Ibrahimi v Commonwealth of Australia

[2018] NSWCA 321

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Ibrahimi v Commonwealth of Australia [2018] NSWCA 321

Hearing dates:

26 and 27 June 2018

Date of orders:

19 December 2018

Decision date:

19 December 2018

Before:

Meagher JA at [1]; Payne JA at [2]; Simpson AJA at [326]

Decision:

1. Appeal dismissed

 2. Appellants to pay the respondent’s costs

Catchwords:

TORTS – negligence – duty of care – control – vulnerability – reliance – mere foreseeability of harm – whether duty to prevent occurrence

 

TORTS – negligence – public authorities – exercise, or non-exercise, of statutory and prerogative powers

  TORTS – negligence – breach of duty – no breach arising in circumstances – no causation

Legislation Cited:

Acts Interpretation Act 1901 (Cth), s 15B
Christmas Island Act 1958 (Cth), ss 5, 8A
Civil Liability Act 2002 (WA), ss 5B, 5C, 5E, 5F; Divs 2, 3
Civil Procedure Act 2005 (NSW), ss 157, 161; Pt 10
Commonwealth Constitution, s 75(iii)
Evidence Act 1995 (Cth), s 79
Fatal Accidents Act 1959 (WA), s 9
Judiciary Act 1903 (Cth), ss 39, 56, 64, 79, 80
Law Reform (Miscellaneous Provisions) Act 1941 (WA), s 4
Migration Act 1958 (Cth), ss 4, 36, 42, 45, 233A, 261A; Part 2, Div 12A
Navigation Act 1912 (Cth), ss 3, 208, 227B, 265
Supreme Court Act 1986 (Vic), ss 33C, 33H

Uniform Civil Procedure Rules 2005, r 28.2

Cases Cited:

Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41
Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37
Brookfield Multiplex v Owners - Corporation Strata Plan 61288 (2014) 254 CLR 185; [2014] HCA 36
C.A.L No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390; [2009] HCA 47
Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202; [1957] HCA 14
Caltex Refineries (Qld) Pty Limited v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258
Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” (1976) 136 CLR 529; [1976] HCA 65
Commonwealth v Kreglinger & Fernau Ltd (1926) 37 CLR 393; [1926] HCA 8
Commonwealth v Limerick Steamship Co Ltd (1924) 35 CLR 69; [1924] HCA 50
Commonwealth v Mewett (1997) 191 CLR 471; [1997] HCA 29
CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514; [2015] HCA 1
Crimmins v Stevedoring Committee (1999) 200 CLR 1; [1999] HCA 59
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
Geddis v Proprietors of Bann Reservoir (1878) 3 App Cas 430
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54
Groves v Commonwealth (1982) 150 CLR 113; [1982] HCA 21
Hargrave v Goldman (1963) 110 CLR 40; [1963] HCA 56
HG v The Queen (1999) 197 CLR 414; [1999] HCA 2
John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36
Jones v Bartlett (2000) 205 CLR 166; [2000] HCA 56
Ku-ring-gai Council v Chan [2017] NSWCA 226; (2017) 224 LGERA 330
Lowns v Woods (1996) Aust Torts Reports 81-376
Macleod v Australian Securities and Investments Commission (2002) 211 CLR 287; [2002] HCA 37
Michael v The Chief Constable of South Wales Police [2015] 1 AC 1732
MM Constructions (Aust) Pty Ltd v Port Stephens Council [2012] NSWCA 417; (2012) 191 LGERA 292
Mt Isa Mines v Pusey (1970) 125 CLR 383; [1970] HCA 60
Mutual Life & Citizens’ Assurance Co Ltd v Evatt (1968) 122 CLR 556; [1968] HCA 74
Nelson v Nelson (1995) 184 CLR 538; [1995] HCA 25
Northern Sandblasting v Harris (1997) 188 CLR 313; [1997] HCA 39
Olbers Co Ltd v The Commonwealth (2004) 136 FCR 67; [2004] FCA 229
Olbers Co Ltd v The Commonwealth (2004) 143 FCR 449; [2004] FCAFC 262
Perre v Apand Pty Limited (1999) 198 CLR 180; [1999] HCA 36
Pyrenees Shire Council v Day (1998) 192 CLR 330; [1998] HCA 3
Rizeq v Western Australia [2017] HCA 23; (2017) 91 ALJR 707
Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42
Robinson v Chief Constable of West Yorkshire Police [2018] AC 736; [2018] UKSC 4
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; [1998] HCA 5
Sheppard v Glossop Corporation [1921] 3 KB 132
Stovin v Wise [1996] AC 923
Stuart v Kirkland-Veenstra (2009) 237 CLR 215; [2009] HCA 15
Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59
Sutherland Shire Council v Heyman (1985) 157 CLR 424; [1985] HCA 41
Tepko Pty Ltd v Water Board (2001) 206 CLR 1; [2001] HCA 19
Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212; [2016] HCA 44
Tran v The Commonwealth (2010) 187 FCR 54; [2010] FCAFC 80
Wheat v E Lacon & Co Ltd [1966] AC 552
Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; 78 ALJR 628

Texts Cited:

Natalie Gray and James Edelman, “Developing the law of omissions: a common law duty to rescue?” (1998) 6 Torts LJ 1
HLA Hart and Tony Honoré, Causation in the Law, (2nd ed 1985, Oxford University Press)

Category:

Principal judgment

Parties:

Median Nazar Ibrahimi (First Appellant)
Hossein Shahvari (Second Appellant)
Afshen Noroozi (Third Appellant)
Commonwealth of Australia (Respondent)

Representation:

Counsel:
M Cranitch SC, S E J Prince (Appellant)
A Bell SC, M O’Meara, R Jedrzejczyk (Respondent)

  Solicitors:
The People’s Solicitors Pty Ltd (Appellant)
The Australian Government Solicitor (Respondent)

File Number(s):

2017/305702

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Civil

Citation:

[2017] NSWSC 1051

Date of Decision:

13 September 2017

Before:

Bellew J

File Number(s):

2013/377410

Headnote

[This headnote is not to be read as part of the judgment]

In the early hours of 15 December 2010, a boat carrying a number of people bound for Australia from Indonesia, SIEV 221, was destroyed on the rocks at Christmas Island during a severe storm. Approximately 50 people died and 41 people were able to be rescued.

Representative proceedings were commenced against the Commonwealth of Australia for damages arising from alleged negligence. The classes of persons represented in the proceedings included the passengers on board SIEV 221, their relatives and onlookers who witnessed the accident. On 30 October 2015, an order for the hearing and determination of separate questions identified from the pleadings was made pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW).

On 13 September 2017, the primary judge, Bellew J, answered each of the separate questions. In doing so, his Honour made detailed factual findings in relation to a number of issues which had the effect that the representative action must fail.

The primary judge found that in 2010, Border Protection Command, an agent of the Commonwealth, had stationed vessels on Christmas Island in order to conduct surveillance on northern approaches to Christmas Island and, amongst other things, intercept SIEVs and transfer their crew and passengers to Christmas Island for processing under the Migration Act 1958 (Cth).

The Commonwealth did not owe any of the pleaded duties to take reasonable care in the exercise of the Commonwealth’s powers and deployment of the Commonwealth’s resources. The Commonwealth’s agents did not breach the pleaded duty by failing to cause their respective ships to proceed with all practicable speed to the passengers of SIEV 221.

The primary judge found that, although there was a risk that any SIEV heading south towards territorial waters towards Christmas Island would, if not intercepted, be shipwrecked on the cliffs of Christmas Island resulting in catastrophic loss of life, that risk did not arise from any conduct on the part of the Commonwealth and was, at any rate, both inherent and obvious.

This risk was foreseeable within the meaning of s 5B(1)(a) of the Civil Liability Act 2002 (WA). The risk was “not insignificant” within the meaning of s 5B(1)(b) of the Civil Liability Act. The risk, however, did not arise from any conduct on the part of the Commonwealth.

Although the primary judge found that no duty was owed by the Commonwealth, his Honour also found that a reasonable public authority in the position of the Commonwealth and its agents would not have:

(1) taken the precaution of not permitting the other available rescue ships, the Sea Eye and the Colin Winchester, to remain out of survey and incapable of use in the rescue of a SIEV in poor weather;

(2) taken the precaution of returning the HMAS Pirie to patrol at its usual station in the territorial waters to the north of Christmas Island;

(3) taken the precaution of sailing the HMAS Pirie and ACV Triton to attend to SIEV 221 earlier than they in fact did. In particular, the primary judge found that the Commanding Officer of the HMAS Pirie did not know, by about 6.00am on 15 December 2010, that SIEV 221 was in distress.

The primary judge found that the Commonwealth’s taking any of the pleaded precautions would not have prevented SIEV 221 from being shipwrecked.

Under section 261A of the Migration Act, SIEV 221 was forfeited to the defendant and the owners of SIEV 221 were divested of title to that vessel. As owner, however, the primary judge found that the Commonwealth did not assume any duty or obligation in relation to the condition of the vessel or the safety of its passengers.

Issues on appeal

The issues on appeal were:

(1) Was there an error in relation to the finding that the Commonwealth owed no duty of care to any of the plaintiff class by failing to look to established categories of duty and by misapplying the multifactorial test for any novel duty?

