Ibrahimi & Ors v Commonwealth of Australia (No 2)

[2016] NSWSC 1381

Supreme Court

New South Wales

Medium Neutral Citation:	Ibrahimi & Ors v Commonwealth of Australia (No 2) [2016] NSWSC 1381
Hearing dates:	28 September 2016
Date of orders:	28 September 2016
Decision date:	28 September 2016
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	See [24]
Catchwords:	PRACTICE AND PROCEDURE – Adjournment of proceedings to allow parties to inspect documents produced shortly before the commencement of the hearing – No point of principle
Legislation Cited:	Civil Procedure Act 1995 (NSW)
Category:	Procedural and other rulings
Parties:	Median Nazar Ibrahimi & Ors - Plaintiffs Commonwealth of Australia - Defendant
Representation:	Counsel:    M Cranitch SC and S Prince - Plaintiffs A S Bell SC, M J O’Meara and R. Jedrzejczyk - Defendant   Solicitors: The People’s Solicitors - Plaintiffs Australian Government Solicitor - Defendant
File Number(s):	2013/377410
Publication restriction:	Nil

Judgment – EX TEMPORE (revised)

1. On 15 December 2010 an incident occurred off the coast of Christmas Island as a result of which Suspected Illegal Entry Vessel (“SIEV”) was shipwrecked. A number of persons were injured in that incident, and a number of persons died.  The plaintiffs, who are said to belong to a group of persons who have suffered loss and damage by reason of the incident, have brought proceedings against the Commonwealth of Australia.

2. It is part of the plaintiffs' case that the Commonwealth was involved in an ongoing operation for the interception of SIEVs in the territorial waters north of Christmas Island. One of the principal issues in the proceedings is whether or not the Commonwealth owed the passengers on board SIEV 221 a duty to take reasonable care so as to avoid foreseeable harm to them.  Broadly speaking it is the Commonwealth’s position that no duty of care was owed, and that if it was, it was not breached in all of the circumstances.

3. Before the hearing commenced before me earlier this week, the proceedings had been the subject of extensive case management.  It is evident that following the incident there was an inquest conducted by the Coroner for the State of Western Australia. As might be anticipated, there was a large volume of material gathered for the purposes of that inquest, which until recently remained in the possession of the Coroner’s office.  It is not entirely clear to me over what period of time that material has been sought for the purposes of these proceedings.  What is clear is that consistent efforts were made to obtain it, both through this Court and otherwise.  The material did not become available until Thursday of last week, effectively two days before the scheduled commencement of this hearing.  None of that is intended, in any way, as a criticism of the Coroner's office. It is simply the fact.

4. I am told that 47 hard copy documents were produced, along with further documents contained on three electronic discs.  At a directions hearing before me last week, and in anticipation of the material being produced, it was agreed that the solicitors for the defendant would have first access to the material so as to determine whether any part(s) of it attracted a potential claim for public interest immunity.  It was agreed that such procedure would be, as it were, a “progressive” one, in the sense that once it was confirmed that a part of the material did not attract such a claim, that part would be passed on to the representatives of the plaintiffs.

5. The issue was raised with me by senior counsel for the plaintiffs on the first day of the hearing. It was apparent at the time that little of the material which was produced had been provided to those acting for the plaintiffs. It was agreed that the proceedings should commence, that the case be opened, and that some evidence be called.  It was also envisaged that while the matter was proceeding, the process of ongoing inspection of the material would be proceeding, as it were, in the background.

6. At the commencement of the proceedings this morning senior counsel for the plaintiffs made an application for an adjournment.  That application was based on two grounds.  The first arose out of the fact that the majority of the material provided by the Coroner has still not been made available to him.  Although some of the material has been assessed by those acting for the defendant and passed on, senior counsel for the plaintiffs informed me that there was still quite a deal of material awaiting assessment.

7. Simply put, it was senior counsel's position that he should not be placed in the position of being forced to cross-examine further witnesses in the absence of being given material which, on the face of it, may be relevant to an issue or issues in the case.  Although not necessarily put in these specific terms, the effect of senior counsel's submission was that to force the matter to proceed in the present circumstances would be procedurally unfair to the plaintiffs.

8. The second basis of the application for an adjournment arose out of submissions that I heard yesterday in relation to a series of objections taken by the defendant to the tender of, in the plaintiffs’ case, statements made by various persons in relation to the incident which is the subject of these proceedings. The plaintiffs seek to rely on those statements without calling those who made them to give evidence. The fundamental objection taken by the defendant is that in those circumstances, the statements offend the hearsay rule and are inadmissible.  In the course of dealing with those objections, counsel for the plaintiff foreshadowed that in the event that those objections were upheld, an application would be made for leave to call oral evidence from the person(s) concerned.  Those representing the plaintiff require some time to determine those persons who might be the subject of such an application.

9. As to the first of those matters, I have been informed by senior counsel for the defendant that out of the 47 hard copy documents produced by the Coroner, 23 have been inspected and provided to those acting for the plaintiffs. It is expected that the balance of those documents, together with the majority of the material on two of the three discs, will be passed on either by the close of business today, or at some time during the course of tomorrow.

10. It seems that the material contained on the third disc is more problematic. However, it is anticipated that some of it is already contained in the Court Book which is proposed to be tendered. To the extent that any of the remaining material might attract a claim for public interest immunity, there are a multiplicity of agencies from whom instructions might have to be obtained. Although not expressly stated, I inferred that it is hoped that any issues arising out of this remaining material will be resolved by the end of this week.

