G4S Australia Pty Ltd (ABN 64 100 104 658) v Majid Karami Kamasaee and Ors (according to the attached Schedule)
[2017] VSCA 121
•26 May 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2017 0059
| G4S AUSTRALIA PTY LTD (ABN 64 100 104 658) | Applicant |
| v | |
| MAJID KARAMI KAMASAEE & ORS (according to the attached Schedule) | Respondents |
S APCI 2017 0060
| TRANSFIELD SERVICES (AUSTRALIA) PTY LTD (now known as BROADSPECTRUM (AUSTRALIA) PTY LTD) (ABN 11 093 114 553) | Applicant |
| v | |
| MAJID KARAMI KAMASAEE & ORS (according to the attached Schedule) | Respondents |
S APCI 2017 0061
| COMMONWEALTH OF AUSTRALIA | Applicant |
| v | |
| MAJID KARAMI KAMASAEE & ORS (according to the attached Schedule) | Respondents |
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| JUDGES: | OSBORN and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 26 May 2017 |
| DATE OF JUDGMENT: | 26 May 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 121 |
| JUDGMENT APPEALED FROM: | [2017] VSC 272 (McDonald J) |
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PRACTICE AND PROCEDURE – Application for leave to appeal – Procedural orders in group proceeding – Case management – List of issues determined by trial judge – Dispute about list of issues – Whether particular questions will be answered – Admissibility of evidence – Course of the trial – Whether need for sub-group members to be identified – Whether issues hypothetical – Interlocutory discretionary decision on practice and procedure – Appellate restraint – Civil Procedure Act 2010, ss 47 and 48 – Supreme Court Act 1986, Part 4A – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant in S APCI 2017 0059, G4S Australia Pty Ltd | Mr G P Harris QC with Mr T P Warner | Foster Nicholson Jones Lawyers |
| For the Applicant in S APCI 2017 0060, Broadspectrum (Australia) Pty Ltd | Mr J Delany QC with Ms L Nichols | Corrs Chambers Westgarth |
| For the Applicant in S APCI 2017 0061, Commonwealth of Australia | Mr C J Blanden QC with Mr R Kumar | Australian Government Solicitor |
| For the First Respondent | Mr D Curtain QC with Ms M Fosyth and Ms M Szydzik | Slater & Gordon Lawyers |
| For the Fourth Respondent, Wilson Protective Services (PNG) Limited | Mr R G Craig | Herbert Smith Freehills |
OSBORN JA:
BEACH JA:
The essential nature of this proceeding is described in the summary of facts filed on behalf of one of the applicants, Broadspectrum (Australia) Pty Ltd (‘Broadspectrum’), at [1]–[11]:
On 19 December 2014, the Plaintiff commenced a group proceeding pursuant to Part 4A of the Supreme Court Act (1986) (the Act) alleging negligence causing personal injury, against the Commonwealth of Australia (the Commonwealth), G4S Australia Pty Ltd (G4S) and Transfield Services (Australia) Pty Ltd (now called Broadspectrum Services) (BRS). The personal injury is alleged to have been suffered whilst the Plaintiff was a resident of the Manus Island Regional Processing Centre (Centre) in Papua New Guinea.
On 26 April 2016, in Namah v Pato[1] (Namah), the Supreme Court of Papua New Guinea (PNG) ruled that the detention of asylum seekers at the Centre by the Government of PNG was a breach of their right to personal liberty under the PNG Constitution. Following the decision in Namah, the Plaintiff amended his statement of claim to also claim damages for false imprisonment.
[1][2016] PGSC 13.
The proceeding, as currently constituted in the fourth amended statement of claim dated 7 April 2017,[2] comprises a claim by the Plaintiff on his own behalf and on behalf of:
[2]As particularised in the Plaintiff’s Consolidated Further Particulars to the Fourth Amended Statement of Claim, dated 19 May 2017.
(a)all persons who suffered personal injury as a result of the conduct of the Commonwealth, G4S and/or BRS at any time during the period 21 November 2012 until 19 December 2014 (the Negligence Group Members); and
(b)all persons who were confined at the Centre by or on behalf of the Commonwealth, G4S and/or BRS at any time during the period 21 November 2012 until 12 May 2016 (the False Imprisonment Group Members).[3]
[3]Fourth Amended Statement of Claim, [5] and [5A].
