Asylum seekers’ allegation of misfeasance in public office is struck out

Class action arises out of applications for, and granting of, visas in respect of asylum seekers transferred to Nauru, with allegation of misfeasance in public office, but application by respondents to strike out statement of claim and for summary dismissal of the proceeding is granted

This class action was brought on behalf of certain asylum seekers who were taken from Australia to Nauru pursuant to the off-shore processing arrangements contained in Australia’s immigration regime.

The respondents were three members of Parliament who during the relevant period held the (variously titled) Ministerial position of Minister for Immigration, and two public servants who held the position of Secretary of the corresponding Department, and the Commonwealth.

It was common ground that transfer to Nauru occurred against the will of those asylum seekers and that the Commonwealth secured Nauruan visas for those individuals to facilitate the transfer process. The proceeding alleged that that practice was unlawful, that its enactment and execution amounted to the tort of misfeasance in public office and that the Commonwealth was vicariously liable for the conduct of the named Ministers and Secretaries.

The allegations of misfeasance in public office were that the respondents acted unlawfully in applying for and requesting visas on behalf of the class for reasons including that: the respondents lacked power to do so; the process failed to afford procedural fairness to the applicants and class members; the conduct failed to ensure that the applicants and class members would be treated in detention in Nauru in accordance with relevant human rights standards; and such a breach of those standards was exacerbated in circumstances where the class member was a child.

The respondents applied for orders that the proceeding be summarily dismissed pursuant to r 26.01 of the Federal Court Rules 2011 (Cth) (FCR) and s 31A(2) of the Federal Court of Australia Act 1976 (Cth), that judgment be entered in their favour, and additional orders pursuant to FCR 16.21 that the applicants’ further amended statement of claim be struck out in its entirety, and leave to re-plead be refused.

The respondents submitted that the applicants failed to plead facts which could make good the alleged tort of misfeasance in public office and that the bulk of the claims had no reasonable prospect of success because they relied on a construction of ‘unlawfulness’ that was contrary to binding High Court authority. The respondents argued that the deficiencies were so fundamental and incurable that the pleading should be struck out and summary judgment given.

The applicants contended that the Court should take account of principles of modern case management which encompassed less strict rules relating to pleading, that the respondents misunderstood the thrust of the High Court authority, and that further particulars would be provided after discovery to clarify aspects of the claim.

Justice Mortimer accepted the respondents’ submission that each allegation had no reasonable prospect of success because the pleaded case was incapable of satisfying the mental element of the tort, which her Honour described as the “irredeemable flaw in [the] pleadings” and considered that itself was sufficient to dispose of the applications in the respondents’ favour. In reaching that view, her Honour acknowledged that the proceeding was at an early stage and involved complex questions of law and fact, which factors would generally militate against such a course.

However, in circumstances where the applicants conceded they had no factual basis to allege the requisite state of mind and were in fact relying on such evidence emerging during discovery, her Honour said the following (at [122]):

In the context of any proceeding, let alone one making the grave allegation of misfeasance in public office against Commonwealth Ministers and Departmental Secretaries, the hope that a basis for a cause of action might emerge in the witness box will be unlikely ever to justify permitting applicants to re-plead their case, and proceed to trial so as to keep the possibility of that moment in the witness box alive.

Her Honour was strikingly critical of the approach of the applicants’ lawyers to pleading and the case generally, which informed her decision that it was appropriate to strike out the entirety of the applicants’ further amended statement of claim with no leave to re-plead, to summarily dismiss the proceeding and to enter judgment in favour of the respondents.

Plaintiff M83A/2019 v Morrison (No 2) [2020] FCA 1198

Federal Court of Australia, Mortimer J,

21 August 2020

Applicants’ Solicitors: Phi Finney McDonald;

Respondents’ Solicitors: Australian Government Solicitor;

Applicants’ Funder: N/A

Austlii link:;query=Plaintiff%20M83A/2019%20%20%20;mask_path


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