mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Attorney-General v De Keyser's Royal Hotel Ltd [1920] UKHL 1 ; [1920] AC 508
Outcome: cited
either event, it is plain that the question of the extent of the executive power is consigned to the Chapter III courts. In that regard, at a functional level, the situation is not so very different to the treatment given by the English courts to the question of the extent of the prerogative. For, at least since the Case of Proclamations (1611) 12 Co Rep 74; 77 ER 1352, the courts of that country have asserted, and the other branches of government have eventually accepted, the final role of the courts in determining the ambit of that prerogative. Just as a Commonwealth law may delimit the scope of the executive power, so too it is well established that the prerogative may be excluded by statute. Attorney-General v De Keyser's Royal Hotel Ltd [1920] UKHL 1 ; [1920] AC 508 is an example of where a statute was found to have curtailed the prerogative. In Australia, Barton v Commonwealth [1974] HCA 20 ; (1974) 131 CLR 477 is an example where a statute was found not to have that effect; the Full Court of this Court's decision in Schlieske v Minister for Immigration and Ethnic Affairs (1988) 84 ALR 719 is a contrary example.
Case: Attorney-General (UK) v Heinemann Publishers Pty Ltd [1988] HCA 25 ; (1988) 165 CLR 30
Outcome: cited
the Commonwealth made a broad submission that the act of State doctrine operated to prevent this Court from examining the rights and wrongs of the acts of a foreign State. Over a century ago the doctrine was held to form part of "the settled law of all civilized countries": Potter v Broken Hill Pty Company Ltd [1906] HCA 88 ; (1906) 3 CLR 479 at 495 per Griffith CJ. More recently it has been described by the High Court as a long-recognised principle of international law: Attorney-General (UK) v Heinemann Publishers Pty Ltd [1988] HCA 25 ; (1988) 165 CLR 30 at 40 and by a judge of this Court as a rule of private international law: Petrotimor Companhia de Petroleos SARL v Commonwealth of Australia [2003] FCAFC 3 ; (2003) 126 FCR 354 at 415 [159] per Beaumont J. The Commonwealth's submission that the act of State doctrine exists must be accepted: Petrotimor at 366-369 [33]-[45] per Black CJ and Hill J, 415-416 [159]-[160] per Beaumont J.
Case: Barton v Commonwealth [1974] HCA 20 ; (1974) 131 CLR 477
Outcome: cited
either event, it is plain that the question of the extent of the executive power is consigned to the Chapter III courts. In that regard, at a functional level, the situation is not so very different to the treatment given by the English courts to the question of the extent of the prerogative. For, at least since the Case of Proclamations (1611) 12 Co Rep 74; 77 ER 1352, the courts of that country have asserted, and the other branches of government have eventually accepted, the final role of the courts in determining the ambit of that prerogative. Just as a Commonwealth law may delimit the scope of the executive power, so too it is well established that the prerogative may be excluded by statute. Attorney-General v De Keyser's Royal Hotel Ltd [1920] UKHL 1 ; [1920] AC 508 is an example of where a statute was found to have curtailed the prerogative. In Australia, Barton v Commonwealth [1974] HCA 20 ; (1974) 131 CLR 477 is an example where a statute was found not to have that effect; the Full Court of this Court's decision in Schlieske v Minister for Immigration and Ethnic Affairs (1988) 84 ALR 719 is a contrary example.