(2) Was the finding that there was no breach of the duty:

(i) to carry out the interception operation vitiated by an erroneous finding that there was a ‘medium threat level; which his Honour found made it reasonable for the defendant to not have the Pirie on its “usual” patrol?

(ii) to carry out the rescue mission with reasonable care by not dealing with the defendant’s (through CNOC, BPC and NORCOM) failure to advise the Pirie at 5.46am that the SIEV was within 150m of rocky point and instead only focusing on the actual state of knowledge of Commander Livingstone?

(3) Was there an error in the finding that there was no causation of any loss or damage:

(i) by any breach of the duty to carry out the interception operation because no consideration was given to the accepted facts that there had been a very high percentage of successful interceptions at Christmas Island, there as good visibility, the SIEV had tracked north of the Island since 4am; and there was a successful interception the day before of SIEV 220 in similar conditions?

(ii) by any breach of the duty to conduct the rescue operation with reasonable care by wrongly excluding the evidence of the plaintiffs expert Mr Dag Pike but admitting the evidence of Commanders Livingstone and Sanders as to the capacity of the RHIBs to get a line to the SIEV to hold it off the rocks had they arrived before it broke up and by failing to deal with whether an earlier arrival would have occurred (had Pirie been tasked by the defendant earlier than it was) and consequently failed to deal with whether an earlier arrival would have substantially reduced the risk of harm to the members of the class?

The Court (Payne JA, Meagher JA and Simpson AJA agreeing) held, dismissing the appeal:

In relation to Issue 1,

Established category of duty

The appellants’ accepted before the primary judge that each duty of care they alleged was novel. The primary judge did not err in failing to find a duty of care based on an established category: [187], [199], [202].

Lowns v Woods (1996) Aust Torts Reports 81-376 distinguished.

Novel duty of care

The mere foreseeability of harm does not produce a duty to prevent its occurrence. Recognition of a novel duty of care must follow from an analysis of the parties’ relationship informed by conclusions in earlier cases: [203].

Sutherland Shire Council v Heyman (1985) 157 CLR 424; [1985] HCA 41; Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 applied.

Three initial problems arise for the recognition of a duty of care in this case.

First, the likelihood and extent of harms suffered are not said to have been directly increased by any positive act of the Commonwealth: [206].

Hargrave v Goldman (1963) 110 CLR 40; [1963] HCA 56; Stovin v Wise [1996] AC 923 at 943–944; Pyrenees Shire Council v Day (1998) 192 CLR 330; [1998] HCA 3; Stuart v Kirkland-Veenstra (2009) 237 CLR 215; [2009] HCA 15 applied.

Secondly, the interception operation involved choices by the defendant about the exercise, and non-exercise, of statutory and prerogative powers: [207].

Sutherland Shire Council v Heyman (1985) 157 CLR 424; [1985] HCA 41 applied.

Thirdly, recognition of the duty may promote incoherence with the purpose of the Migration Act, although this issue did not need to be determined: [208].

CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514; [2015] HCA 1; Nelson v Nelson (1995) 184 CLR 538; [1995] HCA 25 discussed.

The salient features test was the relevant test to be applied. In respect of vulnerability, there was no reliance by the group members on the defendant which would give rise to relevant vulnerability: [209], [228].

Perre v Apand Pty Limited (1999) 198 CLR 180; [1999] HCA 36; Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” (1976) 136 CLR 529; [1976] HCA 65; Caltex Refineries (Qld) Pty Limited v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 259; Ku-ring-gai Council v Chan [2017] NSWCA 226; (2017) 224 LGERA 330; Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; 78 ALJR 628 applied.

With regards to control, the degree and nature of control by a public authority over the relevant risk of harm is crucial in determining the existence of an alleged duty of care. The primary judge correctly concluded that the risk to the appellants did not arise from any conduct on the part of the defendant, and the defendant did not have control in the relevant sense: [233]-[236], [244].

Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54; Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 applied.

Likewise, while the defendant accepted that SIEV 221 was automatically forfeited to the Commonwealth upon entry into Australia, ownership is not synonymous with control and no occupier’s liability arose from the statutory forfeiture of SIEV 221: [237]-[242]

Northern Sandblasting v Harris (1997) 188 CLR 313; [1997] HCA 39; Jones v Bartlett (2000) 205 CLR 166; [2000] HCA 56; Olbers Co Ltd v The Commonwealth (2004) 136 FCR 67; [2004] FCA 229 applied.

A public authority that chooses to perform an act authorised, but not required, by statute is generally liable for any negligence in its performance. However, it is not generally liable for the mere choice not to perform such an act. There is no expectation of general reliance, that an entity will properly perform its public or private function: [212], [215].

Pyrenees Shire Council v Day (1998) 192 CLR 330; [1998] HCA 3; MM Constructions (Aust) Pty Ltd v Port Stephens Council [2012] NSWCA 417; (2012) 191 LGERA 292; Geddis v Proprietors ofBann Reservoir (1878) 3 App Cas 430; Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202; [1957] HCA 14; Sheppard v Glossop Corporation [1921] 3 KB 132 applied.

The appellants’ reliance on Robinson was misplaced, as that case dealt with harms flowing from positive acts by a statutory authority rather than omissions. In this case, nothing Border Protection Command did increased the risk of harm: [189]-[190].

Robinson v Chief Constable of West Yorkshire Police [2018] AC 736; [2018] UKSC 4 distinguished.

Obligations under the Navigation Act 1912(Cth)

The defendant was not criminally responsible for sending a ship to sea under s 208 of the Navigation Act, and this did not go to control as a salient feature; nor was SIEV 221 permitted to be overloaded in contravention of s 227B: [246]-[248]. Neither s 265 nor s 317A support the imposition of a duty of care owed by the Commonwealth in the present case: [255].

In relation to Issue 2(i),

Even had a duty existed, there was no breach occasioned by the Pirie’s decision to remain on a short racetrack on the leeward side of Christmas Island at the relevant time. The primary judge’s findings regarding the threat status for arrivals was correct: [264]-[273].

In relation to Issue 2(ii),

The appellants’ case that there was unreasonable delay in notifying the Pirie or Triton about SIEV 221 was not pleaded or conducted at the trial. Had this case been run, the defendant could have led evidence to address this issue: [281]-[295].

In relation to Issue 3(i),

The evidence did not support a finding that the Pirie would have detected, and been able to intercept, SIEV 221, had it undertaken a different racetrack at the relevant time. There was no causation of any loss or damage by any breach of duty to carry out the interception operation: [296]-[304].

In relation to Issue 3(ii),

The primary judge correctly concluded that critical part of the appellants’ expert report was inadmissible. The appellants could have supplemented the report and made an application for leave to tender a revised report: [305]-[322].

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 applied.

Judgment

1. MEAGHER JA: I have had the benefit of reading the detailed reasons of Payne JA and agree with his Honour’s reasons and proposed orders.

2. PAYNE JA: This case arises from the tragic events of 15 December 2010 when 50 people died after a boat on which they were travelling to Australia was smashed on the rocks at Christmas Island. Fortunately, 41 people on board the vessel were able to be rescued. Representative proceedings were commenced in the Supreme Court on behalf of:

1. passengers on board SIEV 221 who suffered physical and/or psychological injury as a result of the events surrounding the loss of the SIEV 221 (the Passenger Claimants);

2. persons who were not passengers on board SIEV 221 but who suffered psychological injury as a result of the events surrounding the loss of the SIEV 221 (the Nervous Shock Claimants);

3. persons who, pursuant to s 9 of the Fatal Accidents Act 1959 (WA) are entitled, as persons for whose benefit an action under s 6 of that Act might be brought by the executor or administrator of a deceased passenger, to bring an action for the benefit of the relatives of deceased passengers who died as a result of the events surrounding the loss of the SIEV 221 (the Compensation to Relatives Claimants);

4. passengers on board SIEV 221 who lost material possessions as a result of the events surrounding the loss of the SIEV 221 (the Property Damage Claimants);

5. persons who, pursuant to s 4 of the Law Reform (Miscellaneous Provisions) Act 1941 (WA) are entitled, as representatives of the estates of passengers on board SIEV 221 who lost material possessions as a result of the events surrounding the loss of the SIEV 221, to bring an action for damages arising from that loss (the Property Damage Estate Claimants).

3. On 30 October 2015, an order for the hearing and determination of separate questions identified from the pleadings was made pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW). The primary judge, Bellew J, answered those 18 separate questions: Ibrahimi & Ors v Commonwealth of Australia (No 9) [2017] NSWSC 1051. Those questions and answers are included at Annexure A to these reasons. For the reasons which follow, the appeal against his Honour’s decision must be dismissed.

Relevant facts

4. In answering the separate questions, the primary judge made detailed findings of fact. In what follows, the most important of those factual findings are summarised.

