Commonwealth v Heidari - [2016] SADC 9

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
COMMONWEALTH v HEIDARI
[2016] SADC 9
Judgment of His Honour Judge Chivell
5 February 2016
PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - RULES OF COURT
Application by plaintiff to further amend Statement of Claim - amendments in response to request by defendant for further and better particulars - permission granted by Master - amendments include voluminous appendix - plaintiff arguing that information in appendix relevant to show actual or constructive knowledge of defendant that plaintiff likely to have suffered mental injury in immigration detention - defendant arguing information irrelevant and proffered for a collateral purpose and therefore an abuse of court's process.
Held: information in appendix relevant and material - not an abuse of process - not prejudicial. Appeal dismissed.
District Court Civil Rules 2006 6DCR 54, 90, 98, 102, 104, 117, referred to.
Page v Built Vision [2013] SADC 48; MacDonnell Shire Council v Miller [2009] NTSC 46; Commonwealth v Verwayen (1990) 170 CLR 394; Pope v Harris Orchard [2010] SASC 354; S v Secretary, Department of Immigration & Multicultural Affairs [2005] FCA 549; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Channel Seven Adelaide Pty Ltd v Manock [2010] SASCFC 59; Woodhead Aust (SA) v Paspalis Group (1991) 103 FLR 122; Amaca Pty Ltd v Booth (2011) 256 CLR 36; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; Windridge Farm v Grassi (2010) 238 FLR 289; FAI Insurances Ltd v Pioneer Concrete Services Ltd (1987) 15 NSWLR 552; Acquista Investments Pty Ltd & Anor v The Urban Renewal Authority & Ors [2014] SASC 206; Rann v Olsen [2000] SASC 83; Holcon Australia Pty Ltd v Corporation of the Town of Walkerville (2007) 252 LSJS 326, considered.

COMMONWEALTH v HEIDARI
[2016] SADC 9

Mr Heidari is an Iranian man. He came to Australia in a small boat. He arrived at Ashmore Reef in September 2000. For the next four years and seven months or so he was detained pursuant to the Migration Act 1958 (Cth). He is now an Australian citizen.
Mr Heidari is suing the Commonwealth Government for damages. He claims that he suffered mental and physical harm while a detainee. He alleges that this harm was caused by the negligence of the Commonwealth or its servants or agents. He also alleges that he suffered harm as a result of assault and battery and false imprisonment during his detention.
Mr Heidari’s suit was commenced on 23 March 2012. A Statement of Claim was filed on the same day (FDN 2). A lengthy series of interlocutory hearings before Master Blumberg followed.
Eventually, on 19 October 2015, Master Blumberg made a number of orders. The Commonwealth appeals against one of those orders, namely:
10. In light of the above, and for the reasons set out in the fiats to which I have referred, pursuant to Rule 54, I give the [plaintiff] permission to file and serve a third statement of claim on or before 20.10.2015 in the terms marked “A” dated and signed by me today.
The Third Statement of Claim referred to in Master Blumberg’s order contains paragraph 28, which reads:
28. The plaintiff says that the defendant knew or ought to have known that he was suffering from a mental illness, and that he was a person of less than normal fortitude, and therefore s33(1) and (2) of the Civil Liability Act 1936 (SA) do not apply to the plaintiff when he arrived in Baxter because:
28.1The defendant had the plaintiff’s medical records from the earlier period when he was detained in Curtin which showed he was ill;
28.2The plaintiff had been in immigration detention since September 2000;
28.3The plaintiff had previously informed the defendant of his detention, torture and trauma experiences in Iran prior to his arrival in Australia; and
28.4The defendant prior to the plaintiff’s arrival at Baxter was aware of the matters set out in Appendix one at paragraphs 1-73 and on the bases there set out the defendant had knowledge that the plaintiff was likely to have a psychiatric or psychological illness at the time.
The Commonwealth says that paragraph 28.4 is non-compliant with the pleading rules (6DCR 98 in particular) and should be struck out. It takes particular objection to the inclusion of the appendix in the Statement of Claim.
The Third Statement of Claim had been developed during a total of nine hearings before Master Blumberg between 5 May 2014 and 6 July 2015. It is necessary that I give a brief outline of what occurred.
The Commonwealth requested further and better particulars from Mr Heidari on 12 February 2013. The Commonwealth then applied for an order that Mr Heidari answer the request. This order was made on 15 April 2013. The further and better particulars were supplied on 12 June 2013. The Commonwealth sought further particulars on 2 July 2013. The Commonwealth made a further application to the court.