Case: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720
Outcome: applied
will be seen that the provision requires an assessment of the prospect of Mr Habib's proceeding being successful. If this prospect is less than reasonable the Court may give judgment on the proceeding to the respondent. The insertion of subsection (3) has altered the pre-existing position that only proceedings which are hopeless or bound to fail should be dismissed. Nevertheless, it is a jurisdiction to be exercised with caution: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720 at 731 [45] per Rares J. The Commonwealth also applies to strike out various portions of the pleading pursuant to O 11 r 16 which relates to pleadings said not to disclose a reasonable cause of action or which are otherwise embarrassing. In relation to both s 31A and O 11 r 16 it is appropriate to assume in Mr Habib's favour that he would succeed at trial in proving each and every allegation of fact contained in the pleading. The Commonwealth's argument is that, even making that assumption, the proceeding cannot succeed. For present purposes the contents of the pleading may be summarised as containing the following sets of allegations: (a) allegations that Mr Habib was wrongfully arrested in Pakistan by the Pakistani and US governments in October 2001; (b) allegations of his torture whilst in Pakistan at the hands of the Pakistani authorities; (c) allegations of extraordinary rendition to Egypt and allegations of torture at the hands of Egyptian authorities; (d) allegations of his removal from Egypt to Afghanistan and thence to Guantanamo Bay; (e) allegations of mistreatment by the US government at Guantanamo Bay; (f) allegations that the Commonwealth was aware that Mr Habib was to be the subject of a rendition to Egypt and that, to the Commonwealth's knowledge, this would most likely involve torture; (g) allegations that the Commonwealth made no effort to secure his release from Egypt notwithstanding its awareness that he was being, or was very likely being, tortured there; (h) allegations that the Commonwealth provided the Egyptian authorities with information and documents that the Commonwealth had obtained from Mr Habib's home in Australia which the Commonwealth either knew or should have known would be used in his torture; (i) allegations that the Commonwealth failed to take any sufficient steps to procure his release from Guantanamo Bay; (j) allegations that an officer or officers of the Commonwealth interrogated Mr Habib in Guantanamo Bay whilst he was shackled to the floor; (k) allegations that following his return to Australia he was persecuted and harassed by the Commonwealth by its assisting the publisher of the Daily Telegraph in a defamation suit brought by Mr Habib against that publisher and, additionally, by denying him a passport; (l) allegations of defamation by the Commonwealth constituted, generally, by statements by its officials that Mr Habib was a terrorist.
Case: Breen v Williams (1996) 186 CLR 71
Outcome: cited
assuming those obstacles could be overcome, Mr Habib's case on the breach of the alleged duty is conceptually deficient for the purpose for which his advisers seek to advance it. In the written submissions it was submitted on his behalf as follows: As Gaudron and McHugh JJ note [at 113] in Breen v Williams the fiduciary`s obligations under Australian law are proscriptive not prescriptive, but this does not permit the choice of a course which conflicts with either the duty owed or the dependence of the Applicant on the Respondent. In the present case a choice to decline to take steps favourable to the Applicant inevitably placed the Respondent in a position of conflict given the trust the Applicant placed in the Respondent with the Applicant abandoned to obvious unlawful detention and "rendition". But the nature of the "position of conflict" was left unexplained. Equity imposes upon fiduciaries a duty of undivided loyalty: Maguire v Makaronis [1997] HCA 23 ; (1997) 188 CLR 449 at 465 per Brennan CJ, Gaudron, McHugh and Gummow JJ. The duty is the obligation to avoid being placed in a position where that undivided loyalty might be challenged. The breach of duty arises merely from being placed in the position of conflict and does not require that the conflict be acted upon. Thus the 'no conflict' rule is infringed where a fiduciary occupies a position where his self-interest and the duty to the beneficiary conflict: Warman International Ltd v Dwyer [1995] HCA 18 ; (1994) 182 CLR 544 at 557 per Mason CJ, Brennan, Deane, Dawson and Gaudron JJ. It is also infringed where the fiduciary takes upon herself conflicting obligations: Breen v Williams (1996) 186 CLR 71 at 135 per Gummow J.
Case: Case of Proclamations (1611) 12 Co Rep 74; 77 ER 1352
Outcome: referred to
either event, it is plain that the question of the extent of the executive power is consigned to the Chapter III courts. In that regard, at a functional level, the situation is not so very different to the treatment given by the English courts to the question of the extent of the prerogative. For, at least since the Case of Proclamations (1611) 12 Co Rep 74; 77 ER 1352, the courts of that country have asserted, and the other branches of government have eventually accepted, the final role of the courts in determining the ambit of that prerogative. Just as a Commonwealth law may delimit the scope of the executive power, so too it is well established that the prerogative may be excluded by statute. Attorney-General v De Keyser's Royal Hotel Ltd [1920] UKHL 1 ; [1920] AC 508 is an example of where a statute was found to have curtailed the prerogative. In Australia, Barton v Commonwealth [1974] HCA 20 ; (1974) 131 CLR 477 is an example where a statute was found not to have that effect; the Full Court of this Court's decision in Schlieske v Minister for Immigration and Ethnic Affairs (1988) 84 ALR 719 is a contrary example.
