Asylum Seekers Claiming Damages In Tort For Injuries In Detention Overcome Initial Legal Challenge
Monday 15 December 2014 @ 12.49 p.m. | Immigration | Torts, Damages & Civil Liability
A group of asylum seekers has overcome an initial challenge from the Minister for Immigration and Border Security, against their claim for various damages in tort for preventing them access to reasonable health care and educational facilities. The interlocutory judgment was handed down in the Victorian Supreme Court on December 1, and will require the asylum seekers to resubmit their statement of claim, and rejected the Minister’s argument that the action should not proceed as a group proceeding. The case, A S v Minister for Immigration and Border Protection & Anor [2014] VSC 593, was brought by a juvenile asylum seeker, A S, who was initially detained on Christmas Island, before being moved to Wickham Point Place of Detention and then Bladen Alternative Place of Detention. The respondents are the Minister for Immigration and Border Protection and the Commonwealth of Australia.
The case is expressed to be a group proceeding brought:
“on behalf of all persons who were detained on Christmas Island between 27 August 2011 and 26 August 2014, and who, it is alleged, suffered injury as a result of the failure of the defendants to provide them, or their parents, with reasonable health care” [at 2].
The plaintiffs made a number of submissions, including that:
“while in detention, AS and the group members were unable to access medical and health services, or educational and recreation facilities, other than those provided by the defendants, and thus they were dependent on the defendants for their physical and psychological health and wellbeing, and, in respect of minors, for their day to day care, welfare and development. Accordingly, it is pleaded that it was reasonably foreseeable to each defendant that persons, in detention in those conditions, could suffer injury or exacerbation of injury” [at 7].
Parts Struck Out
The Minister was partially successful in getting some of the plaintiffs’ claims struck out, with Kaye J finding that some of the pleaded claims were more suited to administrative law remedies. Kaye J noted that:
“It is important that any reformulation of the amended statement of claim be directed to the basic claim which is brought by AS, on behalf of herself and other members of the group, namely, a claim for damages for personal injuries which are alleged to be the result of the failure by the defendants to take reasonable care to provide appropriate health care for those who were held in detention on Christmas Island pursuant to s 189 of the Migration Act during the period 27 August 2011 to 26 August 2014. The amendments to the pleading must be appropriate to that claim in tort for damages in respect of those injuries.”
Group Proceedings
Kaye J also decided to reject the Minister’s claim that the proceeding was not properly constituted as a group proceeding. His Honour found that the courts adopted a fairly liberal approach to determining if group proceedings satisfy the three criteria in section 33C(1) of the Supreme Court Act 19?? (Vic), which requires:
a) Seven or more people who have claims against the same person
b) Claims that are “in respect of , or arise out of, the same, similar or related circumstances”
c) That give rise “to a substantial common question of law or fact”
His Honour particularly drew attention to the benefits of group proceedings:
“A group proceeding is intended to be a facilitative process, so as to provide a cost effective method by which a large number of persons, who might otherwise be unable to do so, might have access to justice. It is a convenient procedure which can promote efficiency in the administration of justice, avoid inconsistent judgments, and obviate the re-litigation of common questions of fact in large numbers of separate proceedings” [at 54].
He concluded that it would be premature to disallow the group proceeding at this stage, saying that:
“Such a question could be more appropriately determined later in the proceeding, particularly at the stage at which the parties seek to identify the common questions of fact or law which need to be determined upon the trial of the individual proceeding of AS” [at 65].
The asylum seekers will need to resubmit their statement of claim in response to some of the issues in the judgment.
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Sources:
A S v Minister for Immigration and Border Protection & Anor [2014] VSC 593