A second Statement of Claim was filed by Mr Heidari on 20 September 2013. Mr Heidari’s counsel indicated that this was done in response to the Commonwealth’s request for further and better particulars of the first Statement of Claim. This procedure is required by 6DCR 102(4), which states:
(4) Unless the Court directs to the contrary, the further particulars are to be provided by substituting for an existing pleading a new pleading incorporating the further particulars required by the Court.
The Commonwealth then sought further and better particulars of that Statement of Claim. On 30 January 2014 at a hearing, further amendment of the second Statement of Claim was discussed.
On 5 May 2014, the court resumed to consider Mr Heidari’s application for permission to further amend.
The Master’s ‘fiat’ of this hearing actually takes the form of a short ruling with reasons. He quoted from the judgment of Costello DCJ in Page v Built Vision.[1] Judge Costello referred to MacDonnell Shire Council v Miller,[2] where Mildren J said:
[1] [2013] SADC 48.
[2] [2009] NTSC 46 at para 9.
… in granting leave to amend the Court is concerned with the raising of issues and not with their merits. Raising a claim which may appear not to have much chance of success is not a sufficient reason to refuse leave to amend. Provided that the case is arguable, whether it ought to succeed or not is a question for the judge at trial.
Judge Costello also quoted from Dawson J in Commonwealth v Verwayen:[3]
Of course, an amendment which is futile because it is obviously bad in law will not be allowed. But it is no ground for refusing an amendment that it raises a claim or defence which ought not to succeed. That will be an issue upon trial.
and White J in Pope v Harris Orchard:[4]
The application giving rise to the present appeal was not for further and better particulars or for the striking out of a pleading. It was instead an application for permission to amend and accordingly required an exercise of the Court’s discretion. An amendment to pleadings should not be permitted unless it complies with the pleading rules and, in particular, if it would be vulnerable to being struck out on the grounds of non-compliance or would INEVITABLY give rise to an application for further and better particularisation.
The defendants submitted that the third parties, although opposing the amendment, had not asserted that they would be prejudiced if it was allowed, or that they did not know the case which they had to meet. Whether or not this was so in the argument before the Master, I cannot say, but the third parties on the appeal did assert uncertainty as to the precise basis of the defendants’ claims. Further, the absence of prejudice is only one factor to be considered. The defendants have the primary responsibility of establishing that their proposed pleading is compliant with the Rules. If it is not, SOME NON-COMPLIANCE MAY BE EXCUSED if the third parties would not suffer any detriment, but one does not start from the proposition that an amendment should be allowed unless the opposing party can identify some prejudice or detriment.
[Emphasis by Master Blumberg]
[3] (1990) 170 CLR 394 at 456.
[4] [2010] SASC 354 at [24]-[25].
On 5 May 2014, Master Blumberg gave Mr Heidari permission to file and serve a Third Statement of Claim in terms of the document before him, but subject to a long list of amendments which had been discussed at the hearing. Most relevant to this appeal, Master Blumberg ordered:
7.30Deleting para.28.4 and substituting the following “The defendant prior to the plaintiff’s arrival at Baxter was aware of the matters set out in appendix one at paras.1-84, 158 and 159 and on the bases there set out the defendant had knowledge that the plaintiff was likely to have a psychiatric or psychological illness at the time” [subject to consideration of the appendix].
7.31By adding into the preamble words in para.28 the phrase after the words “less than normal fortitude” the words “and therefore s.33(1) and (2) of the Civil Liability Act do not apply to the plaintiff, when he arrived in Baxter because –”
These orders were not intended to have immediate effect, however. The Master noted:
8.The previous orders are draft or preliminary intimations on various matters debated today and will not have operative affect until the making of a further order.
The proposed amendments were next considered on 16 June 2014. Relevantly, it was noted[5] that the appendix referred to in paragraph 28.4 had been redrafted. The Commonwealth maintained its objection on the basis that the use of an appendix was inappropriate, the appendix was non-compliant with pleading rules, and that Mr Heidari was using the appendix for a collateral purpose, namely to politicise his case. As to these matters, the Master ruled:
·he had a discretion to allow the use of the appendix;[6]
·any non-compliance with pleading rules should be dealt with by a consideration of each paragraph of the appendix, rather than considering it as a whole;[7]
·the ‘collateral purpose’ objection should also be dealt with paragraph by paragraph.[8]
[5] In [3] of the Master’s orders 16.6.14.
