FEDERAL COURT OF AUSTRALIA
Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483
File number:
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VID 305 of 2016
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Judge:
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BROMBERG J
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Date of judgment:
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6 May 2016
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Legislation:
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Constitution, s 61
Criminal Code Act 1974 (PNG), ss 225, 226, 280, 312
Explanatory Memorandum, Migration Legislation Amendment (Judicial Review) Bill 2001 (Cth)
Explanatory Memorandum, Migration Legislation Amendment Bill (No 1) 2001 (Cth)
Federal Court of Australia Act 1976 (Cth), ss 23, 37AF
Judiciary Act 1903 (Cth), s 44
Migration Act 1958 (Cth), ss 5, 5AA, 14, 189, 197AB, 198AA, 198AB, 198AD, 198AE, 198AHA, 198B, 474, 476A, 484, 486A, Div 8 Pt 2 Subdiv B,
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)
Migration Legislation Amendment (Judicial Review) Bill 2001 (Cth)
Migration Legislation Amendment Act (No 1) 2001 (Cth)
Migration Litigation Reform Act 2005 (Cth)
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Cases cited:
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"R" v Independent Broad-based Anti-corruption Commissioner (2016) 90 ALJR 433
AB v Western Australia (2011) 244 CLR 390
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Alexandrou v Oxford [1993] 4 All ER 328
Al-Kateb v Godwin (2004) 219 CLR 562
Amaca Pty Ltd v Frost (2006) 67 NSWLR 635
Amaca Pty Ltd v the State of New South Wales (2004) 132 LGERA 309
Annuity and Rent Charge (1744) 1 Eq Ca Abr 31; 21 ER 851
Apotex Pty Ltd v Les Laboratoires Servier (No 2) (2012) 293 ALR 272
Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre (2006) 155 FCR 465
BHP Billiton Iron Ore Pty Ltd v National Competition Council (2007) 162 FCR 234
Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651
Breen v Williams (1996) 186 CLR 71
Brodie v Singleton Shire Council (2001) 206 CLR 512
Brookfield Multiplex Ltd v Owners Corporation Strata Plan No 61288 (2014) 254 CLR 185
Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649
Capital and Counties plc v Hampshire County Council [1997] QB 1004
Carey v Freehills (2013) 303 ALR 445
City of Kamloops v Nielsen (1984) 10 DLR (4th) 641
Clay v Clay (2001) 202 CLR 410
Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390
Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1
Cubillo v Commonwealth (2001) 112 FCR 455
Distillers Co (Biochemicals) Ltd v Thompson [1971] AC 458
D'Orta Ekenaike v Victoria Legal Aid (2005) 223 CLR 1
Dyno Wesfarmers Ltd v Knuckey [2003] NSWCA 375
Federal Commissioner of Taxation v Unit Trend Services Pty Ltd (2013) 250 CLR 523
Fernando v Minister for Immigration and Citizenship (2007) 165 FCR 471
Graham Barclay Oysters Pty Limited v Ryan (2002) 211 CLR 540
Graigola Merthyr Company, Limited v Mayor, Aldermen and Burgesses of Swansea [1928] Ch 235
Hedley Byrne and Co Ltd v Heller & Partners Ltd [1964] AC 465
Hoffmann v Boland [2013] NSWCA 158
Hopkins v AECOM Australia Pty Ltd (No 3) [2014] FCA 1043
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41
Hunter and New England Local Health District v McKenna (2014) 253 CLR 270
Hunter Area Health Service v Presland (2005) 63 NSWLR 22
Hurst v State of Queensland (No 2) [2016] FCAFC 151
Jackson v Spittall (1870) LR 5 CP 542
John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503
Kent v Griffiths [2001] 1 QB 36
L Shaddock & Associates Pty Ltd v Parramatta City Council (No 1) (1981) 150 CLR 225
M(K) v M(H) (1992) 96 DLR (4th) 289
Makawe Pty Limited v Randwick City Council [2009] NSWCA 412
Mastipour v Secretary, Department of Immigration & Multicultural & Indigenous Affairs [2003] FCA 952
Mercer v Commissioner for Road Transport and Tramways (New South Wales) (1936) 56 CLR 580
Michael v Chief Constable of South Wales Police [2015] AC 1732
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427
Minister for Immigration and Multicultural and Indigenous Affairs v VFAD (2002) 125 FCR 249
Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169
MM Constructions (Aust) Pty Ltd v Port Stephens Council [2012] NSWCA 417
Mutual Life & Citizens’ Assurance Co Ltd v Evatt (1968) 122 CLR 556
MZYYR v Secretary, Department of Immigration and Citizenship (2012) 129 ALD 331
Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331
Nicholls v Michael Wilson & Partners Ltd (2010) 243 FLR 177
Nocton v Lord Ashburton [1914] AC 932
Paramasivam v Flynn (1998) 90 FCR 489
Parramatta City Council v Lutz (1988) 12 NSWLR 293
Patsalis v The State of New South Wales [2012] NSWSC 267
Perrett v Collins [1998] 2 Lloyd's Rep 255
Plaintiff M168/10 v Commonwealth (2011) 85 ALJR 790
Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319
Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 90 ALJR 297
Prisoners A to XX Inclusive v State of New South Wales (1994) 75 A Crim R 205
Puttick v Fletcher Challenge Forests Pty Ltd (2007) 18 VR 70
Puttick v Tenon Limited (2008) 238 CLR 265
Pyrenees Shire Council v Day (1998) 192 CLR 330
Redland Bricks Ltd v Morris [1970] AC 652
Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491
Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330
S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2005) 84 ALD 257
SBEG v Secretary, Department of Immigration and Citizenship (No 2) (2012) 292 ALR 29
Secretary, Department of Immigration and Multicultural and Indigenous Affairs v Mastipour (2004) 207 ALR 83
SGS v Minister for Immigration and Border Protection (2015) 34 NTLR 224
State of New South Wales v Fahy (2007) 232 CLR 486
State of South Australia v Lampard-Trevorrow (2010) 106 SASR 331
Stuart v Construction, Forestry, Mining and Energy Union (2010) 185 FCR 308
Stuart v Kirkland-Veenstra (2009) 237 CLR 215
Sullivan v Moody (2001) 207 CLR 562
Sutherland Shire Council v Becker [2006] NSWCA 344
Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55
The Council of the Shire of Sutherland v Heyman (1985) 157 CLR 424
The Council of the Shire of Wyong v Shirt (1980) 146 CLR 40
The Ministry of Defence v Radclyffe [2009] EWCA Civ 635
The Western Counties Manure Company v The Lawes Chemical Manure Company (1873–74) LR 9 Ex 218
Toomelah Boggabilla Local Aboriginal Land Council v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 69 FCR 306
Tusyn v State of Tasmania (2004) 13 Tas R 51
University of New South Wales v Moorhouse (1975) 135 CLR 1
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
Vowles v Evans [2003] 1 WLR 1607
Wallace v Kam (2013) 250 CLR 375
Watson v British Boxing Board of Control Ltd [2001] 1 QB 1134
Webber v New South Wales (2003) 31 Fam LR 425
White v Jones [1995] 2 AC 207
Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515
X7 v Australian Crime Commission (2013) 248 CLR 92
ICF Spry, The Principles of Equitable Remedies (6th Ed., 2001)
JD Heydon, MJ Leeming & PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (5th ed., 2015)
R P Balkin, J L R Davis, Law of Torts (5th ed., 2013)
S Deakin, A Johnston, & B Markesinis, Markesinis and Deakin’s Tort Law (6th ed., 2008)
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Date of hearing:
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28 and 29 April 2016
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Registry:
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Victoria
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Division:
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General Division
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National Practice Area:
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Administrative and Constitutional Law and Human Rights
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Category:
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No catchwords
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Number of paragraphs:
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529
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Counsel for the Applicant:
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Mr R Merkel, QC, with him Mr E Nekvapil and Mr O Ciolek
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Solicitor for the Applicant:
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Natural Justice Project Ltd., Allens Linklaters as town agents
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Counsel for the Respondents
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Mr G Kennett, SC, with him Mr P Knowles and Mr A Yuile
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Solicitor for the Respondents
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Australian Government Solicitor
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ORDERS
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VID 305 of 2016
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BETWEEN:
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PLAINTIFF S99/2016
Applicant
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AND:
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MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
THE COMMONWEALTH OF AUSTRALIA
Second Respondent
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JUDGE:
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BROMBERG J
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DATE OF ORDER:
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6 May 2016
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THE COURT DECLARES THAT:
1. 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.
