Commonwealth of Australia v Saadat

[2019] SASCFC 50

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

COMMONWEALTH OF AUSTRALIA v SAADAT & ORS

[2019] SASCFC 50

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Hinton)

16 May 2019

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS - OTHER CASES

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT - INTERLOCUTORY ORDERS AND JUDGMENTS

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS

The Commonwealth of Australia filed a notice of appeal seeking to challenge pre-trial orders made by the designated trial Judge. The Commonwealth’s notice of appeal included an application for permission to appeal, on the assumption that the pre-trial orders are to be characterised as interlocutory. In the alternative, the Commonwealth argued that the pre-trial orders were not interlocutory, and permission to appeal is not required.

Held, by the Court:

1.       The issue of permission and the appeal itself are referred to the Full Court to be heard together in open court.

2.       The matter is to be listed before the Full Court as soon as practicable.

Supreme Court Civil Rules 2006 (SA) s 286, referred to.
Landmark Operations Ltd v J Tiver Nominees Pty Ltd [2009] SASC 185; Viscariello v Tamasauskas [2018] SASC 111; Amaca Pty Ltd v Werfel [2019] SASC 29; South Australian Government Financing Authority v Bank of New Zealand (No 3) [2002] SASC 22; ACE Insurance Ltd v Trifunovski (2012) 291 ALR 46; Mathew (SA) Nominees Pty Ltd v Belconnen Automotive Pty Ltd [2019] SASC 39; House v The King (1936) 55 CLR 499; Channel Seven Adelaide Pty Ltd v Manock [2010] SASCFC 59; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, discussed.

COMMONWEALTH OF AUSTRALIA v SAADAT & ORS
[2019] SASCFC 50

Full Court:  Kourakis CJ, Nicholson and Hinton JJ

THE COURT

1. The Commonwealth of Australia, the defendant to these proceedings, by its Second Notice of Appeal filed 29 March 2019,[1] seeks to challenge a number of pre-trial orders made by the designated trial Judge on 4 February 2019, the reasons for which were published on 1 March 2019.[2]  The orders complained of are to the effect that:

   (i)the plaintiff be granted permission to file a Fifth Statement of Claim;

   (ii)the plaintiff be granted permission to rely at trial on the report of Dr Craig Raeside dated 14 December 2018;

   (iii)the hearing date for the 12 week trial listed to commence on 11 February 2019 is vacated; and

   (iv)the question of costs thrown away is reserved.

   [1]    An original Notice of Appeal was filed on 25 February 2019.

   [2]    Saadat v Commonwealth of Australia & Ors [2019] SASC 28.

2. The plaintiff seeks damages for personal injuries alleged to have been suffered and/or exacerbated whilst in immigration detention.  The Commonwealth, as defendant, has joined a number of third parties.  There are more than 60 other persons who, in separate proceedings, make similar claims.  The present proceedings are not in the nature of a test case, a class-action or a representative action.  However, it is anticipated that pertinent issues in some or all of the other matters might be resolved or narrowed as a consequence of the outcome of this matter. 

3. The proceedings were commenced in 2012 by which time they were already statute barred.  They have a long and protracted procedural history.  The Commonwealth filed its Defence to the Fourth Statement of Claim on 17 March 2017.  On 6 October 2017, the plaintiff sought an urgent listing of the trial notwithstanding that a number of procedural steps, including the exchange of expert reports and the completion of disclosure, remained outstanding.  On 8 March 2018, the matter was transferred from the District Court to the Supreme Court and the parties were notified that 11 February 2019 was to be the commencement date for a 12 week trial.  The designated trial Judge in this Court continued to manage pre-trial matters. 

4. In late August 2018, the plaintiff terminated his retainer with senior counsel and commenced looking for new counsel.  In due course, new senior and junior counsel were retained and a review of the proceedings was undertaken.  In December 2018, the plaintiff filed an application for permission to file a Fifth Statement of Claim and, on 21 January 2019, he filed an application for permission to rely on additional expert reports.  On 1 February 2019, the day of the hearing of these two applications, the plaintiff made a further application to vacate the trial date.  After hearing argument, the Judge made the orders set out earlier.

