Commonwealth of Australia v Saadat & Ors
[2019] SASCFC 124
•11 October 2019
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
COMMONWEALTH OF AUSTRALIA v SAADAT & ORS
[2019] SASCFC 124
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Nicholson)
11 October 2019
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS
PROCEDURE - COSTS - INTERLOCUTORY PROCEEDINGS - ADJOURNMENT AND AMENDMENT
Application for permission to appeal by the appellant (defendant) against interlocutory orders made by a Judge of the Supreme Court that the first respondent (plaintiff) be granted permission to file an amended statement of claim and to rely on a report of psychiatrist Dr Craig Raeside; and that the trial, which had been set down for 12 weeks commencing on 11 February 2019, be adjourned.
The plaintiff is an asylum seeker who was detained by the defendant on arrival, initially at a detention centre in Western Australia and later at a detention centre in South Australia. The plaintiff brought a claim for psychiatric injury caused by the negligence of the defendant in his detention in South Australia. The plaintiff’s action is among some 63 similar actions, of which two-thirds are brought by plaintiffs claiming damages for personal injuries negligently caused by their detention as asylum seekers in South Australia after they had been transferred there from Western Australia (the cohort).
In March 2018, it was agreed that another matter in the cohort was to be listed for trial with the plaintiff’s action as a first reserve. The parties proceeded to prepare both actions for trial but on the assumption that the other matter would be heard first. In July 2018, the plaintiff’s solicitor formed the view that the statement of claim required amendment. In August 2018, the relationship between the plaintiff’s solicitor and former senior counsel had become so strained that that counsel’s retainer was terminated. He retained new counsel in September 2018.
In December 2018, the plaintiff filed an application for permission to amend his fourth statement of claim and in January 2019, he filed an application for permission to rely on certain expert reports and sought discovery of further documents.
The Judge was satisfied that a substantial explanation for the application to amend was the retention of new counsel and that the new senior counsel had been unable to consider the brief until early November 2018 when he advised the plaintiff’s solicitor that further amendments were required if the plaintiff’s case was to enjoy any prospect of success. The Judge also concluded that the amendments did not plead a different case but that the further particularisation made it necessary to adjourn the trial to afford the defendant an opportunity to consider the amendments.
The defendant appealed on a number of grounds.
Held by Kourakis CJ (Peek and Nicholson JJ agreeing), refusing permission to appeal:
1. The defendant’s grounds of appeal are not arguable. No error of general principle is identified. No manifest injustice in the end result has been identified.
2. The defendant’s submissions on ground 3.1 fail to distinguish between a failure to have regard to relevant considerations, and the weight they should be accorded. All of the errors of which it complains fall into the latter category. It follows that, absent a complaint that the resulting exercise of the discretion was manifestly unreasonable, no vitiating error can be demonstrated.
3. There was evidence that the parties hoped that a judgment in the plaintiff’s action would facilitate settlement of the other cohort matters.
4. The Judge in referring to the plaintiff’s amendment as crucial meant that if the plaintiff’s action were dismissed, his action would not have provided any material guidance to any of the other cohort matters on the common factual and legal issues, and not that the amendments themselves pleaded particular facts which were common to all the other matters.
5. The most elementary understanding of human affairs is more than enough to support a finding that a natural person will feel greater strain in protracted litigation than a corporation, which, of course, can feel none.
6. The Judge expressly adverted to the costs prejudice of the defendant and the third parties.
7. The Judge did not commit any error in taking into consideration that the litigation in this matter was non-commercial.
8. It cannot be said that the plaintiff’s amendment to his statement of claim fundamentally changed the case the defendant had to meet.
9. The Judge was factually mistaken that the plaintiff had abandoned claims based on stress occasioned by interpretation mistakes and on an examination by a female nurse at a hospital, but this consideration was always a relatively minor one unlikely to have material bearing on the outcome and it is not a matter which warrants the grant of permission to appeal.
10. A judge called on to make a case-management decision based on an assessment of contingencies affecting the course of litigation is not in a position to make certain findings of fact about future events. The judge can only balance the competing contingencies and inferences by resorting to intuition formed by experience as a legal practitioner and judicial officer.
11. The Judge correctly concluded that ‘[w]hatever the ultimate outcome in relation to costs, as [Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175] makes clear, these matters are substantial considerations to be weighed against granting an application to amend’.
12. The Judge’s cautious approach in reserving the question of costs until the conclusion of the trial was calculated to preserve the relationship between the plaintiff and his solicitors. It was not necessary for there to be evidence of that risk.
13. Accordingly, there is no reason not to allow the plaintiff to rely on Dr Raeside’s report.
14. In light of the conclusions reached, there is no need to decide the interlocutory application filed 9 August 2019.
District Court Act 1991 (SA) s 24; Limitation of Actions Act 1936 (SA) s 48; Civil Liability Act 1936 (SA) s 33; Supreme Court Act 1935 (SA) s 50; Supreme Court Civil Rules 2006 (SA) rr 3, 54, 113, 286, 288; Court Procedures Rules 2006 (ACT) rr 501-502, referred to.
Saadat v Commonwealth of Australia & Ors [2019] SASC 28; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, discussed.
House v The King (1936) 55 CLR 499; Glenauchen Pty Ltd v Circuit Finance Pty Ltd [2001] SASC 61; Niemann v Electronic Industries Ltd [1978] VR 431; Candetti Constructions Pty Ltd v M & I Samaras (No 1) Pty Ltd & Ors [2011] SASC 189; Channel Seven Adelaide Pty Ltd v Manock (2010) 273 LSJS 70; Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146; Saadat v Commonwealth of Australia & Ors (No 2) [2019] SASC 75, considered.
COMMONWEALTH OF AUSTRALIA v SAADAT & ORS
[2019] SASCFC 124Full Court: Kourakis CJ, Peek and Nicholson JJ
KOURAKIS CJ: This is an application for permission to appeal by the Commonwealth against interlocutory orders made by a Judge of this Court on 4 February 2019:
·granting the plaintiff/respondent Payam Saadat, Mr Saadat, permission to file an amended statement of claim;
·granting Mr Saadat permission to rely on a report of the psychiatrist, Dr Craig Raeside, dated 14 December 2018; and
·adjourning the trial which had been set down for 12 weeks commencing on 11 February 2019.
Mr Saadat commenced his action in the District Court on 3 February 2012. On 8 March 2018, a Master of the District Court, acting on arrangements made between the District Court and Supreme Court for the hearing and management of some 63 similar actions, and pursuant to s 24(2) of the District Court Act 1991 (SA) referred both Mr Saadat’s action and the action of another plaintiff, Mr Hanssen, to this Court. The Master informed the parties that a listing was available for the trial of one or other of those matters to commence before a Judge of this Court on 11 February 2019.