[6] [7].
[7] [8].
[8] [9].
The Master rejected an argument put by the Commonwealth, and repeated before me on appeal, that paragraph 28.4 of the proposed Statement of Claim merely asserted a correlation between detention and mental illness, and that such a plea in the context of an assertion of a causal relationship between the two is inapt because the two concepts are mutually exclusive. He wrote:
The defendant asserts that a pleading of correlation can never be a particular of a causal relationship as they are mutually exclusive concepts. This court is of the view that it is a matter for the trial judge to evaluate the significance of asserted correlations and to weigh them in light of the standard of proof applicable in civil cases (balance of probabilities) and the trial judge may be prepared to infer a causal connection.[9]
[9] [16].
The Master then proceeded to consider paragraphs 1 to 4 of the appendix and made suggestions for redrafting. He later added some ‘Remarks … in chambers’ containing his ‘preliminary views’ to assist the parties in considering ‘any further form of the appendix’. Specifically, he made reference to an earlier intimation he gave that the appendix could be justified by 6DCR 117(2)(f). That rule states:
(1) The Court may make any order it considers necessary for the proper conduct of a proceeding or otherwise in the interests of justice.
(2) The Court may (for example)-
(a)-(e)…
(f)require the parties to state issues in a particular way;
On 4 August 2014, at a further hearing, another version of the appendix was handed up by Mr Heidari’s counsel.
The Master proceeded to consider paragraphs 1 to 50 of the appendix individually, and made rulings allowing and disallowing many of them. Further information was requested on some.
On 20 October 2014, Mr Heidari’s counsel handed up a further version of the appendix incorporating the rulings made previously. The Master proceeded to consider paragraphs 51 to 77, adopting the same approach as he had previously taken.
On 1 December 2014, at a further hearing, the Master noted that many of the items of information requested on 20 October 2014 had now been supplied by the plaintiff. Further changes to the appendix were discussed.
On 27 February 2015, Mr Heidari’s counsel provided further documents (101 in number) in answer to a question about paragraph 71 of the appendix. The Master made further suggestions about how the pleading of the Statement of Claim could be improved.
On 4 May 2015, a further version of the proposed Third Statement of Claim was handed up by Mr Heidari’s counsel. Detailed consideration ensued as to the Commonwealth’s objections to many of the paragraphs therein. The Master made further suggestions for inclusion in ‘any further re-draft’.[10]
[10] [33].
On 29 May 2015, a ‘fresh’ version of the Third Statement of Claim was handed up by Mr Heidari’s counsel. Again, a detailed consideration of a number of paragraphs was undertaken, and intimations given as to further amendments required.
On 6 July 2015, the Master made, inter alia, the following orders:
2.    The parties, if necessary, are to confer prior to 11.09.2015 regarding the content of the proposed amended statement of claim if they are unable to agree that the contents presented on behalf of the plaintiff comply with previous rulings and intimations as set out in the records of outcome commencing on 15.05.2014.
3.    To that end, the plaintiff is to supply to the defendant a version of the statement of claim which the plaintiff contends does comply with previous rulings and intimations as set out in those records on or before 24.08.2015.
4.    Whilst the Court has made various rulings and intimations from and including 15.05.2014, no order has been made giving the plaintiff permission to amend and therefore there is no operative order from which an appeal could be launched.
5.    It is envisaged that if the parties agree that the terms of a proposed amended pleading are consistent with the previous intimations and rulings, the Court will make an order over the opposition of the defendant giving the plaintiff permission to amend.
Finally, on 19 October 2015, the Master made the order which is the subject of the appeal. In doing so, he summarised what had occurred over the previous 17 months as follows:
1.    The court today is making an order upon an application filed by the pltff on 29 January 2014 contained in FDN30, seeking permission to amend the statement of claim.
2.    Argument regarding the terms of the proposed amendments commenced on 5 May 2014.
3.    The terms of the amendments in the document marked “A” and signed and dated by (me) this day is said to reflect rulings which I have made during hearings on 5.5.2014, 16.6.2014, 4.8.2014, 20.10.2014, 1.12.2014, 27.2.2015, 4.5.2015, 29.5.2015 and 6.7.2015.
4.    Over the course of time commencing on 29 January 2014, the terms of the amendments proposed have changed on a frequent basis and it is the document marked and signed by me today, which is the final version.
