an officer of the Australian Border Force, denied the plaintiff, or caused her to be denied, adequate and/or sufficient hydration.

3. On 4 March 2014, between 3.00 pm to 9.00 pm. the defendant, via an officer of the Australian Border Force, detained the plaintiff, or caused her to be detained, in solitary confinement in an enclosed room with no lights or windows at Sydney International Airport.

4. From 4 March 2014, at or about 9.00 pm onwards, to 6 March 2014, the defendant, via the operator of Villawood, detained the plaintiff, or caused her to be detained, in solitary confinement in an enclosed room with only a small row of ventilation outlets.

5. During the time the plaintiff was detained at Wickham Point, the defendant, via the operator of Wickham Point, ignored a complaint from the plaintiff, or caused it to be ignored, that a fellow detainee of Sri Lankan origin attempted to sexually assault her (3ASC [9D](a) to (g)).

45. There is also a claim that the defendant breached its duty of care to provide the plaintiff reasonable medical care (3ASC [9E]). The plaintiff pleads that in the period between 6 March 2014 and 28 March 2014, the defendant denied her, or caused her to be denied, medical treatment when she complained of being ill with a fever and nausea while being held at Villawood (3ASC [9E(a)). The plaintiff also alleges that the operator of Wickham Point provided her with an increased dose of her hyperthyroid medication, disrupting her menstrual cycle (3ASC [9E(b)]), and failed to accommodate her dietary requirements for her hyperthyroidism (3ASC [9E(c)]).

Losses suffered as a result of the alleged breach of duty

46. The plaintiff pleads that as a result of the alleged breaches, she now suffers recognised psychiatric illnesses in the form of depression, anxiety, agitation, anti-social behaviour and Post-Traumatic Stress Disorder. She further pleads that the breaches have worsened her pre-existing health conditions such that she now suffers thyroid enlargement, leukopenia and higher thyroid function indicators (3ASC [11]).

47. The plaintiff also claims in respect of economic loss she says she suffered as a result of her termination from her employment as a Marketing Director at Chongquig Shijiada Education Consultation Co Ltd in China. She pleads that she has been unemployed since that termination (3ASC [12]).

48. Finally, the plaintiff pleads that some of her personal artefacts were not returned to her after her deportation, and that in particular, a platinum necklace of priceless sentimental value was removed from her possession and never recovered (3ASC [13]).

49. The plaintiff claims for “damages for well-being and lost employment” in the amount of $4,318,000, including $3,950,000 for her psychiatric illnesses and worsened health, and $368,000 for lost income since 2014 calculated on the basis of an average Australian wage (Aff 5/6/2019, p 6).

50. I emphasise that the primary function of pleadings is to state, with sufficient clarity, the case that has to be met by the defendant. In this way, pleadings serve to define the issues for decision and ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her: Banque Commerciale SA En Liquidation v Akhill Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 at 286-287 and 302-3.

The defendant’s submissions

51. Counsel for the defendant submitted that the plaintiff’s claim has no prospects of success and the pleading itself is defective. The plaintiff must plead in express and unambiguous terms a duty of care that can be said to have been owed by the defendant to the plaintiff, including its scope and content. That is not what the plaintiff has done in the present case.

52. According to the defendant, in order for the plaintiff to succeed in a cause of action in negligence, the plaintiff must identify a duty of care recognised by law to have been owed to her by a defendant, breach of that duty, damage and how the alleged breach caused the damage. The plaintiff has yet to identify the duty of care allegedly owed by the defendant to her, and how the alleged breach caused the damage. The Civil Liability Act 2002 (NSW) applies to this claim and requires, at the very least, that the plaintiff articulate those matters in order for the defendant to be in a position to respond to her claim.

Duty of care

53. The defendant submitted that the plaintiff is required to identify why it is said that she was owed a duty by the defendant and the material bounds of the duty alleged, otherwise known as its scope and content. This allows the defendant to understand what the plaintiff says it should have done to discharge its duty in the circumstances, and therefore respond to her claim. In other words, the pleading ought to permit a real understanding of the content of the allegation: see Kuhl v Zurich [2011] 243 CLR 361, per French CJ and Gummow J at [21]-[22].