Mr Saadat is an asylum seeker who travelled to Australia from Iran seeking refuge. On his arrival he was detained by the Commonwealth. Mr Saadat’s claim is for psychiatric injury caused by the negligence of the Commonwealth in his detention at the Baxter Detention Centre (Baxter) near Port Augusta. Mr Saadat had earlier been detained at the Curtin Detention Centre (Curtin) in Western Australia, but no action was taken against the Commonwealth with respect to that detention because his claims were statute barred by the Limitation Act 1935 (WA). About two-thirds of the 63 actions to which I have referred were brought by plaintiffs claiming damages for personal injuries negligently caused by their detention as asylum seekers at Baxter after they had been transferred there from Curtin (the cohort).
I would refuse the Commonwealth permission to appeal. I acknowledge that there were very weighty reasons to refuse the adjournment which included:
·the substantial costs thrown away (which would most probably be carried by the Commonwealth);
·the additional resources required to defend the re‑pleaded case;
·the effect of the delay on the witnesses and the quality of their testimony;
·the financial prejudice in delaying the finalisation of the matter; and
·the waste of the public resources of the Court.
On the other hand, the adjournment was not caused by any personal default of Mr Saadat: it was precipitated by a breakdown in the professional relationship between his solicitors and his counsel, and their failure to earlier foresee serious deficiencies in the statement of claim which, if objection were taken, would have excluded evidence on which Mr Saadat’s case critically depended. Furthermore, if the permission and adjournment were not granted, Mr Saadat would suffer the substantial prejudice of the dismissal of his otherwise reasonably arguable claim for serious personal injury because of the default of his legal practitioners. Importantly, the parties and the Court had expedited Mr Saadat’s action over others in the cohort in the hope that the guidance a judgment in his action might give would make substantive savings of public and private resources in resolving the actions of the remainder of the cohort. If Mr Saadat’s action was dismissed because evidence was excluded for a failure to give fair notice of it in the statement of claim, the parties’ agreed purpose would be frustrated and substantial Court resources would be required to hear and determine the other actions.
The Commonwealth does not contend that the exercise of the discretions to permit an amendment and adjournment were manifestly unreasonable. It contends only that the Judge failed to have regard to all relevant considerations, but on a closer analysis of the Commonwealth’s complaints, they are that the Judge did not give certain matters the weight the Commonwealth submits they warranted. The weighing of relevant matters falls squarely within the case‑management discretion of a trial judge. If all relevant, and only relevant matters are weighed, and the ultimate result is not unreasonable, a judge’s discretion is not vitiated because the appeal court might have weighed the factors differently.
The Commonwealth’s grounds of appeal are not reasonably arguable. No error of general principle is identified. No manifest injustice in the end result has been identified. I would therefore refuse permission to appeal. My reasons follow.
The procedural history
Mr Saadat filed a second statement of claim on 27 February 2012. The Commonwealth filed its first defence on 13 August 2012. On 25 February 2013, the Commonwealth requested further and better particulars of Mr Saadat’s statement of claim after complaining of similar inadequacies in a statement of claim filed by another of the cohort, Mr Heidari. Tindall Gask Bentley (TGB) were the solicitors for both Mr Saadat and Mr Heidari. The solicitor responsible for their files was, and continues to be, Mr Byrne.
On 15 April 2013, a Master of the District Court ordered further and better particulars in the Heidari action. Three days later, by consent, orders were made in Mr Saadat’s action allowing him until 19 April 2013 to file and serve an amended statement of claim.
On 15 August 2013, Mr Saadat was given permission to file a third statement of claim. A similar order was made in the Heidari action on 10 September 2013. Mr Saadat’s third statement of claim was not filed until 1 October 2013, several weeks after the time which had been allowed for that purpose.
The third statement of claim did not satisfy the Commonwealth. On 24 October 2013, it sought further and better particulars and an order requiring Mr Saadat to file and serve a fourth statement of claim responding to the Commonwealth’s requests. On 13 November 2013, TGB proposed adjourning the Commonwealth’s application until after the outcome of the applications made in Heidari and other cohort matters. On 2 December 2013, Mr Saadat’s application was adjourned by consent for that purpose. The selection of one of the cohort matters as a vehicle to resolve procedural issues common to all, or most, of the others, is a recurring theme in the case-management of the cohort actions.
On 5 May 2014, in a hearing before a Master of the District Court, Mr Heidari was given permission to file and serve a third statement of claim which annexed a chronological list of information, reports, and articles on the detention of refugees by the Commonwealth in the period between 1998 and 2005. The statement of claim alleged that the listed publications put the Commonwealth on notice that the persons detained by it at Curtin and Baxter were at risk of suffering mental illness. The orders did not have operative effect until the making of another order.
On 16 June 2014, a Master of the District Court made the following orders for discovery in the Heidari matter:
…
For the purposes of discharging the Commonwealth’s obligation to produce documents to the plaintiff directly relevant to an issue arising on the pleadings in this matter, the plaintiff and the defendant agree as follows:
2.1.The defendant is only required to produce to the plaintiff:
(a) Documents specifically involving the plaintiff concerning an issue arising on the pleadings.
(b) Documents:
(i) Category 1: Any submissions and responses made to inquiries in relation to the conditions of detention during the period that the plaintiff was in detention [ie approximately January 2000 to 31 December 2004] that are in the possession, custody or control of the Department of Immigration and Citizenship [now Immigration and Border Protection].
(ii)Category 2: Suicide and self-harm records in relation to detainees during the period that the plaintiff was in detention that are in the possession, custody or control of the Department of Immigration and Citizenship [now ‘Immigration and Border Protection’] in relation to the places that the plaintiff was held in detention [namely, Perth Immigration Detention Centre, Curtin Immigration Reception and Processing Centre, Woomera Immigration Reception and Processing Centre and Baxter Immigration Reception and Processing Centre].
It was accepted by the Commonwealth that discovery of documents in those categories was required in all of the cohort actions. It came to be referred to as ‘common disclosure’.
TGB continued to refine and amend Mr Heidari’s pleadings over multiple directions hearings between 16 June 2014 and 19 October 2015. He was finally given permission to file a third statement of claim on 19 October 2015 and it was filed on the very next day.