There are no sub-groups established in the proceeding pursuant to s.33Q of the Act, no sample group members have been appointed and no individual group members appointed for the purposes of s.33R of the Act.
The existing parties to the proceeding are the Plaintiff, the Commonwealth, G4S and BRS (the Defendants) and the Second Third Party, Wilson Protective Services (PNG) Ltd (Wilson).[4]
Each of the Defendants deny that they owed the duty of care alleged by the Plaintiff. Breach is denied and causation is also in issue. The false imprisonment allegations are denied by all Defendants. Among other defences, the Defendants allege that, if the Plaintiff and Group Members were falsely imprisoned, any such confinement was caused or directed by the Independent State of PNG.
It is common ground between the parties that, with the exception of the defence of the act of State, the claims and defences are to be determined in accordance with the law of PNG.
Wilson is joined to the proceeding by BRS as the provider of security services pursuant to a contract. There is no direct claim against Wilson by the Plaintiff and Group Members. It is not anticipated that Wilson will wish to be heard on this application.
Orders have been made in the proceeding on two separate occasions providing for Group Members to opt out.[5] On 22 March 2017, the Court heard argument in relation to an application by the Commonwealth, supported by G4S and BRS, to close the class. On 5 April 2017, the Court ruled against that application.[6]
On 2 and 3 May 2017, the Court heard argument in relation to the list of issues for trial.[7] The Plaintiff and the Defendants filed written submissions in support of the list of issues for which they contended. The submissions included lists of proposed questions for trial.[8]
On 19 May 2017, the Court delivered its decision in relation to the list of issues for trial.[9] The list of issues so determined is the list of issues for trial as between the Plaintiff and the Defendants. The application for leave to appeal and, if leave is granted, the appeals by each of the Defendants are against that decision. Whilst there are claims as between the Defendants and as between BRS and Wilson, the Court has not heard argument as to the identification of any ‘common questions’ directed to those issues and no orders have been made. The proceeding is currently listed for trial on 29 May 2017 on an estimate of 6 months, sitting five days a week.[10]
[4]Current defences are dated 19 September 2016, 19 September 2016, 24 May 2017, and 9 December 2016 respectively.
[5]On 1 May 2015, the Court made orders fixing 15 January 2016 as the date by which Group Members could opt out of the proceeding. At that time, Plaintiff, on his own behalf and on behalf of Negligence Group Members claimed damages for personal injury to due to alleged negligence. See Kamasaee v Commonwealth of Australia [2015] VSC 148. On 12 September 2016, the Court made orders extending the date before which a Group Member may opt out of the proceedings to 14 October 2016 and otherwise for the giving of notice to Group Members to facilitate that process. The second opt out orders were made following amendment to the statement of claim to include claims for damages for false imprisonment; By order made 14 September 2016, the date for opt out was further extended to 11 November 2016.
[6]Kamasaee v Commonwealth (No 8) (Class Closure Ruling) [2017] VSC 167.
[7]Transcripts of the hearings before His Honour Justice McDonald on 2 May 2017 and 3 May 2017.
[8]Kamasaee’s submissions on the list of issues dated 26 April 2017; G4S’ submissions on the list of issues dated 26 April 2017; Broadspectrum’s submissions on the list of issues dated 28 April 2017.
[9]Kamasaee v Commonwealth of Australia and Others [2017] VSC 272.
[10]‘Summary for Court of Appeal’ prepared by Broadspectrum dated 25 May 2017 [1]–[11] (citations in original).
The Commonwealth of Australia, G4S and Broadspectrum, each seek leave to appeal McDonald J’s interlocutory order formulating a list of issues for trial.
The list of issues is annexed to these reasons.
The list states issues first in relation to the justiciability of the claim brought in negligence generally; secondly, the claim against the Commonwealth in negligence; thirdly, the claim against G4S in negligence; and fourthly, the claim against Broadspectrum in negligence. It then lists issues relating to the claim for false imprisonment made against all the defendants and lastly issues with the operation of s 33ZB of the Supreme Court Act 1986. This issue governs the operation of the answers to the questions previously stated:
For the purposes of formulating a judgment conforming to section 33ZB(a) of the Supreme Court Act 1986, which findings or determinations made with respect to each question above affect:
(a) the plaintiff;
(b) any other class of Detainee (and if so which);
(c) all of the group members;
(d) all or any of the defendants?
