French v Commonwealth of Australia

The Court has before it two notices of motion: one by the only current defendant, the Commonwealth of Australia (“the Commonwealth”), for summary dismissal or strike-out of the plaintiff’s statement of claim; and one by the plaintiffs for leave to file an amended statement of claim (“ASOC”).

The first plaintiff’s claim is as follows:

As to the second plaintiff’s claim:

In relation to the first defendant, the Commonwealth relies on ss 388 and 389 of the Military Rehabilitation and Compensation Act 2004 (Cth) (“the MRC Act”).

The first plaintiff has been paid compensation under s 68 of the MRC Act. That payment, on the evidence before me, is for depressive disorder and post-traumatic stress disorder. It is, on the evidence before me, at least in part referable to events that overlap with what is alleged as harassment in the draft ASOC and in part referable to alleged “incidents of abuse” in October 2020.

The Commonwealth contends that the injuries for which the first plaintiff has been paid are “service injuries”. “Service injury” as defined in s 27 includes:

“Disease” is defined as follows (s 5):

“Injury” is defined as follows (s 5):

It is accepted by the Commonwealth that in the definition of injury the expression “physical or mental injury” means physical or mental harm, or perhaps a disturbance in the body or mind. “Injury” in this context should not be understood in a broader sense to mean any affront or violation compensable at law. Consistent with that concession, I am comfortably of the view that “injury”, as defined, requires physical or mental harm or damage. In order to be a “service injury”, it must be an “injury” or a “disease”, as defined. In my view, it follows that a cause of action for an intentional tort, which is actionable independently of any damage, is not, per se, a cause of action in respect of a service injury.

The Court’s attention is drawn to the decision of the Victorian Court of Appeal’s decision of FJ (a pseudonym) v Commonwealth of Australia (2017) 55 VR 108; [2017] VSCA 84 (“FJ”) which, at [128], suggests that “injury” should be understood even more narrowly in this statutory context:

At the very least, this would appear to confine “injury” to harm or damage that requires treatment or rehabilitation. It may also be that it confines “injury” to an impairment or incapacity, although the observations in the preceding paragraph, [127], do not suggest that their Honours had in mind that an injury must involve impairment or incapacity.

It is not necessary to decide that, save to observe that if “injury” is to be construed more narrowly, then that may make it harder – and less suitable to be determined on a strike-out motion – for the Commonwealth to establish that particular heads of damage or particular injuries that are sought to be the subject of claim are “injuries” and therefore “service injuries” as defined.

In particular, it seems reasonably clear that an affront to bodily integrity is not itself a “physical injury” as defined. Such an affront does not involve physical harm or damage, nor does it require treatment or rehabilitation. Of course, physical or mental injury in the sense defined in the MRC Act may follow from that affront to bodily integrity.

A cause of action for an intentional tort may involve a claim for damages for an injury which amounts to a service injury. I accept that an action for an intentional tort, insofar as it concerns such an injury, may well engage s 388. In that situation, if the Commonwealth’s other contentions are correct, the Court would not be permitted to award damages for the injury which is a service injury. But that would not, it seems to me, prevent the Court from awarding damages that are not referable to the disease or physical or mental injury (for example, damages for the deprivation or liberty or damages for the affront to bodily integrity, exemplary damages, and possibly aggravated damages).

The Commonwealth at one point appeared to contend that s 388 calls for the Court to characterise the proceeding as a whole, such that if the proceeding is “in respect of” a service injury, then it is excluded or barred by s 388(1) regardless of whether the causes of action pleaded also claim damages which are not service injuries.

I do not accept that, although in fairness it may be that the Commonwealth did not so contend. If a cause of action is pleaded that involves both a service injury and other heads of damage such as damages for the deprivation of liberty, exemplary damages, possibly aggravated damages, then it appears to me that s 388 only applies to the cause of action so far as it concerns a service injury.

As I say, in fairness, it is not clear to me that the Commonwealth advanced an argument contrary to that. The Commonwealth does contend that this claim is at least in part a claim in respect of a service injury, that is, the intentional tort claims are at least in part claims in respect of a service injury and that the causes of action pleaded, so far as they concern service injuries, are barred by s 388(1).