5.    The rulings made by me over the 9 hearings referred to above, were made against the background of a statement of the applicable law, which was articulated in the fiat of the court made on 5.5.2014.
6.    The deft objects to an order giving the pltff permission to file and serve the document marked “A” dated and signed by me this day.
7.    The only agreement between the pltff and the deft is that the content of that document is faithful to the rulings which I have made over the 9 hearings.
8.    Thus, the deft has an entitlement to appeal the order made today on or before 9.11.2015.
It is by this convoluted, if not tortuous, process that the Third Statement of Claim, with its appendix, comes before me in its present form.
It is my task to consider only the matters raised in the Notice of Appeal. There is no appeal from any of the orders, intimations, indications or rulings of the Master during the process. In particular, there is no appeal from any particular inclusion in the Third Statement of Claim, whether in paragraph 28.4 or the appendix.
Mr Douglas, counsel for the Commonwealth, made it clear that the appeal is confined to a consideration of whether the Master should have granted permission to amend paragraph 28(4) of the Statement of Claim and the appendix in the terms finally arrived at on 19 October 2015 at all. In his written submissions, Mr Douglas wrote:[11]
The sole challenge to the learned Master’s orders focuses upon the permission given to the Respondent to introduce an Appendix to the claim. The lengthy Appendix is said by Heidari to provide particulars of paragraph 28.4 of the claim; being, in substance, the Commonwealth’s so-called knowledge that there were systemic problems with the immigration detention centres at the relevant time. In fact, the Commonwealth submits that the content of the Appendix does not deal directly with the circumstances of Heidari. It is wholly irrelevant to the issues in this case and prejudicial to the Commonwealth’s defence and the efficient resolution of the issues for determination at trial.
The question on the appeal is whether the Master’s decision to allow the Appendix was consistent with long recognised rules of pleadings and serves the interests of justice and case flow management.
[11] Appellant’s written submissions [2]-[3].
I do not accept that the allegation that the Commonwealth had actual or constructive knowledge of systemic issues in the immigration detention system is wholly irrelevant. Such an argument was abandoned in S v Secretary, Department of Immigration & Multicultural & Indigenous Affairs.[12] In that case, at [209], Finn J said:
The relationship of the Commonwealth to persons in immigration detention who are known to belong to a class suffering from mental illness is closely analogous to, and draws on elements of, two classes of relationship which attract non-delegable duties. These are hospital and patient [Kondis, at 685; Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 at 561-562; see also Wellesley Hospital v Lawson (1978) 76 DLR (3d) 688 at 692] and gaoler and prisoner [Howard v Jarvis [1958] HCA 19; (1958) 98 CLR 177 at 183; Morgan v Attorney-General [1965] NZLR 134; R v Deputy Governor of Parkhurst Prison; ex parte Hague [1992] 1 AC 58 at 166; Reeves v Commissioner of Police of the Metropolis [1999] UKHL 35; [2000] 1 AC 360]. The characteristics the present relationship shares with that of hospital and patient are not only the element of control and the assumed responsibility for the health care of the detainees, there is as well the exaggerated vulnerability of the class of detainees at significant risk of mental illnesses. I speak of this class of detainees to foreshadow my later conclusion that indefinite detainees in Baxter were known to the Commonwealth to be susceptible to serious mental illness.
Finn J continued, at [212]:
This case is one of first impression and for that reason it is necessary to approach the standard required of the Commonwealth with some caution. This said, I am nonetheless satisfied that the minimum properly to be expected of the Commonwealth in virtue of its relationship with detainees in an immigration detention centre such as Baxter is that it ensure that reasonable care is taken of the detainees who, by reason of their detention cannot care for themselves: cf Spicer v Williamson 132 SE 291 (1926) at 293. This necessitates that the Commonwealth ensures that a level of medical care is made available which is reasonably designed to meet their health care needs including psychiatric care: see e.g. Brooks v Home Office (1999) 48 BMLR 109 at 114; cf also, although in a setting affected by constitutional considerations, Bowring v Goodwin [1977] USCA4 272; 551 F 2d 44 (1977) at 47. Where, as here, the Commonwealth contracts out the provision of services to detainees it is obliged to see that "care is taken": cf Kondis, at 686; and that the requisite level of medical care is provided and with reasonable care and skill.
[12] [2005] FCA 549.
The Right to Amend

6DCR 54 gives a party a right to amend a document. However, after a specified period (14 days from the end of the period allowed for disclosure of documents), or after a previous amendment, the Court’s permission or the consent of all other parties is required (6DCR 54(4), (5)).
