Hendi v Commonwealth of Australia; Ghasemi v Commonwealth of Australia

[2017] NSWSC 1109

Supreme Court

New South Wales

Medium Neutral Citation:	Hendi v Commonwealth of Australia; Ghasemi v Commonwealth of Australia [2017] NSWSC 1109
Hearing dates:	17 August 2017
Decision date:	22 August 2017
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	See par [23]
Catchwords:	PRACTICE AND PROCEDURE – claim for damages for negligence – application for leave to amend pleading – where proposed amendments to pleadings in respect of child plaintiffs to bring particulars of duty into line with particulars of breach alleged – HELD – serial default in compliance with directions of Court – expert evidence served by plaintiff did not support any causal connection between alleged deficiencies in education or recreation provided to child plaintiffs while in detention and psychological or psychiatric harm alleged to have been suffered by them – no utility in allowing further particulars which enlarged case to extend to educational and recreational services and facilities – importance of avoiding further delay in bringing matter to hearing
Legislation Cited:	Civil Procedure Act 2005 (NSW), Pt 6 Migration Act 1958 (Cth) Uniform Civil Procedure Rules 2005 (NSW)
Category:	Procedural and other rulings
Parties:	Asrin Hendi by her tutor Hamed Hendi (Plaintiff) Amir Hendi by his tutor Hamed Hendi (Plaintiff) Hamed Hendi (Plaintiff) Nasrin Ghasemi (Plaintiff) Commonwealth of Australia (Defendant) Serco Australia Pty Limited (First Cross-Defendant) International Health and Medical Services Pty Limited (Second Cross-Defendant)
Representation:	Counsel: R Royle (Plaintiffs) PS Jones (Defendant) SR Quang (First Cross-Defendant) A Dewing (Second Cross-Defendant)   Solicitors: Shine Lawyers (Plaintiffs) Australian Government Solicitor (Defendant) HWL Ebsworth Lawyers (First Cross-Defendant) Moray & Agnew Lawyers (Second Cross-Defendant)
File Number(s):	2014/68193; 2014/68203; 2014/68211; 2014/68216

Judgment

Introduction

1. By statements of claim filed on 5 March 2014, Hamed Hendi, Nasrin Ghasemi and their children Asrin and Amir Hendi (the plaintiffs) commenced proceedings against the Commonwealth of Australia (the defendant). They claimed damages for negligence arising from the period they spent in immigration detention from 15 June 2010 until 20 July 2011. This period covered the time from the interception of the boat on which they were travelling to Australia to the time when they were released from community detention and were granted visas pursuant to the Migration Act 1958 (Cth).

2. The plaintiffs filed amended statements of claim on 25 August 2014. By notice of motion filed on 11 July 2017 they sought leave to file further amended statements of claim. The defendant opposed the amendments.

3. At the hearing of the motion on 17 August 2017, Mr Royle, who appeared on behalf of the plaintiffs, made various further changes to the proposed pleadings, which led to a measure of agreement between the parties as to the amendments. However, there remained a dispute about whether leave ought be granted at all and whether it ought be granted in respect of particular paragraphs.

4. For the purposes of addressing the proposed pleadings, it is necessary to distinguish between the claims made by Hamed Hendi Nasrin Ghasemi (the adults) and those made by Asrin and Amir Hendi (the children). The pleadings proposed on behalf of the adults are relevantly identical. The pleadings proposed on behalf of the children are also relevantly identical. Accordingly the applications made by the adults can be dealt with together and the applications made by the children can also be dealt with together.