54. In the absence of an articulation of the scope and content of the duty of care, it is impossible to say whether the defendant was the subject of any competing duties: see Sullivan v Moody [2001] HCA 59; [2001] 207 CLR 562 (“Sullivan”).

55. The plaintiff alleges (3ASC [8]) that the defendant erroneously cancelled her visa. The defendant submitted that to the extent that the plaintiff suggests that it has a liability in negligence in respect of the decision, the plaintiff must identify why it is said that a duty of care was owed to her not to cancel her visa, and why it is said that she is entitled to damages in respect of the allegedly erroneous decision.

56. The defendant referred to Sullivan, where the High Court (Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ) held at [50], [53], [55], [60] and [61] that:

“[50] Different classes of case give rise to different problems in determining the existence and nature or scope, of a duty of care. Sometimes the problems may be bound up with the harm suffered by the plaintiff, as, for example, where its direct cause is the criminal conduct of some third party... Sometimes they may reflect the difficulty of confining the class of persons to whom a duty may be owed within reasonable limits. Sometimes they may concern the need to preserve the coherence of other legal principles, or of a statutory scheme which governs certain conduct or relationships. The relevant problem will then become the focus of attention in a judicial evaluation of the factors which tend for or against a conclusion, to be arrived at as a matter of principle.

…

[53] Developments in the law of negligence over the last 30 or more years reveal the difficulty of identifying unifying principles that would allow ready solution of novel problems. Nonetheless, that does not mean that novel cases are to be decided by reference only to some intuitive sense of what is ‘fair’ or ‘unfair’. There are cases, and this is one, where to find a duty of care would so cut across other legal principles as to impair their proper application and thus lead to the conclusion that there is no duty of care of the kind asserted.

…

[55] More fundamentally, however, these cases present a question about coherence of the law. Considering whether the persons who reported their suspicions about each appellant owed that appellant a duty of care must begin from the recognition that those who made the report had other responsibilities. A duty of the kind alleged should not be found if that duty would not be compatible with other duties which the respondents owed.

…

[60] The circumstance that a defendant owes a duty of care to a third party, or is subject to statutory obligations which constrain the manner in which powers or discretions may be exercised, does not of itself rule out the possibility that a duty of care is owed to a plaintiff. People may be subject to a number of duties, at least provided they are not irreconcilable. A medical practitioner who examines, and reports upon the condition of, an individual, might owe a duty of care to more than one person. But if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists. Similarly, when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations.

[61] There is also a question as to the extent, and potential indeterminacy, of liability In the case of a medical practitioner, the range of people who might foreseeably (in the sense earlier mentioned) suffer some kind of harm, as a consequence of careless diagnosis or treatment of a patient, is extensive.”

57. The plaintiff alleges damage in the form of psychological injury, with the class to whom the duty was allegedly owed being non-citizens arriving at an Australian airport. The defendant submitted that it is not apparent from the 3ASC why, other than as a product of excessive focus upon the plaintiff’s circumstances, a duty of care to that confined class in respect of that discrete risk of psychological injury ought to be recognised by the Court. The recognition of such a duty would impose an intolerable burden upon it and is incoherent with the operation of the Migration Act.

58. The defendant observed that if the plaintiff is to identify a duty of care that can be said to have been owed by it to her, it must be expressly and unambiguously pleaded.

59. In New South Wales v Klein [2006] NSWCA 295, Young CJ in Eq held at [43]):

“[43] In a case where the authorities show that there is only a very small gap in the rule excluding a duty of care, then a plaintiff seeking to fit within that gap must plead it.”

60. The defendant says that the plaintiff’s claim posits a duty by which the defendant was required to do more than exercise reasonable care, even to the extent of preventing potential harm: see, for example, Roads & Traffic Authority of NSW v Dederer (2007) 234 CLR 330 (“Dederer”) at [51]-[56]. In particular, Gummow J held at [51]:

“[51] Such an obligation to exercise reasonable care must be contrasted with an obligation to prevent harm occurring to others. The former, not the latter, is the requirement of the law. In Modbury Triangle Shopping Centre Pty Ltd v Anzil, Gleeson CJ pointed to the remarks of Brennan J in Sutherland Shire Council v Heyman and observed that ‘the common law distinguishes between an act affecting another person, and an omission to prevent harm to another. If people were under a legal duty to prevent foreseeable harm to others, the burden imposed would be intolerable.’”