On 9 November 2015, the Commonwealth appealed against the permission granted to Mr Heidari by the Master. The Commonwealth’s appeal was dismissed on 5 February 2016. After the dismissal of the appeal, TGB and the Commonwealth entered into discussions as to how the pleadings of the other plaintiffs in the cohort should be finalised. The Commonwealth agreed in principle to consider the draft claims and amended claims by the other plaintiffs ‘in accordance with the rulings made’ by the Master but reserving the right to make applications for further particulars.[1]
[1] Affidavit of Thy Khanh Huynh affirmed on 24 January 2019 at [69].
On 12 December 2016, Mr Byrne provided the Australian Government Solicitor (AGS) with a draft statement of claim in the Saadat matter which was drafted on the basis of the rulings made in the Heidari proceedings.
In late 2016, the second third party, G4S Australia Pty Ltd (G4S), applied for particulars of the second third party statement of claim filed by the Commonwealth. The particulars sought by G4S included:
·the basis of the Commonwealth’s claim that G4S had knowledge of Mr Heidari’s psychiatric condition during his detention in Baxter;
·identification of the personnel who managed Mr Heidari in Baxter;
·details of the violent incidents witnessed by Mr Heidari;
·details of what Mr Heidari claimed was constant video surveillance at Baxter;
·details of Mr Heidari’s allegations that he was frequently strip searched and verbally abused; and
·details of the allegation that G4S failed to treat Mr Heidari with dignity, in a culturally sensitive way, and with respect for his privacy and beliefs.
At the time, it was accepted by the parties that if G4S were successful it was likely that amendments would be necessary to the statements of claim in the actions of ‘Heidari and other SA Cohort cases.’[2]
[2] Affidavit of Thy Khanh Huynh affirmed on 24 January 2019 at [72].
In correspondence between TGB and the AGS dated 11 November 2016 with respect to G4S’s application, a senior solicitor within the AGS wrote:
Self-evidently, if the Court allows G4S’s application (listed for hearing on 15 November 2016), in whole or in part, the pleadings in Heidari and all other cases will be affected and will require further adjustments. Subject to the outcome of the next round of interlocutory challenges, we provide our initial comments [with respect to the statement of claim filed on behalf of another of the detention centre plaintiffs] as follows.
(Underlining added)
On 14 November 2016, at the directions hearing in Mr Saadat’s action, the Master noted that the Commonwealth and TGB were ‘in discussions concerning the form of the [plaintiff’s] pleadings in the matter of Bashtin [another cohort matter] … and that those discussions will inform’ the Saadat pleadings.
On 13 February 2017, Mr Saadat filed his fourth statement of claim. The understanding on which the parties proceeded on the applications to amend Mr Heidari’s statement of claim, and on G4S’s application, demonstrates the degree of commonality in both the factual allegations and legal claims made by the cohort plaintiffs. It also illustrates the way in which interlocutory rulings in one action provided guidance to the case-management of the other actions.
The way in which Mr Saadat’s matter was set down was unusual. On 6 October 2017, TGB, acting for Mr Saadat and three other plaintiffs in the cohort, filed an application in the District Court for orders dispensing with the requirement to file a certificate of readiness and to exchange all expert reports so that all four actions could be set down for trial in a three to four-month block of time. The matter selected by them for trial was the action of a Mr Hanssen. Mr Saadat’s action, along with the other two plaintiffs’ actions, was identified as a ‘reserve’. Mr Hanssen’s and Mr Saadat’s actions required an extension of time pursuant to s 48 of the Limitation of Actions Act 1936 (SA).
The argument on that application in the Heidari matter was adjourned to 4 December 2017. The other matters were adjourned to 15 December 2017 on the basis that the decision made in Heidari would inform the outcome of the other applications.
On 4 December 2017, senior counsel for Mr Heidari described the common evidential foundation of their claims as follows:
The systemic evidence will be the same. Generally for the plaintiffs whose claims are only related to Baxter. The plaintiffs whose claims include Woomera are plaintiffs who we would have to get additional material to the experts I would imagine and ask different questions in relation to those. But there is a whole cluster of these plaintiffs who came from Western Australia and they are not suing for the Western Australian exposure to risk and harm, they are suing for only the South Australian, so they are only suing for Baxter. But there is another cluster that are were in Woomera and then were in Baxter, and they are suing for both detention environments.
The Commonwealth did not oppose the application to set aside a block of time in respect of any of the four actions. Counsel for the Commonwealth agreed that the Baxter matters, because they did not have the additional complication of detention at Woomera, were preferred as ‘the first vehicle for trial’. Counsel for the Commonwealth submitted that introducing a plaintiff who had been in Woomera ‘would place the trial date in jeopardy’. Counsel for the third parties opposed the applications.
The Master’s decision refusing the application to set aside a block of time for all four matters was published on 20 April 2018. However, in the intervening period agreement was reached on an alternative course.
On 8 March 2018, counsel for the parties informed the Master that after discussions they had agreed that one matter should be listed for trial with another kept in reserve for the same hearing slot. The Master was informed that the matter of Heidari was no longer considered to be appropriate as a lead case. Instead, the matter of Hanssen should be listed with the matter of Saadat as a first reserve. The Master was also informed that a summary of the common disclosure provided by the Commonwealth on the plaintiff’s systemic harm case would be provided to the plaintiff’s experts in the next week and that it was not expected that any other expert reports would be obtained.
On 8 March 2018, the Master was informed that ‘Tranche 1 of “Common Disclosure”’ would be completed in March 2018 and that further tranches would be provided over time because of the volume of material.
The Master was told that the estimate of the hearing time was two to three months. The Master informed the parties that a trial judge of the Supreme Court was available to hear the matter commencing on 11 February 2019. The Master ordered:
39.I DIRECT the parties to advise the court and each other within seven days if the trial staring [sic] on 11 February 2019 and proceeding to the conclusion of the evidence suits counsel and witnesses.
40.Adjourned to 10 May 2018 for further directions and report.
41.As a result of the discussions and reports, and pursuant to section 24(2) of the District Court Act, and by reason of the complexity and length of the trial of any one action, I refer the actions Hanssen (581/12) and Saadat (193/12) to the Supreme Court of South Australia for determination.
From 8 March 2018, the parties proceeded to prepare both actions for trial but on the assumption that the matter of Hanssen would be heard first. On 29 March 2018, 8 June 2018, 25 June 2018, 31 August 2018 and 20 November 2018, the Commonwealth filed further lists of documents. The seventh, filed on 20 November 2018, was effectively the same list as one filed on 31 August 2018. Both lists were described as ‘Tranches’ of its common disclosure.
On 10 May 2018, a Master of the District Court made orders including:
7.By 26 October 2018, the third parties serve … a copy of any report from any expert on whose evidence the third parties intend to rely.