The proposed pleading

The pleading proposed by the adults

5. The adults proposed the amendments by way of addition which are underlined in the extract below:

“[6]   At all material times the Defendant owed to detainees including the Plaintiff a non-delegable duty of care for the safety, health and welfare of the detainees including the Plaintiff whilst in detention which included inter alia:

i.    A duty to take reasonable care of the Plaintiff and to avoid acts or omissions that may expose the Plaintiff to reasonably foreseeable risks of harm, of physical and/or psychiatric and/ or psychological injury;

ii.    A duty to ensure that the detention environment did not cause or contribute to any mental or physical harm to the Plaintiff;

iii.    A duty to devise and implement systems for the management of the detainees such as the Plaintiff to minimise the risk of injury to the Plaintiff and to ensure that its policies and procedures were implemented in relation to health and welfare issues affecting the Plaintiff;

iv.    A duty to the Plaintiff not to intentionally harm the Plaintiff or allow its

contractors to harm the Plaintiff.

v.   A duty to have regard to the Plaintiff’s forced detention preventing him from gaining independent access to medical services other than those services supplied by the Defendant.

vi.    A duty to monitor and supervise the Plaintiff's mental and physical health to ensure that his health was maintained to an adequate standard.”

6. Although the defendants opposed the amendment, they did not point to any particular prejudice arising from the amendments proposed on behalf of the adults. In these circumstances I consider that it is appropriate to allow these amendments (as well as the deletions in the proposed draft).

The pleading proposed on behalf of the children

7. In order to address the arguments put by Mr Royle on behalf of the children it is necessary to set out the proposed amendment (which is underlined in the extract below) and the further amendments which were made in the course of the hearing (which are indicated by the deletions and additions in bold). The amendments proposed are:

“[7]   At all material times the Defendant owed to detainees including the Plaintiff a non-delegable duty of care for the safety, health and welfare of the detainees including the Plaintiff whilst in detention which included inter alia:

i.    A duty to take reasonable care of the Plaintiff and to avoid acts or omissions that may expose the Plaintiff to reasonably foreseeable risks of harm, of physical and/or psychiatric and/ or psychological injury;

ii.    A duty to ensure that the detention environment did not cause or contribute to any mental or physical harm to the Plaintiff;

iii.    A duty to devise and implement systems for the management of the detainees such as the Plaintiff to minimise the risk of injury to the Plaintiff and to ensure that its policies and procedures were implemented in relation to health and welfare issues affecting the Plaintiff;

iv-.   A duty to the Plaintiff not to intentionally harm tho Plaintiff or allow its contractors to harm the Plaintiff;

v.    A duty to have regard to the Plaintiff’s forced detention preventing him from gaining independent access to medical services other than those services supplied by the Defendant.

vi.    A duty to monitor and supervise the Plaintiffs mental and physical health to ensure that his mental health was maintained to an adequate standard.

vii.    A duty to ensure the child Plaintiff continued to develop healthily as far as his mental condition was concerned whilst in detention.

viii. A duty to ensure the child Plaintiff had good quality healthcare, clean water, nutritious food and clean environment.

ix.    A duty to provide adequate facilities to meet physical and the mental needs of the Plaintiff.

x.    A duty to provide an adequate education whilst in detention, which is adequate for the Plaintiff’s mental needs.

xi.   A duty to provide adequate leisure activities to ensure the Plaintiff could play in a relaxing environment so as to safeguard the Plaintiff’s mental health.”

8. Mr Jones, who appeared on behalf of the Commonwealth, accepted that the Commonwealth could “deal with” the further amended pleading (as set out in the version above), except particulars x. and xi., which he contended constituted a significant expansion of the children’s cases.

9. Mr Royle submitted that all that the proposed amendment did was to provide an allegation of duty to correspond with the particulars of breach alleged in paragraph [29] as follows:

“[29]    The Defendant by itself, its servants or agents, including independent contractors, breached its non-delegable duty of care owed to the Plaintiff resulting in the Plaintiff suffering injuries, loss and damage.

