Darvishzadeh v Commonwealth of Australia & Ors - [2024] SADC 23

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Interlocutory Application)
DARVISHZADEH v COMMONWEALTH OF AUSTRALIA & ORS
[2024] SADC 23
Reasons for Decision of his Honour Judge Burnett
5 March 2024
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - SEPARATE DECISION OR DETERMINATION OF QUESTIONS AND CONSOLIDATION OF PROCEEDINGS - SEPARATE DECISION OR DETERMINATION
The applicant brought proceedings on 15 February 2011 against the respondents in relation to his detention at the Baxter Immigration and Reception Processing Centre. The claim is primarily for psychiatric injuries. In his first statement of claim filed on 15 February 2011, the applicant claimed an extension of time in which to bring the proceedings pursuant to s 48(3) of the Limitations of Actions Act (the Limitations Act) based on a report received by the applicant from Dr Davis, a psychiatrist, on 17 February 2010.
The respondents denied the claims and inter alia pleaded that the extension of time should not be granted, both on the basis that there was no relevant material fact and further that it was not just in all the circumstances to grant the extension.
By interlocutory application dated 12 January 2024 the second respondent, G4S (Australia Pty Ltd) and the third party, G4S Regional Management (UK & I) Ltd (collectively G4S) have sought orders that the claim for an extension of time be heard as a preliminary point before the trial of the action. G4S sought the preliminary hearing of the question whether there was a relevant material fact ascertained by the applicant in the 12 month period prior to the institution of proceedings.
The matter was listed on 13 April 2023 for trial for 40 days commencing on 12 August 2024. It was initially listed as a reserve trial but following settlement of the matter listed first, it was ordered on 30 November 2023 that the trial proceed on 12 August 2024.
Held:
1. The application of G4S is dismissed.
2. Under s 48(5) Limitations Act, the question of an extension of time may be determined by the Court at any time before or after the close of pleadings. The question for the Court, having regard to the circumstances of the case, is whether it is an appropriate course to hear the extension of time claim first: Prince Alfred College Incorporated v ADC (2016) 258 CLR 134 applied.
3. The transitional provisions of the Law Reform (Ipp Recommendations) Act 2004 (SA) meant that the test for a material fact set out in Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 applied.
4 Section 48(5) does not create any onus on the party seeking a preliminary trial. The Court has an unfettered discretion, to be exercised judicially, whether in the circumstances of the case it was appropriate to hear the extension of time claim as a preliminary point.
5. There would be a significant saving of costs, time and resources if there was a preliminary hearing of the extension of time claim and it was resolved in favour of the second respondent. That is factor in favour of a preliminary hearing.
6. It is not possible on the basis of the evidence in this application to express any view as to whether of not it is likely that an extension of time would be granted. The merits of the application for an extension were therefore neutral on this application. The test posed by Sola Optical is not demanding: Finlay v Silicon Industrial Pty Ltd & Anor (2003) 229 LSJS 14; Wright v Donatelli (1995) 65 SASR 307 applied.
7. The applicant would be required to give evidence on two occasions. His credit would be in issue in both hearings. However, the question of overlapping evidence and credit findings is not of great weight, given the substantial difference in the cogency of the evidence at the hearings: Wells v Commonwealth of Australia [2014] NSWSC 148 applied.
8. The application for a preliminary hearing, if granted, would result in the vacation of the trial date. Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 principles therefore applied in this case. Those principles strongly favoured the refusal of the application for a preliminary hearing. G4S had offered no reason for the very late application for a preliminary hearing when they had known for over 10 years that the applicant was seeking an extension of time. No evidence was proffered for the delay. Further uncertainty and strain would be imposed on the applicant and the vacation of the trial date would undermine confidence in the administration of justice.
Limitations of Action Act 1936 (SA) 48; Law Reform (Ipp Recommendations) Act 2004 (SA) 48; Migration Act 1958 (Cth); Mental Health Act 1993 (SA), referred to.
S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs and Anor (2005) 143 FCR 217; Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628; Wall v Toll Transport Pty Ltd [2010] VSC 522; Finlay v Silicon Industrial Pty Ltd & Anor (2003) 229 LSJS 14; Wright v Donatelli (1995) 65 SASR 307; Warren v District Council of the Lower Eyre Peninsula [2020] SADC 87; SA Water Corporation v United Water International Pty Ltd [2009] SASC 383; Abigroup Contractors Pty Ltd v Hardesty & Hanover International LLC [2008] SASC 369; Deans v Anangu Pitjantjatjara Yankunytjatjara [2015] SASC 54; Tepko Pty Ltd v Water Board (2001) 206 CLR 1; Perre v Apand Pty Ltd (1999) 198 CLR 180; Rivers v Rivers [2002] SASC 197; Duke Group Limited (in liq) v Alamain Investments Ltd (in liq)(No 2) [2006] SASC 33; Idoport Pty Ltd v National Australia Bank Limited [2000] NSWSC 1215; Anabella Aguis (by her tutor Gail Margaret Chalmers) v Southern Sydney Area Health Service [2003] NSWSC 623; Liberty Financial Pty Ltd v Scott [2003] FCA 226; Wells v Council of the City of Orange [2016] NSWSC 589; Wells v Commonwealth of Australia [2014] NSWSC 148; Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; Jones v United Fitness Corporation Pty Ltd [2022] SADC 118; Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; Channel Seven Adelaide Pty Ltd v Manock (2010) 273 LSJS 70; PPG Development Pty Ltd v Capitanio (2016) 126 SASR 307; Saadat v Commonwealth of Australia [2019] SASC 28, considered.

DARVISHZADEH v COMMONWEALTH OF AUSTRALIA & ORS
[2024] SADC 23

By interlocutory application dated 12 January 2024, the second respondent, G4S (Australia) Pty Ltd (G4S Australia) and the third party G4S Regional Management (UK & I) Ltd (G4S UK) (collectively G4S) sought an order that the applicant’s claim for an extension of time under s 48 of the Limitations of Actions Act 1936 (SA) (the Limitations Act) be heard as a preliminary point before the main trial.
The primary basis of the application was that the determination of this issue had the potential to resolve the matter entirely, in which case the parties would save a significant amount of costs, time and resources. G4S submitted that there were at least good prospects that the limitation point would be found in its favour.
