Ogawa v Parker [2008] FCA 388

Ogawa v Parker [2008] FCA 388

The proceeding had no reasonable prospect of success because the applicant had no reasonable prospect of establishing jurisdiction to compel action in relation to a s 351 request or of demonstrating jurisdictional error; s 351(7) imposed no duty on the Minister to consider exercising the power; and, even if jurisdiction existed, the misfeasance claim was unsupported by evidence of dishonesty, malice, knowledge of lack of power or likely harm, and the Commonwealth could not relevantly be made vicariously liable.

Jurisdiction
Australia
Judgment Date
10 March 2008
Procedural Posture
Migration Judicial Review and Damages Proceeding; Respondents' Application for Summary Judgment Under S 31 A(2) of the Federal Court of Australia Act 1976 (cth) / Ex Tempore Reasons for Judgment After Proceeding Was Transmitted From the Federal Magistrates Court to the Federal Court
Outcome
The respondents' summary judgment application succeeded and the substantive application was dismissed.
Legal Topics
['summary Judgment' 'no Reasonable Prospect of Success' 'ministerial Intervention Under S 351 of the Migration Act 1958 (cth)' 'privative Clause Decisions' 'jurisdictional Error' 'constitutional Writs' 'misfeasance in Public Office' 'vicarious Liability']
['practice and Procedure' 'migration Law' 'administrative Law' 'tort Law'] ['summary Judgment' 'no Reasonable Prospect of Success' 'ministerial Intervention Under S 351 of the Migration Act 1958 (cth)' 'privative Clause Decisions' 'jurisdictional Error' 'constitutional Writs' 'misfeasance in Public Office' 'vicarious Liability']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Migration Judicial Review and Damages Proceeding; Respondents' Application for Summary Judgment Under S 31 A(2) of the Federal Court of Australia Act 1976 (cth) / Ex Tempore Reasons for Judgment After Proceeding Was Transmitted From the Federal Magistrates Court to the Federal Court

Legal Issues

  1. 1 ['Whether the applicant had no reasonable prospect of successfully prosecuting the proceeding under s 31A(2) of the Federal Court of Australia Act 1976 (Cth).' 'Whether the Federal Court had jurisdiction to entertain the claims concerning a request for ministerial intervention under s 351 of the Migration Act 1958 (Cth).' 'Whether there was any reasonable prospect of demonstrating jurisdictional error.' 'Whether the applicant had any reasonable prospect of obtaining mandamus or other relief compelling consideration of a s 351 request.' 'Whether the damages claim for misfeasance in public office had any reasonable prospect of success.' 'Whether the Commonwealth could be vicariously liable for the alleged misfeasance in public office.']

Ratio Decidendi

The proceeding had no reasonable prospect of success because the applicant had no reasonable prospect of establishing jurisdiction to compel action in relation to a s 351 request or of demonstrating jurisdictional error; s 351(7) imposed no duty on the Minister to consider exercising the power; and, even if jurisdiction existed, the misfeasance claim was unsupported by evidence of dishonesty, malice, knowledge of lack of power or likely harm, and the Commonwealth could not relevantly be made vicariously liable.

Court Disposition

The respondents' summary judgment application succeeded and the substantive application was dismissed.

Orders

  • ['The substantive application originally filed in the Federal Magistrates Court and transmitted to this Court be dismissed.' "The Applicant pay the Respondent's costs of and incidental to this proceeding, to be taxed, if not agreed."]