On 4 July 2018, a Master ordered that any amendments to the pleading were to be finalised by 31 October 2018. On 4 July 2018, a Master made the following orders with respect to pleadings:
20.To the extent that the preparation of outlines of evidence will lead to a review and potential minor amendment of pleadings, notice of any such amendment is to be provided to all parties at the earliest opportunity and no later than Wednesday, 31 October 2018.
21.I note the plaintiff refers in a number of paragraphs of the statement of claim to the late provision of further particulars. The third party seeks to bring this to finality. The third party has agreed to write to the plaintiff within 7 days of today dealing with the particular paragraphs over which there may be an issue concerning further particulars.
On 11 July 2018, counsel for Mr Saadat and Mr Hanssen confirmed that their actions were limited to claims for personal injury arising out of the detention at Baxter and that the evidence of events at Curtin was limited to showing ‘the material provided from Curtin to the Baxter Detention Centre’.[3]
[3] Affidavit of Thy Khanh Huynh affirmed on 24 January 2019 at [115].
Later in July 2018, TGB formed the view that the statements of claim of Mr Hanssen and Mr Saadat required amendment. On 24 August 2018, Mr Hanssen and Mr Saadat instructed Mr Byrne to terminate the retainer of senior counsel whom they had briefed some years earlier. On 28 August 2018, Mr Byrne informed Ms Huynh of the AGS that TGB had terminated senior counsel’s retainer on the instructions of Mr Hanssen and Mr Saadat, and that they would also seek instructions to that end from Mr Heidari. At the same time, TGB assured the Commonwealth of its commitment to hold both the trial date and the current programming orders.[4]
[4] Affidavit of Thy Khanh Huynh affirmed on 24 January 2019 at [119].
On 30 August 2018, the Commonwealth sought orders that the application for an extension of time by Mr Hanssen be heard as a preliminary issue. That application was adjourned to be heard by the trial judge in the Supreme Court.
On 9 October 2018, Mr Saadat’s and Mr Hanssen’s actions were called on for directions before Stanley J who had been assigned as the trial judge in this Court. Stanley J made the following orders:
1.The evidence-in-chief of the plaintiff’s witnesses who are legal practitioners (‘legal witnesses’) is to be by way of affidavit, to be filed and served by Friday 21 December 2018.
2.Part of the evidence-in-chief of the plaintiff’s witnesses who have not provided expert reports (‘lay witnesses’) is to be by way of affidavit, to be filed and served by Friday 21 December 2018.
3.Each party is to file and serve notice of any further application by Tuesday 13 November 2018.
4.The matter is listed for further directions on Wednesday 14 November 2018 at 9:15am at which time the Court will address the proposed conference of the parties to agree evidence or, in the alternative, the filing of the notices to admit.
5.The time within which the third parties are to file and serve their outlines of witness evidence (previously Friday 19 October 2018) is extended to Friday 16 November 2018.
6.The time within which the first and third third parties are to deliver their expert reports (previously Friday 26 October 2018) and to respond to the report of Professor Henderson (previously Thursday 20 December 2018) is amended to Friday 23 November 2018.
7.The time within which the second and fourth third parties are to deliver their expert reports (previously Friday 26 October 2018) other than any expert report responding to the report of Professor Henderson, is extended to Friday 23 November 2018.
8.The time within which the plaintiff is to file and serve any responding witness outline of evidence consequent on the outlines of evidence produced by the other parties is extended to Friday 7 December 2018.
9.The plaintiff serve the other parties an index of his tender bundle by Friday 7 December 2018. The defendant serve on the other parties an index of its tender bundle by Friday 14 December 2018. The third parties serve on the other parties an index of their tender bundles by Friday 21 December 2018.
10.Each party file and serve a notice identifying the witnesses required for cross‑examination by Friday 18 January 2019.
11.Each party lodge with the Court their tender bundle by Friday 18 January 2019 and serve on the other parties an index of the lodged tender bundle by Friday 18 January 2019.
12.Each party to file and serve a notice identifying the evidence of any witness or any document to which objection is taken and a short statement as to the reason for the objection by Friday 25 January 2019.
13.The plaintiff file and serve a written opening by Monday 4 February 2019.
14.The plaintiff file and serve an order of witnesses list by Monday 4 February 2019.
15.The defendant file and serve a written opening in relation to its case against the third parties by Thursday 7 February 2019.
16.The defendant file and serve an order of witnesses list by Thursday 7 February 2019.
On 14 November 2018, a directions hearing was heard before Stanley J in Mr Saadat’s action only. Mr Abbott SC informed Stanley J that it was intended to make ‘a few amendments to the statement of claim which I don’t think would be controversial’. Stanley J ordered that the plaintiff file and serve a proposed statement of agreed facts by close of business on Friday 30 November 2018. The time for the serving of witness statements was extended to close of business on Friday 30 November 2018.
On 13 December 2018, junior counsel for Mr Saadat, before Stanley J, described the fourth statement of claim as ‘relatively unhelpful … in defining the issues for the court’ but that an amended pleading would soon be filed which ‘would better define the issues in this matter’. Stanley J anticipated the dispute which was soon to come by warning ‘if an amended statement of claim serves to do nothing other than to clarify the issues, then that’s one thing. If it raises new issues, that’s another thing’.
On 14 December 2018, Mr Byrne emailed a draft fifth statement of claim to the AGS.
On 19 December 2018, the Commonwealth filed a further list of documents comprising ‘75 records’ of Mr Saadat’s ‘individual circumstances’. On 20 December 2018, the Commonwealth filed a list of documents identifying 598 documents which it described as ‘Tranche E’ of its common disclosure.
On 20 December 2018, Mr Saadat served on the AGS an application for permission to amend his fourth statement of claim.
On 21 January 2019, Mr Saadat filed an application for permission to rely on the reports of Dr Raeside dated 14 December 2018 and of Dr Flynn dated 3 January 2019. Mr Saadat also sought discovery of video and CCTV footage of conditions in Baxter and also records of the Management Unit in which Mr Saadat had been detained from time to time.
Mr Saadat’s application was supported by an affidavit of Mr Byrne which deposed that:
·By early August 2018, his relationship with the former senior counsel had become so strained that her instructions were terminated in both Mr Saadat’s and Mr Hanssen’s cases on 24 August 2018.
·He then retained Mr Abbott SC on 3 September 2018 but Mr Abbott was going overseas on the same day.
·The brief was delivered whilst Mr Abbott was away. It comprised some seven boxes of hardcopy material and two USBs containing documents disclosed by the Commonwealth.
·He retained junior counsel, Mr Krupka, on or about 10 September 2018 and delivered the brief to him on 14 September 2018.