The right to amend was considered by the High Court in Aon Risk Services Australia Ltd v Australian National University.[13] This was considered by the South Australian Supreme Court (Full Court) in Channel Seven Adelaide Pty Ltd v Manock.[14] Gray J, at [46], summarised the principles arising from Aon when considering an application for permission to amend a pleading:
[13] (2009) 239 CLR 175.
[14] [2010] SASCFC 59.
(1)Whether there has been undue delay in making the application;
(2)The extent to which there will be wasted public resources in granting the amendment;
(3)Whether there will be inefficiency occasioned by the need to revisit interlocutory processes;
(4)Whether a trial date would need to be vacated or a trial adjourned;
(5)Whether there is any satisfactory reason for the delay in applying;
(6)Whether the point to be raised by the amendment would be raised in any event at the trial;
(7)The likelihood of strain and uncertainty being imposed on the litigants;
(8)Whether any further delay would undermine confidence in the administration of civil justice;
(9)Any other prejudice likely to be suffered by the other party;
(10)The additional costs likely to be incurred.
Lunn, in Civil Procedure South Australia, Volume 1 [R 54.30.30] at pages 5200.9-10, distils some further factors from decided cases:
·the amendment should be disallowed if it would be struck out under 6DCR 104 if it had been originally pleaded;
·an inconsistent or useless amendment will not be allowed;
·an amendment containing errors and irrelevant and improper material will not be allowed;
·an amendment which is inconsistent with a judgment already given in the action and not set aside will not be allowed;
·an amendment which seeks to re-litigate issues which have already been determined between the parties will not be allowed;
·an amendment which is in breach of an implied undertaking to another court not to use documents without permission will not be allowed;
·an amendment which is an abuse of process because it is being used as a platform upon which a party may make political statements during the trial will not be allowed.
[Citations omitted]
It is not necessary that the issue raised by the proposed amendment should be finally determined. It is enough that, on the face of the pleadings and proposed amendments, the point raised is arguable. In Woodhead Aust (SA) v Paspalis Group,[15] Asche CJ observed, at 127:
It seems to me that in interlocutory proceedings a court should be very cautious about how far it confines a party's freedom of movement in the future. That is not to say that it should countenance prolix, unnecessary or vexatious amendments or amendments which are an abuse of the processes of the court; and it should refuse an amendment which is, to use the words of Taylor J in Abela v Giew (1964) 81 WN (Pt 1) (NSW) 344 at 345, "obviously futile".
Mr Hiley in fact does submit that par 15 comes within the category of "obviously futile". But before dealing with that submission I deal with the broader submission he makes. As I understand him, Mr Hiley submits that it is the duty of the court on interlocutory proceedings such as this, where leave to amend is sought and opposed, to find positively and at this stage, whether or not the facts alleged support the cause of action relied on and to refuse leave if they do not. Now I will go this far with Mr Hiley: if the proposed amendment sets up a cause of action which clearly cannot be supported by the facts alleged the amendment should be refused. But if the facts alleged set up at least an arguable case for the cause of action relied on, should the judge, on interlocutory proceedings, have that case argued before him and determine the result? I think not. Otherwise he usurps the function of the trial judge. Provided the case is arguable, it is not his function to interfere.
[15] (1991) 103 FLR 122.
The Rules as to Pleadings
It is to be noted that the proposed amendments in this case were given by Mr Heidari in purported answer to a request for further and better particulars by the Commonwealth. 6DCR 102(2) requires that the particulars be confined to ‘facts and matters that are material to the party’s action’.
6DCR 90 sets out the role of pleadings:
90(1)The issues to be resolved in an action are defined by the pleadings.
(2)A pleading is a formal statement of the basis of a party’s case filed in the Court.
(3)The principal pleadings are-
(a)   the statement of claim; and
(b)   the defence; and
(c)   the reply.
Lunn comments, at 6DCR 90.1 on page 5271:
Pleadings are not allegations of the truth of the facts alleged therein, but are only statements of the case of the party, and, if they are not verified by the signature or oath of the party, they do not vouch for their truth or accuracy (Pearce v Hall (1989) 52 SASR 568; 154 LSJS 64; Kinhill Engineers Pty Ltd v Zhen Yun Ltd (1992) 165 LSJS 178; Jamieson v R (1993) 177 CLR 574; 116 ALR 193; [1993] HCA 48; BC930581) …
(but see 6DCR 98(1)(b), which requires certification by a party’s solicitor or signature by the party if not represented).