Particulars of Negligence:

(a) For the period 18 June 2010 to 5 August 2010:

i.    Failing to medically assess, or properly medically assess, the Plaintiff on his admission to immigration detention at Christmas Island including the provision of a comprehensive baseline mental health assessment.

ii.    Failing to diagnose the Plaintiff's psychiatric and / or psychological illness in a timely manner or at all.

iii.    Failing to provide or adequately provide expert medical care and treatment for the Plaintiff's psychiatric or psychological disorder or illness whilst he was in immigration detention in a timely manner or at all.

iv.    Failing to provide or adequately provide expert psychological care and support for the Plaintiff’s family as a family unit including family therapy and parenting skills whilst the family was in immigration detention in a timely manner or at all.

v.    Failed to ensure that the Plaintiff was transported to off-site medical appointments.

vi.    Failing to ensure the provision of any or any adequate interpreters to ensure that the Plaintiff could communicate with the Defendant, the Defendant's contractors, and treatment providers.

vii.    Failing to prevent the Plaintiff from witnessing or experiencing traumatic events whilst in immigration detention.

viii.    Failing to provide the Plaintiff with any, or any adequate, medical care or treatment after witnessing or experiencing traumatic events.

ix.    Failing to maintain an adequate record of the Plaintiff's medical and / or psychiatric care.

x.    Failing to have an adequate management plan for the Plaintiff’s medical and/or psychiatric care.

xi.    Exposing the Plaintiff to a risk of injury that could have been avoided by reasonable care on the part of the Defendant.

xii.    Failing to take any, or any adequate, precautions for the safety and wellbeing of the Plaintiff.

xiii.    Exposing the Plaintiff to a risk of further injury or danger of which the

Defendant knew, or ought to have known, existed.

xiv.    Failing to ensure the detention centre environment was kept free from circumstances that may cause harm to detainees such as exposure to suicide, attempted suicide, violence or incidents of self-harming.

xv.    Failing to heed the incidents of attempted suicide, suicide, self-harming and violence by detainees as an indication that their psychiatric welfare was not being maintained.

xvi.    Failing to provide the Plaintiff with any or sufficient educational, vocational, religious, social and recreational activities reasonably required [to] maintain mental health.

xvii.    Failing to detain the Plaintiff and his family in environments which did not cause or contribute to his mental illness.

xviii.    Detaining the Plaintiff and his family in environments it knew or ought to have known caused or contributed to his mental illness.

xix. Housing the Plaintiff and his family in detention environments which did not give them the least secure detention environment consistent with the requirement to detain the Plaintiff pursuant to the Migration Act 1958, and consistent with any security requirements that the Defendant had of the Plaintiff.

xx.    Failing to comply with the Commonwealth Government's Immigration Detention Standards including but not limited to ‘DIAC Mental health Screening for People in Detention Policy’, ‘DIAC Psychological Support Program for the Prevention of Self-harm in Immigration Detention Policy’, and ‘DIAC Torture and Trauma Policy Management Plan,’ with respect to the Plaintiff and his family stipulating, inter alia, the provision of psychological and/or psychiatric treatment to detainees in need of such treatment, and the provision of staff who are trained to recognize and deal with the symptoms of depression and psychological and/or psychiatric disorders and to minimise the potential for detainees to do self-harm.”

10. Mr Royle contended that, particularly in light of particulars xii., xvi. and xviii., the only effect of the paragraphs he pressed as additional particulars of duty was to mirror the particulars of breach. He submitted that the child plaintiffs ought be permitted to amend their pleadings to bring the particulars of duty into line with the particulars of breach. Mr Royle assured me that the plaintiffs did not intend to seek leave to serve any further expert reports if leave to amend were granted to support the contents of the particulars. He confirmed that the plaintiffs would not seek to serve further experts’ reports, other than updated experts’ reports (to set out the plaintiffs’ current mental state) and reports in reply, if required.

11. Mr Royle relied on the affidavits of Michael Inger sworn 10 July 2017. Mr Inger deposed to the drafts of the proposed pleadings that had been sent to the Commonwealth and its failure to consent. He referred to without prejudice communications (without disclosing their content) and intimated that these had delayed the preparation of an amended pleading in a form which accorded with the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) (which require amendments to be highlighted). Mr Inger was cross-examined by Mr Jones about the various defaults by the plaintiffs in compliance with court directions, including those which occurred prior to Mr Inger becoming the solicitor with carriage of the matter on behalf of the plaintiffs, which occurred on 14 July 2016. He put to Mr Inger the various defaults which are set out in the affidavit relied on by the Commonwealth, to which reference will be made below.