·Mr Abbott returned on 29 October 2018.
·On 2 November 2018, he conferred with senior and junior counsel.
·On 13 December 2018, senior counsel sent a settled draft amended statement of claim to him.
·He received instructions to make an application for permission to file an amended statement of claim and to rely on the report of Dr Raeside.
Mr Saadat’s application was heard on 1 and 4 February 2019. On 4 February 2019, Stanley J ordered:[5]
1.That the plaintiff be granted leave to file the draft fifth statement of claim which is exhibited and marked “J” to the third affidavit of Malachy Byrne filed 25 January 2019;
2.That the plaintiff be granted leave to rely at trial on the report of Dr Craig Raeside dated 14 December 2018;
3.That the plaintiff be refused leave to rely at trial on the report of Dr Patrick Flynn dated 3 January 2019;
4.That the trial date of 11 February 2019 be vacated;
5.That this matter be adjourned for further directions to 11 February 2019 for the purpose of fixing a new trial date and giving further directions in relation to the conduct of the trial; and
6.That the question of costs thrown away is reserved.
[5] Saadat v Commonwealth of Australia & Ors [2019] SASC 28 at [3].
Stanley J reserved his reasons. They were published on 1 March 2019.
Stanley J was satisfied that ‘a substantial explanation’ for the application to amend the statement of claim was the retention of new counsel. His Honour was satisfied that Mr Abbott was unable to consider the brief until early November 2018 when he advised Mr Byrne that further amendments were required if Mr Saadat’s case was to enjoy any prospect of success. Stanley J concluded that the amendments did not plead a different case but that the further particularisation was such that it was necessary to adjourn the trial to afford the Commonwealth an opportunity to consider the amendments and prepare its defence to them. I refer more extensively to the reasons of Stanley J below.
Legal principles governing the appeal
This appeal is governed by SCR 286,[6] which provides that the appeal is by way of a rehearing and that this Court may determine the appeal as the justice of the case requires. The rule so stated is premised on, and does not derogate from, the long-established principle that on an appeal by way of rehearing, deference must be accorded to the exercise of the discretion made at first instance. The Commonwealth’s faintly pressed submission to the contrary must be rejected.
[6] Supreme Court Civil Rules 2006 (SA) (the Rules).
The deference accorded to the exercise of a discretion at first instance reduces cost and delay. It enhances the administration of justice by precluding litigation over decisions on which judicial minds might reasonably differ unless a vitiating error of the kind described in House v The King[7] is demonstrated.
[7] (1936) 55 CLR 499.
Moreover, an appeal against an interlocutory case‑management decision of a judge can be brought only with the permission of the Court.[8] The practice of intermediate courts of appeal is to grant permission to appeal against interlocutory decisions only if a question of general principle arises, or when it is clear that the decision is likely to work a substantial injustice if it were allowed to stand.[9] The restrictive approach to granting permission to appeal against interlocutory case-management decisions is based on important considerations of legal policy. Appeals against case-management decisions may:
·unnecessarily delay the determination of the substantive issue;
·disproportionately increase the costs of litigation; and
·result in conflicting decisions at trial and on appeal, neither of which are clearly right or wrong, but simply reflect differences of weight and emphasis.
[8] Supreme Court Act 1935 (SA) s 50(4)(b) and Supreme Court Civil Rules 2006 (SA) r 288(1)(a)(i).
[9] Glenauchen Pty Ltd v Circuit Finance Pty Ltd [2001] SASC 61; South Australian Government Financing Authority v Bank of New Zealand [2002] SASC 56.
In Niemann v Electronic Industries Ltd, Murphy J explained that both error and a substantial injustice must be shown to attract a grant of permission to appeal against a case‑management decision: [10]
… If the order was correct then it follows that substantial injustice could not follow. If the order is seen to be clearly wrong, this is not alone sufficient. It must be shown, in addition, to effect a substantial injustice by its operation.
[10] [1978] VR 431 at 441.
In Candetti Constructions Pty Ltd v M & I Samaras (No 1) Pty Ltd & Ors, Blue J identified the following relevant considerations:[11]
1.The question whether or not permission ought to be granted is discretionary.[12]
2.A factor to be considered is whether the issue raised is one of general importance, as opposed to simply depending upon the facts of the particular case.[13]
3.A factor to be considered is whether, viewed objectively, the issue raised is one upon which reasonable minds may differ or involves a difficult or complex question of law (going to whether the decision is attended by sufficient doubt).[14]
4.A factor to be considered is whether the order has the effect of determining or altering the substantive rights of the parties, as opposed to a matter of practice or procedure.[15]
(Footnotes in original)
[11] [2011] SASC 189 at [6].
[12] Rouse v IOOF Australia Trustees Ltd (No 5) [1999] SASC 294 at [43] per Lander J; Waikerie Murray River Queen Pty Ltd v Loizides [2009] SASC 257 at [22] per Doyle CJ, Sulan and Kelly JJ.
[13] Niemann v Electronic Industries Ltd [1978] VR 431 at 441 per Murphy J; Harris Scarfe Ltd (Receivers and Managers Appointed) (In Liq) v Ernst & Young (No 2) [2005] SASC 168; (2005) 240 LSJS 17 at [12] and [17] per Bleby J.
[14] Niemann v Electronic Industries Ltd [1978] VR 431 at 441 per Murphy J; Harris Scarfe Ltd (Receivers and Managers Appointed) (In Liq) v Ernst & Young (No 2) (2005) 240 LSJS 17 at [12] and [16] per Bleby J.
[15] Niemann v Electronic Industries Ltd [1978] VR 431 at 441 per Murphy J; Rouse v IOOF Australia Trustees Ltd (No 5) [1999] SASC 294 at [44] per Lander J; Harris Scarfe Ltd (Receivers and Managers Appointed) (In Liq) v Ernst & Young (No 2) (2005) 240 LSJS 17 at [12] and [14] per Bleby J.
The primary ground relied on by the Commonwealth, on its application for permission, is that the Judge’s decision was contrary to the proper application of Aon Risk Services Australia Ltd v Australian National University[16] (Aon) and Channel Seven Adelaide Pty Ltd v Manock.[17] In the Commonwealth’s written submissions, this ground is stated more succinctly to be that the Judge’s decision ‘was contrary to legal principle’. A number of the Commonwealth’s submissions are so framed. It is not immediately obvious what is meant by the ground so expressed. Decisions on matters of practice and procedure are discretionary. If an appeal against a case‑management decision is to have any prospect of success, it must allege a failure to take into account a relevant consideration, acting on an irrelevant consideration, or that the decision lies outside the range of any reasonable exercise of the discretion, i.e. it is manifestly unreasonable.
