Federal court of australia

33.Declaratory Relief

460 I have determined that the abortion procured by the Minister for the applicant in Papua New Guinea did not discharge the duty of care which is owed. The applicant has sought a declaration to that effect (paragraph B of the relief claimed). A further declaration is sought (paragraph A) to the effect that the procuration of an abortion in an Australian teaching hospital would satisfactorily discharge the duty of care owed.

461 The making of a declaration and the terms in which it should be framed are in the Court’s discretion, but any declaration made by the Court should reflect the final outcome of the case with certainty and precision: Stuart v Construction, Forestry, Mining and Energy Union (2010) 185 FCR 308 at [89] (Besanko and Gordon JJ with whom Moore J agreed at [35]). In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581–582, Mason CJ, Dawson, Toohey and Gaudron JJ said (citations omitted):

It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which “[i]t is neither possible nor desirable to fetter … by laying down rules as to the manner of its exercise.” However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have “a real interest” and relief will not be granted if the question “is purely hypothetical”, if relief is “claimed in relation to circumstances that [have] not occurred and might never happen” or if “the Court's declaration will produce no foreseeable consequences for the parties”.

See further, Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319 at [102]–[103] (the Court).

462 The reference in the last sentence of the passage quoted from Ainsworth to a circumstance that “might never happen” is to what Gibbs J said in University of New South Wales v Moorhouse (1975) 133 CLR 1 at 10. In the passage in which the quoted words appear, Gibbs J went on to say that a declaration may be an appropriate remedy where it is established that the defendant intends to take action that will amount to an infringement.

463 I would not make the declaration claimed at paragraph A of the claim for relief. A declaration of that kind would address circumstances that “[have] not occurred” in the absence of it having been established that the Minister intends to procure an abortion at an Australian teaching hospital. It would fall foul of the observation made in Ainsworth.

464 However, I would make a declaration in relation to the procurement of an abortion in Papua New Guinea. That act of the Minister has occurred and is complete. A declaration in relation to that act will assist in the determination of the legal controversy and has utility. I would declare that the abortion that has been procured by the respondents to be performed in Papua New Guinea is not a safe and lawful abortion, and that its procuring did not discharge the respondents’ duty to exercise reasonable care to discharge the responsibility that they assumed to procure for the applicant a safe and lawful abortion.

465 Furthermore, whilst the Minister’s intent to procure an abortion in Australia has not been established, the evidence does establish that the Minister intends to procure an abortion for the applicant. It has also been established that, unless that was done in a particular legal and medical setting, there would be a breach of the duty of care owed. There would be utility in making a declaration which reflected the apprehended wrong which the Court has found. That would be relief directed to the determination of the legal controversy.

466 Accordingly, I would make a declaration in the following terms:

It would be a breach of the respondents’ duty of care to exercise reasonable care to discharge the responsibility that they assumed to procure for the applicant a safe and lawful abortion where:

(a) the abortion is procured so that it takes place in any location where a person who participates in an abortion is exposed to criminal liability; or

(b) the abortion is procured so that it takes place in a hospital or other medical facility that does not have, or that cannot make available to the treating doctor or doctors who perform the abortion:

(i) the neurological expertise and neurological facilities referred to in the expert medical report of Associate Professor Ernest Somerville dated 19 April 2016, together with his expert medical report dated 27 April 2016; and

(ii) the psychiatric expertise, and other resources including cross-cultural expertise, referred to in the expert medical report of Professor Louise Newman dated 18 April 2016, together with her email dated 27 April 2016; and

(iii) the anaesthetic expertise and anaesthetic facilities referred to the expert medical report of Dr Gregory Purcell dated 20 April 2016; and

(iv) the gynaecological expertise and experience, and the gynaecological facilities, referred to in the expert medical report of Professor Caroline de Costa dated 19 April 2016, together with her expert medical report dated 27 April 2016, and the expertise, experience and facilities referred to in the expert medical report of Dr Miriam O’Connor dated 20 April 2016, together with her expert medical report dated 27 April 2016.

34.Should an Injunction be Granted?

467 The applicant asserts a reasonable apprehension that the Minister will fail to discharge his duty of care. There is a basis for that apprehension because the Minister has already procured an abortion for the applicant which, as I have found, failed to discharge the duty of care owed and has indicated an unwillingness to procure any other kind of abortion. But, in the absence of a claim of breach and as damage has not been established, the applicant’s cause of action is not yet complete. In that case, if the applicant is to obtain injunctive relief, a quia timet injunction would be required. A court may issue a quia timet injunction to prevent or restrain an apprehended or threatened wrong which would result in substantial damage if committed: Hurst v State of Queensland (No 2) [2006] FCAFC 151 at [20] (Ryan, Finn and Weinberg JJ).