11. As far as the second basis of the application was concerned, senior counsel for the defendant took me to a transcript of proceedings before Garling J in this Court on 14 April last. On a fair reading of that transcript, it is apparent that the hearsay issue to which I have referred was squarely raised at that time. In a subsequent letter of 27 July 2016 from the defendant's solicitors to those acting for the plaintiffs, it was made clear that the defendant would object to the tender of any statement upon which the plaintiffs sought to rely, in the absence of the maker of the statement being called.

12. It is, to say the least, unfortunate that matters of this nature have arisen at this point in the trial, particularly in circumstances where the proceedings have been the subject of close case management for a long period of time.  That said, from my knowledge of the matter there were ongoing efforts made over a long period of time to obtain the material which was ultimately produced by the Coroner's office. That it was produced two days before the trial is not the fault of anyone. In particular, it is not the fault of either party.

13. I am not privy to what is contained in the documents which have been produced.  I am also obviously not privy to the instructions conveyed to senior and junior counsel acting for the plaintiffs. However, it is clear that the material produced by the Coroner relates to the very same incident which is the subject of these proceedings.  That would indicate that the material may, prima facie at least, be relevant to an issue or issues in this case.

14. Needless to say, counsel for a party is not obliged to disclose his or her instructions as to the conduct of a case. In circumstances where senior counsel for the plaintiffs has informed me that he has determined that he requires access to this documentation to properly cross-examine witnesses to be called by the defendant, I do not consider that I am in any position, at least in the circumstances of this case, to take issue with what I am told. As I have said, the material in question is prima facie relevant.

15. Even if I forced the matter to proceed, it would not be difficult to envisage that before the trial concluded an application would be made by senior counsel for the plaintiffs to have a witness or witnesses recalled for the purposes of putting matters arising out of the material which has been produced, but which the plaintiffs’ representatives have not yet seen. It may be very difficult for me to resist such an application if it were made. That would necessarily result in witnesses being called twice.  Balanced against a short adjournment to allow inspection of the material to take place, the possible consequences of forcing the matter to proceed would be highly inefficient, and in my view contrary to the dictates of justice set out in the Civil Procedure Act 1995 (NSW).

16. The second basis of the application is in a different category.  It seems to me that the defendant's position as to the plaintiffs’ reliance upon statements of witnesses in the absence of the makers of those statements being called was foreshadowed to those acting for the plaintiffs as long ago as April of this year.  The defendant’s position was confirmed in writing in July of this year.  It is plainly obvious that the material to which objection is taken is hearsay and inadmissible. In those circumstances, the objection now taken could not have come as a surprise to those acting for the plaintiffs. 

17. The objections taken by the defendant to that material are matters about which I am yet to formally rule. However as I have endeavoured to make plain to the parties today, it seems to me that to the extent that the defendant objects to the material on a hearsay basis, such objection is well founded.

18. Whether, in all of those circumstances, leave should be granted to the plaintiffs to call oral evidence from any of those witnesses is something that will have to be determined, if it cannot otherwise be resolved, on another day.  What may be relevant in determining such an application, is the effect, upon conduct of the defendant’s case, of such witnesses being called.  If the defendant has prepared its case on the basis of certain evidence being excluded, the ramifications of that evidence being led in some other form may be a material consideration in determining whether to grant leave.

19. I propose to grant the plaintiffs’ application for an adjournment until 10am on Tuesday 4 October 2016. In the course of submissions, I indicated that I was proposing to make that order.  Senior counsel for the defendant pointed out at that time that there is a witness, who is not an employee of the Commonwealth, and who has been scheduled to give evidence via video link from Perth at 3pm this afternoon.  Senior counsel submitted that in all the circumstances I should allow that evidence to be given and that the cross-examination could at least commence, even if it did not conclude pending inspection of the material produced by the Coroner.

20. There is obviously a degree of inconvenience which will be visited on that particular witness in the event that his evidence is not taken today.  Having read his statement, it is perhaps difficult to determine the extent to which any of the material produced by the Coroner is likely to bear on anything that he says. However, I have not seen the material and I do not consider that I am properly placed to effectively second guess the position of those acting for the plaintiffs.  It seems to me that the balance that I have to strike is appropriately resolved by adjourning the proceedings until 10am on 4 October.

21. In doing so I wish to make a number of matters clear. 

22. The first is that I would necessarily expect that every effort will be made to have the documentation produced by the Coroner passed on to the plaintiffs’ representatives, in accordance with the broad timetable set out by senior counsel for the defendant in his submissions.

23. Secondly, I would also expect that those acting for the plaintiffs will, between now and when the matter is next before me, re-evaluate the material to which the defendant has objected. Those acting for the plaintiffs should proceed on the basis that my preliminary view is that the objection taken by the defendant to that material is well founded.  The material is plainly hearsay, and unless the plaintiffs can point to some exception to the hearsay rule which makes it admissible, then in the absence of leave being granted to call oral evidence from the person(s) concerned, it is unlikely that the evidence will be admitted. Those acting for the plaintiffs should determine (on the assumption that the evidence is excluded in its present form) the identity of those witnesses who may be the subject of an application for leave to call oral evidence.  Without imposing a particular time constraint, an indication should be given to senior counsel for the defendant as soon as possible as to those persons who may be the subject of such an application.  That will give senior counsel for the defendant an opportunity to assess his position, and determine whether or not the calling of such oral evidence might be able to be accommodated.

24. For all of those reasons, I propose to accede to the application for an adjournment.  I will, however, list the matter for directions before me at 9.30am on Friday 30 September. I will expect that by that time the matters to which I have referred will have been acted upon, and that the parties will have had some discussions about the efficient ongoing conduct of the hearing.

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Decision last updated: 10 October 2016