The trial judge made abundantly clear that, in formulating the issues in the way which he did, he was not purporting to determine any substantive rights of the defendants or to close off further and better definition of the issues as the case proceeded. He concluded the reasons for his substantive ruling as follows:
The Court has determined that the List of Issues will be in accordance with the list annexed to this judgment marked ‘A’. The list is a case management tool. It provides a reference point for the parties in the preparation and presentation of their cases. The list is not a pre-emptive ruling as to the admissibility of evidence. Further, it does not constitute a bar to any party seeking to lead evidence which that party considers to be relevant. Any dispute regarding the admissibility of evidence will be determined at trial. Nothing in this judgment forecloses the right of any party to make an application during the trial for the list to be varied. Finally, the inclusion of a question on the List of Issues does not mean that the Court will answer the question. Whether a question on the list is answered will depend on whether there is evidence which permits the question to be answered. Even if there is evidence which allows for a question to be answered, the Court may ultimately conclude that it is not necessary for the question to be answered.[11]
[11]Kamasaee v Commonwealth of Australia & Ors (No 10) (Issues for trial ruling) [2017] VSC 272 [98] (‘trial judge’s ruling’).
Sections 47 and 48 of the Civil Procedure Act 2010 make clear that a trial judge has a wide discretion with respect to the steps he or she may take to manage and conduct a proceeding in accordance with the overarching purpose stated in s 7 of that Act.
In our view, when a litigant seeks to challenge a provisional working document of the type formulated by the trial judge in the present case, the litigant faces a high barrier. It is logically a higher barrier than that confronting a challenge to a judge’s ruling with respect to pleadings (as to which see Swan Hill Chemicals Pty Ltd v MA & J Tripodi Pty Ltd)[12] for a number of reasons.
[12][2016] VSCA 264 [21]–[22].
First, the trial judge’s order was made in exercise of a procedural discretion and the right to challenge it must be subject to the limitations identified in House v The King.[13]
[13](1936) 55 CLR 499, 504–5.
Secondly, appeals from interlocutory orders should not be permitted except in special circumstances.[14]
[14]Livingspring Pty Ltd v Kliger Partners (2008) 20 VR 377, 379 [6], citing Niemann v Electronic Industries Ltd [1978] VR 431, 438 (Murphy J).
Thirdly, because the order does not determine substantive rights, there are strong policy considerations which favour allowing the matter to proceed and encourage the Court of Appeal to exercise great caution before it intervenes. This Court cannot undertake the ongoing management of litigation in the Trial Division. If it did so, the proper administration of justice would grind to a halt.
The three defendants to the proceeding, the Commonwealth of Australia, G4S and Broadspectrum, have each filed applications for leave to appeal against the judge’s determination of the questions upon which the proceeding will be tried. In proposed grounds of appeal identified in each of their applications for leave to appeal, various points are made about the judge’s power to try questions which are said, either not to relate to the plaintiff’s claim, or to relate only to other unnamed or unspecified group members. In their applications for leave to appeal, the defendants seek to raise procedural questions of power, convenience and discretion. The defendants submit that leave to appeal should be granted because the case is important, will be very expensive and should be commenced upon a basis that will not ultimately be held to have miscarried.
Each of the defendants seeks an ultimate order that the questions framed by the judge be replaced with the lists of questions for which they contend.
It is not necessary to rehearse now all of the points and submissions made by the defendants. It is sufficient to observe that the judge’s determination involves an interlocutory, discretionary question of practice and procedure. Appellate courts have consistently and repeatedly cautioned against appellate interference with such decisions.[15] In the present case, there is reason for even more restraint than might otherwise be thought usual. In his reasons for judgment, the trial judge has made it plain that the questions about which complaint is made are not necessarily the questions that will ultimately be answered. As the judge has stated, the questions that will ultimately be answered will depend upon the evidence actually given at trial and the course of the trial. Moreover, no party has been shut out from making further submissions to the judge about the questions, or their form, during the course of the trial.
[15]In re the Will of Gilbert (deceased) (1946) 46 SR (NSW) 318, 323; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 177.
The issue of the judge’s power to determine certain specified questions is premature at this point in time. An argument about the defendants’ points and issues has the real capacity, at present, to be entirely hypothetical.
