AGSC v State of New South Wales

1. [1]

   This is an application by the defendant seeking to dismiss the plaintiff’s statement of claim. The plaintiff goes by the pseudonym AGSC. I will refer to her by that pseudonym. The defendant is the State of New South Wales.

2. [2]

   The plaintiff was self-represented. The defendant was represented by R. Sherrington, a solicitor.

3. [3]

   The defendant’s notice of motion dated 5 December 2022 seeks:

   1. (1)

      Pursuant to r. 6.29 of the Uniform Civil Procedure Rules 2005 (‘UCPR’), the defendant be removed as a party.

   2. (2)

      Pursuant to r. 13.4 of the UCPR, the proceedings be dismissed.

   3. (3)

      In the alternative to Order 2, pursuant to s. 67 of the Civil Procedure Act 2005 (NSW), the proceedings be permanently stayed as an abuse of process.

4. [4]

   The plaintiff has relied upon numerous documents that contain mixed alleged facts, assertions and submissions (including oral submissions). I have read all the documentary evidence and taken the contents of them into consideration. The defendant relies on the affidavit of Christopher Frommer affirmed on 5 December 2022 (‘Frommer Affidavit’) and a court book composed of two volumes, Ex 1.1 and Ex 1.2.

The law

1. [5]

   I shall deal with the defendant’s application for summary dismissal first followed by the application for the removal of the defendant and permanent stay of proceeding, if necessary.

2. [6]

   Rule 13.4 of the UCPR reads as follows:

3. [7]

   The principles to be applied in determining a summary dismissal application are well known. The position was recently summarised by Walton J in Hasson v Sydney Local Health District [2022] NSWSC 954 as follows:

History of the plaintiff’s detention and prior proceedings in the Federal Court

1. [8]

   The plaintiff has engaged prior proceedings in the Federal Court. I acknowledge that I have largely adopted the history of the plaintiff’s detention and prior proceedings from the defendant’s submissions.

2. [9]

   The defendant refers to the summary of the plaintiff’s detention in the decision of Wigney J in BVZ21 v Minister for Home Affairs [2022] FCA 1344, which in turn relies in the earlier decisions of Bromwich J in BVZ21 v Commonwealth of Australia [2022] FCA 1598 and of Mortimer J in CPJ16 v Minister for Home Affairs [2020] FCA 1408.

3. [10]

   The plaintiff is a citizen of New Zealand. In 2009 she entered Australia using a false passport. Upon that being discovered in 2010, she was taken into immigration detention, but absconded and remained in the community until 2015, when she was once again taken back into immigration detention. Since 2015, the plaintiff had been in immigration detention. In 2021, the plaintiff was deported from Australia. The plaintiff now resides in New Zealand with her child.

4. [11]

   On 21 September 2015, the plaintiff applied for a protection visa. That began a lengthy process of visa applications and cancellations and merits review proceedings in the Administrative Appeals Tribunal, the Federal Circuit Court, the Federal Court, the Full Court of the Federal Court and the High Court. That process was best described by Wigney J in BVZ21 v Minister for Home Affairs [2022] FCA 1344 at [3]:

5. [12]

   The "appeal rights" referred to by Wigney J were exhausted by the following: the decision of Mortimer J referred to above, refusing the plaintiff's judicial review application; an appeal, which was dismissed on 27 November 2020 (CPJ16 v Minister for Home Affairs [2020] FCAFC 212); and an application for special leave to appeal, which was refused on 12 August 2021 (CPJ16 v Minister for Home Affairs [2021] HCASL 149). As a result of those judgments, the 23 July 2020 decision to refuse a visa remained (and, to the knowledge of the defendant, remains) operative.

6. [13]

   The plaintiff then applied to the Federal Court for a writ of habeas corpus and for other relief, including damages for false imprisonment. By way of separate questions ordered to be answered prior to the remainder of the proceedings, Bromwich J, in BVZ21 v Commonwealth of Australia [2022] FCA 1598, held that the plaintiff's detention was not unlawful at any time since 19 June 2016, and that the plaintiff was not entitled to be released from detention by way of an order in the nature of a writ of habeas corpus.

7. [14]

   An appeal from the decision of Bromwich J was dismissed on 21 July 2022: BVZ21 v Commonwealth [2022] FCAFC 122. The proceedings in which the separate questions arose were discontinued: BVZ21 v Commonwealth [2022] FCAFC 122 at [8].

