Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483

FEDERAL COURT OF AUSTRALIA

Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483 File number: VID 305 of 2016

Judge: BROMBERG J

Date of judgment: 6 May 2016

Catchwords: NEGLIGENCE – applicant, a refugee, raped on Nauru during or shortly after seizure and fell pregnant – on her request, respondents agreed to procure for applicant a termination of pregnancy – applicant taken to Papua New Guinea for proposed abortion – applicant alleged legal risk attendant upon abortion in PNG arising out of its criminal law dealing with abortion — applicant alleged medical risk attendant upon abortion in PNG, arising out of unavailability of medical equipment, experience, and expertise alleged to be required in order to adequately guard against risk NEGLIGENCE – duty of care – whether respondents owed duty of care to applicant to exercise reasonable care in procuring for her a safe and lawful abortion – if so, whether procurement of abortion in PNG discharged duty – if not, whether breach of duty apprehended – discussion of Stavar multi-factorial approach to determination of existence of novel duty of care – consideration of authorities relating to duties of care in connection with exercise or non-exercise of statutory powers – consideration of statutory setting – consideration of relationship of applicant and respondents – consideration of circumstances of applicant's removal to Nauru, her detention on Nauru, and her continued presence on Nauru having been accepted as a refugee – consideration of respondents' involvement in the foregoing, including its provision of settlement and health services – discussion of circumstances of applicant's travel to PNG and respondents' involvement in same – application of multi-factorial approach in determination whether duty of care existed – consideration, in particular, of consistency of putative duty with statutory scheme, of policy, of vulnerability, of control, and of assumption of responsibility – duty of care found to exist, to exercise reasonable care in procuring for the applicant a safe and lawful abortion NEGLIGENCE – apprehended breach – whether apprehended breach established – consideration of applicable standard of care – rejection of submission that standard of care determined by reference to medical services available in PNG – application of Shirt formula – evaluation of legal risks of PNG abortion – magnitude of legal risk high to extreme; probability of risk materialising low, but not far-fetched or fanciful – evaluation of medical risks of PNG abortion – magnitude of medical risk high to extreme; probability of materialisation of risk material, and neither trivial nor insignificant – consideration of expense, difficulty and inconvenience – consideration of policy against bringing unauthorised maritime arrivals to Australia – whether respondents procured safe and lawful abortion in PNG in discharge of duty – abortion procured in PNG did not discharge duty – apprehended breach established NEGLIGENCE – statutory authorities – consideration whether, were proper law that of PNG, application of that law would result in foreign (i.e. Australian) statutory authorities being treated in same way as domestic authorities for purpose of determination of existence of duty – application of PNG law would not so result NEGLIGENCE – remedy –consideration of whether declarations ought be made – consideration of whether injunctions should issue PRIVATE INTERNATIONAL LAW – whether law of tort PNG or Australia – discussion of test for determination of lex loci delicti – consideration of significance of alleged tort being apprehended and one of omission – identification of respondents' act giving applicant her cause for complaint – act of procurement of abortion, not performance of abortion, subject matter of complaint – proper law that of Australia EVIDENCE – consideration, in obiter, of presumption that foreign law identical to domestic law in absence of evidence of content of foreign law – presumption would apply in this case MIGRATION – whether s 474 of the Migration Act 1958 (Cth) precluded issue of injunctive relief in proceedings other than judicial review proceedings – consideration of extrinsic material – discussion of authorities concerning ss 476A and 486A – consideration of principle of legality – s 474 did not have effect of precluding injunctive relief in proceedings other than judicial review proceedings EQUITY – whether respondents breached a fiduciary duty arising out of same facts as gave rise to putative duty of care – consideration of guardian/ward fiduciary duty cases – respondents did not breach any fiduciary duty as may exist