AND THE COURT ORDERS THAT:
2. On or before 15 May 2016, the Respondents cease to fail to discharge the responsibility that they assumed to procure for the Applicant a safe and lawful abortion.
3. Unless otherwise agreed in writing between the legal representative of the Applicant and the Respondents, 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.
4. On or before 13 May 2016, the Respondents file and serve any submission in relation to the costs of the application.
5. If the Respondents file and serve any submission in relation to costs pursuant to Order 4, then on or before 20 May 2016 the Applicant file and serve any submission in reply.
6. Should no submission as to costs be made pursuant to Order 4, the Respondents pay the Applicant’s costs of and incidental to the application.
7. On the grounds set out at s 37AG(1)(a) and (c) of the Federal Court of Australia Act 1976 (Cth), publication of the following information be prohibited under s 37AF of the Federal Court of Australia Act 1976 (Cth), until further order or six months from today, whichever first occurs:
(a) the name of the Applicant.
(b) the age of the Applicant.
(c) the applicant’s country of origin, and the country in which she lived before she came to Australia.
(d) the identification number of the boat on which the Applicant first arrived in Australia.
(e) the procedure that the Applicant had when she was seven years old.
8. There be liberty to apply to extend or vary Order 7.
9. Unless otherwise agreed in writing between the legal representatives of the Applicant and the Respondents, the Respondents, whether by their officers, servants, agents, contractors or otherwise, take no step, on or before 5:00 pm on 15 May 2016, to remove the Applicant from Papua New Guinea.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMBERG J:
INTRODUCTION
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[1]
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THE NEGLIGENCE CLAIM
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[18]
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The Essence of the Negligence Claim
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[18]
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The Statutory Setting
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[29]
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Migration Act
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[29]
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Agreements as between the Commonwealth and Nauru
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[36]
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Conditions relating to detention of asylum seekers on Nauru
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[44]
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Agreements as between the Commonwealth and Service Providers in relation to provision of services to refugees in Nauru
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[50]
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Settlement services
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[53]
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Health services
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[60]
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Education services
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[68]
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The Salient Facts
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[70]
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PROPER LAW OF THE TORT
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[158]
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Applicable principles
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[159]
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Discussion—lex loci delicti
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[175]
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What if the applicable law is that of Papua New Guinea?
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[183]
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IS THERE A DUTY OF CARE?
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[200]
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Legal Principles
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[200]
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Exercise of Statutory Duty
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[210]
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Assumption of Responsibility
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[232]
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Application of Legal Principles to the Facts
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[243]
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IS APPREHENDED BREACH ESTABLISHED?
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[279]
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Foreseeability, Magnitude and Probability of the Risks
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[284]
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Legal Setting
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[284]
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The Medical Setting
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[305]
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Neurological expertise
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[315]
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Mental health care
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[337]
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Gynaecological expertise
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[351]
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Anaesthesia
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[360]
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An Interdisciplinary Approach
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[364]
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The harm if no abortion was procured
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[368]
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Discussion
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[378]
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RELIEF
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[409]
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Section 474 of the Act
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[409]
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Cases concerning ss 476A and 486A
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[413]
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Extrinsic materials
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[428]
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Other cases
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[434]
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General principles of interpretation
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[448]
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Declaratory Relief
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[460]
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Should an Injunction be Granted?
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[467]
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MISCELLANEOUS ISSUES.
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[503]
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The Fiduciary Duty argument
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[504]
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Legal unreasonableness
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[519]
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Exceeding limits of power
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[524]
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Issues associated with mandatory injunctions
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[527]
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