Fernando v Commonwealth of Australia (No 5) [2013] FCA 901

FEDERAL COURT OF AUSTRALIA

Fernando v Commonwealth of Australia (No 5) [2013] FCA 901 Citation: Fernando v Commonwealth of Australia (No 5) [2013] FCA 901

Parties: WANNAKUWATTEMITIWADUGE LLOYD NIRMALEEN FERNANDO BY HIS TUTOR JOHN ROBERT BRODERICK LEY v COMMONWEALTH OF AUSTRALIA and HONOURABLE GARY HARDGRAVE, FORMERLY ACTING MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

File number(s): WAD 111 of 2007

Judge(s): SIOPIS J

Date of judgment: 6 September 2013

Catchwords: PRACTICE AND PROCEDURE – whether a party should be permitted to reopen its case after the matter had been remitted to the trial judge after an appeal. TORT – wrongful imprisonment – the applicant was wrongfully detained in immigration detention for 1,203 days – whether the applicant would in any event have been lawfully detained in immigration detention by reason of s 189(1) of the Migration Act 1958 (Cth) – whether the applicant had suffered a loss justifying an award of substantial damages – whether the applicant was entitled to nominal damages. DAMAGES – assessment of the quantum of damages to be awarded for wrongful detention of 1,203 days – whether damages should be proportionate to damages for personal injury.

Legislation: Federal Court of Australia Act 1976 (Cth) s 28(1)(c) Migration Act 1958 (Cth) ss 5, 13, 14, 189, 189(1), 196, 196(4), 196(5), 501, 501(2)

Cases cited: Fernando v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 975 Fernando v Commonwealth (2010) 188 FCR 188 Fernando v Commonwealth (No 4) (2010) 276 ALR 586 Fernando v Minister for Immigration and Citizenship (No 9) [2009] FCA 833 Commonwealth v Fernando (2012) 200 FCR 1 Regina (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245 Nye v State of New South Wales [2003] NSWSC 1212 R (Kambadzi) v Secretary of State for the Home Department [2011] 1 WLR 1299 Lynch v Howard (1980) 44 FLR 71 Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 Spotlight v NCON Australia Ltd [2012] VSCA 233 Community and Public Sector Union v Telstra Corporation Limited (No 2) (2001) 112 FCR 324 Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 Muuse v Secretary of State for the Home Department [2010] EWCA Civ 453 Ruddock v Taylor (2005) 222 CLR 612 Ruddock v Taylor (2003) 58 NSWLR 269 Taylor v Ruddock (unreported, District Court of New South Wales, Murrell DCJ, 18 December 2002) Hyster Australia Pty Ltd v Anti-Dumping Authority (No 2) (1993) 41 FCR 259 Hollis v Minister for Immigration & Multicultural Affairs (2003) 202 ALR 483 In re Harrison's Share under a Settlement [1955] Ch 260 Best (by his next friend Catherine Elizabeth Jordan) v Greengrass [2012] WADC 44 Wall v Cooper [2008] WASCA 53 Carson v John Fairfax & Sons Limited (1993) 178 CLR 44