[16] (2009) 239 CLR 175.
[17] (2010) 273 LSJS 70.
The Commonwealth’s submission on this ground relies extensively on what is described as the ‘Aon principle’. It is appropriate therefore to turn to the decision in Aon before addressing the Commonwealth’s primary ground. In short, the decision in Aon identified the considerations relevant to an exercise of a discretion to allow an amendment to pleadings and/or adjourn a trial. It also exposed, as an error of law, the unwarranted presumption in favour of granting an indulgence (coupled with an order for costs) if the party seeking it would otherwise suffer a substantial injustice. In Aon, the High Court held that the trial Judge’s decision to adjourn the trial and permit the Australian National University (ANU) to amend its pleading was vitiated by his failure to have regard to the interests of the defendant, Aon Risk Services, and the public importance of the efficient and expeditious administration of justice. It is necessary to explain why I identify the ratio of Aon in this way by a brief reference to its particular facts.
In December 2004, ANU commenced proceedings in the Supreme Court of the Australian Capital Territory against three insurers, seeking indemnity for losses it had suffered by reason of damage to its buildings and contents. Two of the insurers had claimed to be entitled to reduce their liability to ANU because the value of the insured property had been substantially understated. In June 2005, ANU joined its insurance broker as a defendant, Aon Risk Services, but its claim was limited to damages for its failure to renew insurance over some of the property. On the third day of trial, ANU settled its claims against the insurers, and only then applied to plead as against Aon Risk Services its failure to ascertain and declare the correct value of the property. The Judge delivered judgment about a year later giving ANU permission to amend. Even though the amended claim against Aon Risk Services was also in negligence for mismanaging ANU’s insurance cover, the particular omission, to properly value the property, had not previously been pleaded. Indeed, it appeared that ANU had made a deliberate tactical decision not to make the claim earlier.
French CJ observed that, save for the dissenting judgment of Lander J in the Court of Appeal, the history of the proceedings revealed an ‘unduly permissive approach at both trial and appellate level to an application which was made late in the day, was inadequately explained, necessitated the vacation or adjournment of the dates set down for trial, and raised new claims not previously agitated apparently because of a deliberate tactical decision not to do so’.[18] French CJ observed that ‘[i]n such circumstances, the party making the application bears a heavy burden to show why … leave should be granted’.[19] French CJ observed that the questions of amendment and adjournment were not to be considered solely by reference to whether any prejudice to Aon Risk Services could be compensated by costs. French CJ emphasised that there may be ‘an irreparable element of unfair prejudice in unnecessarily delaying proceedings’ and that it was also necessary to consider that the misuse of time of the Court, which was ‘a publicly funded resource’.[20]
[18] Aon (2009) 239 CLR 175 at [4].
[19] Aon (2009) 239 CLR 175 at [4].
[20] Aon (2009) 239 CLR 175 at [5].
French CJ held that the trial Judge, and the majority of the Court of Appeal, had erred in regarding the decision in Queensland v JL Holdings Pty Ltd (JL Holdings)[21] as ‘determinative of the approach they should take to the amendment application’.[22] French CJ noted important distinctions between the circumstances in JL Holdings and those in Aon, including that the amendment in JL Holdings was prompted by a recently discovered material fact, that it had no effect on the hearing date which was still six months away, and that the issue was one which would inevitably arise at trial.
[21] (1997) 189 CLR 146.
[22] Aon (2009) 239 CLR 175 at [28].
French CJ also emphasised that the waste of public resources and the loss of public confidence in the administration of justice caused by a late amendment were relevant considerations:[23]
[30]It might be thought a truism that “case management principles” should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, JL Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind conferred by r 502. Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes.
(Underlining added)
[23] Aon (2009) 239 CLR 175 at [30].
Gummow, Hayne, Crennan, Kiefel and Bell JJ explained:[24]
[58]As earlier stated, the starting point for any application to amend must be the rules governing such applications in the relevant jurisdiction. In this case rr 501 and 502 appear in Ch 2 of the Court Procedures Rules, which is concerned with civil proceedings in courts in the Territory. Rule 501 provides:
“All necessary amendments of a document[25] must be made for the purpose of –
(a) deciding the real issues in the proceeding; or
(b) correcting any defect or error in the proceeding; or
(c) avoiding multiple proceedings.”
(Footnotes in original)
I observe here that r 501 provided that an amendment made for a purpose specified in subparagraphs (a), (b) or (c) must be made whereas r 502 conferred a wide discretion as to whether to permit an amendment for different purposes or in other circumstances.
[24] Aon (2009) 239 CLR 175 at [58].
[25] Refers to any document filed in a proceeding, other than affidavits: r 500.
The plurality then continued:[26]
[71]The words “the real issues in the proceeding” in r 501(a) obviously refer to issues raised, perhaps unclearly, in the pleadings at the time of the application for leave to amend. The “real” issues may also extend beyond the pleadings, as cases concerned with the purpose stated in the original Rules show. But, as is explained in these reasons, to be regarded as a real issue, and for amendment therefore to be necessary, the relevant dispute or controversy must exist at the time of the application. Amendments raising entirely new issues fall to be considered under the general discretion given by r 502(1), read with the objectives of r 21.
[26] Aon (2009) 239 CLR 175 at [71].
An objective set out in r 21 was to facilitate the just resolution of real issues with minimum delay and expense. The plurality continued:[27]
[82]The need for amendment will often arise because of some error or mistake having been made in the drafting of the existing pleading or in a judgment about what is to be pleaded in it. But it is not the existence of such a mistake that founds the grant of leave under rules such as r 501(a), although it may be relevant to show that the application is bona fide[28]. What needs to be shown for leave to amend to be given, as the cases referred to above illustrate, is that the controversy or issue was in existence prior to the application for amendment being made. It is only then that it is necessary for the court to allow it properly to be raised to enable a determination upon it.
[83]The existence of a controversy may be seen in the way in which the matter had already been pleaded, albeit inferentially, in Tildesley v Harper and Dwyer v O’Mullen; or where the issue is raised by another party in the same proceedings but in respect of which the party applying was inextricably involved, as in Cropper v Smith. It may be present in the nature of the bargain struck, as in O’Keefe v Williams. A consideration of these cases does not suggest that an unduly narrow approach should be taken to what are the real issues in controversy, although they are not, or are not sufficiently, expressed in the pleading.
(Footnotes in original)
[27] Aon (2009) 239 CLR 175 at [82]-[83].