The judge, who has been immersed in this litigation for some time now, has determined, on the outlines of evidence and reports filed by the parties, that it is appropriate to conduct the trial on the basis of the questions he has identified, but with the caveats to which we have referred. Different judges may have come to different conclusions about the identification of common questions which should be tried in this group proceeding. Questions of case management, procedural fairness and relevance all inform the proper approach to be taken.
Whether or not it might ultimately be shown that a particular question could not be tried at the trial of this proceeding (because of some issue of power, procedural fairness or relevance), on the material as it currently stands (and noting the judge’s caveats) we are in no position to make any such ruling at this stage. Moreover, the utility of any such ruling must be doubted when, as the judge has said, the identification of the questions (and whether any of them might or might not be answered) has the capacity to, and likely will, change during the running of the trial.
The defendants would have this Court delay the commencement of the trial while points that might end up being entirely hypothetical are considered at length. That is not an appropriate use of this Court’s limited resources. Further, we think it likely to be productive of greater injustice to the parties to delay the commencement of the trial of this proceeding.
In our view, the judge’s determination is neither attended with sufficient doubt nor likely to be productive of such injustice if it is allowed to stand, so as to justify a grant of leave to appeal. To the contrary, it seems to us that a grant of leave to appeal and an interference by this Court with the judge’s determination would be likely to be productive of a significantly greater injustice than that about which the defendants complain.
It follows that leave to appeal should be refused but in deference to the core arguments put, we will make the following observations.
(1) The statement of issues does not assume that they are capable of a positive answer.
(2) The trial judge clearly distinguished between the conclusions which might be open on the evidence at trial with respect to the plaintiff’s claim personally and with respect to common questions.
(3) His Honour’s ruling does not demonstrate any intention to decide matters in the abstract.
(4) Evidence as to systemic issues may in principle be relevant to both the plaintiff’s claim and the common questions.
(5) The relevance of evidence relating to systemic issues to the context in which duty of care and breach issues fall to be determined will depend on the evidence itself and the matrix of facts as a whole. We draw attention to the concluding statement in [78] of the trial judge’s ruling:
I do not accept the defendants’ contention that, absent evidence of the injuries sustained by group members other than the plaintiff, any consideration of their claims would be ‘in the abstract’ and involve ‘hypothetical determinations’.[16] Findings which the Court makes in relation to the plaintiff’s systemic allegations will not be hypothetical. They will be relevant to the determination of claims of individual group members. The outlines of evidence filed on behalf of the plaintiff foreshadow evidence regarding the conditions in compounds other than the Foxtrot Compound (where the plaintiff was accommodated) covering periods within the negligence claim period but outside the ten months that the plaintiff was at the centre. Findings in respect of this evidence may be relevant to the claims of other group members accommodated in the same compounds during the same periods of time. Of course, prior to hearing the evidence it is impossible to express any concluded view as to whether such evidence will in fact be admissible.[17]
[16]See ‘Third Defendant’s Outline of Submissions on List of Issues for Determination at Trial’ dated 28 April 2017, [21(a)].
[17]Trial judge’s ruling [78] (citation in original).
(6) His Honour emphasised that he accepted that no finding of breach of duty could be made in the absence of evidence of injury. This does not mean that it may not be possible to make relevant intermediate findings of facts in a particular case concerning parties potentially bearing on both duty and breach. Such findings will not necessarily be favourable to the plaintiff or the group members.
(7) It will be necessary to demonstrate a practical connection with respect to systemic evidence and the claim of a group member before that evidence can be said to be relevant. The material before this Court simply does not enable us to conclude that no such evidence will be relevant. The judgment as to relevance and admissibility is quintessentially a task for the trial judge.
(8) There was no error in formulating the questions in part by reference to the plaintiff’s pleadings. This is a case which has been pleaded with substantial care and in substantial detail.
(9) It was open to formulate the questions concerning mental harm and psychiatric injury in part by reference to the knowledge and beliefs of the plaintiff and group members whilst in detention.
(10) Both the final issue stated in the list of issues and the trial judge’s ruling at [80] explicitly recognise that the Court will be required by s 33ZB(a) to identify the group members who will be affected by the findings in any judgment.
(11) His Honour specifically accepted at [97] of his ruling that the Court will not be able to make a finding in respect of each individual false imprisonment group member as to whether he or she had the right to return to his or her country of origin or a third country. It was open to his Honour to further conclude that it did not follow, however, that the Court was precluded from hearing evidence from individual group members and making preliminary findings based on that evidence in respect of the claims for false imprisonment.