5. Christmas Island is located approximately 2,500 kilometres to the west of the coast of Western Australia, in the Indian Ocean. Pursuant to s 5 of the Christmas Island Act 1958 (Cth), it is declared to be a Territory under the authority of the Commonwealth of Australia. Subject to limited exceptions, the laws of Western Australia are in force in the Territory of Christmas Island by virtue of s 8A(1) of the Christmas Island Act. That section provides:

“8A Application of Western Australian laws

(1)    Subject to this section, section 8G and Part IVA, the provisions of the law of Western Australia (whether made before or after this section’s commencement) as in force in Western Australia from time to time are in force in the Territory.

(2)    To the extent that a law is in force in the Territory under subsection (1), it may be incorporated, amended or repealed by an Ordinance or a law made under an Ordinance.

(3)    An Ordinance may suspend the operation in the Territory of a law in force in the Territory under subsection (1) for such period as is specified in the Ordinance.

(4) To the extent that a law is in force in the Territory under subsection (1), it has no effect so far as it is inconsistent with the Constitution or an Act or Ordinance.

(5) For the purpose of subsection (4), a law is consistent with the Constitution or an Act or Ordinance if the law is capable of operating concurrently with it.

(6)   In this section:

provision of the law of Western Australia:

(a)   includes a principle or rule of common law or equity that is part of the law of Western Australia; and

(b)   does not include an Act or a provision of an Act.”

6. Christmas Island experiences a monsoon season between November and February each year. This season is characterised by harsh weather conditions, particularly affecting the north-west area of the island, including large sea swells and gale force winds. Those weather conditions can make navigation for vessels approaching Christmas Island from the north difficult.

7. The Maritime Border Command, formerly known as and referred to in the primary judgment as the Border Protection Command, is the Australian Government agency responsible for civil maritime security operations in Australia’s maritime areas. I will continue to refer to the agency as the Border Protection Command for the purposes of this judgment.

8. At the relevant time, Border Protection Command was specifically responsible, amongst other duties, for responding to unauthorised maritime arrivals in Australia’s maritime areas, which it characterised as maritime security threats.

9. In order to understand the facts described below, it is important to have a sense of the geography of Christmas Island. Most of the relevant events described take place in the area shaded in red in the diagram:

10. In 2010, Border Protection Command had a number of vessels and aircraft for the purposes of intercepting vessels identified as Suspect Irregular Entry Vessels (“SIEVs”). The primary judge found that, although Border Protection Command’s vessels and aircraft were available to be called upon to respond to emergencies at sea in accordance with its responsibilities imposed by the International Maritime Organisation Safety of Life at Sea (“SOLAS”) Convention and the Navigation Act 1912 (Cth), Border Protection Command was not a search and rescue organisation.

11. Operation Resolute was a Border Protection Command operation in force on 14 and 15 December 2010. Relevantly to the present case, Operation Resolute involved barrier patrols by naval vessels on a “racetrack”, or perimeter, around Christmas Island. The primary judge found that Operation Resolute was directed, at least in part, to the interception of SIEVs.

12. The HMAS Pirie was an Australian Navy patrol boat that was, at the relevant time, part of Operation Resolute. Part of the underlying intention of the standing orders given to the Pirie’s Commanding Officer, Commander Livingstone, was to intercept and escort any irregular maritime arrivals. As part of Operation Resolute, the Pirie commenced a barrier patrol generally north of Flying Fish Cove on 9 December 2010.

13. The ACV Triton was part of the Australian Customs fleet and in December 2010 was being used to patrol the northern waters of Australia under the command of Enforcement Commander Matthew Saunders. On 8 December 2010, during a patrol near Ashmore Reef, the Triton intercepted two SIEVs carrying approximately 108 irregular immigrants. Having taken them on board, the Triton made its way to Christmas Island with the intention of unloading the irregular immigrants there. The Triton arrived at Christmas Island on 12 December 2010. Prior to the events of the morning of 15 December 2010, the inclement weather conditions had meant that the 108 irregular immigrants had not been able to be disembarked and they remained on board the Triton.

14. Two documents, the Daily Maritime People Smuggling Threat Status (“DTS”) and the SIEV Arrival Threat Matrix (“SATM”), were produced daily in connection with Border Protection Command to inform relevant officers of the Australian Government of the existence of maritime threats.

15. The DTS provided an assessment of the “threat status” about individual vessels departing for Australia. The SATM contained information including the likely departure date, the likely arrival location, the arrival window dates and the likely number of irregular immigrants on board.

16. An SATM was issued on 14 December 2010 at 16.00 AEDT containing two entries. The first had a threat status of “medium”, based on a probable arrival of a SIEV at Christmas Island between 10 and 14 December 2010. The second had a threat status of “low” based on a probable arrival of a SIEV at Ashmore Reef between 14 and 17 December 2010. A further SATM was issued on 15 December 2010 at 9.40 AEDT (which was 5.40am on Christmas Island), containing two entries, both of which had a threat status of “low”. In December 2010 Christmas Island was 4 hours behind AEDT. Christmas Island Time is GMT +7.

17. Based on these two SATMs, the primary judge found that the threat status for arrivals of SIEVs at Christmas Island was “medium” between 12.00 midday on 14 December 2010 and 5:40am on 15 December 2010 and was “low” thereafter.

18. On 14 December 2010, SIEV 220 was sighted north of Flying Fish Cove, off the coast of Christmas Island, by the Pirie in the course of conducting its patrol. The weather conditions at the time were “particularly rough” with rain squalls, high winds and low visibility. Because of the rough weather conditions, the fact that the Pirie’s port engine had suffered an engineering defect, the fact that the Pirie’s crew needed to rest and the current arrival threat status, the Pirie escorted SIEV 220 to Ethel Beach on the south east side of Christmas Island, reaching there at approximately 13.47 on 14 December 2010.

19. SIEV 220 was boarded by crew members of the Pirie. At 6pm that evening eight irregular immigrants and three crew members from SIEV 220 were transferred ashore to Ethel Beach. The Pirie then oversaw the safety of SIEV 220. A “steaming party” from the crew of the Pirie remained on board SIEV 220.

20. Rear Admiral Barrett, the commander of Border Protection Command with responsibility for Operation Resolute, explained in evidence at a coronial inquiry (which was tendered before the primary judge) that since the Pirie had custody of SIEV 220, it was required to ensure the safety of the vessel until such time as it could safely be sunk.

21. Commander Livingstone, the commanding officer of the Pirie, gave evidence that anchoring SIEV 220 was not an option and the weather conditions also made it difficult for the Pirie to maintain visibility of SIEV 220 during the night. The weather also decreased the efficacy of the Pirie’s radar systems, necessitating the Pirie remaining close to SIEV 220. In making the decision to remain close to SIEV 220, Commander Livingstone took into account the fact that the threat level as he understood it meant that the arrival of a further SIEV at Christmas Island was not imminent.

22. In the period leading up to dawn on 15 December 2010, the Pirie remained near SIEV 220 on a short racetrack in the vicinity of Ethel Beach, which had the additional benefit of being on the leeward side of the island, giving some respite from the turbulent weather. Commander Livingstone’s intention was to resume the broader patrol around Christmas Island as soon as he could do so. At the same time as the Pirie was overseeing SIEV 220, the Triton, which still had around 100 irregular immigrants on board, was on the south-east of Christmas Island, seeking shelter from the prevailing conditions. Enforcement Commander Saunders said that the weather conditions on 15 December 2010 remained “very rough”. Indicative locations of the vessels were as follows:

23. No other Australian Government vessels were operating in the vicinity of Christmas Island on 14 or 15 December 2010.

The morning of 15 December 2010

24. A more detailed map of the places relevant to the proceedings assists in understanding the detail of what took place on the morning of 15 December:

25. SIEV 221 was first sighted at about 5.40am by Mr Ross Martin, a Customs officer present on Christmas Island to conduct training of Customs Officers, from the balcony of his room at Mango Tree Lodge overlooking the northern coastline of Christmas Island. Mr Martin described SIEV 221 as a “very basic vessel”. He observed puffs of black smoke coming from the vessel’s exhaust, which indicated to him that it was being propelled by its engine. He noted that there were whitecaps around the vessel in a swell of 3 to 4m but said he had no cause for alarm at that point.

26. At about 5.43am, Mr Martin telephoned Mr Leslie Jardine, the Customs Duty Officer, and informed Mr Jardine of his observations. Based on his observations, he did not suggest that a SOLAS situation had arisen.

27. At about 5.49am, Mr Jardine called the Customs National Operations Centre (“CNOC”) and advised them of Mr Martin’s report. Based on what he had been told by Mr Martin, Mr Jardine did not advise CNOC that SIEV 221 was in distress.

28. At about 5.50am, after speaking with Mr Jardine, Mr Martin returned to his balcony and noticed that SIEV 221 had altered course and was now heading south. He contacted his Manager, Mr Warwick Conlon, but not because he thought SIEV 221 was in danger. After speaking with Mr Conlon, Mr Martin noticed that SIEV 221 had again altered course. He observed people standing on the ship, whistling and shouting. At that point, the vessel disappeared from his sight as it continued moving towards Flying Fish Cove, apparently under its own power.

29. At about 5.45am, Mr Shane Adams, the Vice-Commander of the Volunteer Marine Rescue Services (“VMRS”) on Christmas Island heard a transmission over a marine radio from another member of the VMRS, Mr Alan Thornton, reporting a SIEV close to the rocks near Rocky Point on Christmas Island.

