Hanssen v Commonwealth of Australia - [2019] SASC 60

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
HANSSEN v COMMONWEALTH OF AUSTRALIA & ORS
[2019] SASC 60
Judgment of The Honourable Justice Stanley
12 April 2019
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS
The plaintiff’s claim was commenced in 2018. The claim is for damages for personal injury as a result of the conditions under which he was detained by the Commonwealth government while claiming asylum. The claim was statute barred. The plaintiff has applied for an extension of time within which to bring the proceedings. The defendant has brought application pursuant to rule 211 of the Supreme Court Civil Rules 2006 seeking a preliminary hearing of the application for an extension of time. The rule 211 application is yet to be heard by the Court.
The plaintiff applies to amend his statement of claim. The proposed amendment seeks to clarify the facts allegedly ascertained by the plaintiff upon reading the report of Dr Craig Raeside.
Held, per Stanley J:
1. The foundation for the amended plea was that the source of the facts allegedly ascertained by the plaintiff was the Raeside report. This had always been the plaintiff’s position.
2. The necessity to amend only came into sharp relief once new counsel gave advice in relation to this issue. This advice was given on 18 February 2019. Mr Krupka submitted that new counsel were focussed on the Saadat v Commonwealth of Australia & Ors matter which was listed for trial on 11 February 2019. In the circumstances, this was a satisfactory explanation for the delay.
3. Granting the application was unlikely to disrupt or delay the preparation for the trial of the matter.
4. The interests of justice favoured allowing the amendment in these circumstances in order to ensure that the plaintiff’s application for an extension of time was determined on its substantive merits rather than any technical arguments based on the disconformity of the present pleading with the evidence.
5. The application to amend was granted.
6. The parties were to be heard as to costs.
Limitation of Actions Act 1936 (SA) s 48; Supreme Court Civil Rules 2006 (SA) r 211, referred to.
Cowell v Taylor (1885) 31 Ch D 34; James v ANZ Banking Group Ltd (No. 2) (1985) 9 FCR 442; Pearson v Naydler (1977) 1 WLR 899, considered.

HANSSEN v COMMONWEALTH OF AUSTRALIA & ORS
[2019] SASC 60
Civil
STANLEY J:
Introduction

