Zheng v Commonwealth of Australia [2017] NSWSC 795

Supreme Court New South Wales

Medium Neutral Citation: Zheng v Commonwealth of Australia [2017] NSWSC 795 Hearing dates: 19 June 2017 Date of orders: 19 June 2017 Decision date: 19 June 2017 Jurisdiction: Common Law Before: Harrison J Decision: (1) Strike out paragraphs 7 to 13 inclusive of the amended statement of claim filed on 3 February 2017. (2) Grant leave to the plaintiff within 28 days to replead so much of her cause of action against the defendant as is framed in negligence or breach of duty. (3) Order that the costs of the defendant's motion dated 19 June 2017 should be the defendant's costs in the proceedings. Catchwords: PRACTICE & PROCEDURE – pleadings – application to strike out statement of claim upon the basis that it discloses no reasonable cause of action – whether pleading capable of being redrawn in proper form Legislation Cited: Migration Act 1958 Uniform Civil Procedure Rules Cases Cited: Fernando v Commonwealth of Australia [2014] FCAFC 181 Scott v Pedler (2003) 74 ALD 424 Category: Procedural and other rulings Parties: Xu Zheng (Plaintiff) Commonwealth of Australia (Defendant) Representation: Counsel: Paul S Jones (Defendant)

Solicitors: Sparke Helmore Lawyers (Defendant) File Number(s): 2016/237975 Publication restriction: Nil

Judgment 1. HIS HONOUR: Xu Zheng is a citizen of the People's Republic of China. She arrived at Sydney's Kingsford Smith Airport on 4 March 2014 on a temporary tourist visa. After being interviewed by Border Protection officials, Ms Zheng's visa was cancelled under s 116(1)(g) of the Migration Act 1958 and she was detained as an unlawful non-citizen. 2. The decision to cancel Ms Zheng's visa was illegal. In proceedings in the Federal Court of Australia commenced by Ms Zheng against the Minister for Immigration and Border Protection seeking judicial review of the decision to cancel her visa, the following orders were made by consent on 4 July 2014: 1. A writ of certiorari shall issue removing the record of the visa cancellation decision, being the decision of the delegate dated 4 March 2014 to cancel the applicant's subclass 600 visa, into the Court to be quashed. 2. The respondent is to pay the costs of the applicant, being $515 which was paid for the filing fee. 1. Following the cancellation of her visa, Ms Zheng was detained, first at the Villawood Detention Centre and later in Darwin pending deportation to China on 2 August 2014. Before that occurred, Ms Zheng had been held in detention in Australia for a period of 151 days. She was subsequently granted a right of re-entry to Australia and currently resides with her partner Warren Oliver in Sydney. 2. Ms Zheng commenced these proceedings by statement of claim filed on 8 August 2016. An amended statement of claim was filed on 3 February 2017. The Commonwealth now seeks orders by notice of motion filed in court on 19 June 2017 to strike out the whole, or part, of the amended statement of claim pursuant to UCPR 14.28. The Commonwealth relies upon the affidavit of Alice Bolt sworn 16 December 2016. 3. Ms Zheng's claim against the Commonwealth is effectively divided into two parts. The first is a claim in tort claiming damages for false imprisonment. The second is a claim in tort claiming damages for negligence.