The trial is listed to commence on 12 August 2024, with 8 weeks set aside. Obviously, if G4S is successful in its contention that the applicant is not entitled to an extension of time, then there would be no reason for the trial to proceed. If G4S is unsuccessful, the trial would proceed on all of the remaining issues in the proceedings.
The first respondent, the Commonwealth of Australia, (the Commonwealth) remained neutral on the application. The third respondent, Australian Correctional Services Pty Ltd (ACS) supported the application but did not make any detailed submissions.
The applicant opposed the application. The applicant submitted that a separate hearing would result in the undue fragmentation of the trial process. He submitted there would be delay in the ultimate disposition of the matter and any potential savings of costs may prove to be illusory. The trial date would be lost and the judge hearing the limitation argument would not be able to hear the trial. The applicant further submitted that there would be credit findings concerning the applicant and there would be an unfairness in the applicant having to give evidence twice and be cross-examined twice (if the extension of time was granted).
The application was brought pursuant to s 48(5) of Limitations Act and Uniform Civil Rules 2020 (UCR) 151.1(2).
Background Facts
The applicant has brought a claim against the respondents in relation to his detention in the immigration detention facility at Baxter Immigration and Reception Processing Centre (Baxter).
The applicant instituted proceedings in this Court on 15 February 2011. The claim was instituted after the three year limitation for personal injuries matters prescribed by s 36 of the Limitations Act had expired. On 15 February 2011, the applicant filed a statement of claim in which he sought an extension of time to bring the claim pursuant to s 48 of the Limitations Act based on the report received from Dr Davis dated 22 October 2009 (but received by the applicant’s solicitors on 15 February 2010) and the matters contained in that report. The respondents have therefore been on notice of the claim for an extension of time and the grounds relied upon for that extension for well over 10 years.
The applicant was a refugee and left Iran and arrived by boat at Ashmore Reef in Australia on 2 November 2000. The applicant had been imprisoned and physically abused in Iran before he came to Australia as a refugee. Upon his arrival in Australia, the applicant was detained in immigration detention centres pursuant to the provisions of the Migration Act 1958 (Cth). The applicant was detained at Curtin Immigration Reception and Processing Centre (Curtin) from 10 November 2000 to 21 September 2001, and at Baxter from 30 May 2003 to 9 March 2005. In the period between 21 September 2001 and 30 March 2003, because he had escaped from Curtin and been recaptured, the applicant spent time in custody and in the Perth Immigration Detention Centre. On 9 March 2005, the applicant was transferred under the Mental Health Act 1993 (SA) from Baxter to Glenside Hospital where he remained until 14 July 2005. On that date, he was released from immigration detention on a temporary protection visa and on 12 June 2007 was granted a permanent protection visa.
The applicant pleads that he developed a depressive disorder, an adjustment disorder and a psychotic disorder while he was detained at Curtin and Perth. He claims to have continued to suffer from these disorders, amongst other conditions, whilst he was at Baxter. The applicant claims that the Commonwealth breached its duty of care to him in that conditions in which he was held at Baxter caused or contributed to his mental health conditions. He further claims that he was detained at Baxter without adequate diagnosis and treatment of this mental illness. The applicant pleads that at the time that he was moved to Baxter, the Commonwealth knew or ought to have known of his mental health conditions. The applicant also pleads that the Commonwealth breached its duty of care to him when he was placed in solitary confinement in the Management Unit and when placed in confinement in the Red One Compound.
The applicant pleads that each of the respondents committed assault and battery upon him at specified times whist he was being detained at Baxter.
The applicant alleges that he suffered psychiatric injuries as a result of the breaches of duty by the Commonwealth and the intentional torts committed by all respondents and in particular has suffered and continues to suffer from a major depressive order and from post-traumatic stress syndrome such that he has suffered loss of enjoyment of life and amenity of life and economic loss. He also suffered some physical injuries.
The applicant claims an extension of time to bring the proceedings pursuant to s 48 of the Limitations Act on the basis that a fact material to his case was not ascertained by him until after the limitation period had expired and the action was instituted within 12 months after the ascertainment of those facts by the applicant.
The material facts relied upon by the applicant were that on 17 February 2010 he received a medical report from Dr Davis dated 22 October 2009 which stated that:
(1)The applicant suffered from a severe major depressive disorder associated with chronic post-traumatic stress disorder;
(2)The applicant experienced recurrent suicidal and self-harming behaviour whilst in detention;
(3)The applicant suffered multiple traumatic experiences while in detention which contributed to an exacerbation of his post-traumatic stress disorder and continues to suffer from a significant depressive disorder;
(4)The applicant will require ongoing psychiatric treatment, medication and counselling;
(5)The applicant did not have access to optimal psychiatric treatment whilst in detention which contributed to his psychiatric disorder;
(6)His condition has a profound effect on his ability to obtain employment in Australia;
(7)He is unfit for work and is anticipated to remain so for the foreseeable future; and
(8)He would require significant future psychiatric treatment.
There was some initial uncertainty as to when the report of Dr Davis was received by the applicant but a further affidavit from the applicant’s solicitors clarified that it was received by the applicant’s solicitors on 15 February 2010 (as per the date stamp on that document) and was discussed with the applicant himself on 17 February 2010.
In his written and oral submissions, the applicant submitted, without detracting from the pleading, that Dr Davis’ report was informing the applicant (for the first time) that the detention conditions contributed to the mental health disorders that he was experiencing and that in turn led to an economic loss in that he would be unable to work in the foreseeable future. The applicant submits that the new material fact was not the knowledge of his disorders (which he knew) but the link between the detention and the disorders and his future economic loss and condition.
The Commonwealth denies the claim and relevantly for the purposes of this application denies that the applicant is entitled to an extension of time under s 48 of the Limitations Act. The Commonwealth denies that the preconditions under s 48(3) were satisfied and further pleads that in any event the Court should not exercise its discretion to grant the extension because it had been prejudiced by the applicant’s delay in bringing the proceedings and therefore it would be unjust to extent the time. In this hearing, the Commonwealth did not provide any evidence in this application of any such prejudice nor make any submission in relation to that issue.