468 Before turning to consider the factors relevant to the grant of quia timet relief, I observe, as the tenor of the Minister’s submissions did, that injunctions restraining the commission of the tort of negligence are rare. That, however, is not indicative of a doctrinal limitation.

469 As JD Heydon, MJ Leeming & PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (5th ed., 2015)) at [21-105] say:

It has sometimes been thought that an injunction to restrain the commission of the tort of negligence could not lie, whether the defendant is threatening to do an act for the first time, or to continue or repeat an act. The reasoning is that damage is one of the ingredients of the plaintiff’s cause of action and since one can never tell in advance whether the defendant’s activity will cause damage, no occasion to seek the injunction can, as a matter of logic, arise. That reasoning is faulty. If it were accepted, one could never obtain an injunction to restrain a nuisance, a tort in which damage is equally an ingredient. …

470 There is a reason why cases to restrain the commission of the tort of negligence are rare. Usually, damage is suffered before a claim is brought. It is obvious why that is so: in many cases risk of harm is not perceived by the plaintiff and so it cannot be avoided; in cases where a plaintiff perceives danger, especially physical danger, he or she will often take steps to avoid it; in some cases, he or she will take the risk of harm and, if it eventuates, commence proceedings (subject to claims of contributory negligence); finally, in some cases harm is perceived but is unavoidable.

471 In that light, there is limited opportunity for plaintiffs to approach a court to restrain a tort. It might occur in these rare circumstances:

(1) the plaintiff has perceived the risk;

(2) the plaintiff is not prepared to take the risk;

(3) the risk is, in theory, avoidable or reducible;

(4) but, the risk is not in the power of the plaintiff to avoid or reduce;

(5) and, the risk is in the power of the defendant to avoid or reduce; and

(6) the plaintiff has enough time to go to court before the risk eventuates.

472 This is such a case. The applicant is biologically unable to avoid the risks that attend continued pregnancy. The Minister has admitted that the applicant would be unable to procure an abortion without his assistance, but has indicated an unwillingness to make available any abortion other than the Papua New Guinea abortion. The applicant’s options are to take the risk associated with abortion in Papua New Guinea, take the risk associated with continued pregnancy, or commence proceedings. It will be only exceptional cases in which an applicant has so few options.

473 Accordingly, I do not consider the novelty of the remedy as constituting a bar to its award, should the claim deserve it. And, unless the remedy was doctrinally sound, it is difficult to imagine why the learned authors of Meagher, Gummow & Lehane would devote text to explaining why it is, in principle, available.

474 Finally, while my researches were unable to reveal a claim in which an injunction was issued in respect of negligence on a final basis, injunctions have been issued on an interlocutory basis, which engenders that the same relief must be available finally: Toomelah Boggabilla Local Aboriginal Land Council v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 69 FCR 306 at 309 (Foster J), relying on Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169 at 179 (Beaumont J). In Mastipour v Secretary, Department of Immigration & Multicultural & Indigenous Affairs [2003] FCA 952, the applicant claimed that the respondent “owed to him a duty to take care to avoid exposing him to circumstances which are or were likely to cause him emotional shock and psychiatric injury, that the duty of care has been breached, and that as a consequence he has suffered severe emotional shock and psychiatric injury.” Mansfield J made this Order:

The first respondent do transfer the applicant as soon as reasonably practicable to either the Villawood Immigration Reception Processing Centre or to the Maribyrnong Immigration Reception Processing Centre as the first respondent may determine.

475 An appeal was allowed, but only because of the form of the order: Secretary, Department of Immigration and Multicultural and Indigenous Affairs v Mastipour (2004) 207 ALR 83. As Lander J explained:

[139] However, in my opinion, a mandatory injunction of the type made was inappropriate.

[140] The terms of the order are such that the order is already spent. The order required the secretary to transfer Mr Mastipour and no more. It was put to counsel, during argument, that the order in its literal terms would not prevent the secretary returning Mr Mastipour to Baxter.

[141] Both counsel, however, accepted that the spirit of the order was that Mr Mastipour be removed to one of those places and kept there. If that is the way in which the order should be read, it would mean that the secretary could not move Mr Mastipour to a hospital or to some other detention centre. Again, if the order was understood in the way that counsel accepted, it might mean that the secretary was not able to remove Mr Mastipour from Australia if the occasion arose for a power to be exercised under s 198 of the Act. The order sought was an interlocutory order. The terms of the order made were more akin to a final order. For those reasons, the terms of the order were inappropriate.

