Salemi v MacKellar [No 1] [1976] HCA 45

High Court of Australia Gibbs J. Mason, Jacobs, Murphy and Aickin JJ. Salemi v MacKellar [No 1] [1976] HCA 45

ORDER Appeal allowed. In lieu of the order made by Gibbs J. order that pars 6 to 8 inclusive of the statement of claim be struck out, leave to appellant to amend his statement of claim generally. Respondent to pay appellant's costs of summons and of appeal from order thereon. Aug. 26 Gibbs J.

This is a summons to strike out a statement of claim on the ground that it does not disclose any, or any reasonable or probable, cause of action, or on the ground that the action is frivolous or vexatious or an abuse of the process of the Court. It certainly cannot be said that the statement of claim falls within the latter description but the question is whether it does disclose a reasonable or probable cause of action.

It is well-established that a statement of claim will not be struck out on such a ground unless the ground is clearly made out.

The cause of action which the plaintiff asserts in the statement of claim rests on two distinct bases. The statement of claim reveals that the plaintiff is a citizen of Italy, that the defendant is the Minister for Immigration and Ethnic Affairs of the Commonwealth and that the defendant contends that the plaintiff entered Australia as a temporary resident and is a person subject to the provisions of Div. 1 of Pt II of the Act relating to entry permits and that the defendant threatens and intends to treat the plaintiff as a prohibited immigrant and to issue a deportation order against him.

The first basis on which the relief which the plaintiff claims is sought is as follows. It is alleged that on 10th February 1975, the plaintiff was granted, by an officer of the Department of Immigration, a permit to remain in Australia which was expressed as a permit to remain in Australia until 30th July 1975. It is further alleged that that permit was not a temporary entry permit within the meaning of the Migration Act 1958-1973 Cth and that in the circumstances the permit operated as a permit to remain in Australia indefinitely and that the plaintiff was then and has since been entitled to remain in Australia indefinitely.