In its defence, G4S Australia admitted that it engaged or employed detention officers at Baxter and provided detention services during the period from 19 January 2004 to 9 March 2005. G4S Australia denies committing any assault and battery on the applicant and for the same reasons as expressed by the Commonwealth, denies that the applicant is entitled to any extension of time to bring the claim. In its affidavit material filed in support of this application, the solicitor for G4S deposed of the following:
I understand that attempts have been made on behalf of the second respondent and third party to located potential witnesses relevant to the issues on the pleadings. As at the date of filing this affidavit I understand that not all potential witnesses have been able to be located and a number of potential witnesses have been identified as having been deceased. In respect of a number of witnesses the contact details that my client has been able to provide are already a number of years old.
In its defence, ACS admitted that it provided detention services at Baxter up until 19 January 2004. ACS denied committing any assault and battery on the applicant and for the same reasons as expressed by the Commonwealth, denies that the applicant is entitled to any extension of time to bring the claim. It pleaded, without any particularisation, that particular witnesses may no longer be contactable and documents may have been lost. ACS also did not bring provide any evidence in this application of any such prejudice nor make any submission in relation to that issue.
The respondents have issued contribution notices against each other and the Commonwealth has issued third party notices.
In its affidavit material filed in this application, G4S has relied upon various medical reports that were prepared prior to the receipt of the report from Dr Davis. These earlier reports, in broad terms, indicate that the applicant was suffering major depression with psychotic features and post-traumatic stress syndrome. These reports stated that these conditions were likely to continue for a long time and the applicant was unable to seek employment for a long time. None of the reports were specifically addressed to the applicant’s then lawyer and it is not clear on the evidence what reports the applicant himself obtained.
Perhaps the most significant of these earlier reports is that of Dr Michael Dudley, a psychiatrist, dated 2 January 2005, in which Dr Dudley provides the opinion that the applicant was suffering from major depression, dissociation and psychotic symptoms and he believed that prolonged detention had contributed substantially to his current condition and was making it worse and that he should not be living in detention. The report was addressed to a migration agent and later provided to the applicant’s then lawyer.
G4S in its affidavit material, also made reference to a decision by Finn J in S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs and Anor[1] (S) in which Finn J made certain findings about the detention conditions and that these conditions were a contributory cause to the mental health of the detainees. For the purposes of this application, I do not place a lot of weight on the judgment as it was accepted by the parties that although the applicant was initially one of the applicants in S, he had filed a notice of discontinuance prior to the hearing and therefore was not a party when the judgment was delivered. In these circumstances, there could not be an inference, for the purposes of this application, that he knew of the matters contained in the judgment. It is also unclear what knowledge he had of the evidence that was considered in that matter.
[1] (2005) 143 FCR 217; [2005] FCA 549.
On 13 April 2023, these proceedings were listed as a reserve trial to commence, if the trial listed in priority did not proceed, on 12 August 2024. In fact the matter listed ahead of the applicant settled and on 30 November 2023 the Court ordered that the trial proceed on 12 August 2024, with 8 weeks set aside.
Statutory provisions
The key statutory provisions to consider in the determination of this application are s 48 of the Limitations Act and UCR 151.
The alleged acts of negligence and assault and battery occurred both before and after the Law Reform (Ipp Recommendations) Act 2004 (the Ipp Recommendations Act). Sections 48(3a) and (3b) were introduced on 1 May 2004. In those circumstances, s 1(2) of the Ipp Recommendations Act provides that:
(2) if a cause of action that is based wholly or partly on an event that occurred before the commencement of the Ipp Recommendations Act arises after the commencement of the Ipp Recommendations Act, it will be determined as if the amendments had not been enacted.

That means in the circumstances of this case, the extension of time issue will be determined without reference to s 48(3a) and 48(3b) and as if the Act did not contain those provisions. All parties agreed with that position.
Section 48 therefore relevantly provides:
48-General power to extend periods of limitation
(1)Subject to this section, where an Act, regulation, rule or by-law prescribes or limits the time for—
(a)     instituting an action; or
(b)     doing any act, or taking any step in an action; or
(c)     doing any act or taking any step with a view to instituting an action,
a court may extend the time so prescribed or limited to such an extent, and upon such terms (if any) as the justice of the case may require.
(2)…
(3)This section does not—
(a)     apply to criminal proceedings; or
(b)     empower a court to extend a limitation of time prescribed by this Act unless it is satisfied—
(i)that facts material to the plaintiff’s case were not ascertained by him until some point of time occurring within twelve months before the expiration of the period of limitation or occurring after the expiration of that period and that the action was instituted within twelve months after the ascertainment of those facts by the plaintiff; or

(ii)that the plaintiff's failure to institute the action within the period of the limitation resulted from representations or conduct of the defendant, or a person whom the plaintiff reasonably believed to be acting on behalf of the defendant, and was reasonable in view of those representations or that conduct and any other relevant circumstances,
and that in all the circumstances of the case it is just to grant the extension of time.
(4)Where an extension of time is sought pursuant to this section in respect of the commencement of an action, the action may be instituted in the normal manner, but the process by which it is instituted must be endorsed with a statement to the effect that the plaintiff seeks an extension of time pursuant to this section.
(5)Proceedings under this section may be determined by the court at any time before or after the close of pleadings.
(6)This section does not derogate from any other provision under which a court may extend or abridge time prescribed or limited by an Act, regulation, rule or by-law.
UCR 151 provides:
(1) Unless the Court otherwise orders, when it is ordered that a matter proceed to trial, there is to be a single trial of all issues (other than costs) in the proceeding.
(2)The Court may order that there be separate trials of separate issues in a proceeding and may determine the order in which such trials are to be heard or determined.
The rule goes on to give examples including –
In a proceeding in which the applicant seeks damages for personal injuries, the Court might order that there be a trial on issues of duty of care and negligence (that is liability), to be followed by a trial on issues of causation and quantum of loss.