(12) It was open to the trial judge to conclude, both with respect to the negligence and false imprisonment claims, that it was appropriate to seek to make as many findings as possible in respect of questions of fact and law which have a degree of commonality as between negligence group members or false imprisonment group members. The working out of this approach will be resolved by the trial process.
In summary, we are not persuaded that there is a real prospect of establishing that the trial judge has taken a procedural step which was not reasonably open to him. Further, we are not persuaded that the discretionary arguments favouring restraint by the Court of Appeal have been demonstrated to be outweighed.
Nevertheless, there are three matters raised in argument which we will mention for the assistance of the trial judge. All of these matters may be addressed at the commencement of, or during, the trial.
First, there are some specific factual questions which it appears were proposed to the trial judge and which were not included in the statement of issues without being specifically addressed in his Honour’s reasons. We instance questions 31 and 36 proposed by Broadspectrum in its draft list of issues.[18] The utility of these questions needs to be specifically addressed.
[18]See also GS4 proposed questions 4(a).
Secondly, insofar as it was submitted that the trial judge formulated issues in terms which were not squarely addressed by the parties prior to his ruling (and assuming but not deciding that this is so), then it may be that procedural fairness requires the judge to give the parties a further opportunity to address those formulations.
Thirdly, we have not been provided with witness statements or other detailed indications of the content of the evidence which it is proposed the plaintiff will lead at trial. We accept that it may become apparent in the trial (depending upon the course which the trial takes) that there is a need to identify and establish a sub-group of group members and appoint a member of that sub-group as a party to represent that sub-group’s interest in a common question. That, however, will be a matter within the discretion of the trial judge, subject to appropriate procedural fairness.
We would refuse leave to appeal.
- - -
Annexure A
LIST OF ISSUES
Claims as between plaintiff and defendants
A. NEGLIGENCE
1. Are questions as to the adequacy of the systems put in place at the Centre for the provision of food and water, shelter and accommodation, medical care and security, justiciable, or alternatively should those questions not be determined by this Court as a matter of judicial abstention or restraint or alternatively does the doctrine of Act of State operate as a defence to the claim in negligence?
Claim against Commonwealth
2. Did the Commonwealth owe a duty to the plaintiff and Negligence Group Members to exercise reasonable care to avoid reasonably foreseeable:
(a) physical injury;
(b) psychiatric injury arising directly from their personal experiences of detention in conditions at the Centre;
(c) mental harm arising directly from their personal experiences of detention in conditions at the Centre;
(d) psychiatric injury arising from their knowledge or beliefs about detention in the conditions of the Centre derived from others;
(e) mental harm arising from their beliefs about detention in the conditions of the Centre derived from others.
3. Was any duty owed non-delegable?
4. Did any and if so which of the matters alleged in paragraphs 80, 81, 84, 85, 88, 89, 90, 93, 94, 97, 98, 99, 162, 163, 166, 167, 170, 171, 172, 176, and 177 of the statement of claim (SOC), occur?
5. What was the standard of care required of the Commonwealth in respect of persons held in immigration detention in Australia reasonably adapted to meet the conditions on Manus Island during the period 21 November 2012 to 19 December 2014 in respect of:
(a) standard, quantity and accessibility of food and water;
(b) shelter and accommodation;
(c) medical care and health services;
(d) access to Personal Supplies, amenities, recreational facilities and opportunities;
(e) reasonable protection from:
(i) physical violence or intimidation, discrimination, ostracisation, bullying or other anti-social behaviours from other Detainees or from other persons lawfully attending the Centre; or
(ii) exposure to violent or other behaviours as described in sub-paragraph (i) above between other persons?
(Australian Precautions)
6. If any of the matters in paragraph [4] did occur, insofar as the matters involved conduct engaged in by the Commonwealth, was such conduct in accordance with the Australian Precautions?
7. If yes to any part of paragraph [4], did the circumstances as found occur by reason of any breach of duty of care owed to the plaintiff by the Commonwealth?
8. To the extent that any matters in paragraph [4] did occur, were any of those matters notorious amongst the Negligence Group Members?
