Salemi v MacKellar [No 1] [1976] HCA 45

Salemi v MacKellar [No 1] [1976] HCA 45

The appeal was allowed because the construction of s. 8 of the Migration Act 1958-1973 and its relation to s. 10 presented difficulties on which substantial argument was available on either side, and the question whether the plaintiff's pleaded reliance on s. 8 (1) (e) disclosed a cause of action should not have been determined summarily on a strike-out application. The plaintiff was also granted general leave to amend to raise the proposed additional natural justice or fairness issue.

Jurisdiction
Australia
Procedural Posture
Appeal Concerning a Summons to Strike Out a Statement of Claim in a Migration Act Proceeding / Appeal From an Order of Gibbs J Striking Out the Plaintiff's Statement of Claim Under O. 26, R. 18 and O. 63, Rr. 1 and 2
Outcome
Appeal allowed.
Legal Topics
['migration Act Entry Permits' 'temporary Entry Permits' 'prohibited Immigrants' 'ministerial Exemption Under S. 8 (1) (e)' 'strike Out for No Reasonable or Probable Cause of Action' 'natural Justice or Duty to Act Fairly' 'demurrer']
['immigration Law' 'administrative Law' 'civil Procedure'] ['migration Act Entry Permits' 'temporary Entry Permits' 'prohibited Immigrants' 'ministerial Exemption Under S. 8 (1) (e)' 'strike Out for No Reasonable or Probable Cause of Action' 'natural Justice or Duty to Act Fairly' 'demurrer']

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Procedural Posture

Appeal Concerning a Summons to Strike Out a Statement of Claim in a Migration Act Proceeding / Appeal From an Order of Gibbs J Striking Out the Plaintiff's Statement of Claim Under O. 26, R. 18 and O. 63, Rr. 1 and 2

Legal Issues

  1. 1 ["Whether the plaintiff's statement of claim disclosed a reasonable or probable cause of action." 'Whether s. 8 (1) (e) of the Migration Act 1958-1973 can apply to persons who entered Australia before the promulgation of an exemption and had no current permit entitling them to remain.' 'Whether the documents relied on by the plaintiff were capable of being regarded as an exemption under s. 8 (1) (e).' 'Whether the plaintiff should have leave to amend the statement of claim to allege an additional cause of action based on natural justice or a duty to act fairly.']

Ratio Decidendi

The appeal was allowed because the construction of s. 8 of the Migration Act 1958-1973 and its relation to s. 10 presented difficulties on which substantial argument was available on either side, and the question whether the plaintiff's pleaded reliance on s. 8 (1) (e) disclosed a cause of action should not have been determined summarily on a strike-out application. The plaintiff was also granted general leave to amend to raise the proposed additional natural justice or fairness issue.

Court Disposition

Appeal allowed.

Orders

  • ['In lieu of the order made by Gibbs J, order that pars 6 to 8 inclusive of the statement of claim be struck out.' 'Leave to appellant to amend his statement of claim generally.' "Respondent to pay appellant's costs of summons and of appeal from order thereon."]