8. [15]

   On 4 November 2022, the plaintiff filed proceedings in the Federal Court for a writ of mandamus to compel the Minister to transport her to Sydney Airport to catch a flight to Greece. On 15 November 2022, in the decision referred to above, Wigney J dismissed those proceedings. His Honour accepted that the Minister has an obligation to remove the plaintiff, an unlawful non-citizen, from Australia as soon as reasonably practicable, but did not accept that a basis for the relief sought had been established, that is to her choice of Greece.

The current Supreme Court proceedings

1. [16]

   On 14 September, the plaintiff filed a statement of claim (‘SOC’) in this court.

2. [17]

   Before filing this notice of motion, the defendant requested that the plaintiff remove it as a defendant in letters dated 28 September 2022 and 18 October 2022. In the latter email, the defendant explained why it should be removed as defendant as follows:

Prior statement of claim

1. [18]

   Before the first proceedings were discontinued, three versions of statement of claim were served (at [6], [12] and [24] of the Frommer Affidavit);

2. [19]

   On 27 October 2022, the defendant filed a notice of motion for its removal as a party (at [18] of the Frommer Affidavit).

3. [20]

   On 7 November 2022, the plaintiff, at the time represented by a solicitor, discontinued the first proceedings (at [26] of the Frommer Affidavit).

These current proceedings

1. [21]

   On 10 November 2022, (3 days after the first proceedings) the plaintiff commenced these current proceedings by a statement of claim (at [29] of the Frommer Affidavit) (‘current proceedings’).

2. [22]

   On 15 November 2022, the defendant requested the plaintiff to discontinue these proceedings, including because the defendant was not a proper party (at [30] of Frommer Affidavit and Ex 1.1 at 343.

3. [23]

   On 5 December 2022, before the first return of these proceedings, the defendant filed its notice of motion to be removed as a party.

4. [24]

   The plaintiff’s pleading in her current proceedings is difficult to follow.

5. [25]

   However, it appears to the defendant that the plaintiff seeks or may seek to bring the following claim:

   1. (1)

      A claim for a writ of habeas corpus pursuant to s 71 of the Supreme Court Act 1970 (NSW), or for damages, on the basis that the plaintiff is falsely imprisoned: SOC prayer 1(a); prayer 2; [3], [8]-[12], [42], [65]-[67], [39]-[41], [43]-[52], [55]-[59], [61]-[62], [80]-[84], [86]-[87], [89], [92]-[93];

   2. (2)

      A claim for damages for collateral abuse of process: SOC [3], [41], [48], [63]-[64], [92];

   3. (3)

      A claim for damages for actual/serious bodily harm or for negligence or for a breach of a statutory duty: SOC [3], [62]-[64], [42], [53]-[54], [56], [76]-[79], [84], [86], [94]-[96], particulars on pp 51-63;

   4. (4)

      A claim for declaratory or other prerogative relief as to certain visa decisions made adversely to the plaintiff: SOC paragraphs 3 and 4, [3]-[5], [15]-[33], [35]-[38], [43]- [47], [55]-[62], [60], [65]-[75], [87], [90]-[91];

   5. (5)

      A claim for orders in the nature of certiorari in respect of, or for orders "revoking" or "dismissing", certain decisions of the Federal Court of Australia: SOC paragraphs 5 - 7, [34], [39]-[40], [49]-[54].

6. [26]

   The several causes of action rest on a number of central contentions:

   1. (1)

      That one or more of the visa decisions made adversely to the plaintiff by the Minister, or by the Federal Court of Australia, are invalid and should be set aside;

   2. (2)

      That, as a consequence of one or more of those visa decisions, the plaintiff’s detention since 2015 or 2016 has been unlawful; and

   3. (3)

      That, as a consequence of that unlawful detention, the plaintiff has suffered physical or psychological injury, which was the consequence of the wrongful conduct of the defendant.

The defendant’s submissions

1. [27]

   The defendant submitted that the connection of any involvement by the defendant is not adequately explained in the current proceedings. The defendant asserted that there is no clear pleading as to how or why the decisions impugned or the liabilities alleged should be attributed to the defendant.

2. [28]

   There are, however, several references to NSW which suggest the basis on which the plaintiff claims that the defendant is liable. The defendant made the following submissions in respect of those references:

   1. (1)

      SOC paragraphs 5 and 6 refer to judicial officers and judgments "of the NSW District Registry of the FCA"." Self-evidently, the Federal Court is not in any way subject to or controlled by the defendant. To the extent that the plaintiff makes scandalous allegations against members of the judiciary, those allegations should be soundly rejected.