Legal Principles
Section 48(5) of the Limitations Act was considered by the High Court in Prince Alfred College Incorporated v ADC (PAC v ADC).[2] In that case, the plurality, French CJ, Kiefel, Bell, Keane and Nettle JJ held:[3]
[111] The primary judge heard the issue of liability together with questions about whether an extension of time was necessary and should be granted. Section 48(5) of the Limitations Act, which allows for a question as to an extension of time to be determined after the close of pleadings, in practical terms permits this course. It is, however, a question for the court, having regard to the circumstances of the case, whether it is an appropriate course. In the present case, even if there were considered to be good reasons to hear the evidence relating to liability and the extension at the same time, that does not mean that the issue of liability should have been decided once it was obvious that there were problems arising from the state of the evidence and the position in which the PAC was placed.
[112] It is not apparent why the primary judge determined the issue of liability prior to the issue of extension of time. The question whether an extension of time is to be granted is one necessarily antecedent to the determination of any issue in the proceedings relating to liability to which the extension is relevant. Moreover, in a case of this kind – where there had been a very long delay in commencing proceedings and the defendant had raised questions of prejudice arising from its inability to obtain evidence – it was essential that those matters, as relevant to the question of extension, be first considered. It is the consideration of those matters which will point to the appropriateness or otherwise of determining any remaining issue in the action where an extension is not to be granted.
[113] In some cases it may be possible to deal with an issue such as vicarious liability when the court has refused an extension of time. It is a matter of long-standing practice in most trial courts that, where possible, all issues be the subject of adjudication. The practice is based upon the desirability of avoiding the need for a new trial in the event that an appeal on one issue is successful. However, as has been observed, it is no more than a rule of convenience. It is not something which should invariably be done without consideration of the appropriateness of that course of action in the circumstances of the case.
[114] Here, there were difficulties in the way of findings of fact necessary to a determination of the issue of liability and they affected all three of the respondent's claims. Even the question of whether a non-delegable duty of care was owed by the PAC to the respondent, which was approached by the Full Court largely as a question of law, requires a finding that there be a breach of the PAC's duty to take reasonable care in all the circumstances. That requires in the first place that the nature and content of the particular duty and responsibility owed to the respondent be identified.
[115] The primary judge identified real deficiencies in the available evidence. In particular, questions about the role conferred on Bain, critical to the issue of vicarious liability, could only be answered by resort to speculation. That was reason enough not to attempt to determine the issue of liability.
[116] There are other, fundamental, reasons why the issue of liability should not have been decided. The first concerns the position of the court and coherence in its reasoning. A court cannot conclude that it would not be just in all the circumstances to grant an extension of time because a proposed defendant cannot properly defend the claims to be brought against it and then proceed to decide whether it could be held liable with respect to those claims.
[2] (2016) 258 CLR 134; [2016] HCA 37.
[3] Ibid at [111]-[116].
There are a number of principles that arise from the above statements. First, the Court has a discretion, having regard to the circumstances of the case, whether it is appropriate to hear the extension of time point at trial or at some earlier point. Secondly, even if there is one trial where the evidence relating to liability and extension of time is heard at the same time, the issue of liability should not be determined first and should not necessarily be decided once it was obvious that the respondent was in an unfair position because of the passage of time. Thirdly, the issue of an extension of time is necessarily antecedent to the determination of liability. Where there has been a very long delay in commencing proceedings, and the respondent has raised questions of prejudice of being unable to obtain evidence, the question of time issue should be considered first. Fourthly, where there is a real deficiency in the evidence or where it would lead to some lack of coherency (eg a determination of liability when the Court finds that is not just to grant the extension because the respondent cannot properly defend the claims), the Court should not proceed to determine liability.
Also relevant to this application is the meaning of “material” (for the purposes of ascertaining facts material to the applicant’s case) in s 48 (as it applied prior to the IPP Recommendations Act).
In Sola Optical Australia Pty Ltd v Mills[4], the High Court considered s 48(3) of the Limitations Act and held:
A fact is material to the plaintiff's case if it is both relevant to the issues to be proved if the plaintiff is to succeed in obtaining an award of damages sufficient to justify bringing the action and is of sufficient importance to be likely to have a bearing on the case. The Shorter Oxford English Dictionary defines the word "material", inter alia, to mean "Of such significance as to be likely to influence the determination of a cause". Although a definition attributed to the 16th century, in our opinion it provides an apt guide to the intention of the legislature in choosing to refer, without any elaboration, to "facts material to the plaintiff's case".
[4] (1987) 163 CLR 628 at 636-7; [1987] HCA 57.
The test posed by Sola Optical is an objective test. In Sola Optical, the High Court emphasised that it was materiality to the applicant’s case that must be shown and that was a broad general requirement that was capable of satisfaction by objective inquiry. The wording of section 48(3) makes it clear that the relevant inquiry is whether the applicant himself or herself ascertained a new material fact.
In Wall v Toll Transport Pty Ltd,[5] Dixon J surveyed some of the observations made on that test and referred to the following authorities:
In Finlay v Silicon Industrial Pty Ltd & Anor[6] Doyle CJ described the Sola Optical decision as inviting a “liberal approach to the meaning of s 48(3)(b)(i)”.
[5] [2010] VSC 522.
[6] (2003) 229 LSJS 14; [2003] SASC 236.
In Wright v Donatelli,[7] Cox J remarked:
Perhaps one might be permitted a general observation about these s 48 applications. Everyone now understands that the test for an ascertained material fact under s 48 is extremely modest, even some would say to the point of absurdity. The solicitor must be bereft of all ingenuity and imagination who cannot in practically every case discover, or even create, some material fact that his out-of-time client can then ascertain within the limitation period in order to meet the first requirement of the statutory provision. Faced with such a discouraging prospect of success on this point insurance companies, except in quite exceptional cases, would be best advised to expend their forensic energies in more rewarding ways.
[7] (1995) 65 SASR 307 at 310; [1995] SASC 5291.
Dixon J in Wall went on to state that Wright v Donatelli was a proceeding in which the plaintiff discovered, within the relevant period, an expert opinion in support of the plaintiff’s cause of action. In that case, the plaintiff had discovered the fact of a medical practitioner’s opinion, the fact that the medical practitioner’s opinion was of a permanent residual disability and the fact of the medical practitioner’s report itself. Lander J stated in Wright v Donatelli:[8]
Whilst it may be that Mr Cohen's opinion is in accord with the appellant's own knowledge, that does not mean that Mr Cohen's opinion is not a material fact. I think the learning of Mr Cohen's opinion itself was the ascertainment of a material fact, because his opinion is evidence upon which the plaintiff would rely for the purpose of making out his case, and to that extent, it is material.