61. In Council of the Shire of Sutherland v Heyman (1985) 157 CLR 424, Brennan J observed at [27] that:

“[27] …a postulated duty of care must be stated in reference to the kind of damage that a plaintiff has suffered and in reference to the plaintiff or a class of which the plaintiff is a member.”

62. The defendant submitted that the plaintiff appears to rely upon the concept of foreseeability as the anchor of the unstated duty. However, foreseeability of harm is not enough in itself to give rise to a duty of care: see Sullivan at [42].

63. The defendant also referred to Tame v New South Wales [2002] 211 CLR 317, where Gleeson CJ held at [12]:

“[12] A necessary, although not sufficient, condition of the existence of a legal duty of care is reasonable foreseeability of the kind of injury that has been suffered by the person to whom the duty is owed. It is important that ‘reasonable foreseeability’ should be understood and applied with due regard to the consideration that, in the context of an issue as to duty of care, it is bound up with the question whether it is reasonable to require a person to have in contemplation the risk of injury that has eventuated.”

64. At (3ASC [9D]), the plaintiff particularises a number of events that she asserts amounted to a breach of the duty owed to her. The defendant submitted that in the absence of an articulation of the duty of care allegedly owed to her, those matters are difficult to assess. However, they do not appear at all reconcilable with the obligations upon the “defendant’s delegate” and the powers vested in that person by operation of the Migration Act.

Breach of duty and causation

65. The defendant further submitted that the question of breach of duty has to be considered by reference to ss 5B and 5C of the Civil Liability Act: see Doherty v State of New South Wales [2010] NSWSC 450. Section 5D of the Civil Liability Act prescribes the legal test to be applied in the determination of causation, that is, in proving that the negligence caused the particular harm alleged. The plaintiff must prove the damage suffered as a result of the defendant’s alleged breach of duty.

66. Sections 5B, 5C and 5D of the Civil Liability Act read:

“5B General principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless-

(a) the risk was foreseeable

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)-

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm.

5C Other principles

In proceedings relating to liability for negligence-

(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.

5D General principles

(1) A determination that negligence caused particular harm comprises the following elements-

(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent-

(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”

Conclusion

67. The plaintiff has pleaded that the defendant owed her a duty of care “to exercise reasonable care for her safety” and “to provide reasonable medical care for her”. The defendant submitted that the plaintiff has failed to identify why she was owed these alleged duties, and their scope and content.

68. As to the first pleaded duty, detaining bodies have been recognised to owe a duty of care to persons held in detention since at least 1958: see Howard v Jarvis [1958] HCA 19; 98 CLR 177 (“Jarvis”) (per Dixon CJ, Fullagar and Taylor JJ). In Jarvis, Mr Jarvis was killed in a fire while detained at a police station. The High Court held that by depriving him of his liberty and assuming control over his person, his custodian owed Mr Jarvis a duty to exercise reasonable care for his safety. Jarvis was upheld in 2011 in Price v State of New South Wales [2011] NSWCCA 341 (“Price”) (per Allsop P, Beazley and Giles JJA agreeing) in circumstances where the custodian was the State of New South Wales. In Price, the Court of Appeal held at [35]:

“[35] …Critical to the special character for relevant purposes here is the control by the respondent of the appellant and its assumption of responsibility over the appellant…the duty no doubt extends to the taking of reasonable care in the exercise of powers of control and direction that exist in order to avoid injury to an inmate.”

69. Detaining bodies have also been found to owe a duty to provide detainees with access to medical care. In Behrooz v Secretatry, Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36 (“Behrooz”), the High Court added at [21]:

“[21] …Harsh conditions of detention may violate the civil rights of an alien. An alien does not stand outside the protection of the civil and criminal law. If an officer in a detention centre assaults a detainee, the officer will be liable to prosecution, or damages. If those who manage the detention centre fail to comply with their duty of care, they may be liable in tort.”

70. As such, it appears that the defendant owed the plaintiff a duty of care to exercise reasonable care for her safety and to provide her with reasonable medical care as pleaded.