9. To the extent that any matters in paragraph [4] did occur, were any of those matters likely to cause or materially increase the risk of harm, distress or inconvenience to Negligence Group Members?
10. Was any breach of duty by the Commonwealth a cause and/or exacerbation of any and if so what:
(i) physical injury to the plaintiff;
(ii) psychiatric injury to the plaintiff; or
(iii) mental harm, distress or inconvenience to the plaintiff?
11. What are the applicable principles with respect to awarding damages for negligence in relation to the conduct of the Commonwealth?
12. What if any damages are due to the plaintiff because of that injury?
13. Did any and if so which of the matters alleged in paragraphs 102-105 of the SOC occur?
14. Does the conduct of the Commonwealth justify an award of:
(a) exemplary damages?
(b) aggravated damages?
Claim against G4S
15. Did G4S owe a duty to the plaintiff and Negligence Group Members to exercise reasonable care to avoid reasonably foreseeable:
(a) physical injury;
(b) psychiatric injury arising directly from their personal experiences of detention in conditions at the Centre;
(c) mental harm arising directly from their personal experiences of detention in conditions at the Centre;
(d) psychiatric injury arising from their beliefs about detention in the conditions of the Centre derived from others;
(e) mental harm arising from their beliefs about detention in the conditions of the Centre derived from others.
16. Did any and if so which of the matters alleged in paragraphs 80, 81, 84, 85, 88, 88A, 89, 90 93, 94, 97, 98, and 99 of SOC occur?
17. Was G4S required to exercise Australian Precautions at the Centre throughout the period from 21 November 2012 to 23 March 2014?
18. If yes to paragraph [17], if any of the matters in [16] did occur, insofar as the matters involved conduct engaged in by G4S, was such conduct in accordance with the Australian Precautions?
19. If yes to any part of paragraph [16], did the circumstances as found occur by reason of any breach of duty of care owed to the plaintiff by G4S?
20. Did G4S engage in any of the conduct as found, as agent or de facto agent for the Commonwealth?
21. To the extent that any matters in paragraph [16] did occur, were any of those matters notorious amongst the Negligence Group Members?
22. To the extent that any matters in paragraph [16] did occur, were any of those matters likely to cause or materially increase the risk of harm, distress or inconvenience to the Negligence Group Members?
23. Was any breach of duty by G4S a cause and/or exacerbation of any and if so what:
(i) physical injury to the plaintiff;
(ii) psychiatric injury to the plaintiff; or
(iii) mental harm, distress or inconvenience to the plaintiff?
24. What are the applicable principles with respect to awarding damages in relation to the conduct of G4S?
25. What if any damages are due to the plaintiff because of that injury?
26. Did any and if so which of the matters alleged in paragraph 108 of the SOC occur?
27. Does the conduct of G4S justify an award of:
(a) exemplary damages?
(b) aggravated damages?
Claim against BRS
28. Did BRS owe a duty to the plaintiff and Negligence Group Members to exercise reasonable care to avoid reasonably foreseeable:
(a) physical injury;
(b) psychiatric injury arising directly from their personal experiences of detention in conditions at the Centre;
(c) mental harm arising directly from their personal experiences of detention in conditions at the Centre;
(d) psychiatric injury arising from their beliefs about detention in the conditions of the Centre derived from others;
(e) mental harm arising from their beliefs about detention in the conditions of the Centre derived from others.
29. Did any and if so which of the matters alleged in paragraphs 162, 163, 166, 167, 170, 170A, 171, 172, 176 and 177 of the SOC occur?
30. Was BRS required to exercise Australian Precautions at the Centre throughout the period from 24 March 2014 to 19 December 2014?
31. If yes to paragraph [30], if any of the matters in [29] did occur, insofar as the matters involved conduct engaged in by BRS, was such conduct in accordance with the Australian Precautions?
32. If yes to any part of paragraph [29], did the circumstances as found occur by reason of any breach of duty of care owed to the plaintiff by BRS?
33. Did BRS engage in any of the conduct as found, as agent or de facto agent for the Commonwealth?
34. To the extent that any matters in paragraph [29] did occur, were any of those matters notorious amongst the Negligence Group Members?
35. To the extent that any matters in paragraph [29] did occur, were any of those matters likely to cause or materially increase the risk of harm, distress or inconvenience to the Negligence Group Members?