Much was made of the proposition that all of this was contrived. In truth, it was put, this appellant always intended to bring proceedings, but did not because of the appellant's solicitors' default, and for no other reason. It was further put that efforts were made, on the advice of counsel, for the obtaining of a material fact and of informing the appellant of that material fact, only for the purpose of qualifying the appellant under the section. I think all of that is so, but there is nothing sinister in that. If it is a matter which would make it unjust, in the circumstances, to extend time, that is a matter which can be taken into account in the exercise of the discretion, after the plaintiff has first qualified by establishing the ascertainment of the material fact.
[8] Ibid at 321.
Uniform Civil Rules
In Warren v District Council of the Lower Eyre Peninsula,[9] I set out the principles relating to an application for a separate trial of liability and quantum and I repeat what I said in that matter.
[9] [2020] SADC 87 at [21]-[31].
The principles governing an application made under the UCR for separate trials are well settled. The starting point and general rule, as held by Anderson J in SA Water Corporation v United Water International Pty Ltd,[10] is that all issues should generally be dealt within a single trial.[11]
[10] [2009] SASC 383.
[11] Ibid at [46]; O’Connor v Suman [2015] NSWSC 1812 at [10].
The trial process should not be unduly fragmented. In Abigroup Contractors Pty Ltd v Hardesty & Hanover International LLC,[12] White J (with whom Kelly J agreed) held:
The general rule is that all issues should be dealt with in a single trial. The trial process should not be unduly fragmented. In particular, it is inappropriate that one judge be asked to hear and determine disputed issues of fact, which involve an assessment of the credibility and reliability of the same witnesses, in more than one trial arising from the one action. Further, the experience of the courts has been that splitting issues arising from the one action for separate determination with a view to shortening proceedings and saving costs frequently resulting in prolongation of the proceedings and the incurring of additional costs.
[12] [2008] SASC 369 at [92]-[93]. Approved in Deans v Anangu Pitjantjatjara Yankunytjatjara [2015] SASC 54 at [14] and [15].
The High Court has warned against the dangers of ordering separate trials and that potential savings of costs and avoiding of delay by ordering separate trial may prove illusory. In Tepko Pty Ltd v Water Board,[13] Kirby and Callinan JJ held:
The attractions of trials of issues rather than of cases in their totality are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory, particularly when the parties have, as here, had the necessity of making full preparation and the factual matters relevant to one issue are relevant to others, and they all overlap.
The second and related comment is this. A party whose whole case is knocked out on a trial of a preliminary or single issue, may suspect, however unjustifiably, that an abbreviated course was adopted and a decision reached in the court's, rather than the parties, interests.
Thirdly, there is an additional potential for further appeals to which the course of the trial on separate issues may give rise. Indeed, that could occur here were this appeal to be allowed and a retrial had in which the remaining issues of causation and damages were decided. Single-issue trials should, in our opinion, only be embarked upon when their utility, economy, and fairness to the parties are beyond question.
[13] (2001) 206 CLR 1; [2001] HCA 19 at [168]-[170].
In Perre v Apand Pty Ltd,[14] Callinan J held:
Care does need to be taken in deciding whether to conduct separate trials of different issues. It sometimes happens that they may turn out to be productive of the disadvantages of delay, extra expense, appeals and uncertainty of outcome which they are intended to avoid. In tort cases in which damage is the gist of the action, it will generally be undesirable to accede to requests for them, or to order them, unless all parties accept that compensable damage has been sustained by the plaintiffs or applicants as the case may be.
[14] (1999) 198 CLR 180; [1999] HCA 36 at [436].
The power of the court to order separate trials or separate determination of separate issues is a discretionary power.[15] The exercise of the discretionary power must be exercised judicially but is otherwise not fettered.[16]
[15] SA Water Corporation v United Water International [2009] SASC 383 at [46]; Rivers v Rivers [2002] SASC 197; Duke Group Limited (in liq) v Alamain Investments Ltd (in liq)(No 2) [2006] SASC 33; Idoport Pty Ltd & Anor v National Australia Bank Limited [2000] NSWSC 1215 at [7].
[16] Idoport (above) at [7].
In exercising the discretion to order separate trials under UCR 151.1, regard should be had to the objects of the rules under UCR 5.1, namely, to facilitate just, efficient, timely, cost-effective and proportionate resolution or determination of the issues in proceedings. UCR 12.2(1) further provides the court may, in making orders, have regard to the objects of the Rules and, pursuant to UCR 12.2 (2) may have regard to the matters that are set out in UCR 12.2(2).
The Court begins with the proposition that it is ordinarily appropriate that all of the issues be determined at the one time. Therefore, it is for the party seeking a departure from the usual rule, in this case the applicant, to show why it is appropriate that there be a departure from the rule and that it is desirable for separate trails to be ordered.[17] The utility, economy and fairness to the parties of ordering separate trials must be beyond dispute.[18]
[17] Idoport Pty Ltd & Anor v National Australia Bank Ltd [2000] NSWSC 1215 at [7(3)]. Anabella Aguis (by her tutor Gail Margaret Chalmers) v Southern Sydney Area Health Service [2003] NSWSC 623 at [15]; Liberty Financial Pty Ltd v Scott [2003] FCA 226 at [35].
[18] Liberty (above) at [35]; Tepko (above) at 55.
In Idoport Pty Ltd v National Australia Bank,[19] Einstein J identified some of the instances where separate determination may be appropriate. These principles have been restated a number of times and approved in appellate decisions.[20] Einstein J held that separate determination may be appropriate:[21]
(1)where the resolution of that separate issue will have the effect of resolving the entirety of the litigious controversy or of substantially narrowing the field of the litigious controversy;
(2)where the resolution of that separate issue carries with it a strong prospect that the parties will thereafter be able to resolve their dispute themselves and thus avoid further litigation; and
(3)where there is a clear demarcation between that issue and all other issues in the case, including issues going to the credit of the witnesses.