   2. (2)

      SOC [3] refers to unnamed "NSW government officials, the Department of Home Affairs inter alia, NSW Villawood Immigration Detention Facility, NSW Department Case Management Case Resolution case officers, and Public Service Agents (AGS in NSW)." No basis is pleaded for the suggestion that the conduct of any of those officers of the Commonwealth Executive is attributable to the defendant, and none exists.

   3. (3)

      SOC [43] refers to a particular individual, XXX, a case officer. Contextually, she appears to be a migration case officer. No basis is pleaded for her actions to be attributed to the defendant.

3. [29]

   The defendant drew to the attention of the court that in many other paragraphs, the SOC refers to the "defendant" or "defendants" interchangeably, without clearly articulating how it is said that the State of NSW is involved in the particular allegation.

4. [30]

   Looking past the deficient form of the pleading, the more fundamental problem for the plaintiff, as the defendant submits, is that the substance of the contentions she wishes to advance do not implicate the defendant.

5. [31]

   With respect to the decisions of the Federal Court of which the plaintiff complains, the plaintiff has appeal rights conferred by the law. Whether or not those rights have been exercised in relation to a particular decision, this Court has no power to review decisions of the Federal Court.

6. [32]

   With respect to visa decisions made by the Minister, it is axiomatic that decisions made by the Minister under Commonwealth legislation — the Migration Act 1958 (Cth) — are those of the relevant Commonwealth Minster. So much appears to have been accepted by the plaintiff in her several proceedings against the Commonwealth Minister or the Commonwealth itself in the Federal Court, seeking similar relief to that which is sought in these proceedings. The defendant submitted that it has no role in that process and further submitted that the best explanation given by the plaintiff contains nothing to suggest otherwise.

7. [33]

   The gravamen of the plaintiff’s oral submissions are that the NSW State Government is responsible and liable for Villawood immigration detention centre, as it is located in a suburb of Villawood Sydney. The defendant submitted that a similar observation may be made in respect to any conduct relating to the plaintiff's detention in immigration detention. Such detention centres, according to s 273(1) of the Migration Act 1958 (Cth), are established and maintained by the (Commonwealth) Minister "on behalf of the Commonwealth". So, too, is any act or omission occurring in the detention centre not attributable to the defendant: no matters are pleaded to give rise to this kind of vicarious liability, because, as the defendant submitted, none exists.

8. [34]

   The defendant did not have custody or control of the person detained. I also note that the plaintiff is no longer detained in Australia. So far as the pleading involves a claim for a writ of habeas corpus, the proper defendant is the person who has custody of the person detained. The defendant refers to Richards v Victoria Police [2007] VSC 51 at [10]:

9. [35]

   So far as the plaintiff seeks damages for false imprisonment, at a minimum, the plaintiff must allege the essential element that the defendant (or someone for whom the defendant is liable) deprived the plaintiff of her liberty: New South Wales v Radford (2010) 79 NSWLR 327. No relevant facts are pleaded against the defendant, because, as the defendant submitted, none exists.

10. [36]

    Both in the current pleadings and in correspondence, the plaintiff has asserted the relevance of certain statutory provisions. For completeness, the defendant submitted that none of those provisions gives rise to a cause of action against it (roughly in the order referred to):

    1. (1)

       The Court's power to grant an injunction (s 66 of the Supreme Court Act 1970 (NSW)) or a writ of habeas corpus (s 71 of the Supreme Court Act) or a declaration (s 75 of the Supreme Court Act) or relief in the nature of certiorari (s 69 of the Supreme Court Act) does not advance the analysis of whether that relief can issue against a particular defendant. Similarly, s 23 of the Supreme Court Act, conferring "all jurisdiction which may be necessary for the administration of justice in New South Wales" does not assist to found a cause of action where one does not exist: see generally Commissioner of Corrective Services v Liristis (2018) 98 NSWLR 113 at [24]-[35] (Beazley JA) and [60]-[65] (Basten JA).

    2. (2)

       Section 77 of the Supreme Court Act speaks to the transition from the pre-existing regime to the new provisions under the Supreme Court Act. It is irrelevant.

    3. (3)

       Section 58 of the Judiciary Act 1903 (Cth) confers the power on this Court to hear a claim in contract or tort in the federal jurisdiction (most obviously, a claim by a resident of a State against another State: s 75(iv) of the Constitution (Cth)). That provision is necessary because the Commonwealth Parliament has the exclusive power to confer federal jurisdiction on a Court of a State. It does not create a cause of action against the defendant where one does not otherwise exist.

    4. (4)

       Section 15 of the Federal Court of Australia Act 1976 (Cth) confers on the Chief Justice of that Court the power to arrange the business of the Court. It is purely mechanical. Its relevance is not apparent.

    5. (5)

       The Crown Proceedings Act 1988 (NSW) permits the Crown in right of NSW to be sued in the same way "as in an ordinary case between subject and subject": s 5(2).

    6. (6)

       It does not create a cause of action against the Crown except where one would exist between private individuals. As explained above, the private law suits implicating the defendant are misconceived.

    7. (7)

       The Public Service Act 1999 (Cth) regulates the Australian Public Service. While it might be relevant to the misconduct alleged against the officers of the Commonwealth, it is difficult to see how it could affect the defendant, whose officers are not part of the Australian Public Service.

    8. (8)

       The Government Sector Employment Act 2013 (NSW) does affect officers of the defendant. Section 21 permits the Government of NSW to employ persons in the Public Service. Section 61 is a provision relating to the employees of statutory bodies specifically. Neither creates a cause of action where none otherwise exists. Later, the plaintiff refers to s 7, a statement of core values, which cannot give rise to or be taken into account in any civil cause of action: s 8(3).

    9. (9)

       Section 47 of the Constitution Act 1902 (NSW) confers the power to make appointments on the Governor or a person authorised by legislation. Section 47A of the Constitution Act permits the employment of staff in accordance with the Government Sector Employment Act. Section 50C provides that the Governor may specify a responsible Minister for a Public Service agency. None of these provisions creates a cause of action. Section 51 of the Constitution Act relates to local government and is wholly irrelevant. Section 52(1)(a) defines "judicial office" as that term is used in the Constitution Act and has no operative effect.

    10. (10)

        Section 91 of the Industrial Relations Act 1996 (NSW) defines certain terms for the purposes of that Act, including "public sector employee". It is irrelevant.

    11. (11)

        Section 1318 of the Corporations Act 2001 (Cth) permits a court, in its discretion, to relieve a person from liability from negligence or another breach of duty. It is not at large but is limited to particular kinds of matters arising under the Corporations Act: s 1318(4). It is irrelevant.

    12. (12)

        Section 34AAA of the Acts Interpretation Act 1901 (Cth) confirms that powers, functions and duties conferred on an office are exercisable by the holder of that office from time to time. It does not create substantive obligations.

    13. (13)

        Section 135 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (‘LEPRA’) is a deeming provision relating to the meaning of "lawful custody". It has no independent substantive effect. Schedule 1 to the Act is a list of Acts not affected by the Act. That list includes the Law Enforcement (Controlled Operations) Act 1997 (NSW), in which the Department of Immigration and Border Protection is defined as a "law enforcement agency". Nothing in that Act has, or could have, the effect of subjecting the Commonwealth Department to the laws of NSW, nor could it make the defendant liable for the Commonwealth Department.

    14. (14)

        Section 43 of the Civil Liability Act 2002 (NSW) limits the liability of public or other authorities for breach of statutory duty. Section 43A is to the same effect with respect to special statutory powers. Neither gives rise to any cause of action where it does not already exist.

    15. (15)

        Section 86 of the Crimes Act 1900 (NSW) relates to the offence of kidnapping. Reference to it is inapt in civil proceedings.

    16. (16)

        The plaintiff referred to Articles 3, 8, 9, 10, 12, 16 and 18 of the United Nations Convention on the Rights of the Child. Australia has ratified this Convention. This argument appears to have been made because the plaintiff is separated from her child. However, the plaintiff has not specified how the actions of the defendant have breached this Convention.

11. [37]

    The defendant submitted that it follows from the above that the claim against the defendant is fundamentally misconceived, including, most simply, because it purports to seek relief against the defendant without satisfactorily identifying any conduct by or attributable to the defendant. That alone is a sufficient basis upon which to grant the relief sought by the defendant. Moreover, such causes of action as can be discerned from the statement of claim are, variously, not properly brought in the Supreme Court, litigated to finality in the Federal courts, and otherwise inadequately pleaded. In those circumstances, the defendant submits that this is a clear case for dismissal pursuant to r. 13.4 of the UCPR on the basis that no reasonable cause of action is disclosed (r. 13.4(1)(b)). The proceeding could also be properly dismissed pursuant to r. 13.4(1)(a), as they are frivolous and vexatious.