An important part of the Commonwealth’s case is that injuries consequent on the alleged torture incident on 1 October 2020 would be “service injuries”. Senior counsel for the Commonwealth acknowledged with appropriate candour that s 27(a) either could not be relied upon or at least could not be relied upon for today’s purpose because the first plaintiff was off-duty at the time, so that the temporal element in s 27(a) does not appear to be satisfied.

The Commonwealth relied on s 27(b) and, in support, draws attention to the High Court’s observations in Roncevich v Repatriation Commission (2005) 222 CLR 115; [2005] HCA 40 (emphasis added):

The difficulty I have with this is that it involves the High Court recognising that an injury in a service person’s quarters is “capable of being seen” as arising out of or being attributable to defence service. I read this as their Honours simply saying that such a situation might (that is, is capable of) engaging s 27(b), but that it depends on the circumstances and is a matter for the tribunal of fact. I do not consider that I am able to reach a conclusion to the standard necessary on a summary dismissal application that such a finding must follow on the plaintiff’s case. It may call for a careful consideration of the evidence and the circumstances. It is a matter suitable for consideration at trial.

I would add one further matter about the Commonwealth’s case in connection with this issue. The Commonwealth contended that, in asking whether s 388(1) is satisfied, the Court is required to approach fact-finding in the way Parliament has prescribed for the Chief of the Defence Force and the Commission under ss 335 and 339(3). I am not persuaded that this is so, at least where the Court is asking whether an injury is a service injury as defined in s 27(a) or s 27(b), but it is not necessary for me to decide it. If anything, if the Court is obliged to apply ss 335 and 339(3), that would appear to reinforce the undesirability of dealing with the matter by way of strike-out on limited evidence today.

The first plaintiff advances the argument that section 388(1), if it operates as the Commonwealth contends, would operate as an acquisition of property otherwise than on just terms, and as a result would be beyond power by reason of s 51(xxxi) of the Constitution of Australia. Notices have been served in accordance with s 78B of the Judiciary Act 1903 (Cth).

There is considerable force in the Commonwealth’s contention that s 51(xxxi) has no operation where a Commonwealth statute prevents a cause of action from arising in the first place, rather than extinguishing that cause of action after it has arisen. The Court’s attention was drawn to the decisions of the High Court in Smith v ANL Ltd (2000) 204 CLR 493; [2000] HCA 58 at [52]; Victoria v the Commonwealth (1996) 187 CLR 416; [1996] HCA 56 at 559 and Austral Pacific Group Ltd (in liq) v Airservices Australia (2000) 203 CLR 136; [2000] HCA 39 at [20]-[21].

In the former circumstance, where a Commonwealth statute prevents a cause of action from arising in the first place, it is not clear what is the property that is acquired. Senior counsel appearing for the Commonwealth accepted that this is attended by some conceptual difficulty in the present context where that cause of action is prevented from arising subject to s 389, which provides that it may arise.

The first plaintiff contends that s 388 should not be understood as preventing the cause of action from arising in the first place, but rather as operating on the cause of action, as soon as it arises, to extinguish it.

To my mind that is not the natural reading of s 388(1). I would more readily conclude that if the “action does not lie”, then no cause of action arose in the first place.

One difficulty for the Commonwealth is s 387(1):

This is drafted in a manner consistent with the proposition that a cause of action arises, but s 388(1) then operates to bar that cause of action. If so, that may provide support for the first plaintiff’s argument – although I would not describe it as, on the material that appears before me, a strong argument.

Of course, if the cause of action does arise and is then extinguished in whole or in part, I accept that that may take it outside the situation which has already received the attention of the High Court. That situation, if it arose under this statute (a matter of which I am not persuaded), would warrant significant legal argument.

However, given that I am satisfied that the case so far as it concerns intentional torts is pleadable, the case, it seems to me, will proceed to trial in any event. It then becomes a question whether I am satisfied that some parts of the claim should be excluded or struck out at this stage. Given my view that the Court should not grant summary dismissal as a whole, it is undesirable for me to offer a concluded view about this. The authorities are clear that constitutional issues should not be determined unless it is necessary to do so to resolve the issue between the parties and I do not consider it necessary to do so.

I am satisfied, as will be clear from what I have said in relation to intentional torts, and what I am about to say in relation to other parts of the pleading, that significant aspects of the plaintiffs’ claim are sufficiently arguable that they should go to trial. In those circumstances I do not consider that I should rule on that constitutional question.