6DCR 98(2) provides:
(2) A pleading-
(a)must be as brief as the nature of the case allows; and
(b)must state only material facts and matters relied on and not the evidence or arguments by which the facts and matters are to be proved; and
(c)must not contain matter that is-
(i)scandalous; or
(ii)evasive or ambiguous; or
(iii)frivolous or vexatious; or
(iv)an abuse of the process of the Court in some other respect.
(d)must plead such facts and matters as give fair notice of the party’s case at trial.
Lunn observes at [R98.30] at page 5284.3:
·all facts upon which a cause of action or the grounds of a defence depend are material;
·what is a material fact will depend upon the circumstances of the case;
·material facts are those upon which the cause of action depends and which must be stated to constitute a complete cause of action;
·it may be that more than the material facts need to be stated in order that the pleading serves its proper function;
·the pleading should state sufficient facts to enable the other party to understand the nature of the claim or defence;
·the pleading must be sufficiently precise to allow a proper response from the opposing party.
I have not been referred to any decided cases where a defendant has complained that too many particulars have been supplied by the plaintiff. Lunn details the following principles at [R102.10] (page 5305):
·the degree of particularity depends on the nature of the case;
·the Court must have regard to the scope of investigation and preparation a defendant would be required to undertake if such particulars were not given;
·there may be references to documents if the documents are themselves evidence of what is being alleged;
·it is not sufficient to plead that the defendant can make its own inquiries of non-parties to ascertain what is being alleged;
·a defendant can be taken to have knowledge of its own business operations;
·the court can look at the defendant’s own knowledge of background matters to determine if the Statement of Claim has sufficient particularity;
·a party who gives more particulars than is necessary may fetter its hand at trial;
·the effect of the addition of ‘and matters’ to 6DCR 102(2) so that it reads ‘facts and matters that are material to the party’s action’ is not clear. It would appear to extend the obligation to give particulars beyond pleading facts in the strict sense.
The Pleading Complained Of
Appendix 1 contains 73 paragraphs and covers a period from 1998 to 2005. It includes a substantial array of information which Mr Heidari says was available to the Commonwealth and which he says should have made it aware that he was likely to have a psychiatric or psychological illness at the relevant time. It includes:
·submissions by various people and agencies to the Human Rights and Equal Opportunity Commission (HREOC);
·reports by HREOC;
·academic reports and research papers into ‘detention-related psychiatric illness’;
·publications and reports by the Commonwealth’s own agencies and contractors;
·reports of inquiries commissioned by the Commonwealth;
·media releases by Commonwealth agencies;
·reports and media releases by the Australian Medical Association;
·reports by State health agencies responsible for health provision to detainees;
·comments and submissions by the Commonwealth to various commissions and inquiries;
·notification by the Commonwealth to State agencies in relation to self-harming incidents by detainees;
·reports by the United Nations High Commissioner for Human Rights presented to the Commonwealth and responses to the report by the relevant Commonwealth minister;
·evidence given by detainees to HREOC inquiries;
·a ‘Four Corners’ program on the ABC and responses by the relevant Commonwealth minister;
·a ‘Lateline’ program on the ABC;
·newspaper articles;
·evidence given in other litigation;
·articles about the frequency of acts of self-harm in detention centres being above average;
·information provided by refugee advocacy groups to the Commonwealth;
·interviews of Commonwealth ministers and officials during which information about unmet health needs of detainees was put to them, and their responses (contained on a memory stick).
The Appeal
The Commonwealth’s appeal seeks orders that paragraph 28.4 and the accompanying appendix (including, presumably, the memory stick) be struck out.
The power to strike out a pleading is in 6DCR 104:
104The Court may strike out a pleading in whole or in part if the pleading-
(a) does not comply with these Rules; and
(b) is an abuse of the process of the Court or prejudices the proper conduct of the action.
The grounds of appeal include that the material in Appendix 1:
·is not specific to Mr Heidari;
·is not specific to the particular detention centre in which Mr Heidari was detained;
·taken at its highest, contains information designed to show a correlation between mental illness and detention generally, which ‘gives rise to actual or constructive knowledge of the matters pleaded’.
It is true that the materials in Appendix 1 are not specific, and that they are designed to show a correlation between mental illness and detention generally. I do not accept, however, that the pleadings allege that the materials in the appendix ‘give rise’ to the knowledge pleaded.
