SU v Commonwealth of Australia and anor; BS v Commonwealth of Australia and anor [2016] NSWSC 8

Supreme Court New South Wales

Medium Neutral Citation: SU v Commonwealth of Australia and anor; BS v Commonwealth of Australia and anor [2016] NSWSC 8 Hearing dates: 9 October 2015 Date of orders: 03 February 2016 Decision date: 03 February 2016 Jurisdiction: Common Law Before: Hamill J Decision: In each case: (1) Judgment for the plaintiff. (2) Question of costs reserved. (3) Plaintiff to file and serve any additional evidence in relation to the question of damages and costs on or before 26 February 2016. (4) Defendant to file and serve any additional evidence in relation to the question of damages and costs on or before 11 March 2016. (5) Parties to file and exchange written submissions on damages on or before 18 March 2016. (6) The matter will be listed for submissions on damages and costs on a date to be arranged in consultation between my Associate and the legal representatives of the parties Catchwords: TORTS – wrongful imprisonment – plaintiffs lawfully in immigration detention – whether the plaintiffs enjoyed a right to residual liberty – content of residual liberty – plaintiffs arrested contrary to statute – arrest unlawful – whether immigration detention created an "umbrella of lawfulness" – whether legal nature of imprisonment changed as a result of the unlawful arrest – child plaintiffs treated as adults by Federal Police – disagreement between migration officers and Federal Police – red herring – plaintiffs concede period of incarceration in adult gaol not unlawful

CIVIL PROCEDURE – defendants' objection to plaintiffs conducting alternative case in the course of its reply – where alternative case pleaded in statement of claim but effectively abandoned in written submissions – no prejudice to the defendants Legislation Cited: Australian Federal Police Act 1979 (Cth) Crimes Act 1914 (Cth) Crimes Amendment (Age Determination) Act 2001 (Cth) Crimes Amendment Regulations (2001) (No 2) Mental Health Act 1990 (NSW) Migration Act 1958 (Cth) Spent and Redundant Instruments Repeal Regulation (2013) Cases Cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175 Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36; 219 CLR 486 Collins v Downs & Ors (Supreme Court (NSW), Roden J, 14 December 1982, unrep) DPP v Carr [2002] NSWSC 194; 127 A Crim R 151 Miller v The Queen [1985] 2 SCR 613 Prisoners A-XX Inclusive v State of New South Wales (1995) 38 NSWLR 622 R v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58 R v Mersey Care NHS Trust; Ex parte Munjaz [2005] UKHL 58; [2006] 2 AC 148 Raymond v Honey [1983] 1 AC 1 Ruddock v Taylor (2005) 222 CLR 612 Ruddock v Vadarlis [2001] FCA 1329; 110 FCR 491 Sleiman v Commissioner of Corrective Services [2009] NSWSC 304 Soh v Commonwealth of Australia [2008] FCA 520 State of New South Wales v TD [2013] NSWCA 32; 83 NSWLR 566 Texts Cited: Australian Human Rights Commission, An age of uncertainty: Inquiry into the treatment of individuals suspected of people smuggling offences who say that they are children, Report (2012) Chapter 4.