476 The basis of the order, as Lander J explained, was the following:

[132] The primary judge, in my opinion, properly recognised that the application for an injunction was dependent upon Mr Mastipour establishing that there was a duty of care. Once he established that there was a duty of care which, as I say, is admitted, the question for the trial judge was whether there was a serious question to be tried in relation to the breach of that duty.

[133] There can be no doubt that if there was a serious question to be tried in relation to the continuing breach of duty by the secretary, the balance of convenience favoured Mr Mastipour, notwithstanding Mr Wallis’ protestations that it would not be viable to move Mr Mastipour to another detention centre.

[134] There was a further question being whether or not injunctive relief would go to restrain the continuing breach of a duty of care. That matter does not arise on this appeal because it was not argued that if there was a serious question to be tried and, if the balance of convenience favoured Mr Mastipour, an order in the nature of injunction could not be made.

[135] The only real question before the primary judge, and it was a matter of fact, was whether there was a serious question to be tried in relation to a continuing breach of duty.

[136] In my opinion, the evidence overwhelmingly supported the decision arrived at by the primary judge. There can be no doubt, in my opinion, that the evidence adduced, most of which was uncontradicted, supported the finding that there was a serious question to be tried.

[137] In those circumstances, the primary judge was right to conclude that an injunction should issue.

477 The orders substituted were as follows:

Until the trial of this action or until further order, whichever first occurs, an injunction is hereby granted restraining the first respondent (the secretary) from:

(1) Detaining the applicant (Mr Mastipour) at the Baxter Reception and Processing Centre in Port Augusta, South Australia; or

(2) Removing the applicant (Mr Mastipour) to the Port Hedland Reception and Processing Centre in Western Australia.

478 I am of the opinion that there is no doctrinal barrier to my issuing an injunction. Dunford J came to the same conclusion in Prisoners A to XX Inclusive v State of New South Wales (1994) 75 A Crim R 205 at 213 and see Patsalis v The State of New South Wales [2012] NSWSC 267 at [54] (Beech-Jones J).

479 A survey of the general principles for the grant of a quia timet injunction is usefully provided by Bennett J in Apotex Pty Ltd v Les Laboratoires Servier (No 2) (2012) 293 ALR 272 at [46]:

[46] The following principles generally apply to the grant of a quia timet injunction:

 A quia timet injunction is granted to prevent a threatened infringement of the rights of the applicant. The applicant must show that what the respondent is threatening and intending to do will cause imminent and substantial damage to the applicant: Royal Insurance Co Ltd v Midland Insurance Co Ltd (1908) 26 RPC 95 at 97; followed in Bendigo and Country Districts Trustees and Executors Co Ltd v Sandhurst and Northern District Agency Co Ltd (1909) 9 CLR 474 at 478; [1909] HCA 63 (Bendigo).

 The word “imminent” means that the injunction must not be granted prematurely. The degree of probability of future injury is not an absolute standard. What is to be aimed at is justice between the parties, having regard to all the relevant circumstances: Hooper v Rogers [1975] Ch 43 at 50; [1974] 3 All ER 417 at 421. However, this is not to be taken as conveying that future injury need not be shown to be likely at all: Magic Menu Systems at FCR 270; ALR 208.

 Quia timet injunctions are not to be granted unless the imminence of the act to be prohibited is sufficiently clearly established to justify the court’s intervention. (I C F Spry The Principle of Equitable Remedies: Specific Performance, Injunctions, Rectification and Equitable Damages, 8th ed, Law Book Co, NSW, 2010 (Spry), referred to and adopted by Weinberg J in Glaxosmithkline at [94].)

 In deciding whether to grant a quia timet injunction, the court will have regard to the degree of probability of the apprehended injury, the degree of seriousness of the injury and the requirements of justice between the parties: Hurst v Queensland (No 2) [2006] FCAFC 151 at [21].