(citations omitted)
[19] [2000] NSWSC 1215 at [7(4)].
[20] See Wells v Council of the City of Orange [2016] NSWSC 589 at [12].
[21] Idoport (above) at [7(4)].
Limitation issues have been said to be in a separate category from other cases involving separate trials because they obviate the need for a trial at all.[22]
[22] Wells v Commonwealth of Australia [2014] NSWSC 148 at [18].
Einstein J also provided examples where separate determination of an issue will not be appropriate including where:[23]
(1)there are intertwined issues of facts or law between the separated question and the other questions such that a determination of the separate question will not have a substantial effect upon the width of the field of litigious controversy or the prospect of settlement on the balance of the litigation;
(2)where there is a commonality of witnesses and issues of credit as between the separate issue and the other issues in the case which will or may necessitate a ruling on the credit of one or more of the common witnesses, thus precluding the same judicial officer from again dealing with the matters going to the credit of the common witnesses; and
(3)there is a possibility that resolution of the separate issue will not finally determine the issue but will merely result in an appeal from that decision in relation to that separate issue, creating a multiplicity of proceedings, interruption to the court and undesirable fragmentation of the proceedings.
(citations omitted)
[23] Idoport (above) at [24].

Einstein J went on to note (in accordance with the statements in Tepko (referred to above) that the experience of courts suggests that separation of proceedings often does not result in the quicker and cheaper resolution of the proceedings but often has the reverse effect and causes delay and greater expense. Therefore, (again consistently with Tepko), before an issue is to be separately determined it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings.[24]
[24] Idoport (above) at [7(6)]; Aguis (above) at [15].
Determination
The application has been brought pursuant to s 48(5) of the Limitations Act and concerns the hearing of the extension of time point. The application therefore differs from the usual application for the hearing of separate trials where the only basis for the application is under UCR 151.
Section 48(5), in my view, does not create an expectation that the application for an extension of time will ordinarily be held at the same time as the trial. As the High Court held in PAC v ADC,[25] the Court has a discretion, having regard to the circumstances of the case, whether it is appropriate to hear the extension of time point at trial or at some earlier point. The Court has an unfettered discretion, to be exercised judicially, to determine when the extension of time point should be heard. There may be particular aspects of extension of time applications that might require the hearing to be held at an early time. These arise where the parties resisting the extension have suffered prejudice such that it would not be just to grant the extension.
[25] Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37.
I therefore do not consider that the Court should approach its task under s 48(5) with any predisposition that the extension of time point should be heard with all issues in the one trial. It follows that there is no onus on the party seeking to satisfy the Court that a preliminary trial is desirable. The other factors and principles which I have set out in relation to UCR 151 remain applicable and inform my decision whether the extension of time point should he heard as a preliminary hearing.
The primary submission of G4S was that if the extension of time was heard at a preliminary hearing and resolved in its favour, the entirety of the proceedings would be resolved. If that was the case, then there would be the saving of considerable time and expense given that the trial was listed to take 8 weeks and would include evidence about many other matters.
I accept that there would be a significant saving of costs, time and resources to all parties if there is a preliminary hearing of the extension of time claim and that issue was resolved in favour of G4S. That is a factor in favour of a preliminary hearing.
The applicant estimated that the extension of time claim would require a hearing of about 7 days, although there was not an estimate supported by any detailed material. The applicant submitted that it may be necessary to call the medical practitioners who saw the applicant to discount the fact that he had been told that he knew that the conditions in detention may have caused or contributed to his loss. The applicant also submitted that they would need to call his solicitor to give evidence. That would appear necessary as G4S submitted that if it was found that the solicitor knew of certain matters, but it was asserted that the applicant did not know of these matters, they would be inviting the court to draw the inference, in the absence of evidence from the solicitor, that the applicant was so advised.
G4S referred to the applicant’s estimate as a long estimate. The respondents and third parties submitted that the preliminary hearing could be relatively confined and deal with the applicant’s knowledge of his medical diagnosis and what he was told by his solicitors. In that case, the applicant submitted there was a clear demarcation of this issue from other trial issues.
I consider the estimate to be long although I do not have sufficient information to make a more accurate estimate of the time for any extension of time hearing.
I also take into account that there may be appeals from any determination made on a preliminary hearing and this may cause delay in the final disposition of the matter. It is possible and perhaps even likely that the applicant would appeal from a determination that was adverse to him. G4S itself might appeal.
G4S framed the application for a preliminary hearing by reference to a determination of whether a new material fact had been ascertained. If that issue was resolved in favour of the applicant, there would still remain for determination whether it was just in all the circumstances to grant the extension.
G4S submitted that a relevant factor was the interests of litigants in other matters and the Court if the limitation question is determined at a preliminary hearing. That is a relevant factor although any saving of Court time is only likely to occur if the applicant is successful at the preliminary hearing. The interests of other litigants and the Court must also be considered in the context that the application for a preliminary hearing, if granted, would result in the vacation of the trial date.
G4S further submitted that there were good prospects that the Court would, at a preliminary hearing on the extension of time point, find that an extension of time to bring the proceedings should not be granted as nothing in the report of Dr Davis could possibly constitute a new material fact for the purposes of s 48(3) of the Limitations Act.
I accept, for the purposes of the application, that G4S has an arguable case that the applicant will not be able to establish that he ascertained a new material fact within 12 months of the institution of proceedings. However, I do not consider that it can be said that the applicant’s prospects of succeeding on the extension of time claim are so weak that G4S’ prospects of success on the application for an extension of time is a significant factor in favour of having a preliminary hearing on this point. As I will explain later in these reasons, I consider the merits of the case to be a neutral factor in determining this application.
Subsequent authorities have referred to the Sola Optical test for ascertaining a new material fact as not demanding. Doyle CJ in Finlay v Silicon Industrial Pty Ltd & Anor[26] stated the test invited a “liberal approach to the meaning of s 48(3)(b)(i)”. Cox J in Wright v Donatelli[27] stated the test was extremely modest, even to the point of absurdity. Lander J in Wright v Donetelli held that learning of the expert’s opinion in that case was the ascertainment of a material fact because his opinion was the evidence upon which the applicant in that case would rely for the purpose of making out his case and was to that extent material.