30. At about 5.55am, Mr Adams walked to a vantage point in the parking lot of the Golden Bosun Tavern. Mr Adams noted that it appeared as if a storm was building and there was a heavy sea swell. Mr Adams observed SIEV 221 about 150m from the shore. It appeared to be under power and attempting to steer around the roughest section of the water. Mr Adams did not consider that SIEV 221 was in any immediate danger at that point. He expected that the relevant authorities would try and intercept the vessel and take control of it and its occupants.

31. At about 6.00am, Mr Martin drove from Mango Tree Lodge to Flying Fish Cove, assuming that SIEV 221 might attempt to land there. Not initially able to see SIEV 221, he parked at Golden Bosun Tavern. At about that time, he received a telephone call from Mr Bruce Christensen, from Border Protection Command, to whom he expressed concerns about the safety of SIEV 221 and those on board. Mr Martin in evidence did not accept that a “potential shipwreck” situation had by then developed.

32. At about 6.11am, when Mr Martin next observed SIEV 221, he could not see any black smoke coming from its exhaust and the vessel was not moving across a fixed point. He considered, at that time, that SIEV 221 may have lost power and be in distress.

33. Between 5.55 and 6.00am, Enforcement Commander Saunders of the Triton was alerted by the Australian Maritime Security Operations Centre (“AMSOC”) to the possible presence of a SIEV. The Triton was, at this point, south of the Pirie on the leeward side of Christmas Island. The SIEV the subject of this call was obviously SIEV 221. Enforcement Commander Saunders was told that the SIEV was about 300m off Rocky Point at the time. Enforcement Commander Saunders was not informed that the vessel was in danger or distress and was not asked to respond.

34. At about 6.00am, the Pirie commenced lowering a Rigid Hull Inflatable Boat (“RHIB”) into the water to replace the steaming party that remained on SIEV 220. Commander Livingstone estimated that by about 6.11am, the RHIB was clear of the Pirie’s side.

35. Shortly after 6.00am, Commander Livingstone of the Pirie received a radio call from Enforcement Commander Saunders on the Triton, who enquired as to whether or not Commander Livingstone had received any information about a SIEV in the vicinity of Flying Fish Cove. It was agreed that HMAS Pirie would investigate the reported sighting, while the Triton would move north to oversee the steaming party on board SIEV 220.

36. Whilst Commander Livingstone agreed that any SIEV which found itself approximately 300 yards from the coast of Christmas Island would be in some danger, the primary judge found that the information conveyed to Commander Livingstone at this time fell short of a confirmation of the presence of any SIEV. Enforcement Commander Saunders had no immediate concern about the safety of the SIEV although he agreed that such vessels were not usually seaworthy according to Australian standards and that the state of the ocean at the time was rough to very rough.

37. At about 6.15am, as Mr Adams walked along the northern coastline of Christmas Island, SIEV 221 was struck by an incoming swell. It appeared that its fuel drum had been washed overboard. The loss of the drum from the stern of SIEV 221 terminated its fuel supply and caused the engine to fail. Mr Adams described this as changing the situation drastically. For the first time since SIEV 221 came under Mr Adams’ observation, he formed the view that it was in danger and that a potential SOLAS situation had arisen, primarily because the swell was pushing the vessel towards the cliffs.

38. Mr Adams considered that there were two possible responses on his part: attempting to launch a VMRS vessel or another vessel, or assisting as best he could from the shore with, for example, life jackets. Two additional vessels, an AFP catamaran called the Colin Winchester and a designated volunteer rescue boat called the Sea Eye, were also in the vicinity of Christmas Island. It was not safe or viable, however, to launch either of these or any other vessel which might have been available to the VMRS, given the prevailing weather conditions.

39. At about 6.28am, Mr Martin observed SIEV 221 being violently pushed and pulled by the swell and taking on large amounts of water from waves crashing over its sides. Parts of the vessel were beginning to break up. At this point, it was clear to Mr Martin that a SOLAS situation had arisen.

40. Following the 6.00am call from Enforcement Commander Saunders, Commander Livingstone gave instructions to his crew to prepare the Pirie to head north to investigate the reported SIEV. Preparing the Pirie took some time because of the need to clear the launched RHIB and ready the Pirie’s port engine, which had not been needed for the patrol it had been conducting and which had been shut down to conserve fuel. By about 6.21am, the Pirie headed north at what Commander Livingstone considered to be the maximum safe speed in the prevailing weather conditions.

41. At about 6.21am, Commander Livingstone was contacted by Northern Command Headquarters, Christmas Island (“NORCOM”), confirming the presence of SIEV 221 to the north of Rocky Point. Commander Livingstone advised that he was proceeding north, at the maximum possible speed, with his remaining RHIB. He was informed by NORCOM that the Pirie would need both of its RHIBs (it was equipped with two) because of the number of people on board SIEV 221. Due to this message, at about 6.23am, the Pirie returned south to recover the RHIB it had previously launched and had left in the vicinity of SIEV 220. This took about 10 minutes. By about 6.32am, the Pirie resumed traveling north at the maximum speed possible in the prevailing conditions.

42. At about 6.32am, Commander Livingstone received a message requesting assistance from NORCOM, stating that a SIEV was 50m off Rocky Point, had lost engines and was heading towards the coast. Commander Livingstone explained that, by this time, his priority had changed from one of “care taking” SIEV 220, to “shaping the best response [he] could with Pirie to a SIEV to the north”. He stated that the message from NORCOM clarified the situation and gave “an added degree of urgency” to the situation.

43. At about 6.34am, Commander Livingstone directed the crew of the Pirie to prepare for an imminent boarding and to prepare to launch the RHIBs. At about 6.35am, an alarm sounded, indicating a fault in the Pirie’s port main engine. The engine had to be shut down and the speed of the starboard main engine of the Pirie had to be reduced to avoid damaging both engines. The Pirie’s speed was significantly reduced. Commander Livingstone re-started the port engine, a process which took about one minute, and took the view that the speed should be restricted to reduce the chance of it shutting down again. The Pirie continued to travel north at a slightly reduced speed.

44. Commander Livingstone said that at this point he was unsure whether the circumstances would require a SOLAS response, but erred on the side of one being required including equipping the RHIBs with crew and life-saving equipment. Whilst still some distance from Rocky Point, he formed the view that in light of the conditions, the Pirie would not be able to safely launch the RHIBs in that area. He also thought that, once launched, the RHIBs would be able to reach Rocky Point more quickly than the Pirie because of the Pirie’s restricted engine capacity. To enable the safe launching of the RHIBs, the Pirie reduced speed and altered its course to the south to provide a lee in which to launch the RHIBs.

45. At about 6.35am, Customs Officer Pickett advised CNOC that SIEV 221 was about 100 yards off the northern coastline of Christmas Island and that the vessel was foundering but had not yet struck the rocks. At about 6.35am the Triton received a radio call from the Pirie advising that SIEV 221 was reported to have no engine power and was on the rocks. Enforcement Commander Saunders understood this to mean that the vessel was in danger of breaking up. It became clear to him that the situation was urgent. He gave instructions to commence preparations to launch the Triton’s two tenders (smaller boats carried by the Triton).

46. At about 6.38am, the launch of the RHIBs from the Pirie commenced. By about 6.46am both had been launched and were proceeding to Rocky Point. Both, however, were prevented from traveling at their full speed because of “the large swell, frantic sea state and reduced visibility”.

47. At about 6.40am, Mr Martin observed that SIEV 221 had started to make contact with the rocks at the bottom of the cliff face of the northern coastline. He stated that each time the vessel hit the rocks it would further disintegrate. He saw people throwing life jackets into the water and some of the passengers from SIEV 221 jump from the vessel into the water trying to grab them.

48. At about 6.40-6.45am, Mr Adams ran to the edge of the cliff face, at which time SIEV 221 was about 75m away. Mr Adams heard people on the vessel shouting “no engine”. Mr Adams left the cliff face and, with the assistance of others, gathered a number of life jackets.

49. At about 6.41am, the Triton’s second engine was brought on-line, making it available for use. Enforcement Commander Saunders briefed his tender crews and instructed them to prepare for a SOLAS situation.

50. By about 6.55am, the Triton’s second engine had been started and the Triton was heading north at the maximum safe speed in the prevailing conditions. At about this time, the Triton received a radio transmission from the Pirie advising that there were about 50 people in the water off Rocky Point. This meant that the Triton would need to launch both of its tenders in order to rescue people from the water.

25. At about 6.58am, the Pirie rounded North-East Point into the brunt of the inclement weather conditions.

26. At 6.59am, Commander Livingstone received a message informing him that SIEV 221 was “breaking against the rocks”.

27. At about 7.00am, each of the RHIBs radioed Commander Livingstone to indicate they had arrived at the scene. At about 7.05am, the Pirie had proceeded sufficiently around North-East Point to bring the RHIBs within view. At about 7.07am, Commander Livingstone received a report from the RHIBs that there were people in the water and life jackets and life rings were being deployed.

28. As the Triton approached North-East Point, Enforcement Commander Saunders concluded that it would be too dangerous to attempt to launch the tenders at that location. He ordered that the Triton slow and change course slightly to the south, to provide a lee for the safe launch of the tenders.