Case: China Navigation Company Ltd v Attorney General (1931) 40 Ll L Rep 110
Outcome: referred to
Commonwealth's submission was that it could not possibly be said that it had acted for, or on behalf of, Mr Habib. This submission is too simplistic. It is accepted that there is some kind of duty owed by the State to its overseas nationals. For example, in Mutasa v Attorney General [1980] QB 114 at 118-120 Boreham J spoke of the Crown having a duty to protect a citizen from unlawful detention but of that duty being one of imperfect obligation and thus unenforceable. So too, in China Navigation Company Ltd v Attorney General (1931) 40 Ll L Rep 110 at 112 Rowlatt J spoke of an alleged duty to assist a citizen against piracy as being but a "political" duty: cf. Hicks v Ruddock [2007] FCA 299 ; (2007) 156 FCR 574 at 593-594 [62] - [66] per Tamberlin J. Thus, it is a little glib to say that there was no aspect of the relationship between Mr Habib and the Commonwealth which could involve it in potentially "acting" on his behalf.
Case: Chow Hung Ching v The King [1948] HCA 37 ; (1948) 77 CLR 449
Outcome: cited
are a number of different aspects to that broad principle. First , it is plain that the courts will absolutely abide the executive's views on questions such as the accession of foreign territory, the recognition of a foreign sovereign or the recognition of foreign States and ambassadors: see Chow Hung Ching v The King [1948] HCA 37 ; (1948) 77 CLR 449 at 467 per Latham CJ. Secondly , generally speaking, the issues which arise between nation States are unlikely to generate matters within the meaning of ss 75 and 76 of the Constitution for the rights and obligations in that plane do not form part of domestic law: Re Ditfort at 370 per Gummow J. Thirdly, for related reasons, such questions are usually unable to bring forth a plaintiff who has standing: Re Ditfort at 369. Fourthly , complaints about the conduct of Australian international relations are likely to take a court into an area which involves the consideration of undertakings or obligations depending entirely on political sanctions. Where that occurs it is generally thought there is no matter in the requisite sense: Re Ditfort at 370. For example, a complaint by an Australian exporter that trade sanctions had been negligently imposed on a country to which it exported would immediately involve this Court in the consideration of matters which it is institutionally unsuited to resolve: Gerhardy v Brown [1985] HCA 11 ; (1985) 159 CLR 70 at 138-139 per Brennan J.
Case: City of Subiaco v Heytesbury Properties Pty Ltd (2001) 24 WAR 146
Outcome: cited
way of arriving at the same result may be to observe that equity would not impose a fiduciary duty obedience to which would fetter foreign policy. I have no doubt that a contract entered into by the Commonwealth which purported to bind it to some particular foreign policy posture would be unenforceable: Ansett Transport Industries (Operations) Pty Ltd v Commonwealth [1977] HCA 71 ; (1977) 139 CLR 54 at 75 per Mason J; A v Hayden [1984] HCA 67 ; (1984) 156 CLR 532 at 543 per Gibbs CJ; City of Subiaco v Heytesbury Properties Pty Ltd (2001) 24 WAR 146 at 157-159 [43]-[50] per Ipp J with whom Malcolm CJ and Wallwork J agreed. Whilst it is true that equity can often achieve outcomes which the common law or statute appear not to countenance the doctrine of part performance is an obvious example I do not think that the Chancellor's foot treads the boards of the world stage.
Case: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 ; (2007) 230 CLR 89
Outcome: applied
ratio decidendi of Giller is that the tort in Wilkinson v Downton is not available unless there is actual physical injury and that extreme mental distress does not constitute physical injury in the requisite sense. It would be inappropriate for me to depart from Giller unless convinced it was plainly wrong: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 ; (2007) 230 CLR 89 at 151-152 [135] . Whilst I can see the force of some of the criticisms which have been made of the present position I could not possibly say that Giller was clearly wrong. Accordingly, I am bound to follow it.