5. According to the Commonwealth, the Fifth Statement of Claim effects major changes to the plaintiff’s claim, a characterisation with which the Judge did not agree.  The Commonwealth and two of the third parties argued that such a late change in direction would cause them substantial prejudice.  Counsel for the plaintiff acknowledged before the Judge that without the proposed amendments, the plaintiff’s claim was unlikely to succeed.

6. On the assumption that the orders made by the Judge on 4 February 2019 are properly to be characterised as interlocutory, the defendant has included in its Notice of Appeal an application for permission to appeal.  The primary considerations when determining whether permission to appeal from an interlocutory order ought to be granted are:

   (i)whether the primary decision is attended by sufficient doubt to warrant re-consideration; and

   (ii)whether substantial injustice will be incurred by the applicant if the decision is left to stand.[3]

   Other potential considerations include whether the appeal will delay the final disposition of the case;[4] a desire to avoid unnecessary fragmentation of proceedings;[5] whether the appeal raises significant questions of public interest or questions of law;[6] and whether, by permitting an appeal from an interlocutory decision, the disposal of the case might be delayed and the costs increased.[7] 

   [3]    See, for example, Landmark Operations Ltd v J Tiver Nominees Pty Ltd [2009] SASC 185 at [21]; Viscariello v Tamasauskas [2018] SASC 111 at [85] and Amaca Pty Ltd v Werfel [2019] SASC 29 at [8].

   [4]    South Australian Government Financing Authority v Bank of New Zealand (No 3) [2002] SASC 22 at [10].

   [5]    ACE Insurance Ltd v Trifunovski (2012) 291 ALR 46 at 50.

   [6]    South Australian Government Financing Authority v Bank of New Zealand (No 3) [2002] SASC 22 at [4]-[5] and [8].

   [7]    Mathew (SA) Nominees Pty Ltd v Belconnen Automotive Pty Ltd [2019] SASC 39 at [50].

7. Ordinarily, an application for permission to appeal from a single Judge of this Court to the Full Court is to be determined by the Full Court in private on the papers.  However, in its summary of argument filed for this purpose, the Commonwealth has argued, in the alternative, that the order granting permission to amend the statement of claim is not interlocutory and permission to appeal is not required.  In addition, the Commonwealth submits that the appeal, should it proceed, is of the nature provided for by rule 286 of the Supreme Court Civil Rules 2006 and is one by way of re-hearing.  As such, the appeal should not be subject to the usual requirements for appellate restraint where a discretionary judgment is concerned as identified in House v The King.[8]  In this respect, the Commonwealth has drawn attention to certain obiter dicta by Bleby J (with whose reasons White J agreed) in Channel Seven Adelaide Pty Ltd v Manock.[9]  The resolution of this issue (the proper nature of the appeal) may have a bearing on the question of whether the case should properly attract a grant of permission, in the event permission is required. 

   [8] (1936) 55 CLR 499 at 504-505.

   [9] [2010] SASCFC 59 at [31].

8. The Commonwealth has raised a number of proposed grounds of appeal including that the decision to grant permission to amend was contrary to the proper application to the facts of the principles identified in Aon Risk Services Australia Ltd v Australian National University[10] and Channel Seven Adelaide Pty Ltd v Manock.[11]  The Commonwealth has also identified a number of considerations which it submits were material and not taken into account by the Judge or were not material but were taken into account by the Judge, when making the determinations.

   [10] (2009) 239 CLR 175.

   [11] [2010] SASCFC 59.

9. Following the review of the primary judgment in this matter and the Commonwealth’s Notice of Appeal and its Summary of Argument, the grounds of appeal cannot be said to be clearly without merit.  However, the Commonwealth wishes to agitate the question of whether or not permission to appeal is required in this matter.  There is also the question of the proper nature of the appeal, the answer to which may inform the question of permission in the event permission is required.  It would not be appropriate to determine those questions in private and without hearing from the plaintiff.  The better course in our view is to list the matter before the Full Court for all questions raised on the Second Notice of Appeal to be determined by the Court following the one hearing in open court.  The Commonwealth has prepared a four volume application book and the matter should be listed before the Full Court as soon as practicable.