29. The first tender was launched from the Triton at approximately 7.04am, and the second at approximately 7.05am. Both were ordered by Enforcement Commander Saunders to proceed directly towards Rocky Point to assist SIEV 221. In the meantime, the Triton continued towards Rocky Point.

30. At about 7.08am, both of the Triton’s tenders were on the scene. By this time, the Pirie’s RHIBs were recovering people from the water.

31. Mr Adams returned at about 7.10am. At that time, SIEV 221 was only about 8m from the cliff face. There was a large, 3 to 4m swell, coupled with an intense backwash from the cliff face. Mr Adams formed part of a “human chain” to pass life jackets to the edge of the cliff face. Mr Adams could hear people on the vessel screaming. He saw the bow of SIEV 221 make contact with the cliff face. The backwash took the vessel about 5m from the cliffs and spun it around. Over the next 10 minutes, the vessel continued to be pushed towards the cliff by the swell before being pulled away by the backwash. Mr Adams then observed a large wave pick up the vessel and dash it onto the cliff face. After the wave receded, most of the vessel had broken up.

32. From approximately 7.24am, survivors from SIEV 221 were disembarked and taken aboard the Pirie.

33. At about 7.30am the Triton arrived. Enforcement Commander Saunders observed people being retrieved from the water. The Triton took up a position about 1 nautical mile from the coastline to provide support to the tenders and RHIBs and to operate, with the Pirie, as a command centre.

34. At about 7.32am, the Triton’s second tender developed engine problems. Enforcement Commander Saunders concluded that it would be too dangerous for it to continue to operate near to the rocks in the rough conditions on reduced power. He instructed the second tender to collect a life raft from the Triton and tow it to the scene before returning. The life raft was deployed on the Triton’s port side at about 7.37am. At about 7.47am, Enforcement Commander Saunders was notified that the towline to the life raft kept breaking. At about 8.18am he gave instructions to cut the raft adrift as it was not being utilised.

35. Between about 11.09am and 1.02pm, the Pirie’s RHIBs ferried survivors (as well as some of the deceased) ashore and assisted one of the Triton’s tenders to do the same. Over the next two days, the Pirie conducted additional searches but did not find further survivors or bodies.

The viability of towing SIEV 221

62. The following factual findings are critical to the causation issues on this appeal.

63. Even if SIEV 221 had not struck the rocks prior to the arrival of the RHIBs or the Pirie, it would still not have been viable to attempt to tow it because:

1. even in ideal conditions and with an experienced towing party, it would have taken about 30 minutes to effect a tow. Commander Livingstone first learned of the possible presence of SIEV 221 just after 6.00am, SIEV 221 first struck the cliff face at Rocky Point at about 7.00am and it would have been impossible for the Pirie to proceed to the scene of SIEV 221 from its position at 6.00am and effect a tow prior to SIEV 221 striking the cliff face;

2. it would have been necessary to embark a party on to SIEV 221 to attach a tow line to it. To do that, an RHIB would have had to get alongside SIEV 221. This would have been very dangerous in the prevailing conditions and might have led to the RHIB itself being punctured;

3. in order to tow SIEV 221, an embarked towing party would have had to attach a tow line to a strongpoint on SIEV 221. Commander Livingstone did not think there were any strongpoints on SIEV 221 sufficient to support a tow, and any attempt to tow it would have resulted in “tearing the vessel apart”;

4. any members of the towing party who managed to embark SIEV 221 would have been placed in grave danger while preparing for the tow;

5. even if a tow line could have been attached, SIEV 221 would have had to be towed directly into the prevailing wind, raising a high likelihood of SIEV 221 breaking up;

6. in any event, the RHIBs were not equipped and were usually not sufficiently powerful to generate the force necessary to overcome the conditions and tow a vessel of the size of SIEV 221;

7. in order to tow SIEV 221 from its position, the Pirie would have had to enter unsurveyed waters, within 300 yards of the cliff face, in extreme weather conditions.

64. In Commander Livingstone’s view, which was not effectively challenged in evidence, these factors meant that any attempt to tow SIEV 221 away from the cliff face would have been reckless, and would have created a very high likelihood of an even greater loss of life, including loss of members of the Pirie's crew. Commander Livingstone‘s evidence that “at no point was towing the SIEV a realistic option” was accepted by the primary judge.

65. Enforcement Commander Saunders gave evidence that even if the Triton or its tenders had arrived at Rocky Point before SIEV 221 struck the rocks, it would not have been possible or practical for either tender to have attempted to tow SIEV 221, for several reasons:

1. in order to effect a tow, it would have been necessary to embark a boarding party on to SIEV 221, which would have required a tender to be sufficiently close to SIEV 221 to allow the boarding party to transfer. This would have placed the tender at risk of being thrown on to the rocks and members of the boarding party would have been at risk of falling into the water;

2. even assuming it was possible to embark a boarding party, they would have been at great risk of being swept onto the rocks along with SIEV 221;

3. it would have been difficult to manage the responses of the passengers on board SIEV 221, given that they were likely to be panicked, and might have posed a threat to the crew;

4. in order to effect a tow, it would have been necessary to find suitable points on SIEV 221 that were strong enough to withstand the force of the tow in the prevailing conditions. He said that in his experience, SIEVs were notoriously unseaworthy, poorly constructed and overloaded, all of which would render it difficult to find a strongpoint;

5. even assuming suitable tow points could be found, a tender would have had to be alongside SIEV 221 to get close enough to throw a tow line on to SIEV 221. This would have resulted in the tender being placed in danger of being swept onto the rocks;

6. even if towing could have been commenced, there would have been a risk of SIEV 221 being positioned “beam on”, or in other words side-on to the prevailing swell, rendering it highly susceptible to rolling and capsizing;

7. in the extreme conditions there were risks of the tow point failing, SIEV 221 breaking apart from the force of the tow, the presence of debris in the water affecting the operation of the tender’s jets, and members of the boarding party or people on board SIEV 221 being injured or falling overboard during towing;

8. even if a tow had been attempted, completing the necessary steps before towing would have taken time to complete, about 20 to 30 minutes even in favourable conditions. During that time SIEV 221 would have moved closer to the rocks;

9. even if the entirety of these difficulties could have been overcome, the tender might not have had the power or capability to tow SIEV 221 away from the rocks to safety, given the prevailing conditions.

66. For the above reasons, Enforcement Commander Saunders explained that even if the Triton or its tenders had arrived at Rocky Point before SIEV 221 struck the rocks, he would not have directed the tenders to attempt to tow SIEV 221 away because such a direction would have placed the lives of the tender crew and boarding party at great risk, and would have amounted to a breach of his duty to ensure their safety. This evidence was accepted by the primary judge.

Notice of appeal

67. In their notice of appeal filed 19 December 2017, the appellants advance the following grounds of appeal:

“Questions 2 to 5 – The Duty Grounds

1.   Bellew J erred in finding that the Defendant did not owe a duty of care to any members of the Class:

a.   of passengers abroad the SIEV221 at [244] and [245] (question 2);

b.   of relatives of passengers on board the SIEV 221 at [266] (question 3);

c.   of rescuers or onlookers (which included employees and agents of the Defendant) at [288] (question 4);

d.   of passengers in respect of loss of property and possessions at [292] (question 5).

2.   Bellew J erred at [202], [203], [204], [261], [264], [288], [299] and [440] by finding that the Defendant had no control over the accepted risk that a SIEV, if not intercepted, might be shipwrecked on the coast of Christmas Island in circumstances where the Defendant had control over the ongoing patrol and interception operation in the vicinity of Christmas Island, the capacity to intercept the vessel and was the only legal owner of the vessel whilst it was in the vicinity of the waters of Christmas Island.

3.    Bellew J erred at [207] by finding that those on board SIEV221 were not vulnerable for the purposes of ascertaining the existence of a duty of care on the basis that they could have protected themselves by not undertaking the voyage on SIEV221 in circumstances where they were refugees with a well founded fear of persecution if they were returned to their country of origin and were seeking protection in Australia under the Refugee Convention in accordance with the ICCPR and had no means of disembarking the vessel once they had embarked upon it at sea.

4.   Bellew J erred at [215] and [219] by finding that the common law does not impose a duty to rescue strangers at sea because s265 of the Navigation Act does not imposed such a duty.

5.   Bellew J erred at [221] by finding the reasoning in Lowns v Woods (1996) ATR 81-376 was not analogous to the present case in circumstances where the Defendant’s employees and agents were physically proximate to the vessel and those on the SIEV221 had expressly asked officers of the Defendant for assistance from at least 6.02 am on 15 December 2010.

6.   Bellew J erred at [225] and [226] by finding that the evidence did not support a conclusion that anything done by the defendant in attempting to rescue any person from SIEV221 by failing to consider the increase in risk to the Plaintiff class occasioned by the Defendant openly conducting an ongoing surveillance interception operation at Christmas Island in relation to arriving SIEVs (see answer to Question 1) but failing to execute that operation on 15 December 2010.

