Plaintiff M83A/2019 v Morrison (No 2)

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 21 August 2020
• Neutral Citation: [2020] FCA 1198
• Date: 21 August 2020

FEDERAL COURT OF AUSTRALIA

Plaintiff M83A/2019 v Morrison (No 2) [2020] FCA 1198

File number:	VID 816 of 2019
Judgment of:	MORTIMER J
Date of judgment:	21 August 2020
Catchwords:	PRACTICE AND PROCEDURE – alleged misfeasance in public office in relation to regional processing arrangements – applications for strike out and summary judgment – consideration of mental element of the tort – applications allowed
Legislation:	Federal Court of Australia Act 1976 (Cth) s 31A Migration Act 1958 (Cth) ss 198AB, 198AB, 198AHA Migration Amendment (Regional Processing Arrangements) Act 2015 (Cth) Federal Court Rules 2001 (Cth) rr 16.21, 26.01
Cases cited:	Andrianakis v Uber Technologies (Ruling No 1) [2019] VSC 850 BAF18 as litigation representative for BAG18 v Minister for Home Affairs [2018] FCA 1060; 162 ALD 115 Banque Commerciale SA (en liqn) v Akhil Holdings Limited [1990] HCA 11; 169 CLR 279 Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; 33 WAR 82 Beach Petroleum NL v Johnson [1991] FCA 839; 105 ALR 456 Brett Cattle Company Pty Ltd v Minister for Agriculture [2020] FCA 732 Commonwealth v Fernando [2012] FCAFC 18; 200 FCR 1 Emerald Construction Co Ltd v Lowthian [1966] 1 WLR 691 FRM17 v Minister for Home Affairs [2019] FCAFC 148; 271 FCR 254 Jenkings v Northern Territory of Australia (No 2) [2018] FCA 1706 McKellar v Container Terminal Management Services Ltd [1999] FCA 1101; 165 ALR 409 Mitanis v Pioneer Concrete (Vic) Pty Ltd [1997] FCA 1040; [1997] ATPR 41-591 Northern Territory v Mengel [1995] HCA 65; 185 CLR 307 Obeid v Lockley [2018] NSWCA 71; 98 NSWLR 258 Oswal v Apache Corporation (No 3) [2014] FCA 835 Pharm-a-Care Laboratories Pty Ltd v Commonwealth (No 3) [2010] FCA 361; 267 ALR 494 Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; 257 CLR 42 Plaintiff M83A/2019 v Morrison [2020] FCA 334 Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) [2011] FCA 1126; 203 FCR 293 Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] FCA 499; [1999] ATPR 41-691 Sadie Ville Pty Ltd v Deloitte Touche Tohmatsu [2017] FCA 1202; 123 ACSR 223 Sanders v Snell [1998] HCA 64; 196 CLR 329 Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1 Trau v University of Sydney (1989) 34 IR 466 Uber Australia Pty Ltd v Andrianakis [2020] VSCA 186 Webster (Trustee) v Murray Goulburn Co-Operative Co Limited (No 2) [2017] FCA 1260 White Industries Australia Ltd v Federal Commissioner of Taxation [2007] FCA 511; 160 FCR 298
Division:	General
Registry:	Victoria
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	127
Date of hearing:	12-14 May 2020
Counsel for the Applicants:	Mr B Quinn QC with Mr M Albert and Ms E Levine
Solicitor for the Applicants:	Phi Finney McDonald
Counsel for the Respondents:	Mr T Howe QC with Mr T Begbie and Ms J Watson
Solicitor for the Respondents:	Australian Government Solicitor

ORDERS

		VID 816 of 2019
BETWEEN:	PLAINTIFF M83A/2019 First Applicant ; PLAINTIFF M83B/2019 BY HIS LITIGATION GUARDIAN, PLAINTIFF M83C/2019 Second Applicant
AND:	SCOTT MORRISON First Respondent ; PETER DUTTON Second Respondent ; TONY BURKE (and others named in the Schedule) Third Respondent

JUDGE:	MORTIMER J
DATE OF ORDER:	21 August 2020

THE COURT ORDERS THAT:

1. Pursuant to r 16.21 of the Federal Court Rules 2011 (Cth), the whole of the Further Amended Statement of Claim filed on 8 November 2019 be struck out.

2. Leave to the applicants to file and serve any further amended statement of claim be refused.

3. Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth), there be summary judgment in the proceeding in favour of the respondents.

4. On or before 4 pm on 11 September 2020, the parties:

   1. file proposed agreed orders on the costs of the proceeding (including reserved costs); alternatively

   2. in the absence of agreement, file written submissions, limited to 5 pages, on the appropriate costs orders to be made in the proceeding, together with any affidavit material in support of those submissions and each party’s proposed form of order.

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

REASONS FOR JUDGMENT

MORTIMER J:

1. The focus of this class action is on a particular aspect of Australia’s regional processing arrangements with the nation of Nauru. It is common ground that some of the individuals affected by those arrangements, such as the first and second applicants, were taken against their will to Nauru after they had entered Australia without a valid visa. The particular aspect in focus in this proceeding is the practice of securing Nauruan visas for all individuals taken to Nauru. Again, it is common ground that this practice was contemplated at executive level by the regional processing arrangements between Australia and Nauru.

2. In relation to the process by which those Nauruan visas were secured, and the effects of the Nauruan visa conditions on the applicants and group members, allegations of misfeasance in public office are made against:

1. three individuals who held Ministerial positions in the federal executive on and from 3 August 2013 and in substance are admitted to have been, at relevant times, the responsible Minister for the (variously titled) federal department administering the Migration Act 1958 (Cth), which included the design and implementation of Australia’s offshore processing arrangements in Nauru. Those individuals are Scott Morrison, Peter Dutton and Tony Burke; and

2. two individuals who held positions as the Secretary to the (variously titled) department administering the Migration Act and in substance are admitted to have had the responsibilities set out in s 57 of the Public Service Act 1999 (Cth) (in its various iterations) for the administration of the department, including the implementation of Australia’s offshore processing arrangements in Nauru. Those individuals are Martin Bowles and Michael Pezzullo.

3. The Commonwealth is the sixth respondent, and is alleged to be vicariously liable for the conduct of the five individual respondents. The respondents do not dispute that, in principle, the Commonwealth may be vicariously liable for the tort of misfeasance in public office with respect to the conduct of a Minister, and with respect to the conduct of a Secretary of a federal department.

4. The respondents have applied for orders that this proceeding should be...