Behrooz v The Commonwealth of Australia

[2015] NSWSC 478

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Behrooz v The Commonwealth of Australia & Ors [2015] NSWSC 478

Hearing dates:

22 April 2015

Date of orders:

22 April 2015

Decision date:

22 April 2015

Jurisdiction:

Common Law

Before:

Beech-Jones J

Decision:

(1) Pursuant to s 140 of the Civil Procedure Act, proceedings number 12/60573 be transferred from the District Court to the Supreme Court of New South Wales.

 

(2)   The plaintiff pay the defendant and cross-claimant's costs of the application for transfer, except those costs of the application for transfer incurred on 27 June 2014.

 

(3)   Each party pay their costs of the application for transfer incurred on 27 June 2014.

 (4)   Proceedings 12/60573 be fixed for hearing on 1 February 2016.

Catchwords:

Transfer of proceedings from District Court – plaintiff sues Commonwealth for psychological harm allegedly suffered while in immigration detention – no question of principle.

Legislation Cited:

- Civil Procedure Act 2005 – s 140

Cases Cited:

- Every v Osborne [2012] NSWSC 1437

Category:

Procedural and other rulings

Parties:

Mehran Behrooz - Plaintiff
The Commonwealth of Australia – Defendant
Australasian Correctional Services Pty Ltd – First Cross Defendant
The Geo Group Australia Pty Ltd – Second Cross Defendant

Representation:

Counsel:
A.C. Casselden (Plaintiff)
P.S. Jones (Defendant)
Ms R. Tang (Sol) (Cross Defendants)

  Solicitors:
Maurice Blackburn Lawyers (Plaintiff)
Australian Government Solicitor (Defendant)
HWL Ebsworth Lawyers (Cross Defendants)

File Number(s):

2014/058698

Publication restriction:

Nil

ex tempore Judgment

1. Before the Court is a summons seeking a transfer of proceedings in the District Court to this Court pursuant to s 140 of the Civil Procedure Act 2005. Until recently, each of the defendant and the cross-defendants opposed the transfer. However, during the course of the morning they indicated to the Court that they neither opposed nor consented to the transfer. In light of that position, I will only briefly set out the reasons why the order for transfer will be made.

2. The plaintiff is an Iranian national who arrived in Australia by boat in December 2000. From early 2001 until mid-2004 he was detained, firstly, at Woomera and then at Baxter Immigration Detention Centre. He was granted a temporary protection visa in 2004 and later received a permanent protection visa. He sues the Commonwealth for psychological harm he claims to have suffered as a result of his detention. The Commonwealth has cross-claimed against two of the entities that it says were contracted to manage the immigration detention centres.

3. The plaintiff commenced the proceedings in February 2012. There were a number of interlocutory steps taken in the District Court. After a mediation was unsuccessful and, in the months prior to a scheduled hearing, an application was filed to have the matters transferred to this Court.

4. The requirements for transfer involve the Court being satisfied that, if the plaintiff were successful, he is likely to obtain a verdict that exceeds the jurisdictional limit of the District Court or there are otherwise such reasons for hearing the proceedings in the Supreme Court (Civil Procedure Act; s 140(3)(b)). If one of those preconditions is satisfied, then the Court has a discretion to order the transfer.

5. The plaintiff's case is that he suffered significant psychological injury as a result of his detention which has caused him to be unable to work. He also claims amounts for ongoing medication and some care. The Court was provided with a number of psychological and psychiatric reports prepared on behalf of the plaintiff which prima facie appear to support that contention. Given that the plaintiff was 28 years old at the time of his release, it does seem “likely” that, if he is successful, the amount of damages will exceed $750,000. In stating that, I bear in mind that the nature of assessment is not one which involves “an assessment of the individual components of a damages claim but rather the broader question of whether it appeared likely to him or her that if the claimant was successful the damages would exceed $750,000” (see Every v Osborne [2012] NSWSC 1437 at [16] per Davies J).

6. Otherwise, I note that the matter appears to involve a number of significant, if not necessarily novel, legal issues. For example, one issue that appears to arise is whether the amendments to the Civil Liability Act 1936 (SA) which were made in 2003 and which appear to correspond with the provisions of the Civil Liability Act 2002 are applicable to the proceedings. There is also a significant question as to the extent of particular obligations imposed on the Commonwealth in the discharge of its duty of care to immigration detainees.

7. The material before the Court indicated two matters which tended against the making of a transfer order. First, it appeared that the material that was available to the plaintiff's solicitors prior to commencement of the proceedings in 2012 was capable of suggesting that the matter was likely, if successful, to result in a verdict that exceeded $750,000. Second, it also appears that there has been less than ideal compliance with various directions made by the District Court, although, I did not provide counsel for the plaintiff with the opportunity to address on that topic. Even on the assumption that there was non-compliance with those orders and notwithstanding that the application for the transfer does appear to have been made somewhat late, I nevertheless consider that it is appropriate to transfer the proceedings to this Court.

8. As I have indicated, I am satisfied that if the plaintiff is successful then any verdict is likely to exceed the jurisdictional limit of the District Court and there are otherwise significant legal issues that arise in the proceedings. Further, if the application were refused, there is significant potential that the plaintiff would suffer a serious injustice.

9. Given the history of the matter, I also determined that it is necessary for the matter to proceed with the parties having a fixed hearing date which will allow them to work towards preparing the proceedings. Accordingly, I will fix a date for the hearing of the proceedings, namely, 1 February 2016, with a five week estimate. Counsel for the defendant has outlined a series of directions that will allow the matter to progress until that time. In due course, they will be made. I emphasise that the Court will be supervising the compliance with those directions and, if it appears that significant slippage occurs, it will take the necessary action which could include the unilateral vacation of that hearing date.

10. Accordingly, the Court orders that:

1. Pursuant to s 140 of the Civil Procedure Act, proceedings number 12/60573 be transferred from the District Court to the Supreme Court of New South Wales.

2. The plaintiff pay the defendant and cross-claimant's costs of the application for transfer, except those costs of the application for transfer incurred on 27 June 2014.

3. Each party pay their costs of the application for transfer incurred on 27 June 2014.

4. Proceedings 12/60573 be fixed for hearing on 1 February 2016.

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Amendments

21 July 2015 - Initial of representative of First Defendant corrected.

Decision last updated: 21 July 2015