The chapeau to paragraph 28 of the Statement of Claim alleges actual or constructive knowledge of:
·the fact that Mr Heidari was suffering from a mental illness; and
·that Mr Heidari was a person of ‘less than normal fortitude’, the expression in s 33 of the Civil Liability Act 1936 (SA).
Paragraphs 28.1 to 28.3 plead specific facts which are alleged to justify those conclusions. Paragraph 28.4 points to the information in the appendix from which it is alleged that the Commonwealth had actual or constructive knowledge that Mr Heidari was likely to have a psychiatric or psychological illness at the time, and was a person of less than normal fortitude.
Mr Douglas submitted that Mr Heidari was asserting that ‘simply by dint of the fact that [he] had been previously held in an immigration detention environment, the Commonwealth foreseeably ought to have understood he had a mental illness.[16] Mr Heidari is not asserting that. He is asserting that his increased susceptibility to mental illness is one among other factors relevant to whether the Commonwealth had actual or constructive knowledge that he was suffering from a mental illness. He is entitled to do that.
[16] T 28.
Mr Douglas referred to Amaca Pty Ltd v Booth[17] in which, at [49], French CJ observed:
In summary, a finding that a defendant’s conduct has increased the risk of injury to the plaintiff must rest upon more than a mere statistical correlation between that kind of conduct and that kind of injury. It requires the existence of a causal connection between the conduct and the injury, albeit other causative factors may be in play. As demonstrated by medical evidence in this case and in particular by Professor Henderson’s evidence, a causal connection may be inferred by somebody expert in the relevant field considering the nature and incidents of the correlation. The Bradford Hill criteria provide a guide to the kind of considerations that lead to an inference of causal connection. As noted above (91), they may include reference to relative risk ratio as an indicator of the strength of the association. Where the existence of a causal connection is accepted it can support an inference, in the particular case, when injury has eventuated, that the defendant’s conduct was a cause of the injury. Professor Henderson offered that inference of specific causation by reference to Mr Booth’s exposure to the products of both Amaca and Amaba. Where such an inference is drawn, the probability that it is correct is not to be determined only by reference to epidemiologically based ex ante probabilities. In Betts v Whittingslowe, Dixon J employed apposite logic when he said:
“[T]he breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach of statutory duty.”
(Emphasis added.) That logic encompasses the case of an ex ante probability, of accident given breach, supported by a causal explanation linking breach and accident. In this case an explanatory causal mechanism was proposed in the medical evidence.
[Citation omitted]
[17] (2011) 256 CLR 36.
Mr Heidari is not seeking to draw an inference of causation from paragraph 28.4 of the Statement of Claim alone. The paragraph itself refers to several other factors, and others are mentioned elsewhere in the document.
Further, French CJ was referring to evidence rather than pleading. It is sufficient in this case if it is arguable that an increased susceptibility to psychiatric injury is a piece of circumstantial evidence, among others, which goes to the state of the Commonwealth’s knowledge. I see nothing to the contrary of that proposition in the comments of French CJ quoted above.
In Burnie Port Authority v General Jones Pty Ltd,[18] the court said:
Viewed from the perspective of the person to whom the duty is owed, the relationship of proximity giving rise to the non-delegable duty of care in such cases is marked by special dependence or vulnerability on the part of that person.
[18] (1994) 179 CLR 520 at 551 per Mason CJ, Deane, Dawson & Toohey JJ.
I consider that the pleading complained of raises the same issue. A plea that the plaintiff was ‘likely’ to have suffered mental injury as a result of immigration detention is the same as a plea that the plaintiff had a vulnerability to such injury, rendering it more likely that he would suffer such an injury when compared with a person who had not had the same experiences. It is clearly appropriate that the plaintiff be allowed to raise such a plea.
Abuse of Process
Mr Douglas submitted that the ‘avowed purpose of (the plaintiff’s) argument is to put the toxicity of, in the plaintiff’s case, the immigration system on trial’,[19] referring to Windridge Farm v Grassi.[20]
[19] T 38.
[20] (2010) 238 FLR 289.
In that case, the plaintiff was suing in trespass. It alleged that the defendants entered its piggery as trespassers and took photographs for use in political campaigning. The plaintiff claimed that the defendants held the photographs in trust for it. The defendants proposed to argue that it would have been ‘unconscionable and inequitable’ if the plaintiff was allowed to assert copyright. They also relied on the implied freedom of expression in relation to political matters in the Constitution. They asserted that the operators were not coming to equity ‘with clean hands’. The defendants then purported to plead various acts of cruelty and inhumane conditions at the piggery.