7.   Bellew J erred at [234] by considering the Defendant’s ownership of the SIEV221 as only relevant to the existence of a duty of care if it created an analogous category of relationship to the occupier of premises and by failing to consider that the ownership gave the Defendant exclusive legal control over the vessel for the purposes of assessing the existence of a duty of care to those persons on the vessel.

8. Bellew J erred at [239], [240] in construing s261A of the Migration Act and the Migration Act as being inconsistent with the existence of the duty of care towards the occupants of the vessel who were not guilty of any criminal offence (as opposed to a mere contravention of the requirement to hold a visa on entry to Australia under s 42 of the Act) – those being the trafficked persons who were the victims of the relevant forfeiture offences committed by the people smugglers.

9.   Bellew J erred at [243] in holding that the imposition of a duty of care on the Defendant to prevent loss of life at sea by surveillance, interception and detention of persons on forfeited vessels would “ stimulate the conduct which the which the underlying policy of the Migration Act seeks to suppress”, the Act does not promote the loss of life at sea as a means of deterrence of people smugglers.

10.   Bellew J erred at [262] by finding that there was an absence of ‘any relevant relationship between the defendant and the passengers on board or their relatives’ in circumstances where there was a relationship between the Defendant and those on the Vessel by reason of the Defendant’s ownership of the Vessel, exclusive legal control of the vessel, proximity to the vessel and assumed role in providing a interception and detention operation at Christmas Island in relation to SIEV arrivals.

11.   Bellew J erred by failing (see formulation at [268] and [283]) to decide a material issue raised by the appellant, namely whether a duty of care was owed by the Defendant to members of the class of onlookers and/or rescuers who were employees or agents of the Defendant.

12.   Bellew J erred in failing to disclose to the plaintiff his intention to take into consideration (as his Honour did at [282]) the conduct of the plaintiff in not advancing evidence of any member of the class suffering a recognisable psychiatric illness in circumstances where the case had been conducted on the basis at the trial of the common questions going to liability there was no need to prove actual damage on the part of the members of the class.

Question 6

13.   Bellew J erred at [306] and [307] in answering Question 6 by inserting a qualification to the answer that the Shipwreck Risk was an ‘inherent risk’ that could not have possibly been avoided even if the greatest possible skill and care had been exercised.

14.   Bellew J erred at [304]-[307] and [312] by failing to give proper weight to the evidence that 51 SIEV Vessels had safely arrived at Christmas Island in the period 1 January 2010 to 15 December 2010 either by landing or being interception by Operation Resolute in the vicinity of Christmas Island.

15.   Bellew J erred at [304]-[307] and [312] by failing to give proper weight to the evidence that SIEV 220 had been safely intercepted and escorted to the lee of the Island by the HMAS Pirie on 14 December 2010 in similar conditions faced by the SIEV 221 without any loss of life and without colliding with the shore.

Question 9- The Readiness Precaution

16.   Bellew J erred by finding at [329] and [335] that it was Government policy to prohibit the arrival of SIEVs into Australia and that there was no social utility whatsoever in the safe reception of refugees to Australian territory in accordance with Australia’s international obligations.

Question 10- The Ongoing Patrol Precaution

17.   Bellew J erred at [341], [342] [344] by failing to give proper weight to the evidence in Exhibit C that the prevailing threat level for the arrival of a SIEV at Christmas Island at the time of Commander Livingstone’s decision to not return to his Patrol was “high”.

18.   Bellew J erred by drawing a wrong inference of fact at [44]-[45] that ‘the threat status for arrivals of SIEVs was medium between midday 12:00 on 14 December 2010 and 5:40 on 15 December 2010 from the primary facts (namely Exhibit C).

19.   Bellew J erred at [345] by drawing the wrong inference of fact from the primary facts namely that the evidence did not support a conclusion that Pirie would have detected SIEV221 had it resumed surveillance.

20.   Bellew J erred at [347] by answering question 10 “No”.

Questions 11 and 12– Defendant’s Failure to Respond to SIEV 221 at around 6:00 on 15 December 2010

21.   Bellew J erred at [354], [355] [369] by drawing a wrong inference of fact from the primary facts, namely “when he [Commander Livingstone] received the communication from Commander Saunders around 6:00 on 15 December 2010 that he was alerted to the possible, as opposed to confirmed, presence of a SIEV”. That inference was contrary to the primary evidence, namely the log of the Pirie, the communications log of the Triton and the recordings and the transcript of the recordings of the communication.

22.   Bellew J erred at [367] to [375] by answering Question 12 ‘no’ without any reference to or consideration of the evidence of the NORCOM watchkeeper log which was tendered in evidence that the Defendant’s Northern Command (NORCOM) for Border Protection Command in charge of the military assets (namely the HMAS Pirie) had:

a.   communication available with the Pirie and NORCOM had the capacity to give the Vessel command instructions;

b.   received information at 05.48 AM on 15 December 2015 from Customs at Christmas Island had advised NORCOM that a Contact of Interest had been sighted 150 m off Rocky Point;

c.   recorded by at least 06:03 am that there was a “confirmed Critical Contact of Interest 250m off Rocky Point” [within the ‘danger zone’ accepted by his Honour at [355];

d.   that the information had been conveyed by a Customs Officer (Mr. Myles Pickett) from the shore;

e.   that Mr. Pickett had the day before stressed the danger faced SIEV220 which was 400m out from the rocks in less severe weather conditions.

f.   The above information held by NORCOM was not passed on to the Pirie until 6.25 AM.

23.   Bellew J erred at [367] to [375] by answering Question 12 ‘no’ without any reference to or consideration of the evidence that the Customs National Operations Centre (CNOC) Critical Incident Running Sheet that on 15 December 2010:

a.   At 05:47 am Customs officers had advised CNOC that a Contact of Interest had been sighted 200 meters offshore near Mango Tree Lodge;

b.   At 05:48 am, Border Protection Command was advised.

c.   At 05:53 am a Contact of Interest SMS was sent to the CNOC SMS list (which included the Enforcement Commander of Triton);

d.   06:06 am an email was sent to Border Protection Command advising of details.

24.   Bellew J failed to draw the correct inference from the primary facts by failing to find that the Defendant could have and should have sent the Pirie and/or Triton to the assistance of SIEV 221 at sometime between 5.48 am and 6.03 am on 15 December 2010.

25.   Bellew J erred at [370] and [371] by failing to draw the proper inference of fact from the primary evidence, namely by reference the transcript of Commander Livingstone’s evidence to the coronial inquest (which was tendered) that had he commenced his rescue operation at 6.00 am, the RHIBS and the Pirie would have been on the scene of SIEV 221 before it broke up and would have been able to make a more efficacious rescue.

26.   Bellew J erred at [367] to [374] by failing to have regard to the evidence of Commander Livingstone of the timing of the responses of the HMAS Pirie once he was appraised of the full circumstances of the situation of the SIEV 221 at around 06:25 am to arrival on the scene at 07:00 am – which would have been replicated commencing from between 05:47 and 06:03 am (had the information known by NORCOM and/or CNOC at those times) been passed on to Commander Livingstone which would have placed the HMAS Pirie on the scene between 06:22 and 06:38 am – before the SIEV 221 broke up on the rocks.

27.   Bellew J erred at [367] to [374] by failing to decide material issues raised by the appellant, namely the earlier arrival of the HMAS Pirie and/or her RHIBS would have substantially reduced the risk of harm to the class members.

28.   Bellew J erred at [375] by answering question 12 ‘no’.

Question 13

29.   Bellew J erred at [391] erred by finding that the evidence did not support a conclusion that even if the Pirie had undertaken a patrol further to the north of Christmas Island it would have detected the SIEV221 and, if so, would have been able to intercept it. His Honour failed to failing to give proper weight to the evidence that:

a. the evidence of Commander Livingstone that the purpose of his usual patrol was to detect vessels on their usual approaches to Christmas Island;

b. Of the 51 SIEVs arriving at Christmas Island between January 2010 and December 2010, only three had not been intercepted and arrived at Christmas Island;

c. The unchallenged evidence of Mr. Shahvari was that the SIEV221 was within range of the lights of the Christmas Island settlement at Flying Fish Cove sometime between 4 and 5 am prior to dawn whilst it was still dark. The normal barrier patrol path of the Pirie would be across the Flying Fish Cove.

d. It was accepted by Commander Livingstone that SIEVs generally attempted to make themselves known to the Navy and in this case those on board SIEV221 were making efforts to alert the attention of people on shore to their presence;

e. The SIEV 221 had been observed by some locals steaming on an east west track north of the Island since from sunrise at least 05:40;

f. When the Pirie did round Rocky Point it was able to locate the vessel quickly visually;

g. Pirie had available to it an effective suite of surveillance devices including PRISM, the Electro-Optical Device and visual observation.

30.   Bellew J erred at [392] on the same basis of the errors identified in relation to Question 12.

31.   Bellew J erred at [393] by failing to exclude the opinion evidence of Commander Saunders and Livingstone when neither witness was qualified as an independent expert.

32.   Bellew J at [393] by failing to admit the evidence of Mr. Dag Pike who was qualified as an expert witness and had subscribed to the expert code of conduct.