[28] See Tildesley v Harper (1878) 10 Ch D 393 at 396‑397 per Bramwell LJ.
The distinction drawn in the plurality judgment between the ‘necessary’ amendments required by r 501 and the broader discretion to allow other amendments conferred by r 502 is important. In the ordinary course when a matter, by which I mean the matrix of facts and competing claims, is brought before a court, the interests of justice generally, even in the absence of a rule like r 501, demand that the entirety of that controversy be determined in the one action. However, whether or not to extend an action to include a claim which lies outside that matrix is a more open question covered by a wider discretion such as that conferred by r 502. ANU’s application fell into the latter category because, even though the insurers had pleaded that the values declared had been substantially understated, that had no relevance to, and was not an issue in, the action ANU had first brought against Aon Risk Services.
The plurality judgment then addressed the tension between the undesirability of shutting a party out from litigating a fairly arguable issue and the injustice to the other party of allowing a new claim to be pleaded after a party has had a sufficient opportunity to do so earlier:[29]
[94]It will be recalled that in JL Holdings the plurality said that nothing in Sali v SPC suggested that principles of case management might be employed “except perhaps in extreme circumstances, to shut a party out from litigating an issue which is fairly arguable”[30]. Their Honours said that case management was not to be seen as an end to itself and that the ultimate aim of the court remained the attainment of justice, even in changing times[31]. In Gale v Superdrug Stores Plc[32] Millett LJ expressed a similar concern, regarding the need to ensure that justice is not sacrificed. Waller LJ, delivering the judgment of the Court of Appeal in Worldwide Corporation Ltd v GPT Ltd[33], said that such a concern did not pay sufficient regard to the fact that the courts are concerned to do justice to all litigants. Where a party had had a sufficient opportunity to plead his or her case, it may be necessary for the court to make a decision which may produce a sense of injustice in that party, for the sake of doing justice to the opponent and to other litigants[34].
(Footnotes in original)
[29] Aon (2009) 239 CLR 175 at [94].
[30] Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 at 154.
[31] Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 at 154.
[32] [1996] 1 WLR 1089 at 1098; [1996] 3 All ER 468 at 477.
[33] [1998] EWCA Civ 1894.
[34] Worldwide Corporation Ltd v GPT Ltd [1998] EWCA Civ 1894.
The plurality then identified an implicit, but erroneous, assumption in the approach taken in JL Holdings:[35]
[96]An important aspect of the approach taken by the plurality in JL Holdings was that it proceeded upon an assumption that a party should be permitted to amend to raise an arguable issue subject to the payment of costs occasioned by the amendment[36]. So stated it suggests that a party has something approaching a right to an amendment. That is not the case. The “right” spoken of in Cropper v Smith needs to be understood in the context of that case and the Rule, which required amendment to permit the determination of a matter already in issue. It is more accurate to say that parties have the right to invoke the jurisdiction and the powers of the court in order to seek a resolution of their dispute[37]. Subject to any rights to amend without leave given to the parties by the rules of court, the question of further amendment of a party’s claim is dependent upon the exercise of the court’s discretionary power.
[97]The objectives of case management are now expressly stated in r 21 of the Court Procedures Rules. It cannot be overlooked that later rules, such as r 21, are likely to have been written with the decision in JL Holdings in mind[38]. The purposes stated in r 21 cannot be ignored. The Court Procedures Rules make plain that the Rules are to be applied having regard to the stated objectives of the timely disposal of the proceedings at an affordable cost. There can be no doubt about the importance of those matters in litigation in the courts of the Australian Capital Territory.
[98]Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a “just resolution” is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re‑pleading, when delay and cost are taken into account. The Rule’s reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.
[99]In the past it has more readily been assumed that an order for the costs occasioned by the amendment would overcome injustice to the amending party’s opponent. In Cropper v Smith Bowen LJ described an order for costs as a panacea that heals all[39]. Such a view may largely explain the decision of this Court in Shannon v Lee Chun[40], which upheld a decision allowing the plaintiff to raise a new case at the second trial, but which imposed a condition as to costs. The modern view is that even an order for indemnity costs may not always undo the prejudice a party suffers by late amendment[41]. In the present case it is difficult to see that such an order could be sufficient compensation, given that Aon would be required to again defend litigation which was, effectively, to be commenced afresh.
(Footnotes in original)
[35] Aon (2009) 239 CLR 175 at [96]-[99].
[36] Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 at 154: “If it is arguable, the applicants should be permitted to argue it, provided that any prejudice to [JL Holdings] might be compensated by costs”; and at 155: “[Case management] … should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence”.
[37] As observed by Jolowicz, On Civil Procedure (2000), p 62.
[38] See, eg, the Second Reading Speech to the Civil Procedure Bill 2005 and Uniform Civil Procedure Rules 2005 (NSW), New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 6 April 2005 at 15115.
[39] Cropper v Smith (1884) 26 Ch D 700 at 711.
[40] (1912) 15 CLR 257; [1912] HCA 52. See the reasons of Barton J at 262‑263, O’Connor J at 264 and Isaacs J at 266.
[41] See The Commonwealth v Verwayen (1990) 170 CLR 394 at 464‑465 per Toohey J.
The effect of those passages is that it is an error to approach the competing interest of the parties, and the public, with a presumption that the indulgence sought, coupled with an order for costs, should be given if the party seeking it would otherwise be precluded from litigating an arguable case. The proper approach is to give all of the competing considerations the weight accorded to them by the particular facts and circumstances of each case, free from any presumptive tipping of the scales.
Ground of appeal 3.5 – the fifth statement of claim did not make wholesale changes
It is convenient to address this ground first in order to appreciate the nature and extent of the amendments and whether they raised claims which were not a proper part of the controversy pleaded in the fourth statement of claim. The Commonwealth attacks the Judge’s conclusion that ‘wholesale’ changes were not proposed on the ground that he did not engage in a close comparative analysis of the two pleadings. However, there is no complaint, as part of this ground, that the reasons of Stanley J were inadequate. As we shall shortly see, the judgment engages with and summarises the changes and fully explains his Honour’s conclusion. It is not an error of law to refrain from undertaking a tedious exercise advocated by the Commonwealth if the material changes are addressed.
In any event, I have attached to these reasons, by way of an appendix, a comparative summary of the two pleadings. They support the Judge’s conclusion that there was not ‘wholesale change’ in the sense of making new claims which extended beyond the controversy presented by the fourth statement of claim. They also support the Judge’s finding, based on a submission of counsel for Mr Saadat, that the amendments were critical to the success of Mr Saadat’s claim.