The next issue that arises is that the first plaintiff relies on new injuries, for which he has not yet been compensated.

There is force in the first plaintiff’s contention. It seems to me that where a plaintiff suffers new injuries (or a deterioration of existing injuries) by reason of an incident in respect of which compensation has already been recovered albeit for other injuries, that falls outside the scope of s 388. Section 388 of the MRC Act operates by reference to the definition of “injury” or “disease”. It does not operate by reference to the incident leading to injury.

The Commonwealth argues that a worsening of symptoms does not create a new service injury. That may be true as far as it goes, but if one focuses on the mental injury or disease, that is, the harm – not to be confused with the symptoms – it is not obvious why a fresh injury does not call for the fresh application of ss 388 and 389.

In my view that, at least on the ordinary reading of the text, is clear enough where s 71 is engaged. Section 71 provides for recovery of additional compensation if there is additional impairment as a result of deterioration in a person’s compensable condition. Where there is such a deterioration, it is difficult to see why s 389(1) does not apply according to its ordinary language. Section 389(1) applies where compensation is payable under any of ss 68, 71 or 75. I would observe that it may also be necessary to meet all the requirements of s 71(2)(a), but that may be a matter appropriately addressed at trial.

If there is compensation payable under s 71 because of a deterioration, s 389 would appear to permit an election to bring a claim at common law. If that is correct, there would be a real problem with coherence, it seems to me, if the general operation of ss 388 and 389 did not operate by reference to the particular injury (in the sense of harm or damage) at issue. If that is the case, then provided there is a new injury that has not been compensated under one of ss 68, 71 or 75, it is not immediately clear why it would not be amenable to a fresh election under s 389.

In relation to the question of the bringing of a fresh election, my attention was drawn to two decisions, Commonwealth of Australia v Flaviano (1996) 40 NSWLR 199 (“Flaviano”) and Ross v Commonwealth of Australia [2025] VSCA 108 (“Ross”) as indicating that the cause of action is only available after an election has been made in writing. The Court of Appeal, in Flaviano at least, appeared to make it clear that the commencement of a claim is not itself an election in writing under relatively similar legislation.

Those decisions have given me real pause. I am, however, satisfied that in the circumstances of this case it is not appropriate to summarily dismiss the proceedings on the basis of those provisions, in circumstances where it is clear from the balance of my holding that significant parts of the statement of claim do fall outside ss 388 and 389, because they do not involve a service injury and so do not call for an election.

In those circumstances, where there is a live debate about whether the reasoning in Flaviano and Ross applies to the present circumstance, and in circumstances where that issue arose during oral argument today, I am not minded to strike out or summarily dismiss the proceedings on the basis of those authorities. That may be a matter that warrants attention later but as I say in circumstances where the proceeding otherwise is pleadable, and where the plaintiffs have an argument that I am not ruling on as to the constitutional validity of ss 388 and 389, it is undesirable to deal with the point taken by reference to Flaviano or Ross at the summary dismissal stage.

I should add that I have also taken into account the Commonwealth’s reliance on the observations of the Victorian Court of Appeal in FJ at [133]. As their Honours observe in that paragraph, the expression “in respect of” in s 388(1) is a connecting phrase that extends the reach of the bar. However, the Court of Appeal was not dealing with a situation like the present, and it strikes me that the operation of their Honours’ observations to a situation where a new injury is the subject of a claim is attended by real doubt. It seems to me that such questions are better resolved at trial, in the context of full evidence as to the nature of the old injuries for which compensation has been recovered, and the nature of the alleged fresh injuries.

Ultimately, if the first plaintiff’s construction is correct in relation to fresh injuries or deterioration – which I find to be at least reasonably arguable – then determining what the first plaintiff can or cannot recover on the basis of this argument alone will require attention to;

While the draft ASOC does not grapple with this, it is not clear to me that it needs to be addressed in the statement of claim. It may be a matter that arises following a defence or reply or it may be a matter that is subject of engagement through the service of evidence.

The next argument that the first plaintiff advances is that the alleged injury was not a “service injury” because the first plaintiff was not engaged in service with the Defence Force, as defined in s 6(2), because what led up to the incident on 1 Oct 2020 was inconsistent with any notion of serving in the Defence Force.