12. In answer to this allegation that all the proposed amendment did was to bring the particulars of duty into line with the particulars of breach, the Commonwealth contended that the plaintiffs had been directed to serve their expert evidence on several occasions. As at the expiry of the last date for service, they had not served any evidence to the effect that any deficiency in the child plaintiffs’ education or social activities had caused the damage suffered by them. Mr Jones did not tender the medical reports relied on by the plaintiffs to make good this point but it was accepted by Mr Royle that although the experts had made some passing reference to such matters, no expert had opined that there was any causal relationship between any deficiency in the child plaintiffs’ education or social activities and the damage (psychological harm) suffered. Mr Jones tendered the lay evidence relied on by the plaintiffs, which comprised two affidavits: one of Hamed Hendi sworn on 9 March 2016 and the other of Nasrin Ghasemi sworn 9 March 2016. These statements were filed on 28 November 2016 and provided by the second cross-defendant to the Commonwealth on 29 November 2016. No statements by the child plaintiffs have been filed or served.

13. Mr Jones also relied on the evidence of Amanda Taylor, who has had carriage of the matter on behalf of the Commonwealth since May 2016. She deposed to the additional time and cost that would be involved if the additional paragraphs to the particulars to [7] of the children’s claims were allowed in accordance with the original draft proposed (before further amendments were made in Court in the course of the hearing on 17 August 2017). Ms Taylor was cross-examined by Mr Royle about the estimates, which were said to be, in effect, an exaggeration which failed to take account of Ms Taylor’s (and the Commonwealth’s) prior experience of such claims in which such issues arose. I was impressed with the evidence of Ms Taylor and accept her evidence that the estimates she gave were conservative estimates based on her experience of the cost and time involved in obtaining relevant documents from the Department of Immigration and the three detention centres where the child plaintiffs were detained, particularly having regard to the time that has elapsed since they were there. Her estimate was that it would take about 204.5 hours of Departmental time; 45 hours of solicitors’ time; and $9,000 for experts (three experts at $3,000 each), which resulted in a total additional cost of $34,975. Ms Taylor said that it would potentially take four months for the Department to locate the documents and for them to be analysed by solicitors from the Australian Government Solicitor.

14. As referred to above, Ms Taylor recounted the numerous and various breaches of directions by the plaintiffs over the course of the matter. She deposed that at a directions hearing before Registrar Bradford on 2 November 2015 the plaintiffs sought to have their matters listed for hearing.

15. As Mr Royle proposed further amendments after Ms Taylor’s evidence had concluded, it is not easy to work out what remains of Ms Taylor’s estimates and whether the total hours she estimated would still be required. However, such is the breadth of particulars x. and xi in [7] of the children’s proposed further amended statements of claim, that I infer that most if not all of the costs estimated by Ms Taylor would have to be incurred by the Commonwealth if the additional particulars were allowed.

Consideration

16. The discretion to grant leave to a party to amend a pleading is to be exercised in accordance with the UCPR and Part 6 of the Civil Procedure Act 2005 (NSW). In broad terms, this requires the weighing of factors such as the need to afford a party an opportunity to put his or her case properly; the desirability of minimising costs and avoiding delay; the undesirability of rewarding a party who has consistently been in default of the court’s directions; and the “dictates of justice”.

17. In the present case, the plaintiffs have been in default of numerous court directions. Notwithstanding that they commenced proceedings in 2014, they have served only two lay witness statements, which were not filed until November 2016. It is not necessary for present purposes to recount the breaches of directions and other defaults. The inference is inescapable that the plaintiffs’ solicitors have not given these proceedings the priority and attention that is warranted. In saying this, I do not underestimate the difficulties of preparing proceedings such as the present. However the directions which have been breached were, by and large, the subject of consent orders. This Court expects practitioners to give realistic estimates of the time it will take them to complete procedural steps and makes directions accordingly. When consent orders are handed up, a registrar or judge is entitled to assume that it represents the parties’ collective agreement that the directions can, absent mishap or unexpected event, be complied with. Where, as has occurred in the present case, a party (the plaintiffs) have repeatedly defaulted, the interests of justice may require the refusal of an indulgence sought by that party.