Case: Gerhardy v Brown [1985] HCA 11 ; (1985) 159 CLR 70
Outcome: cited
are a number of different aspects to that broad principle. First , it is plain that the courts will absolutely abide the executive's views on questions such as the accession of foreign territory, the recognition of a foreign sovereign or the recognition of foreign States and ambassadors: see Chow Hung Ching v The King [1948] HCA 37 ; (1948) 77 CLR 449 at 467 per Latham CJ. Secondly , generally speaking, the issues which arise between nation States are unlikely to generate matters within the meaning of ss 75 and 76 of the Constitution for the rights and obligations in that plane do not form part of domestic law: Re Ditfort at 370 per Gummow J. Thirdly, for related reasons, such questions are usually unable to bring forth a plaintiff who has standing: Re Ditfort at 369. Fourthly , complaints about the conduct of Australian international relations are likely to take a court into an area which involves the consideration of undertakings or obligations depending entirely on political sanctions. Where that occurs it is generally thought there is no matter in the requisite sense: Re Ditfort at 370. For example, a complaint by an Australian exporter that trade sanctions had been negligently imposed on a country to which it exported would immediately involve this Court in the consideration of matters which it is institutionally unsuited to resolve: Gerhardy v Brown [1985] HCA 11 ; (1985) 159 CLR 70 at 138-139 per Brennan J.
Case: Giller v Procopets [2008] VSCA 236
Outcome: followed
authors of The Law of Torts in Australia also point to a decision of McDonald J in Gimson v Victorian Workcover Authority [1995] 1 VR 209 at 226-7 where a pleading was permitted to go forward to trial in which mere mental distress was alleged. More recently, however, the Victorian Court of Appeal has considered the issue in Giller v Procopets [2008] VSCA 236. In that case the defendant showed, or threatened to show, to others video footage depicting himself and the appellant, his former de facto partner, engaged in sexual activity. One of the claims was that those actions constituted the tort in Wilkinson v Downton . The appellant did not suffer psychiatric harm as a result of the threat but she did suffer severe emotional distress. Ashley and Neave JJ held that the tort did not extend to mental distress: [164]-[166], [471]-[477]. Maxwell P reached the opposite conclusion: [26]-[37]. The ratio decidendi of Giller is that the tort in Wilkinson v Downton is not available unless there is actual physical injury and that extreme mental distress does not constitute physical injury in the requisite sense. It would be inappropriate for me to depart from Giller unless convinced it was plainly wrong: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 ; (2007) 230 CLR 89 at 151-152 [135] . Whilst I can see the force of some of the criticisms which have been made of the present position I could not possibly say that Giller was clearly wrong. Accordingly, I am bound to follow it. I am therefore faced with two quite different harassment cases each being seriously flawed. The current pleading does not allege psychiatric damage sufficient to constitute physical harm. While the mental and psychological distress it does allege is capable of being seen as flowing from the Commonwealth's behaviour towards Mr Habib upon his return to Australia, the decision in Giller renders this claim untenable. On the other hand, the proposed pleading suggests that the harassment is constituted by the Commonwealth's actions prior to his arrival back in Australia but that harassment is not said to be causative of any loss. Both pleadings are deficient in form. It is plain, I think, that the harassment allegation must be struck out. The question is whether leave to replead should be granted. I deal with that issue at the end of these reasons. Breach of fiduciary duty
Case: Gimson v Victorian Workcover Authority [1995] 1 VR 209
Outcome: referred to
authors of The Law of Torts in Australia also point to a decision of McDonald J in Gimson v Victorian Workcover Authority [1995] 1 VR 209 at 226-7 where a pleading was permitted to go forward to trial in which mere mental distress was alleged. More recently, however, the Victorian Court of Appeal has considered the issue in Giller v Procopets [2008] VSCA 236. In that case the defendant showed, or threatened to show, to others video footage depicting himself and the appellant, his former de facto partner, engaged in sexual activity. One of the claims was that those actions constituted the tort in Wilkinson v Downton . The appellant did not suffer psychiatric harm as a result of the threat but she did suffer severe emotional distress. Ashley and Neave JJ held that the tort did not extend to mental distress: [164]-[166], [471]-[477]. Maxwell P reached the opposite conclusion: [26]-[37].