I must say, I do not see the first plaintiff’s argument on this point. The question for s 27 is whether the events occurred while the first plaintiff was a member rendering defence service, or if it arose out of the first plaintiff rendering those services. That might well occur, even if the persons perpetrating the assault were behaving in a manner utterly inconsistent with any proper notion of service within the Defence Force

If this were the only point, it might be suitable for determination by way of summary dismissal. But given my view that the matter should proceed to trial anyway, I do not offer a concluded view about this.

As I have indicated on a number of occasions, the first plaintiff proposes to plead intentional torts against the second to fourth defendants, and says that the Commonwealth is vicariously liable for those intentional torts.

The first plaintiff contends, as I have indicated, that those intentional torts are actionable per se and that therefore, so far as the claim concerns at least damages for the false imprisonment or assaults themselves and exemplary damages, the action is not “in respect of a service injury”. The Commonwealth contends that this does not matter, that is, the fact that the intentional torts may, in the abstract, be claimable outside s 388 does not matter because these proceedings and this claim is in fact a claim for damages for injury.

That may be true, subject to the other points that the first plaintiff has advanced, but on the Commonwealth’s best case, it could only be that part of the action that is “in respect of a service injury” that is barred by s 388(1). If the claim succeeds but all of the Commonwealth’s other arguments are accepted, the first plaintiff will not receive any damages for physical or mental injury. But I cannot see why he would not be entitled to other damages for intentional torts.

None of this is to say that intentional torts fall outside the statutory compensation regime. If intentional torts in fact lead to a physical or mental injury, then that may very well engage ss 27, 29 and 30. In that case, s 388(1) may have limited work to do.

As I have said, the difficulty for dealing with this on a strike-out is that the plaintiffs also have a claim for additional or incremental injury and/or deterioration of injury. As I have indicated, that will require an examination of all of the facts that will require consideration in any event. When that is taken alongside the constitutional challenge, weak though I think the constitutional challenge is, I am not persuaded that any of this should be dealt with by way of summary dismissal or strike-out.

As to the second plaintiff’s claim, there was a contention at one point that the claim should be summarily dismissed in reliance on s 30(4) of the Civil Liability Act 2002 (NSW):

The Commonwealth further contended that the draft ASOC should not be permitted to proceed in the form in which it is currently advanced. There is some force in that. It strikes me that while it is not uncommon for plaintiffs to proceed by including what are really material facts in the particulars, in circumstances where the matter has been fully debated and the plaintiff needs the Court’s leave in order to amend the statement of claim, I should accede to the Commonwealth’s submission that that leave should not be granted except on the basis of a pleading in which material facts are pleaded as material facts so that the Commonwealth has an opportunity to plead and respond to those material facts.

The Commonwealth also expressed concerns that struck me as well made in relation to the particular drafting of those paragraphs in which the alleged incident on 1 October 2020 was pleaded. It strikes me that if the material facts are pleaded, those concerns are likely to be addressed.

The Commonwealth also expressed concerns about the adequacy of the pleading as to the allegation that the Commonwealth’s duty of care owed to the first plaintiff was non-delegable. Given that the plaintiff will be required to replead anyway, I invite the plaintiff to give attention to that matter, although I would observe that if the facts on which the plaintiff relies do not establish that any duty owed is non-delegable, then the plaintiff will not succeed on that allegation.

As to the duty alleged by the second plaintiff, again, a significant part of the Commonwealth’s concern was that material facts were set out in the particulars, rather than being pleaded. It may be that pleading those material facts significantly addresses the Commonwealth’s concern. As I have indicated, while both parties appear to accept before me that the claim sought to be pleaded against the second plaintiff is novel, nevertheless, it strikes me that, reasoning incrementally, it is not difficult to see how that claim is analogous to a well-recognised duty of care that may be owed to family, being the duty of care that is owed to the immediate family members of employees by an employer: see, eg, Annetts v Australian Stations Pty Limited (2002) 211 CLR 317; [2002] HCA 35 and s 30 of the Civil Liability Act 2002 (NSW).

Nevertheless, I will give the plaintiff an opportunity to propound a further statement of claim, and to the Commonwealth to consider whether it seeks to be heard further in relation to it, always mindful that if the plaintiffs’ claim is confined to particular facts and those facts do not make good a basis for finding a duty, then subject to considerations of procedural fairness and amendments, that will be a powerful point in the Commonwealth’s favour at final hearing.

For all those reasons, the Court makes the following orders:

The Court makes the following notations: