AKW22 v Commonwealth of Australia [2024] FCAFC 22

Federal Court of Australia

AKW22 v Commonwealth of Australia [2024] FCAFC 22 Appeal from: AKW22 v Commonwealth of Australia (No 2) [2023] FCA 332 AKW22 v Commonwealth of Australia [2023] FCA 786 AKW22 v Commonwealth of Australia (No 2) [2023] FCA 955

File number(s): WAD 114 of 2023 WAD 178 of 2023 WAD 217 of 2023 Judgment of: SARAH C DERRINGTON, GOODMAN AND RAPER JJ

Date of judgment: 1 March 2024

Catchwords: MIGRATION – application for leave to appeal against decision striking out statement of claim and summarily dismissing the proceedings – where notice of appeal filed three days late – where proceedings sought damages for false imprisonment – whether both elements of the tort must pleaded despite onus on respondent to prove lawful justification – where applicant conceded he was unable to plead any probable cause or basis for the unlawfulness of his detention – where primary judge found claim for false imprisonment had no reasonable prospects of success –whether primary judge's decision attended by sufficient doubt to warrant its reconsideration – whether substantial injustice would be caused if leave were refused MIGRATION – applications for leave to appeal against two decisions refusing interlocutory injunctions to restrain the applicant's removal from Australia – where applicant has already been returned to India – whether first decision impugned by refusal to grant a stay pending determination of application for habeas corpus – whether removal of applicant pursuant to s 198 of the Migration Act 1958 (Cth) in breach of s 11 of the Habeas Corpus Act 1679 – whether necessary to identify whether there was a serious question to be tried when applicant claimed the nature of what was sought was a quia timet injunction based on apprehended contempt of court – whether removal of applicant whilst application for habeas corpus pending is contempt in the face of the Court – whether primary judges erred in finding there was no serious question to be tried as to whether non-compliance with Part 8C Migration Act rendered continuing detention under s 196 unlawful – whether any error of principle demonstrated – whether discretion miscarried CONTEMPT OF COURT – applications for leave to appeal against two decisions refusing interlocutory injunctions to restrain the applicant's removal from Australia – where application for writ of habeas corpus filed but not determined – where Court aware that consequence of refusal to grant injunctions would be the applicant's removal – whether such removal can be characterised as directed at frustrating or interfering with the processes of the Court – whether refusal of injunction in such circumstances amounts to Court giving imprimatur to a breach of s 11 of the Habeas Corpus Act PRACTICE AND PROCEDURE – pleading – tort of false imprisonment – whether incumbent on a plaintiff to plead both the detention and the absence of lawful justification – whether r 16.03(2) of the Federal Court Rules 2011 (Cth) relieves a plaintiff of pleading "unlawfulness" because onus of proving lawful justification rests on the defendant – whether failure to plead both elements fails to disclose a reasonable cause of action within the meaning of r 16.02(e) – whether unlawfulness of detention a question of fact or a conclusion of law