18. The evidence relied on by the plaintiffs provides no explanation for the delay in seeking the amendments. As Ms Taylor deposed, the plaintiffs’ solicitors did not even manage to provide to the defendant a copy of the proposed pleadings which corresponded with the requirements of the UCPR, that amendments be highlighted, until shortly before the hearing of the motion. A default of this nature is not only discourteous but it is productive of time and cost and makes it difficult for opposing parties (in this case, the Commonwealth) to consider whether to object to the proposed amendments.

19. However, against these considerations, is the need for the plaintiffs’ claim to be properly pleaded, heard and determined. Whatever blame can be laid at the feet of the plaintiffs’ legal representatives, there is no suggestion that the plaintiffs themselves are responsible for any of the delay which the defaults have occasioned, or, indeed, the delay in applying for leave to file a further amended statement of claim. In these circumstances it would be potentially unjust for the plaintiffs to be prevented from making allegations which may be material to their causes of action and to their claims for damages.

16. For completeness I note that Mr Royle indicated that, if the addition of paragraphs x. and xi. were refused he would propose, by correspondence, to add these paragraphs as further particulars of the existing particulars. Whether that course is taken is a matter for the plaintiffs and their legal representatives. However at this stage of the proceedings, I do not consider that this Court should sanction this course, when it is common ground that the expert evidence does not substantiate a causal connection between these allegations and the harm alleged to have been suffered by the child plaintiffs. Moreover, both Mr Jones and Mr Royle agreed that the real issues in the case turn on the psychological and psychiatric assessment, monitoring and treatment of the plaintiffs.

Conclusion

21. For the reasons set out above, I am persuaded that it is appropriate to allow the amendments sought to the pleadings of Hamed Hendi and Nasrin Ghasemi.

22. In respect of the claims of Amir and Asrin Hendi, I propose to allow the amendments set out in the amended version above with the exception of particulars x. and xi. Although, as Mr Royle pointed out, these particulars correspond to the particulars of breach, it is common ground that no evidence has been served by the plaintiffs to prove a causal connection between the harm suffered by the children and any deficiency in their education or recreational needs. In these circumstances, I am not persuaded that there is any utility, at this stage of the proceedings (when all the plaintiffs’ expert evidence, save for update and reply reports, has been served). To grant the amendment now could potentially lead to a view that this Court has sanctioned an expansion of the case, which could in turn lead to even further delay in the allocation of a hearing date for the determination of the matter.

Orders

23. I make the following orders in proceedings 2014/68193; 2014/68203; 2014/68211; and 2014/68216:

1. Subject to (2) below, grant leave to the plaintiff to file a further amended statement of claim in accordance with Sch A to these orders, such document to be filed on or before 4 September 2017.

2. Direct the plaintiff to serve the proposed draft further amended statement of claim on the defendant on or before 28 August 2017 for the purpose of obtaining its agreement that the draft corresponds with these orders and reasons.

3. Order the plaintiff to pay the defendant’s costs of the amendment, including the costs of the notice of motion for leave to amend.

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SCHEDULE A

In proceedings 2014/68211 and 2014/68216

Leave is granted to each of the plaintiffs in each proceeding to further amend his or her amended statement of claim to delete, amend or add, as the case may be, as indicated below:

(a)   Addition of the following particulars to [6] in the further amended statement of claim:

v.   A duty to have regard to the Plaintiff’s forced detention preventing him [or her] from gaining independent access to medical services other than those services supplied by the Defendant;

vi.    A duty to monitor and supervise the Plaintiff's mental and physical health to ensure that his [or her] health was maintained to an adequate standard.

(b)   Addition of the following to [19] of the amended statement of claim:

“Further the Defendant knew or ought to have known that the Plaintiff was likely to be depressed and vulnerable as a result of the torture he [or she] experienced in Iran, the journey to Australia and the uncertainty as to the outcome of his [or her] application for refugee status.”