480 I note that in the last dot point, Bennett J referred to Hurst. In Hurst, the appellant sought an injunction against the State of Queensland. A finding was made that the State of Queensland had contravened the Disability Discrimination Act 1992 (Cth) in relation to the provision of education services to Hurst. Hurst sought an injunction restraining the State of Queensland from continuing to deny her the services of an Auslan interpreter. Having noted that a quia timet injunction was being sought, Ryan, Finn and Weinberg JJ set out their formulation of the test, to which Bennett J referred in her survey. At [21] their Honours said:

In quia timet proceedings, the court will have regard to the degree of probability of apprehended injury, the degree of the seriousness of the injury, and the requirements of justice between the parties

481 Their Honours continued by referring to the following two sources. They said at [21]–[22]:

[21] … In R v Macfarlane; Ex parte O’Flanagan and Ex parte O’Kelly (1923) 32 CLR 518 Isaacs J observed (at 539):

“The Court is not entitled to apply the obstacle of injunction to the contemplated action of a co-ordinate branch of the Government unless not only a case of clear illegality, proved to be calculated to result in a clear injury, is established, but also it is shown that by no other means can injury be averted or sufficiently compensated for.”

[22] Dr I C F Spry, in The Principles of Equitable Remedies: Specific Performance, Injunctions, Rectification and Equitable Damages (2001, 6th ed), comments (at 378) that quia timet injunctions are not granted unless the imminence of the act to be prohibited is sufficiently clearly established to justify the court’s intervention. The fact that there is no breach presently occurring may make it more difficult, as a matter of evidence, to establish that there is a sufficient risk of a future injury to justify the immediate grant of an injunction. If, in all the circumstances, the likelihood that an injury will take place is not sufficiently high, quia timet relief will be refused. The applicant will be left either to avail himself or herself of such other remedies as may be open, or else to renew his or her application should the likelihood of an injury subsequently increase sufficiently to render equitable intervention appropriate.

482 The reference to the observations made by Isaacs J in Macfarlane has caused me to consider whether there is a stricter test for an injunction, or at least a quia timet injunction, when that relief is sought against “a co-ordinate branch of the Government”.

483 Macfarlane was a case in which an interlocutory injunction was sought against members of a statutory board appointed to inquire as to whether Macfarlane (and others) should be deported. The claim for an injunction was based on the alleged invalidity of the Commonwealth enactment pursuant to which the inquiry was being conducted. Knox CJ held that there was no substance to the challenge to the enactment and dismissed the application for the injunction (at 528–533). Higgins J held that the injunction ought be refused even if the enactment was invalid on the basis that, in the circumstances, the plaintiffs were not entitled to an injunction (at 577). Rich J agreed with Isaacs J (at 578). Starke J held that the enactment was within power (at 583) and did not decide whether an injunction would be an appropriate remedy (at 584–585).

484 It is only in the judgment of Isaacs J (with whom Rich J agreed) that the governmental character of the defendant was raised as a basis for the test for the grant of an injunction.

485 The observation made by Isaacs J has not often been adopted. Although referred to in Hurst, the formulation of the test at [22] of Hurst does not reflect the formulation adopted by Isaacs J. That was so in circumstances where the Court was dealing with an injunction sought against the State of Queensland. Nor does the Full Court’s application of the test (at [23]–[25]) suggests that the formulation of Isaacs J was applied. Instead, the Full Court applied its own test.

486 Weinberg J, a member of the Full Court in Hurst, was also a member (with Black CJ and Sundberg J) of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v VFAD (2002) 125 FCR 249. As the headnote to that case states, the central issue on the appeal was whether the power conferred by s 23 of the Federal Court of Australia Act 1976 (Cth) (“Federal Court Act”) to make interlocutory orders could be exercised to order the release, on a temporary basis, of persons in immigration detention. The question was whether s 196(3) of the Act abrogated the s 23 power in relation to persons kept in immigration detention. The Full Court rejected the proposition that it did (at [104]).

487 At [103], Black CJ, Sundberg and Weinberg JJ referred to the judgment of Isaacs J in Macfarlane but only for the proposition that in a suitable case a quia timet injunction might be “possible as preventive”. There is no reference made to the observation of Isaacs J set out in Hurst. Nor is there any suggestion in the following discussion about the power conferred upon this Court by s 23, that a different test for the grant of an injunction (or a quia timet injunction), applies in relation to an injunction sought against the executive. At [98]–[101], the Full Court said (emphasis added):

[98] In general terms, therefore, the High Court has held that the power conferred upon this Court by s 23 may be exercised in any proceeding in which this Court has jurisdiction. That power is subject only to the limits specifically identified by the High Court, particularly the limits to which reference was made in Patrick, as set out above. It is at least implicit in what was said in that case that the section should be construed as conferring power on this Court to ensure that it can exercise effectively the jurisdiction which it otherwise possesses. That conclusion is generally consistent with the broad ambit of the power conferred upon this Court in its original jurisdiction by ss 19 and 21.