Case: Habib v Commonwealth of Australia [2008] FCA 1494
Outcome: referred to
application is made by an amended notice of motion filed 21 July 2008 and seeks the summary dismissal of the proceeding. The current form of Mr Habib's pleading is the third further amended statement of claim which I shall refer to as 'the pleading'. Leave to file the pleading was granted on 7 October 2008 but, as was made clear on the occasion of that grant of leave, this was on the basis that the Commonwealth's complaints about the pleading's predecessor would be taken as standing against the pleading: Habib v Commonwealth of Australia [2008] FCA 1494 at [12] . The Commonwealth's motion for summary dismissal was heard by me on 9 and 10 October 2008. At that time, Mr Habib propounded a further pleading styled the "Proposed Fourth Further Amended Statement of Claim". I shall refer to that document as 'the proposed pleading'. Final written submissions were received on 28 October 2008. The Commonwealth applies pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) for judgment in relation to all but one part of Mr Habib's case on the basis that the proceedings have no reasonable prospect of success. Section 31A provides: Summary judgment (1) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is prosecuting the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding. (2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is defending the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. (3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospect of success. (4) This section does not limit any powers that the Court has apart from this section.
Case: Hamdan v Rumsfeld 548 US 557 (2006)
Outcome: referred to
written submission was received connecting the Third and Fourth Geneva Conventions to the negligence case but, contrary to the grant of leave, not to the misfeasance in a public office case. The Commonwealth submitted, correctly I think, that no case was being put by Mr Habib based on the Geneva Conventions insofar as the tort of misfeasance in a public office was concerned. I am bound to accept that submission. There is, therefore, no occasion to consider whether Mr Habib was a prisoner of war covered by the Third Geneva Convention, or a civilian covered by the Fourth Geneva Convention, an enemy combatant (as the Commonwealth submitted at the hearing) or simply a person not covered by either Convention because there was no armed conflict in Pakistan at the time Mr Habib was detained (as the Commonwealth submitted in writing). Nor is there any need to consider the impact of Article 5 of the Third Geneva Convention which, on one view, requires the protection of that Convention to be afforded to a person whose status is unclear until such time as that status is determined by a competent tribunal: cf Hamdan v Rumsfeld 548 US 557 (2006) at 630 per Stevens J delivering the opinion of the court; Hamdan v Rumsfeld 344 FSupp2d 152 (DDC 2004) at 161-162 per Robertson J.
Case: Hamdan v Rumsfeld 344 FSupp2d 152 (DDC 2004)
Outcome: referred to
written submission was received connecting the Third and Fourth Geneva Conventions to the negligence case but, contrary to the grant of leave, not to the misfeasance in a public office case. The Commonwealth submitted, correctly I think, that no case was being put by Mr Habib based on the Geneva Conventions insofar as the tort of misfeasance in a public office was concerned. I am bound to accept that submission. There is, therefore, no occasion to consider whether Mr Habib was a prisoner of war covered by the Third Geneva Convention, or a civilian covered by the Fourth Geneva Convention, an enemy combatant (as the Commonwealth submitted at the hearing) or simply a person not covered by either Convention because there was no armed conflict in Pakistan at the time Mr Habib was detained (as the Commonwealth submitted in writing). Nor is there any need to consider the impact of Article 5 of the Third Geneva Convention which, on one view, requires the protection of that Convention to be afforded to a person whose status is unclear until such time as that status is determined by a competent tribunal: cf Hamdan v Rumsfeld 548 US 557 (2006) at 630 per Stevens J delivering the opinion of the court; Hamdan v Rumsfeld 344 FSupp2d 152 (DDC 2004) at 161-162 per Robertson J.