[26] (2003) 229 LSJS 14; [2003] SASC 236.
[27] (1995) 65 SASR 307; [1995] SASC 5291.
The report of Dr Davis referred to the applicant’s mental health, the causes of his severe depressive illness, its prognosis, its impact on his future life, including employment. The earlier medical reports do not directly address all of these matters. It is also unclear, at least in some instances, on whose behalf those earlier reports were written and their purpose.
The report of Associate Professor Norman James dated 14 April 2005 was addressed to a Dr Roberta Steele, consultant psychiatrist, Paterson East. It is unclear on the evidence before the Court whether the applicant was provided with the report. Although the report provides the opinion that the applicant was suffering from a major depressive illness with psychotic fares and also likely post-traumatic stress syndrome, it did not address the causes for these conditions and the causative effect of detention.
The report of Dr Fiona Hawker, psychiatrist, dated 2 July 2005 was addressed to the detention case coordinator, unauthorised arrivals and detentions operations, Australian government. The report referred to the mental health conditions of the applicant and expressed the opinion that the psychiatric disorders had been caused by the various trauma he had experienced since being held in detention since November 2000. The report did not address in any detail the prognosis for the applicant or his future employment prospects.
Mr Steve Thompson, a senior trauma counsellor, provided a report dated 17 April 2009 in support of an application by the applicant for a disability support pension. Mr Thompson is not qualified to express a medical opinion on the applicant’s psychiatric condition.
Dr David Stevens, a psychiatric registrar, provided a report to “Jane” dated 14 May 2003. It is unclear who Jane is and the purpose for which the report was prepared. The report refers to the applicant’s depressed mood along with chronic self-harm thoughts, that he was depressed because of his detention and prospects of being deported to Iran, but otherwise does not express any diagnostic opinions.
Dr Andrew Frukacz of international health and medical services provides notes dated 6 November 2004 which are expressed to be “progress notes for psychiatric consult.” Again, the notes record that the applicant was suffering from a depressed mood and post-traumatic stress disorder. No prognosis is expressed. It is not clear whether the notes were provided to the applicant. Dr Frukacz provided further notes dated 2 February 2005 in which he recorded that the applicant was suffering from major depression with psychotic features against a backdrop of post-traumatic stress syndrome.
The letter from the Legal Services Commission (who were the lawyers acting for the applicant) refers to concerns about the applicant’s mental health (and the mental health of two other applicants) and that the detention practices were adding to his distress and mental health issues. Again, this is not the report of a medical practitioner.
Dr Michael Dudley provided the report dated 2 January 2005 to which I have already referred.
The clinical notes upon the admission of the applicant to Glenside Hospital on 9 March 2005 record that the applicant was suffering major depression with psychotic features. No other detail was recorded in these notes.
The purpose of the analysis of these earlier reports is not to express a view on whether they are sufficient to demonstrate that the report of Dr Davis and the opinions expressed therein could not constitute the ascertainment of a new material fact, but rather to demonstrate that such a conclusion cannot be definitively drawn on the material available in this application. In those circumstances, the strength of the argument that there was no new relevant material fact, is a neutral factor in determining this application for a preliminary hearing.
G4S submitted that none of the common drawbacks to the hearing of a preliminary issue exist in this case and in particular there were no intertwined issues of fact and law, no commonality of witnesses and issues of credit. It was not a case where the preliminary hearing would not finally determine the issue.
I consider that submission to be too broad. Certainly, the applicant will be required to give evidence and be subject to cross-examination at both the preliminary hearing and any subsequent trial. On both occasions, that would include cross-examination about his mental health. The credit of the applicant will be in issue at both hearings. However, the risk of overlapping evidence and credit findings are not matters, in this case, upon which I attach any great weight. As Adamson J held in Wells v Commonwealth of Australia:[28]
The existence of some overlap is not regarded as inconsistent with the interests of justice because there is the possible benefit that if the plaintiff is unsuccessful the trial will be avoided.
[28] Wells v Commonwealth of Australia (above) at [22].
Any prejudice caused by overlapping issues and credit findings, can be addressed by (as would be necessary) a different judge hearing the substantive hearing.[29] I also consider, as Adamson J did in Wells v Commonwealth of Australia,[30] that there is a substantial difference between the cogency and admissibility of evidence at the preliminary hearing and the cogency and admissibility of evidence at trial.
[29] See Judge Deuter in Jones v United Fitness Corporation Pty Ltd [2022] SADC 118 at [44].
[30] Wells v Commonwealth of Australia (above) at [22].
The preliminary hearing will not resolve the limitation question, if a new material fact is found to exist, as the Court will still need to determine whether or not it was just in all the circumstances to grant the extension. That is a more complex inquiry as it would require a more detailed analysis of the evidence that was available and not available in respect of each issue.
G4S did not make any submission or provide any evidence that determination of the question as to whether it was just in all the circumstances that the extension of time be granted (assuming that the requirement that there be a new material fact had been satisfied). PAC v ADC suggests that in some cases that matter might need to be determined before a determination of liability. However, PAC v ADC was a case where the delay was very substantial (the acts of abuse in that case occurred in the 1960s, an agreement to resolve the matter was reached in about 1997 and the proceedings not commenced until 2008). As might be expected, many relevant witnesses were deceased and many documents lost such that it would be unfair for the court, in those circumstances, to make a finding on liability.
In the present application, the delay in making the application was not nearly as great. There was no evidence as to what witnesses in this case might be unavailable or deceased and what topics or events their evidence might go to. There was no indication as to what other evidence was available on those topics. In this application, such evidence that went to the question of justness, went little beyond assertion (which is not surprising given that it was not the basis on which G4S submitted that a preliminary hearing should be held).
In those circumstances, the fact that the respondents have raised the issue of whether it is just in all the circumstances to grant the extension (assuming the precondition has been satisfied) does not require that issue to be determined at a preliminary hearing. It may be, in accordance with the procedure referred to in PAC v ADC, that after hearing all of the evidence at trial, the Court determines that the prejudice caused by the delay was so great that it was not only unjust to grant the extension but also impossible to deliver a determination on liability.