33.   Bellew J erred at [393] by failing to give any weight to the evidence of Officer Shane Adams at T229 that the AFP had towed a SIEV vessel to sheltered waters at North West Point.

34.   Bellew J erred at [394] by answering Question 13 'no' without deciding material issues raised by the appellant, namely that the earlier response precaution or the ongoing patrol precaution would have substantially reduced the risk of harm to the class members.

Questions 14 and 15

35.   No ground of appeal is raised in relation to Questions 14 and 15.

Question 17

36.   Bellew J erred at [437] to [444] by misconstruing the Navigation Act as not imposing continuous obligations on Ship-owners to ensure that the seaworthiness requirements imposed by ss208, 227B are met during the entire course of the voyage rather than merely at the commencement of the voyage.” (citations omitted)

Appellants’ submissions

68. The appellants submitted that the key issues on the appeal could be grouped into three broad categories. It is convenient for the purpose of analysing the issues to adopt those categories:

“a.   Issue 1: Was there an error in relation to the finding that the defendant owed no duty of care to any of the plaintiff class by failing to look to established categories of duty and by misapplying the multifactorial test for any novel duty:

b.   Issue 2: Was the finding that there was no breach of the duty:

i.   to carry out the interception operation vitiated by an erroneous finding that there was a ‘medium threat level; which his Honour found made it reasonable for the defendant to not have the Pirie on its usual patrol?

ii.   to carry out the rescue mission with reasonable care by not dealing with the defendant’s (through CNOC, BPC and NORCOM) failure to advise the Pirie at 5.46am that the SIEV was within 150 m of rocky point and instead only focusing on the actual state of knowledge of Cmdr Livingstone?

c.   Issue 3: Was there an error in the finding that there was no causation of any loss or damage:

i.   by any breach of the duty to carry out the interception operation because no consideration was given to the accepted facts that there had been a very high percentage of successful interceptions at Christmas Island, there as good visibility, the SIEV had tracked north of the Island since 4 am; and there was a successful interception the day before of SIEV220 in similar conditions.

ii.   By any breach of the duty to conduct the rescue operation with reasonable care by wrongly excluding the evidence of the plaintiffs expert Mr Dag Pike but admitting the evidence of Commanders Livingstone and Sanders as to the capacity of the RHIBs to get a line to the SIEV to hold it off the rocks had they arrived before it broke up and by failing to deal with whether an earlier arrival would have occurred (had Pirie been tasked by the defendant earlier than it was) and consequently failed to deal with whether an earlier arrival would have substantially reduced the risk of harm to the members of the class.” (citations omitted)

Issue 1 – duty of care findings

69. The appellants submitted that the evidence demonstrated that:

1. the areas 12 miles north of Christmas Island are within Australia’s search and rescue zone, while beyond that is Indonesia’s search and rescue zone;

2. anyone arriving at Christmas Island by ship was confronted by rocky shores with only a couple of sheltered access points, one of which was Flying Fish Cove, and the other, Ethel Beach; and

3. Commonwealth vessels, the Pirie and the Triton, were stationed on or near Christmas Island as part of Operation Resolute.

70. The appellants submitted that the point of having those vessels stationed was “to prosecute the government’s policy of ensuring that no irregular entrant to Australia touched foot directly onto Australian soil, even though this [Christmas Island] had been excised from the migration zone”. The appellants submitted that this purpose, of stationing vessels to intercept and disembark irregular maritime arrivals, was well-known.

71. The appellants submitted that the primary judge erred in finding that the Commonwealth did not owe a duty of care to any members of the class which included passengers on board the SIEV 221 at [244] and [245]; of relatives of passengers on board the SIEV 221 at [266]; of rescuers or onlookers (which included employees and agents of the respondent) at [288]; and of passengers in respect of loss of property and possessions at [292].

72. The appellants submitted that there were various ways in which the primary judge could and should have found a duty owed by the respondent to the appellants.

An established category of duty of care

73. The appellants submitted that a duty was owed by the respondent flowing from an established category of duty.

74. First, the appellants submitted that there was an “obligation to safely disembark…asylum seekers before they get to Australia”. The appellants submitted that Robinson v Chief Constable of West Yorkshire Police [2018] AC 736; [2018] UKSC 4 provided a relevant analogy. By having vessels patrol and intercept SIEVs, the Commonwealth created the circumstances in which the irregular immigrants on SIEV 221 were harmed. By deciding to take the Pirie off its “normal patrol”, particularly given the existence of a “high” threat alert status, the Commonwealth breached that duty. The Commonwealth had control over the “attractiveness” of Christmas Island as a destination and over the ownership of the vessel when it came in to Australian waters, and this “attractiveness” arose out of Operation Resolute and the standing orders of those involved in the operation. In oral submissions, the appellants emphasised that it was “well-known” to people smugglers and irregular maritime arrivals that there was a permanently stationed vessel on Christmas Island tasked with intercepting and disembarking SIEVs. The appellants submitted that it was well-known that Christmas Island was a destination for those asylum seekers and that it was well-known to people smugglers that they could “let [asylum seekers] come to Australia on leaky boats because at the other end the navy would be there to look after them and…Border Protection Command knew this”. The appellants submitted that this conclusion followed from the evidence given by Rear Admiral Barrett, the commander of Operation Resolute, to the coronial inquiry, the transcript of which was tendered before the primary judge. The appellants submitted that the primary judge did not deal with this evidence. The appellants further submitted that Rear Admiral Barrett was aware that the presence of response vessels made Christmas Island an attractive destination for people smugglers, along with its proximity to Indonesia. The appellants submitted that the Commonwealth’s actions in stationing vessels on Christmas Island and patrolling formed part of the “matrix of the arrival of these SIEVs” which, the appellants argued, would not be heading for Christmas Island unless the people smugglers were sure they would be intercepted.

75. Secondly, the appellants submitted that there was an established category of duty of care owed by the respondent to its employees and agents. The failure to take reasonable care to avoid loss and damage arising from the “accepted and foreseeable risk” that a SIEV approaching Christmas Island would, if not intercepted, be shipwrecked on the shore of Christmas Island, exposed employees and agents of the Commonwealth to nervous shock by witnessing the events; the immediate aftermath; or physical harm arising from involvement in rescue attempts.”

76. Thirdly, the appellants submitted, as a basis for finding a duty of care owed by the respondent to them, that there was a pre-existing category of duty owed in the Lowns v Woods (1996) Aust Torts Reports 81-376 sense in relation to the rescue operation following Mr Jardine’s request for the navy to intercept the SIEV. The appellants submitted that the primary judge erred in finding that Lowns v Woods was not analogous to the present case.

77. Fourthly, the appellants submitted that the primary judge erred in failing to consider whether the particular circumstances of this case enlivened an existing category of duty and only had regard to the multifactorial test in addressing a novel duty of care. The relevant salient factors which were said to generate an existing category of duty included the ongoing patrol operation constituting a positive act of the respondent, and the accepted category of duty owed by the respondent to its “servants and agents” who were engaged in a rescue operation and witnessed the catastrophic loss of life.

78. Fifthly, the appellants submitted that the primary judge incorrectly conflated the absence of authority establishing a duty in precisely the same factual situation with there being no need to look at pre-existing categories of duty and only viewed duty through the prism of a novel duty.

79. The appellants submitted that the Commonwealth’s ongoing and continuous engagement in an operation in proximity to the arrival place for the regular and foreseeable arrival of irregular immigrants was relevant to the application of pre-existing approaches to a duty of care. The appellants submitted that it was reasonably foreseeable that there was a shipwreck risk arising from SIEVs approaching Christmas Island in dangerous conditions, and that there was at least a duty owed by the Commonwealth to its own employees to prevent the foreseeable harm to them of witnessing and responding to a shipwreck.

80. The appellants submitted that the respondent sought to make a false dichotomy between labelling Border Protection Command a “law-enforcement operation” versus a “search and rescue operation” and that these labels made no difference to the true purpose of Operation Resolute.

81. The appellants submitted that too much emphasis was placed on whether the words “in distress” were used to describe SIEV 221 in the phone calls notifying Border Protection Command of its presence. The appellants submitted that the Commonwealth was clearly in receipt of information that made it plain that the vessel was in danger and that Commander Livingstone ought to have known that SIEV 221 was approaching the windward side of the island and was in distress.