(c)   Deletion of the following particulars to [29(a)] of the amended statement of claim:

xii.    Exposing the Plaintiff to a risk of injury that could have been avoided by reasonable care on the part of the Defendant.

xviii.   Failing to detain the Plaintiff and his family in environments which did not cause or contribute to his mental illness.

(d)   Deletion of the following particulars to [29(b)] of the amended statement of claim:

xiii.    Exposing the Plaintiff to a risk of injury that could have been avoided by reasonable care on the part of the Defendant.

(e)   Deletion of the following particulars to [29(c)] of the amended statement of claim:

xii.    Exposing the Plaintiff to a risk of injury that could have been avoided by reasonable care on the part of the Defendant.

(f)   Deletion of the following particulars to [29(d)] of the amended statement of claim:

viii.    Exposing the Plaintiff to a risk of injury that could have been avoided by reasonable care on the part of the Defendant.

(g)   Addition of the following paragraph:

[31]   Had the plaintiff received appropriate medical and psychiatric care, and had the Defendant maintained an adequate standard of caring for detainees whilst in detention, the Plaintiff would not have suffered the severe medical and psychiatric symptoms from which he [or she] now suffers.

In proceedings 2014/68203 and 2014/68193

Leave is granted to each of the plaintiffs in each proceeding to further amend the amended statement of claim to delete, amend or add, as the case may be, as indicated below:

(h)   Deletion and addition of the following particulars of duty to the allegation in [7] in the amended statement of claim:

iv-.   A duty to the Plaintiff not to intentionally harm the Plaintiff or allow its contractors to harm the Plaintiff.

v.    A duty to have regard to the Plaintiff’s forced detention preventing him [or her] from gaining independent access to medical services other than those services supplied by the Defendant.

vi.    A duty to monitor and supervise the Plaintiff’s mental health to ensure that his [or her] mental health was maintained to an adequate standard.

vii.    A duty to ensure the child Plaintiff continued to develop healthily as far as his mental condition was concerned whilst in detention.

viii.    Reserved.

ix.    A duty to provide adequate facilities to meet the mental needs of the Plaintiff.

(i)   Addition of the following to the end of [19]:

Further the Defendant knew or ought to have known that the Plaintiff was likely to be depressed and vulnerable as a result of the torture he [or she] experienced in Iran, the journey to Australia and the uncertainty as to the outcome of his [or her] application for refugee status.

(j)   Deletion of the following particulars of negligence in [29(a)] of the amended statement of claim:

xi.    Exposing the Plaintiff to a risk of injury that could have been avoided by reasonable care on the part of the Defendant.

xiii.    Exposing the Plaintiff to a risk of further injury or danger of which the Defendant knew, or ought to have known, existed.

(k)   Deletion of the following particulars of negligence in [29(b)] of the amended statement of claim:

xiii.   Failing to take any, or any adequate, precautions for the safety and wellbeing of the Plaintiff.

xiv.   Exposing the Plaintiff to a risk of further injury or danger of which the Defendant knew, or ought to have known, existed.

(l)   Deletion of the following particulars of negligence in [29(c)] of the amended statement of claim:

xi.    Exposing the Plaintiff to a risk of injury that could have been avoided by reasonable care on the part of the Defendant.

xiii.    Exposing the Plaintiff to a risk of further injury or danger of which the Defendant knew, or ought to have known, existed.

(m)   Deletion of the following particulars of negligence in [29(d)] of the amended statement of claim:

vii.    Exposing the Plaintiff to a risk of injury that could have been avoided by reasonable care on the part of the Defendant.

(n)   Addition of the following paragraph:

[31]   Had the plaintiff received appropriate medical and psychiatric care, and had the Defendant maintained an adequate standard of caring for detainees whilst in detention, the Plaintiff would not have suffered the severe medical and psychiatric symptoms from which he [or she] now suffers.

Decision last updated: 24 August 2017