The applicant opposed the application for a preliminary hearing. The applicant referred to the fragmentation of the trial process and the delay in disposing of the matter and in particular the vacation of the trial date. The applicant submitted that it was unlikely that a hearing of the preliminary hearing could take place until the allotted trial time in August 2024. The trial date would be lost. Judgment on the preliminary hearing would be reserved and once delivered there would, in all likelihood, be appeals. It would be some considerable time before the trial of the substantive dispute, if required, was held.
The claim for an extension of time to bring the proceedings was made by the applicant when he lodged his first statement of claim in February 2011. It has clearly been in issue since that date. Until G4S made this application in January 2024, no party, including G4S, had made any application or taken any step to have a preliminary hearing to determine the issue. The application was taken after the trial date had been set. It will inevitably result in the vacation of the trial date and considerable consequent delay.
G4S did not proffer any reason for the delay or provide any evidence that would excuse the delay.
The trial date has been set, without any opposition by any of the parties, for the hearing of all of the issues in dispute and therefore an order for separate trials would require that order to be discharged.
In Aon Risk Services Australia Limited v Australian National University (Aon),[31] the High Court therefore emphasised that an application that will, if granted, result in the vacation of a trial date, should be determined in a broader context which also considers: first, the efficient use of public resources and the effect on the Court and other litigants if a trial date is vacated; secondly, the public interest in the administration of justice; thirdly, the prejudice to the other party goes beyond matters of costs and cannot be compensated merely by an order for costs and fourthly the effect on other litigants if court time is wasted and hearings vacated.
[31] (2009) 239 CLR 175; [2009] HCA 27 at [24], 25] and [30].
The Full Court in Channel Seven Adelaide Pty Ltd v Manock[32] held that, following Aon, the relevant principles in deciding whether to permit an amendment that will result in an adjournment of a trial were as follows:
[32] (2010) 273 LSJS 70; [2010] SASCFC 59 at [46].
(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 of 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; and
(10) The additional costs likely to be incurred.
Doyle J in PPG Development Pty Ltd v Capitanio[33] held that the High Court have now made it plain that in exercising its discretion upon any application to amend, the court must take into account a number of factors. The factors include:
[33] (2016) 126 SASR 307; [2016] SASCFC 169 at [39].
(1)The nature and importance of the proposed amendment, including the extent to which it raises new issues of fact or law.
(2)The merits of the proposed amendment, at least in the sense that the proposed amendment is arguable or tenable.
(3)The stage of the litigation at which the application to amend is made, and the likely impact upon, or disruption to, the progress of the proceedings (and in particular the trial).
(4)The explanation for the application to amend and its timing, and the fact and extent of any undue delay in this regard.
(5)Whether the party has had a sufficient opportunity to plead their case earlier.
(6)The time, cost and inconvenience associated with any delay or disruption of the proceedings.
(7)The uncertainty and strain of litigation on the parties and their witnesses as a result of any disruption or delay likely to be occasioned by the amendment.
(8)The impact of any delay and disruption upon judicial and court resources, and the access of other litigants to those public resources.
(9)The impact upon the public’s confidence in the just and efficient administration of justice.
I consider that I should consider these matters when determining this application. The following matters are relevant to the exercise of my discretion.
(1)G4S and the other respondents will not be precluded from raising the limitation issue at trial.
(2)Having a preliminary hearing at this stage clearly disrupts the trial process that is already in place.
(3)G4S has provided no explanation or justification for the delay in making the application.
(4)It follows that there was sufficient opportunity to make the application at an earlier time and in fact a much earlier time.
(5)Depending on the outcome of the preliminary hearing, there would be time, cost and inconvenience associated with the application. If a new material fact was found to exist, there would be two hearings.
(6)The applicant would likely suffer from further uncertainty and strain if the application was granted. The applicant is suffering from serious mental health issues and a delay in the trial date may lead to further strain.
(7)There will be an impact on judicial and court resources if the application for a preliminary hearing was granted and ultimately not determined in favour of G4S. A further trial date would need to be fixed. The parties to this litigation will suffer the cost associated with the delay. Other proceedings in the cohort of immigration detention cases will be prejudiced in that the parties will be diverted from the preparation for those cases and trial dates for the hearing of those cases will be delayed. There are about 30 similar cases still in the list. Each case is generally listed for 8 weeks and the Court is only able to accommodate hearing about 4 cases each year. Any delay in the hearing and completion of one matter is therefore likely to have a significant flow on effect to other matters. Other cases in the general list of the court will also suffer consequential delay.
(8)As Stanley J held in Saadat v Commonwealth of Australia[34] citing Doyle J in PPG, delay and disruption not only impact on the public but they also serve to undermine public confidence in the ability of the courts to administer justice in an efficient matter when the courts are seen to acquiesce in that delay and disruption.
(9)For the reasons that I have already expressed, the application if granted will result in the vacation of the trial date.
[34] [2019] SASC 28 at [32].

The principles which I have referred to, including the delay of G4S in bringing the application, the lack of explanation for that delay, the consequences to the applicant and the Court and the administration of justice if the application for a preliminary hearing on the extension of time point is granted, and the trial vacated, are matters which are relevant to the determination of this application and which favour the refusal of the application.
The applicant submitted that there would be some unfairness to him if separate trials are held. He would have to give evidence on two occasions and be subjected to cross-examination if the application to have a preliminary hearing was granted, but ultimately it was ruled that the applicant did ascertain a new material fact following the delivery of the report of Dr Davis. I consider this to be of some but not of great weight and not a substantial reason not to order separate trials.[35]
[35] Jones v United Fitness Corporation Pty Ltd [2022] SADC 118 at [72].
If the application for a preliminary hearing was granted, but ultimately it was ruled that the applicant did ascertain a new material fact, there would be some wasted preparation for all parties.
Taking all of these matters into account, I consider that it is not in the interests of justice that there be a preliminary hearing of the extension of time claim (or a particular aspect of that claim namely the ascertainment of a new material fact). The disadvantages to the applicant to which I have referred and the consequences that flow from the inevitable vacation of the trial date outweigh the possibility that a preliminary hearing could dispose of the whole matter and the consequent saving of costs, time and resources.
Conclusion
It follows that for the reasons that I have expressed, I dismiss the application of G4S.