12. [38]

    The plaintiff has served four versions of the statement of claim across two proceedings. The defendant submitted that any discretion to grant leave to replead would not be exercised in the plaintiff’s favour. In any case, as the above survey of the statement of claim demonstrates, the defendant argued that it is not merely the form but the substance of the claim that is hopelessly deficient as against the defendant. It is the defendant’s case that the Court would be amply satisfied that the threshold for summary dismissal has been met.

13. [39]

    This Court has evidence that the plaintiff is not open to joining other defendants in these proceedings. That is an additional reason why it would be comfortable in simply dismissing them. In particular:

    1. (1)

       On 28 September 2022, the plaintiff said that "I will not be removing the NSW State as the Defendants" (Exhibit 1.1 78)

    2. (2)

       On 17 October 2022, in response to an enquiry made by the Australian Government Solicitor whether the plaintiff wished to bring proceedings against the Commonwealth, the plaintiff wrote to the Registrar of the Common Law Division and said that "I do not require to include the Commonwealth of Australia as a party to these proceedings" (Exhibit 1.1 94).

    3. (3)

       On 19 October 2022, the plaintiff said "I reiterate that I will not be removing NSW State as the Defendants": Exhibit 1.1 90.

    4. (4)

       On 27 October 2022, the plaintiff said that she was "well within my rights to bring this continuing tort case against the State": Exhibit 1.1 161. She wrote to the Registrar that "I will not be removing, the State of NSW as the Defendants": Exhibit 1.1 177.

14. [40]

    I refer to the plaintiff’s email to the Australian Government Solicitor dated 17 October 2022, where she stated:

The plaintiff’s oral submissions

1. [41]

   In the plaintiff’s oral submissions (T19.7-35) at the hearing before me on 6 April 2023, she highlighted:

2. [42]

   The plaintiff implicated an NSW Case Management Resolution Officer in what she argued was her prolonged arbitrary detention at (35.30-50) as follows:

3. [43]

   While the plaintiff admitted that she is not well versed in the law, she partially attributes this to any errors made during her proceedings at (35.10-20) where she says:

4. [44]

   I have extracted relevant paragraphs, including their various grammatical and spelling deficiencies, from an email sent to R. Sherrington from the plaintiff on 2 April 2023 where the plaintiff stated:

5. [45]

   The plaintiff has also made scandalous, unwarranted and false allegations that a paedophile ring was operating within the NSW Government and that the President of the Australian Human Rights Commission was involved in the organisation of satanic child abuse and a mass murder ritual in 1985. The plaintiff repeated, on the day of the hearing, that ‘[t]here definitely is a major paedophile ring operating in the Australian Government’ (T28-29, 50-3).

Resolution

1. [46]

   Having considered the case brought by each party, it is my view that the plaintiff’s central point in this jurisdiction is the alleged control by the State of New South Wales over Villawood’s detention centre. As the Crown Solicitor’s Office correctly noted, officers (or contractors) administering the system of immigration detention are officers (or contractors) of the Commonwealth government, notwithstanding that they may be physically located within the State. The New South Wales State government has no jurisdiction in relation to the plaintiff’s immigration status, nor did it have any control over her detention.

2. [47]

   It is my ultimate view that the pleadings and the plaintiff’s statement of claim are hopeless as the plaintiff has not been able to plead a viable cause of action against the detention centre, nor its workers. Therefore, the plaintiff’s pleadings and statement of claim are an abuse of process. They are an abuse of process because they have been dealt with to finality in the Federal Court on a number of occasions. While I have discretion to allow the plaintiff to replead her statement of claim, she cannot overcome the deficiencies that I have set out above. For this reason, I do not grant the plaintiff leave to replead her statement of claim.

Result

1. [48]

   The result is that the proceedings are dismissed. As of now, it is not necessary to consider the review of the defendant, nor the stay of the proceedings.

Costs

1. [49]

   Costs are discretionary. Costs normally follow the event. The plaintiff is to pay the defendant’s costs.

   1. (1)

      The proceedings are dismissed.

   2. (2)

      The plaintiff is to pay the defendant’s costs.