[99] It should be noted that the wide interpretation accorded to s 23 by the High Court is, in general terms, consistent with the approach traditionally taken to the power of superior courts of record to grant interlocutory injunctions. Such injunctions may be granted to protect equitable rights and, in what is sometimes described as the “auxiliary jurisdiction”, to restrain the threatened infringement of some legal right (that is, some breach of contract, tort or invasion of statutory right).

[100] Historically, injunctive relief would only be granted to protect a right that was proprietary in nature, in circumstances where damages would not be an adequate remedy. It is now no longer necessary to demonstrate that the legal right which is threatened is proprietary: Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at 258 [27]; Egan v Willis (1998) 195 CLR 424 at 438 [5] and Cardile at 395 [30 ], citing Bradley v Commonwealth (1973) 128 CLR 557.

[101] In modern times, there is nothing peculiar about the notion that an interlocutory injunction can be granted by the courts to restrain what is said to be an unlawful detention. In M Aronson and B Dyer, Judicial Review of Administrative Action (2nd ed, 2000), the learned authors observe (p 670): “There is no reason in principle against the possibility of terminating an imprisonment by means of a mandatory injunction, but no decision expressly so holds.”

488 The challenge to the following order made by the primary judge was dismissed:

Until the hearing and determination of the proceeding or until further order the respondent, whether by his servants, agents or howsoever otherwise, be restrained from continuing to detain the applicant in immigration detention under the Migration Act 1958 (Cth).

489 Since Al-Kateb v Godwin (2004) 219 CLR 562, some of the reasoning in VFAD is no longer good law. But the observations made on s 23 of the Federal Court Act and the power to grant injunctions, are unaffected. I do not consider that the principles for the grant of quia timet injunctions collected by Bennett J in Apotex, cease to be the applicable principles where an injunction is sought against the Commonwealth. I will apply those principles.

490 The imminence of harm is a factor that needs to be considered. “Imminent”, in this context means that the injunction must not be issued prematurely. Whilst that question is directed to the prospect of harm, I should say something first about the prospect of breach. No submissions were made (and perhaps the urgency with which this matter came on provides a justification) as to when (assuming the existence of the duty of care), the Minister is obliged to discharge his duty to procure an abortion for the applicant. It will only be at that time, assuming no effective discharge of the duty beforehand, that a breach of the duty will have occurred.

491 The evidence was not expressly directed to that issue. However, it is a fair inference that the duty, being a duty to take reasonable care in relation to a matter concerning the applicant’s health, entails the obligation to procure an abortion as soon as is reasonably possible. I say that including because it is admitted by the Minister that whilst the applicant continues to carry her pregnancy she is suffering mental harm. There was also uncontested evidence that by reason of cultural and religious practice applicable to the applicant, no abortion may be performed if the pregnancy is carried beyond 16 weeks. The best evidence I have as to the date of the rape is that it occurred on 31 January 2016. If that is accurate, then 22 May 2016 is the last day on which an abortion may be performed. It seems to me therefore that even if a generous view is taken as to what is a reasonable time for the Minister to procure a safe and lawful abortion and, allowing for a grace period of, say, a week, a safe and lawful abortion must be procured on or before 15 May 2016 in order for the Minister to avoid breaching his duty of care. I so find.

492 I proceed on that assumption to consider the imminence of harm. The answer is fairly obvious. I do not regard it as premature to grant an injunction now, in relation to the risk of harm that has probably already manifested to some extent but which will be manifest within one or two weeks.

493 Whilst the degree of probability of harm is not an absolute standard, the aim being “justice between the parties, having regard to all the relevant circumstances”, the probability should nevertheless be evaluated and considered. As the Full Court said in Hurst, the degree of seriousness of the injury must also be considered.

494 I have already given consideration to both the probability and the magnitude of the apprehended injury in applying the Shirt formula. That assessment was performed through a frame not inappropriate for adoption here. Consistently with my earlier findings at [307]–[372] and [274] and [289], I consider that the magnitude of the medical risks are high to extreme whilst the probability of occurrence is material to very significant. As for the risks of prosecution or conviction, the magnitude is high to extreme whilst the probability of occurrence is very low.

495 All in all, that provides a strong foundation for the grant of a quia timet injunction. An additional factor in support of an injunction is the concession made by the Minister that the nature of any hardship that may be imposed on the Minister by the grant of an injunction is not a significant factor against an injunction being granted in this case. It is also admitted by the Minister that damages would not provide a sufficient remedy to the applicant. That is a potent consideration in favour of an injunction. The advice of Lord Hanworth MR in Graigola Merthyr (see [458]) that it is better to restrain in time than to seek a remedy after the injury has been inflicted, is wiser still where the infliction of injury will be irremediable.