Latham J held that the alleged conduct of the plaintiff did not have the necessary ‘immediate and necessary relationship’ with the alleged trespass to give rise to the maxim of ‘clean hands’. Reference was made to the judgment of Young J in FAI Insurances Ltd v Pioneer Concrete Services Ltd,[21] where his Honour wrote:
[U]nless there is established one of the equitable defences, then general naughtiness or the desire of the court to censor the plaintiff’s conduct, does not enter into the equation when one is considering whether the plaintiff should get relief.
[21] (1987) 15 NSWLR 552 at 554.
I consider that Windridge Farm can be distinguished from this case on several bases:
·     it was an action in equity where the principles are different from an action in negligence at common law;
·     the matters raised are relevant to the issues in this case whereas in Windridge Farm they were not (see Latham J at [35]);
·     Latham J in Windridge Farm found for the plaintiff on the basis that the proposed pleading was an abuse of process. In that case, there was explicit evidence of an ulterior purpose for the plea (see [39]). Latham J added:
In this respect, the defendants are using the proposed pleading as a means of obtaining an advantage beyond any that is available under the law and one that is not reasonably related to a judgment in the plaintiff’s favour on the issue of trespass.[22]
That is not the case here.   Here, the matters pleaded are relevant to the cause of action. Simply because those matters are the subject of political debate does not make their use an abuse of process. It is not uncommon for matters that are the subject of political controversy to be ventilated in court (see, for example, Acquista Investments Pty Ltd & Anor v The Urban Renewal Authority & Ors;[23] Rann v Olsen[24]).
[22] At [42].
[23] [2014] SASC 206.
[24] [2000] SASC 83.
There is no abuse of process here. In my view, the political ramifications of the proposed pleading are incidental to the issues to be determined.
I reject the Commonwealth’s submission that I should take into account other similar actions against the Commonwealth in determining this appeal.
There is no evidence before me as to what effect any decision I may make in this action will have on other similar actions. Mr Douglas submitted:[25]
Given the number of like actions pending before the Court, the effect of permitting the Appendix is exacerbated as it will have serious ramifications for the Court’s business in allocating time and resources for trials as inevitably more and more claims are mounted against the Commonwealth on the same footing as this proceeding.
[Footnotes omitted]
[25] Appellant’s written submissions [4].
In my view, the matters referred to by Mr Douglas are not relevant to the determination of the issues in this appeal. Each action must be dealt with on its own merits. There is no power in the Rules to take into account the effect a ruling may have on other actions. Nothing in the judgments of Aon or Channel Seven suggests that there is any such power.

Mr Douglas’ submission that the Master misapplied the decision of White J in Pope v Harris Orchard is not pertinent. For the same reason, Mr Douglas’ criticism of the Master’s references to 6DCR 102, and whether the Master should have had regard to 6DCR 104 instead, is also not pertinent.
Prejudice
Mr Douglas submitted that the proposed pleadings cause prejudice to the proper conduct of the action, since they will require answers from the Commonwealth if the Commonwealth wishes to respond to any of the matters raised in the appendix in a specific way. I accept that the pleading may require specific answers, but I do not see that as being particularly onerous or prejudicial. It does not amount to prejudice within the meaning of 6DCR 104.
It is to be noted that 6DCR 104 establishes conjunctive requirements – that is, there must be a non-compliance with the pleading rules and either an abuse of process or prejudice to the proper conduct of the action (Holcon Australia Pty Ltd v Corporation of the Town of Walkerville[26] per White J).
[26] (2007) 252 LSJS 326; [2007] SASC 437.
It is my conclusion that the proposed pleading does not breach the pleading rules, nor does it cause prejudice to the defendant.
Conclusion
I find that paragraph 28(4) of the Third Statement of Claim and the appendix are not in breach of the rules as to pleadings. In particular:
·they state material facts and matters relied on;
·they do not contain matter that is prolix, scandalous, evasive, ambiguous, frivolous or vexatious;
·they are not an abuse of process of the Court;
·they give fair notice of the plaintiff’s case at trial;
·they do not offend the principles outlined in Aon;
·they do not create prejudice.
As to delay, there was undue delay in the process which led to the decision on 19 October 2015, but that was not of the plaintiff’s making. There was no undue delay in the making of the application for permission to amend in January 2014.
None of the grounds of appeal are made out. I dismiss the appeal.