Sadiqi v Commonwealth of Australia (No 3) [2010] FCA 596

Sadiqi v Commonwealth of Australia (No 3) [2010] FCA 596

Because the answers to the preliminary questions established that the plaintiff could not challenge the Nauru declaration, that no free-standing damages claim lay for breach of the IGOC Act guardianship duties as formulated, that the transfer to Nauru was authorised by s 198A of the Migration Act 1958 (Cth), that the Australian Protective Services deployment was authorised, and that the act of state and related issues should not be re-opened, the specified claims for certiorari, breach of guardianship duty, parts of negligence, false imprisonment during removal to and presence in Nauru, and misfeasance in public office were dismissed. Other pleaded negligence, false imprisonment and...

Jurisdiction
Australia
Judgment Date
11 June 2010
Procedural Posture
Migration and Tort Claims for Damages and Judicial Review / Orders Consequent Upon the Answering of Preliminary Questions and Directions as to Trial of Remaining Issues
Outcome
Specified claims dismissed; remaining issues re-listed for directions as to trial; costs reserved; time to appeal not to commence until final judgment following trial, subject to further order.
Legal Topics
['preliminary Questions' 'act of State Doctrine' 'offshore Entry Person' 'declared Country Under S 198 A(3)' 'guardianship of Non Citizen Children' 'false Imprisonment' 'misfeasance in Public Office' 'negligence' 'conspiracy to Injure' 'australian Protective Service Deployment']
['migration Law' 'administrative Law' 'torts' 'civil Procedure' 'costs'] ['preliminary Questions' 'act of State Doctrine' 'offshore Entry Person' 'declared Country Under S 198 A(3)' 'guardianship of Non Citizen Children' 'false Imprisonment' 'misfeasance in Public Office' 'negligence' 'conspiracy to Injure' 'australian Protective Service Deployment']

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Procedural Posture

Migration and Tort Claims for Damages and Judicial Review / Orders Consequent Upon the Answering of Preliminary Questions and Directions as to Trial of Remaining Issues

Legal Issues

  1. 1 ["Whether the plaintiff's claim for certiorari quashing the declaration of Nauru under s 198A(3) of the Migration Act 1958 (Cth) should be dismissed following the answers to the preliminary questions." 'Whether claims for damages for breach of guardianship duty under the Immigration (Guardianship of Children) Act 1946 (Cth) should be dismissed.' 'Whether the claim for misfeasance in public office should be dismissed because the relevant conduct was authorised by s 198A of the Migration Act 1958 (Cth).' 'Which negligence and false imprisonment claims remained for trial after the preliminary questions.' 'Whether the plaintiff should be permitted to re-agitate arguments about the act of state doctrine and the Australian Protective Service Act 1987 (Cth).' 'Whether costs should be ordered immediately or reserved.']

Ratio Decidendi

Because the answers to the preliminary questions established that the plaintiff could not challenge the Nauru declaration, that no free-standing damages claim lay for breach of the IGOC Act guardianship duties as formulated, that the transfer to Nauru was authorised by s 198A of the Migration Act 1958 (Cth), that the Australian Protective Services deployment was authorised, and that the act of state and related issues should not be re-opened, the specified claims for certiorari, breach of guardianship duty, parts of negligence, false imprisonment during removal to and presence in Nauru, and misfeasance in public office were dismissed. Other pleaded negligence, false imprisonment and...

Court Disposition

Specified claims dismissed; remaining issues re-listed for directions as to trial; costs reserved; time to appeal not to commence until final judgment following trial, subject to further order.

Orders

  • ["The plaintiff's claims for relief against the second defendant for a writ of certiorari quashing the decision made on 2 October 2001 declaring Nauru under s 198A(3) of the Migration Act 1958 (Cth), by reason of paragraph 12 of the amended statement of claim, be dismissed." "The plaintiff's claims against the...