36. What are the applicable principles with respect to awarding damages in relation to the conduct of BRS?
37. Was any breach of duty by BRS a cause and/or exacerbation of any and if so what:
(i) physical injury to the plaintiff;
(ii) psychiatric injury to the plaintiff;
(iii) mental harm, distress or inconvenience to the plaintiff?
38. What if any damages are due to the plaintiff because of that injury?
B. FALSE IMPRISONMENT [ALL DEFENDANTS]
39. Is the question whether the false imprisonment group members have claims in respect of the tort of false imprisonment according to the law of PNG justiciable, or alternatively should that question not be determined by this Court as a matter of judicial abstention or restraint, or alternatively does the doctrine of Act of State operate as a defence to the claim in false imprisonment?
40. Leaving aside the questions in paragraphs [41] and [42], during the false imprisonment claim period (or any and if so which part of that period) was the freedom of bodily movement of the Plaintiff and False Imprisonment Group Members restrained to the extent required for the purposes of the tort of false imprisonment?
41. If yes to the previous question, was the confinement unlawful?
42. If a False Imprisonment Group Member was reasonably able to return to their country of origin and or a third country:
(a) could that provide a defence to claim for false imprisonment and/or demonstrate the False Imprisonment Group Member was not sufficiently confined?
(b) if so, in what circumstances and for what period?
43. Are there any categories of False Imprisonment Group Member who were not reasonably able to return to their country of origin or a third country?
44. Was any confinement of the plaintiff and False Imprisonment Group Members caused or directed by:
(a) The Commonwealth;
(b) G4S; and/or
(c) BRS?
45. Was the conduct of G4S, as found, engaged in by G4S as agent or de facto agent of the Commonwealth?
46. Was the conduct of BRS, as found, engaged in by BRS as agent or de facto agent of the Commonwealth?
47. If the plaintiff and False Imprisonment Group Members had not been confined at the Centre:
(a) is it inevitable that they would have been detained in any event?
(b) if so, where and in what conditions?
48. What are the applicable principles for the assessment of damages for false imprisonment of the plaintiff and False Imprisonment Group Members?
49. What is the impact of the following on the assessment of damages for the plaintiff:
(a) a finding of imprisonment in any Poor Conditions;
(b) the answer to question 47?
50. Does the conduct of the Commonwealth justify an award of:
(a) exemplary damages?
(b) aggravated damages?
51. If the plaintiff was falsely imprisoned, which (if any) of the facts found in paragraphs [4], [16] and [29] occurred such that the plaintiff was falsely imprisoned in Poor Conditions?
52. What damages if any, are due to the plaintiff by reason of his false imprisonment?
C. SECTION 33ZB
53. For the purposes of formulating a judgment conforming to section 33ZB(a) of the Supreme Court Act 1986, which findings or determinations made with respect to each question above affect:
(a) the plaintiff;
(b) any other class of Detainee (and if so which);
(c) all of the group members;
(d) all or any of the defendants?
SCHEDULE OF PARTIES
| S APCI 2017 0059 | |
| BETWEEN: | |
| G4S Australia Pty Ltd | Applicant |
| - and - | |
| Majid Karami Kamasaee | First Respondent |
| Commonwealth of Australia | Second Respondent |
| Broadspectrum (Australia) Pty Ltd (previously Transfield Services (Australia) Pty Ltd) | Third Respondent |
| Wilson Protective Services (PNG) Limited | Fourth Respondent |
SCHEDULE OF PARTIES
| S APCI 2017 0060 | |
| BETWEEN: | |
| Broadspectrum (Australia) Pty Ltd (previously Transfield Services (Australia) Pty Ltd) | Applicant |
| - and - | |
| Majid Karami Kamasaee | First Respondent |
| Commonwealth of Australia | Second Respondent |
| G4S Australia Pty Ltd | Third Respondent |
| Wilson Protective Services (PNG) Limited | Fourth Respondent |
SCHEDULE OF PARTIES
| S APCI 2017 0061 | |
| BETWEEN: | |
| Commonwealth of Australia | Applicant |
| - and - | |
| Majid Karami Kamasaee | First Respondent |
| G4S Australia Pty Ltd | Second Respondent |
| Broadspectrum (Australia) Pty Ltd (previously Transfield Services (Australia) Pty Ltd) | Third Respondent |
| Wilson Protective Services (PNG) Limited | Fourth Respondent |
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