71. The pleadings in the plaintiff’s 3ASC which seem to allege that the defendant owed her a duty of care not cancel her visa are less straightforward. Although the plaintiff no longer pursues a case in tort for false imprisonment, the predominant complaint underlying her claim in negligence remains her perceived injustice at having been detained for violations of her visa which she did not commit. These aspects of the plaintiff’s claim may be incoherent with other duties owed by migration agents, who have been charged with the responsibility of conducting investigations, or exercising powers, in the public interest under statute.

72. As previously stated, I share Harrison J’s view in Zheng No 1 that the plaintiff appears to have been denied a degree of patience and care which may have avoided her ordeal. It is clear that her detention was a great source of distress and humiliation to her. Critically, however, the High Court in Behrooz has emphasised that exposure to difficulties while in detention does give rise to an action on the basis that the detention itself was unlawful. Deprivation of liberty for a statutory purpose is not itself a form of punishment, nor a cause of action: see Behrooz at [21].

73. As to breach, the plaintiff has pleaded alleged breaches of variable severity. She refers to having been placed in “solitary confinement” for 8 hours during her period of questioning at the airport, during which time she was denied food and provided “inadequate” hydration. More notably, she alleges that she was denied certain medical care during her time in Villawood, and that at Wickham Point, her complaint regarding an attempted sexual assault by another detainee was ignored. These allegations are not trivial. However, even if the plaintiff were able to prove that the defendant breached its duty of care in these respects, she faces the substantial hurdle of proving that the defendant’s negligence caused the particular harms alleged, and that is appropriate for the scope of the defendant’s liability to extend to that harm. She has not pleaded these aspects of her claim with the required level of specificity.

70. The manner in which plaintiffs are to appropriately plead causes of action under the Civil Liability Act has been helpfully set out by Garling J in his address to the New South Wales Bar Association’s Personal Injury Conference in 2014, “Civil Liability Act 2002 – Burdens for a Defendant” (15 March 2014). Of particular relevance to these proceedings are his comments regarding pleadings in relation to ss 5B and 5D of the Civil Liability Act.

71. Section 5B of the Civil Liability Act concerns breach of duty and has been set out earlier in this judgment. As a starting point in bringing her claim, the plaintiff must identify the particular “risk of harm” against which the defendant would be negligent for failing to take precautions. It is only through identification of this risk of harm that an assessment can be made of the defendant’s knowledge of the risk, its probability of occurring, and the reasonableness of its response: see Dederer at [59]-[61]. The plaintiff has not pleaded her case on these terms.

72. In addressing s 5D of the Civil Liability Act, the plaintiff must plead that the defendant’s negligence factually caused the harm suffered, and that the harm falls within the defendant’s scope of liability. In a potentially “exceptional” case such as this, the plaintiff should address whether or not and why responsibility for the harm should be imposed on the defendant (s 5D(2)). She has not done so.

73. As such, it is my view that the plaintiff’s pleadings are defective in their current form. The general course in such situations is for the plaintiff to be granted leave to file an amended statement of claim: see Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937, per Cross J at 943–944. However, the plaintiff has been afforded ample opportunities to replead her case. These proceedings have been adjourned and relisted numerous times since the first scheduled hearing date of 14 June 2019, and in that time, despite a referral for pro bono legal assistance, the plaintiff has not amended her pleading to properly articulate a cause of action against the defendant and failed to provide further and better particulars of the claim.

74. I am conscious that the powers to summarily terminate proceedings are to be exercised with exceptional caution: see Spencer at [55]. Nevertheless, it is my view that the current pleading of the 3ASC and the history of these proceedings justify a conclusion that the plaintiff has not demonstrated that her claims have any prospects of success: see Watiwat v Dixon (No 2) [2017] NSWSC 1242 per Robb J at [39]. As such, I decline to grant the plaintiff leave to further amend her statement of claim. As the 3ASC discloses no reasonable cause of action, I order that the pleadings be dismissed.

Costs

79. The appropriate order for costs is that costs be reserved.

The Court orders that:

1. The proceedings are dismissed.

2. Costs are reserved.

I certify that this and the 22 preceding pages are a true copy of the reasons for judgment herein of the Honourable Associate Justice Harrison.

Dated: Friday, 2 October 2020

Associate

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Decision last updated: 02 October 2020