The amendments made by the further statement of claim fall into the following categories:
·providing better particulars of Mr Saadat’s persecution in Iran;
·providing particulars of the conditions, referred to as stressors, in Curtin which left Mr Saadat vulnerable to, and contributed to, his subsequent mental illness;
·pleading for the first time that Mr Saadat had a vulnerability to a mental illness at Curtin and, in the alternative, that Mr Saadat suffered a mental illness at Curtin (the fourth statement of claim had pleaded that Mr Saadat had symptoms of, and that he actually suffered, a mental illness, but did not in terms plead a vulnerability);
·providing better particulars of the stressors at Baxter; and
·providing better particulars of the reasonable prophylactic measures which the Commonwealth failed to take.
The proposed fifth statement of claim did not make any new claim. The further particulars provided clear notice of the base facts which Mr Saadat proposed to prove to make good the same claims which were made in the fourth statement of claim and were repeated in the proposed fifth statement of claim.
Stanley J gave the following reasons for his conclusion:[42]
[13]I did not accept that the proposed fifth statement of claim constituted a wholesale change of the plaintiff’s case shifting from the existing allegation that the plaintiff had a psychiatric illness when he arrived at Baxter from Curtin, to an allegation that he was vulnerable to suffering a psychiatric illness upon arrival at Baxter, which by its acts or omissions the Commonwealth failed to address, resulting in the development of a psychiatric illness. The proposed fifth statement of claim pleads the plaintiff’s vulnerability to psychiatric illness in the alternative to the existence of a psychiatric illness at Curtin. Further, I accept that it is likely the pleading in the fourth statement of claim would have required the defendant and third parties to have investigated much of the facts alleged relevant to the amended pleading in the fifth statement of claim.
[14]In his fourth statement of claim the plaintiff alleged that at Curtin he suffered symptoms of an adjustment disorder. Accordingly, the defendant already had to meet a plea that events occurred at Curtin which caused the plaintiff to have trouble adjusting to his detention there. Further, the fourth statement of claim alleged that when the plaintiff arrived at Baxter from Curtin, the defendant knew or ought to have known that he was suffering a psychiatric illness and was a person of less than normal fortitude. In its defence to the fourth statement of claim the defendant pleads that it neither knew nor ought to have known that the plaintiff was suffering a psychiatric illness and/or was a person of less than normal fortitude when he arrived at Baxter.[43]
[15]It is apparent that the defendant presently pleads a positive case that it did not know the plaintiff was a person of less than normal fortitude irrespective of whether he suffered a psychiatric illness or for any other reason, including any vulnerability to psychiatric illness. In these circumstances I did not accept that the proposed fifth statement of claim occasioned substantial prejudice to the defendant by the alternative plea raised that the plaintiff was vulnerable to developing a psychiatric illness when he arrived at Baxter from Curtin.
[16]Further, the plaintiff had pleaded that the defendant had knowledge of his psychiatric condition when he arrived at Baxter because it had his Curtin medical records, he had been in detention since December 2000, it was aware of his assertions of torture and trauma experienced in Iran and was aware or ought to have been aware of the matters in Appendix 1 to the fourth statement of claim. Aside from knowledge of the plaintiff’s mental illness or lack of normal fortitude, the defendant had admitted these facts in its defence.[44] In the circumstances I was satisfied that on the fourth statement of claim issue was joined as to whether the plaintiff was, when he left Curtin, of less than normal fortitude on the basis that the circumstances of his detention at Curtin caused him to suffer symptoms of an adjustment disorder. That was so notwithstanding that there is no express plea in the fourth statement of claim of facts that caused the plaintiff to develop these symptoms. But the plaintiff did plead in the fourth statement of claim the facts that he alleges gave the defendant notice that he was of less than normal fortitude because the circumstances of his detention at Curtin caused him to suffer symptoms of an adjustment disorder.
[17]The defendant had made disclosure of the plaintiff’s medical records from Curtin and numerous documents relevant to the manner of his detention at Curtin, the atmosphere at Curtin, various stressful events at Curtin, and obtained expert reports that canvass these matters. The only new allegations in relation to which the defendant had not already provided disclosure were the plaintiff being restrained when taken to Derby Hospital,[45] body and room searches,[46] the lack of counselling about the visa process[47] and events in the management unit in May 2002.[48]
[18]I was satisfied that a comparison of the fifth statement of claim with the fourth statement of claim showed that most of the defendant’s complaints about a wholesale change to the plaintiff’s pleaded case in the fifth statement of claim involved pleas that were either already in the fourth statement of claim or were more detailed pleas of allegations already in the fourth statement of claim.[49]
(Footnotes in original)
[42] Saadat v Commonwealth of Australia & Ors [2019] SASC 28 at [13]-[18].
[43] Second defence paragraph 28.
[44] Second defence paragraph 28.
[45] 5SOC2 [20.1.12].
[46] 5SOC2 [20.1.13].
[47] 5SOC2 [20.1.16].
[48] 5SOC2 [20.1.17]-[20.1.19] and [20.3.5].
[49] 1 5SOC2 [22.1.5]: cf. 4SOC [39], [40], [41].
2 5SOC2 [22.1.6]: cf. 4SOC [31.1].
3 5SOC2 [22.1.8]: cf. 4SOC [31.1]
4 5SOC2 [22.1.9]: cf. 4SOC [22.3], [33], [34], [35].
5 5SOC2 [22.1.14]: cf. 4SOC [37], [38] .
6 5SOC2 [22.1.15]: cf. 4SOC [31.6].
7 5SOC2 [22.1.16]: cf. 4SOC [31.6], [34].
8 5SOC2 [22.1.18]: cf. 4SOC [31.8].
9 5SOC2 [22.1.19]: cf. 4SOC [32.1.1].
10 5SOC2 [22.1.22]: cf. 4SOC [37], [38].
11 5SOC2 [22.1.26]: cf. 4SOC [31.14].
12 5SOC2 [22.1.28]: cf. 4SOC [34.5].
13 5SOC2 [22.1.30]: cf. 4SOC [32.1.1].
14 5SOC2 [22.1.37]: cf. 4SOC [34.7].
15 5SOC2 [22.1.38]: cf. 4SOC [34.7].
16 5SOC2 [22.1.39]: cf. 4SOC [39].
17 5SOC2 [22.1.40]: cf. 4SOC [22.6].
18 5SOC2 [22.1.41]: cf. 4SOC [22.7].
19 5SOC2 [22.1.42]: cf. 4SOC [22.10].
20 5SOC2 [22.1.43]: cf. 4SOC [22.4].
21 5SOC2 [22.1.44]: cf. 4SOC [22.11].
8
12
1