Li v Commonwealth of Australia [2002] FCA 1251

Li v Commonwealth of Australia [2002] FCA 1251

The amended statement of claim was struck out because the constitutional claims did not disclose a reasonable cause of action, including because no general implied constitutional right to equality before the law is recognised and the pleading did not properly allege unlawful removal; the trade practices and fair trading allegations lacked essential material facts including conduct in trade or commerce, accessorial facts, and causation of loss; and the remaining negligence allegations were so deficient and embarrassing that the respondents could not fairly be required to plead to them. The applicant was given an opportunity to seek leave to file a further amended statement of claim.

Jurisdiction
Australia
Judgment Date
10 October 2002
Procedural Posture
Practice and Procedure; Strike Out Application Concerning an Amended Statement of Claim by an Unlawful Non Citizen for Injuries Allegedly Sustained While in Detention / Motions by the Respondents to Strike Out the Amended Statement of Claim; ACM Also Sought Transfer If the Pleading Was Not Struck Out
Outcome
The amended statement of claim was struck out, with leave procedure for any further amended pleading and costs orders made against the applicant.
Legal Topics
['strike Out of Pleadings' 'unlawful Non Citizen Detention' 'implied Constitutional Equality Before the Law' 'equal Access to the Law' 'misleading or Deceptive Conduct' 'duty of Care' 'transfer of Proceedings' 'indemnity Costs']
['practice and Procedure' 'migration Law' 'constitutional Law' 'trade Practices' 'torts' 'costs'] ['strike Out of Pleadings' 'unlawful Non Citizen Detention' 'implied Constitutional Equality Before the Law' 'equal Access to the Law' 'misleading or Deceptive Conduct' 'duty of Care' 'transfer of Proceedings' 'indemnity Costs']

Case Brief

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Procedural Posture

Practice and Procedure; Strike Out Application Concerning an Amended Statement of Claim by an Unlawful Non Citizen for Injuries Allegedly Sustained While in Detention / Motions by the Respondents to Strike Out the Amended Statement of Claim; ACM Also Sought Transfer If the Pleading Was Not Struck Out

Legal Issues

  1. 1 ['Whether paragraphs alleging breach of implied constitutional principles of equality before the law and equal access to the law disclosed a reasonable cause of action' 'Whether allegations of misleading and deceptive conduct under the Trade Practices Act 1974 (Cth) and Fair Trading Act 1987 (NSW) disclosed a reasonable cause of action' 'Whether the remaining negligence and duty of care allegations were embarrassing or failed to plead material facts' 'Whether the amended statement of claim as a whole should be struck out' 'Whether the applicant should be required to seek leave before filing any further amended statement of claim' 'Whether costs should be awarded on an indemnity basis']

Ratio Decidendi

The amended statement of claim was struck out because the constitutional claims did not disclose a reasonable cause of action, including because no general implied constitutional right to equality before the law is recognised and the pleading did not properly allege unlawful removal; the trade practices and fair trading allegations lacked essential material facts including conduct in trade or commerce, accessorial facts, and causation of loss; and the remaining negligence allegations were so deficient and embarrassing that the respondents could not fairly be required to plead to them. The applicant was given an opportunity to seek leave to file a further amended statement of claim.

Court Disposition

The amended statement of claim was struck out, with leave procedure for any further amended pleading and costs orders made against the applicant.

Orders

  • ['The amended statement of claim be struck out.' 'The applicant file and serve by 7 November 2002 any motion for leave to file a further amended statement of claim.' "The applicant pay the first and third respondents' costs of the hearing on 8 October 2002 on an indemnity basis." "The applicant pay the first and...