496 The Minister submitted that he had not behaved wantonly or unreasonably. That consideration is sourced from Redland Bricks Ltd v Morris [1970] AC 652 at 665–666. It relates specifically to the grant of a mandatory injunction. I do not propose to grant a mandatory injunction but note that, in this country, Redland Bricks is not without its critics: Meagher, Gummow & Lehane (5^th ed., 2015) at [21.440] and [21.465]; ICF Spry, The Principles of Equitable Remedies (6^th ed., 2001) at 547.

497 Further, I have at [402] made observations about the implausibility of the position taken by Mr Nockels. Those observations do not support the proposition that there has been no unreasonable conduct. Save for the form of any injunction to be issued, which I will shortly address, there are no other considerations which were relied upon by the Minister.

498 To my mind, the totality of those considerations, examined through the frame of doing justice between the parties, favour the grant of a prohibitive injunction. If it had been necessary to apply what I consider to be the stricter approach propounded by Isaacs J in Macfarlane, I would have nevertheless arrived at the same conclusion. To my mind this is a clear case of apprehended breach and the risks of harm are sufficiently grave for me to conclude that the prospect of injury is clear should the duty of care not be discharged.

499 The terms of an injunction should clearly identify what is required of the person subject to it. The formulation of an effective and clearly-worded restraint is not without difficulty in the context of this case. I am presently resistant to the form of prohibitory injunction that the applicant seeks as follows:

G. Alternatively to F, an injunction restraining the Commonwealth from failing to procure for the Applicant a surgical abortion both at a place other than in Papua New Guinea and in a hospital certified as appropriate for that abortion by:

(a) a specialist gynaecologist, who is a fellow of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists;

(b) a specialist neurologist, who is a fellow of the Royal Australasian College of Physicians;

(c) a specialist psychiatrist, who is a fellow of the Royal Australian and New Zealand College of Psychiatrists; and

(d) a specialist anaesthetist, who is a fellow of the Australian and New Zealand College of Anaesthetists.

500 I prefer the following formulation:

(1) On or before _______________, the Respondents cease to fail to discharge the responsibility that they assumed to procure for the Applicant a safe and lawful abortion.

(2) Upon the Respondents discharging their duty of care to exercise reasonable care to procure for the Applicant a safe and lawful abortion:

(a) the abortion not be procured so that it takes place in Papua New Guinea; and

(b) the abortion not be procured so that it takes place in any location where a person who participates in an abortion is exposed to criminal liability; and

(c) the abortion not be procured so that it takes place in a hospital or other medical facility that does not have, or that cannot make available to the treating doctor or doctors who perform the abortion:

(i) the neurological expertise and neurological facilities referred to in the expert medical report of Associate Professor Ernest Somerville dated 19 April 2016, together with his expert medical report dated 27 April 2016; and

(ii) the psychiatric expertise, and other resources including cross-cultural expertise, referred to in the expert medical report of Professor Louise Newman dated 18 April 2016, together with her email dated 27 April 2016; and

(iii) the anaesthetic expertise and anaesthetic facilities referred to in the expert medical report of Dr Gregory Purcell dated 20 April 2016; and

(iv) the gynaecological expertise and experience, and the gynaecological facilities, referred to in the expert medical report of Professor Caroline de Costa dated 19 April 2016, together with her expert medical report dated 27 April 2016, and the expertise, experience and facilities referred to in the expert medical report of Dr Miriam O’Connor dated 20 April 2016, together with her expert medical report dated 27 April 2016.

501 Injunctions in that form, are grounded in the declaration I propose to make which, in turn, is referrable to the findings I have made and in particular those at [380] which are based on the expert medical evidence which I have accepted. The expert reports provide a clear understanding of the expertise and other resources which the treating doctors performing a safe abortion may need to access. I propose, however, to provide the parties with an opportunity to speak to the orders before finally determining the form in which they are to be made. I will also hear the parties further as to an appropriate date by which the Minister’s duty must be discharged.

502 Finally the applicant also sought an injunction restraining the Minister from returning her to Nauru prior to procuring for her a safe and lawful abortion. I do not propose to make an order to that effect. In the light of the orders to be made, I do not consider it necessary even if it were the case that the making of such an order was appropriate.