This is an application to amend the statement of claim.
The plaintiff claims damages for personal injury as a result of the conditions under which he was detained by the Commonwealth government while claiming asylum. He alleges he suffered psychiatric injury due to the Commonwealth’s negligence. He also alleges various intentional torts but he has expressly indicated that those causes of action are abandoned. The Commonwealth has joined various third parties who had responsibility for the management and conduct of the relevant detention centres pursuant to contractual arrangements with the Commonwealth.
The plaintiff’s claim was commenced in 2018. It was statute barred. The plaintiff seeks an extension of time within which to bring the proceedings.
The Commonwealth has brought an application pursuant to r 211 of the Supreme Court Civil Rules 2006 (SA) seeking a preliminary hearing of the plaintiff’s application for an extension of time. That application was brought on 30 August 2018. The r 211 application is listed for hearing before me on 29 April 2019.
On 5 March 2019 the plaintiff brought an application to amend his statement of claim by filing a third statement of claim. In particular, the application seeks to amend paragraph 48 of the second statement of claim which contains the plaintiff’s plea concerning the ascertainment by him of material facts relevant to the application of s 48 of the Limitation of Actions Act 1936 (SA).
The existing plea in paragraph 48 is as follows:
48.On or about 6 May 2011 the plaintiff ascertained for the first time by reading a medical report of Dr Raeside dated 30 April 2011 that Dr Raeside was of the opinion that:
48.2   The plaintiff suffered adjustment disorder with depressed mood;
48.3   The plaintiff was likely to require ongoing treatment by way of in depth psychological therapy;
48.4   The plaintiff was likely to suffer permanent psychiatric disability and impairment which would impact in his occupational and social functioning to a significant extent.
The application to amend seeks to substitute the existing plea in paragraph 48 for the following:
On or about 6 May 2011 the plaintiff ascertained for the first time by reading a medical report of Dr Craig Raeside dated 30 April 2011 that Dr Raeside was of the opinion that:
48.1During detention the plaintiff appeared to have developed a number of depressive and anxiety symptoms at times resulting in self harm, hunger strikes, behavioural disturbance and bed wetting;
48.2Since being released into the community the plaintiff appears to have had ongoing chronic depression;
48.4It is likely that at times the plaintiff had major depressive episodes whilst in custody;
48.4At times of more moderate to mild depressive symptoms the plaintiff probably would have been assessed as having an adjustment disorder with depressed mood;
48.5All of the plaintiff’s psychiatric symptoms and disorders appear to be secondary to the detention process itself;
48.6The report of Mr Micallef inaccurately seemed to suggest that many of the plaintiff’s symptoms were fabricated and intentionally produced;
48.7The plaintiff remained, at the time of Dr Raeside’s report, significantly disabled both occupationally and socially;
48.8The plaintiff’s prognosis was poor;
48.9The plaintiff should undergo more indepth psychological therapy;
48.10Practical support in terms of employment training and socialisation would be helpful to the plaintiff;
48.11The plaintiff may require hospitalisation in the future.
The Commonwealth opposes the application to amend.
The plaintiff relies upon two affidavits of his instructing solicitor, Mr Malachy Byrne, sworn 4 March 2019 and 21 March 2019. The Commonwealth relies upon an affidavit of Ms Erin Louise Shriner affirmed 1 April 2019.
The affidavits of Mr Byrne evidence the amendment sought to be made and deposes to the application to amend being filed on the advice of counsel so as to bring the material facts pleaded in paragraph 48 of the second statement of claim in line with the express wording of the report of Dr Craig Raeside dated 6 May 2011. Counsel provided this advice on 18 February 2019.
The affidavit of Mr Shriner sets out the procedural history behind the r 211 application and the service of the application to amend the statement of claim. It exhibits correspondence between the solicitors for the parties.
Relevant principles
The principles applicable to the disposition of the application to amend the pleadings are established in the reasons of the High Court in AON Risk Services Australia Ltd v Australian National University.[1]I explained those principles in Saadat v Commonwealth of Australia & Ors.[2]
[1] [2009] HCA 27, (2009) 239 CLR 175.
[2] [2019] SASC 28 at [23]-[32].
Submissions
Mr Krupka, counsel for the plaintiff, submits that the Commonwealth’s solicitor having brought to the attention of the plaintiff suggested deficiencies in the pleading in paragraph 48, the plaintiff’s counsel gave consideration to the need to amend following the adjournment of the trial in the related matter of Saadat v The Commonwealth & Ors. Mr Krupka accepted that the existing pleading in paragraph 48 is “sloppy” and that it is desirable to align the plea in paragraph 48 with the actual evidence of the precise matters the plaintiff ascertained upon reading Dr Raeside’s report of 30 April 2011. He submits that the substance of the amendment sought to be made does not change the basis of the existing plea and that the Commonwealth has been on notice since the commencement of the proceedings that the plaintiff claims to have ascertained material facts, being the opinions contained in Dr Raeside’s report of 30 April 2011, when he read it on 6 May 2011. He contends the application is in the nature of tidying up the pleadings. The application for amendment is directed to addressing a technical argument raised by the Commonwealth. The amendment was made after the r 211 application was brought but at a time when a trial date was not set, albeit the application for a split trial is to be heard at the end of the month. He submits that the amendment, if granted, would not cause any disruption to any trial timetable, there is no real prejudice to the Commonwealth, and it is in the interests of justice that the plaintiff should have his claim for an extension of time determined on the merits rather than any technical pleading points.
Ms Walker, counsel for the Commonwealth, submits that the application should be refused. She contends that there is undue delay in the application being brought, no satisfactory explanation for the delay has been provided, the Commonwealth will suffer in costs which are unlikely to be paid, and that if the amendment was granted in all these circumstances it would undermine confidence in the administration of civil justice.
Consideration
It is clear that the amendment sought seeks to clarify the facts allegedly ascertained by the plaintiff on 6 May 2011 upon reading the Raeside report of 30 April 2011.
The Commonwealth has been on notice since the proceedings were instituted out of time that the plaintiff was seeking an extension of time on the sole basis that he ascertained certain material facts upon reading the Raeside report. The amendment sought does not change that position. However, the nature of the amendment sought to paragraph 48 of the existing statement of claim is to plead a wider set of facts said to have been ascertained by the plaintiff on reading the Raeside report than is pleaded presently. Nonetheless, the foundation for the amended plea is that the source of the facts allegedly ascertained by the plaintiff is the Raeside report. This has always been the plaintiff’s position.
The Commonwealth does not allege that it will suffer any specific prejudice if the application is granted beyond the costs it will incur on the application and in reconsidering whether to continue to pursue its r 211 application in light of the amendment. The Commonwealth submits that this prejudice is made more acute because the plaintiff is impecunious. There is no evidence of the plaintiff’s impecuniosity but for the purpose of this application I am prepared to proceed on the assumption that he is impecunious. However, the common law and equity have traditionally proceeded under the general rule that poverty is no bar to a litigant.[3]
[3] Cowell v Taylor (1885) 31 Ch D 34 at 38; Pearson v Naydler (1977) 1 WLR 899 at 902; James v ANZ Banking Group Ltd (No. 2) (1985) 9 FCR 442 at 445.
On the other hand, there has been significant delay in bringing the application. Even on the plaintiff’s case, it was put on notice of the deficiency in the existing pleading by Mr Prince’s affidavit of 30 August 2018. Yet the application to amend was not brought until 5 March 2019. I accept the evidence that the necessity to amend only came into sharp relief once new counsel gave advice in relation to this issue. This advice was given on 18 February 2019. Mr Krupka submits that new counsel were focussed on the Saadat matter which was listed for trial on 11 February 2019. In the circumstances I consider this is a satisfactory explanation for the delay. Nonetheless, the delay is a factor which weighs against the exercise of the discretion in favour of granting the amendment.
I do not accept the submission that granting the application would undermine confidence in the administration of civil justice. While I am prepared to accept that if the application is granted, that will cause the Commonwealth to give consideration as to whether it should proceed with the r 211 application, it is far from clear that it will not proceed with that application. There is no trial date. Accordingly, granting the application is unlikely to disrupt or delay the preparation for the trial of the matter. It follows that issues of uncertainty and strain to the parties do not arise. The impact upon judicial and court resources of granting the application will be minimal, as will be the impact on other litigants accessing justice. In these circumstances, it is difficult to see how confidence in the administration of justice would be undermined by allowing the amendment. On the contrary, I consider that the interests of justice favour allowing the amendment in these circumstances in order to ensure that the plaintiff’s application for an extension of time is determined on its substantive merits rather than any technical arguments based on the disconformity of the present pleading with the evidence.
Conclusion
I would grant the application to amend. I would hear the parties as to costs.