A novel duty of care

82. The appellants submitted that “[t]he duty argued for by [them] was …[a] duty arising from the proper application of the multifactorial approach…”. It was submitted that the primary judge erred in his Honour’s application of that multifactorial test to establish a novel duty, and in particular that his Honour:

1. incorrectly treated the question of control as an absolute constraint in the multifactorial test where a public authority is involved;

2. incorrectly found that the respondent had no control over an accepted risk of harm, without regard to the Commonwealth’s control over the ability to intercept the vessel by reason of the ongoing patrol operation, had it been executed with reasonable care;

3. failed to give consideration to the factors which clearly favoured a duty of care from the list of ‘salient features’ in Caltex Refineries (Qld) Pty Limited v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258, including: the accepted foreseeability of harm if the vessel was not intercepted; the existence of a defined and determinate class of relationship between the defendant and the classes of plaintiff; the very serious nature of the harm where the vessel is not intercepted; the degree and nature of control able to be exercised to avoid harm; and the vulnerability of the plaintiffs to the harm from the conduct of removing the patrol, given once on the vessel with no interception facility the passengers could not escape and only the Commonwealth had any legal ability to take control of the vessel by interception;

4. erred in finding that the respondent had no control over the accepted risk that a SIEV, if not intercepted, might be shipwrecked on the coast of Christmas Island in circumstances where the defendant had control over the ongoing patrol;

5. erred in finding that those on board SIEV 221 were not vulnerable. The reliance placed on Brookfield Multiplex v Owners - Corporation Strata Plan61288 (2014) 254 CLR 185; [2014] HCA 36 for the proposition that vulnerability was a necessary pre-requisite for establishing a duty of care was misplaced, as that case was about pure economic loss;

6. “…appears to have been heavily influenced by the position he adopted that those who sought asylum were engaged in an illegal venture and it would be contrary to policy to afford them the protection of a common law duty of care”;

7. made an erroneous finding in relation to any duty to rescue. In relation to the application of s 265 of the Navigation Act, the appellants submitted that they do not rely upon a statutory duty;

8. failed to take into consideration that the respondent owned the SIEV 221 for the purposes of the multifactorial test. The respondent’s ownership of the vessel was “…of importance to the factors involved in the multifactorial approach because it created a relationship between the Commonwealth and the occupants of the vessel by giving the [respondent] exclusive legal control over the vessel”;

9. erred in finding that there was an absence of “any relevant relationship” between the respondent and the passengers on board or their relatives”, in circumstances where there was a relationship between the respondent and those on the vessel by reason of the respondent’s ownership of it; and

10. erred in construing s 261A of the Migration Act 1958 (Cth) as being inconsistent with the existence of a duty of care towards the occupants of the vessel who were not guilty of any criminal offence. The appellants submitted that there is no basis in the text or context of the legislation which makes the Commonwealth’s ownership a different class of ownership to any other form with any lesser rights or responsibility.

83. In oral submissions the appellants emphasised that, in the context of the Commonwealth having control over SIEV 221, the automatic forfeiture effected by s 261A of the Migration Act (in this case a contravention based on people smuggling) meant that the Commonwealth controlled the vessel. The appellants submitted that the decisions in Olbers Co Ltd v The Commonwealth (2004) 136 FCR 67; [2004] FCA 229 and Tranv The Commonwealth (2010) 187 FCR 54; [2010] FCAFC 80 establish that at the time SIEV 221 was forfeited it was owned and thus controlled for all relevant purposes by the Commonwealth.

84. The appellants submitted that the forfeiture effected by the Migration Act included an automatic and immediate transfer of ownership when the vessel crossed into Australian waters. The appellants submitted that this legal ownership meant that the Commonwealth had a right and an obligation to intercept the vessel which was their property and that this goes to control. The appellants submitted that the extent of this control could be seen in the fact that the man in charge of SIEV 221 was convicted of people smuggling after the event, but the Commonwealth acted to attempt to seize the vessel even though his guilt had not yet been proved. The appellants submitted that this legal ownership became an incident of control which went to the duty of care (although they emphasised that it was one factor in the matrix of obligations imposed upon the Commonwealth by the facts of the case). The appellants submitted that ownership gave rise to a duty to ensure the vessel was navigable and seaworthy and to ensure that people who occupy the vessel do not come to foreseeable harm.

85. The appellant submitted that the respondent’s conception of the purposes of the Border Protection Command operation under the Migration Act – that it essentially involves the deterring, suppression and control of irregular maritime arrivals of unlawful noncitizens – was misconceived. Regarding the purposes of the Migration Act, the appellant submitted that s 4 expresses its objects as being “to regulate, in the national interest, the coming into and presence in Australia of non-citizens; to provide for visas permitting non-citizens to enter or remain in Australia, which Parliament intends to be the only source of the right of non-citizens to so enter or remain; to require persons to identify themselves so that the Commonwealth Government can know who the non-citizens are so entering”. The appellant submitted that the respondent’s submissions did not reflect the objects as set out in the legislation. Section 4 of the Migration Act is in the following terms:

“4 Object of Act

(1) The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non‑citizens.

(2) To advance its object, this Act provides for visas permitting non‑citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non‑citizens to so enter or remain.

(3) To advance its object, this Act provides for non‑citizens and citizens to be required to provide personal identifiers for the purposes of this Act or the regulations.

(4) To advance its object, this Act provides for the removal or deportation from Australia of non‑citizens whose presence in Australia is not permitted by this Act.

(5) To advance its object, this Act provides for the taking of unauthorised maritime arrivals from Australia to a regional processing country.”

86. The appellants submitted that passengers on SIEVs were always seeking to apply for visas under s 45 of the Migration Act. The appellant, effectively, submitted that it should be taken on judicial notice that people on board SIEVs would make applications for protection visas on arrival and that there was an immigration processing regime put in place on Christmas Island for that purpose: Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37.

87. The appellants submitted that, although arriving in Australia without a visa is a contravention of s 42 of the Migration Act, it is not a crime or misdemeanour. The appellants submitted that the use of the nomenclature “law enforcement and security operations” could not provide immunity from the common law duty of care.

88. The appellants submitted that there was a clear and express object of the Migration Act at the time to give effect to Australia’s protection obligations under the Refugee Convention by creating an entitlement to apply for and be granted a visa on that basis under s 36 of the Migration Act.

“…and we’re not criticising Commander Livingstone, we’re saying had he been appraised appropriately at the appropriate time by those who were informed there was a vessel heading in towards the cove then he would have immediately appreciated that anything in those sea conditions approaching the cove – and if he was told it was 200 m away – would be in danger because that was what he agreed was the position the day before. So what we say is it doesn’t have to be a SOLAS situation”.

282. The appellants accepted that SIEV 221 lost fuel and power at 6.15am and started drifting towards the rocks in rough seas. Relying on the following cross examination of Commander Livingstone, they submitted that this new case was made at trial:

“Q. Assuming and just to remind you where we’re at, you still had the RHIBs on board, you hadn’t sent them off to look after SIEV 220, you’ve proceeded north at the speed that your engines subsequently allowed you to proceed and launched the RHIBs in the lee of the island. I’m suggesting to you that from the time you commenced that process it would be about 20 minutes until the RHIBs at least arrived off Rocky Point?

A. Sorry, the point of reference for the time –

Q. The point of reference being that you were off –

A. Sorry, timeframe wise?

Q. Yes, off, at say 5.50 say just give you a bit more allowance, at 5.50 that you were off Ethel Beach at the southern end of your racetrack and that your time to get the RHIBs having launched them in the lee of the island already you’re motoring up on the east side and then launch, it would be about 20 minutes from the point when you made that executive decision to go north, until the RHIBs arrived off the Rocky Point?

A. Yes, assuming all those conditions.

Q. Assuming that, and assuming at that point the boat was still either just under power, or had just lost power, but was 150 metres out. Your RHIBs with the skill the drivers have shown, would be able to come quite close alongside the SIEV?

A. No, from a safety perspective, a vessel of the SIEV size in those conditions is a dangerous target for a RHIB to approach. They would certainly go no closer than 20 m. The way that SIEV was moving about, the risk, to RHIB of being punctured or impacted is one factor, whether it was underway or under power or not, and then once they were there – assuming they had been there, and within range of the SIEV, their actions would be very limited from that point onwards. Their presence is about all they would be able to provide from that point of view.”

283. This cross-examination did not raise the issue now sought to be agitated.

284. Returning to the pleading, it is clear that this issue was not raised. The relevant precaution identified in the pleading as the “Earlier Response Precaution” was pleaded at paragraphs 52 to 71 of the further amended statement of claim. In essence what was pleaded was that at 6.40 am on 15 December 2010 SIEV 221 entered Flying Fish Cove being internal waters of Christmas Island and that at 7.10am on 15 December 2010 it broke apart after smashing into rocks at Flying Fish Cove. It was pleaded that SIEV 221 was observed from the shore of Christmas Island between about 5.10am and 5.40am. There was no finding by the primary judge that SIEV 221 was observed before 5.40am, and no ground of appeal seeks such a finding.

285. Paragraph 60 of the amended statement of claim, critically, provides:

“At or about 6:00am the Commanding Officers of both the HMAS Pirie and the ACV Triton knew or ought to have known that the SIEV 221 was approaching the windward side of the Island and was in distress at sea.”

286. The relevant breach, pleaded by paragraph 68, is that:

“In the circumstances, a reasonable servant or agent of the Defendant, in the position of the commanding officers of the HMAS Pirie and the ACV Triton, would have in response to the Shipwreck Risk and the information available to him by about 6 am on 15 December 2010, taken the precaution of (“the Earlier Response Precaution”):

a.   immediately sailing the HMAS Pirie and ACV Triton towards Flying Fish Cove; and

b.   immediately deploying their available RHIBs and tenders towards Flying Fish Cove to tow or anchor SIEV 221; and

c.   not stopping to collect an additional RHIB.”

287. It was alleged that the commanding officers of the Pirie and the Triton did not take the Earlier Response Precaution.

288. From the pleading it is clear that there was no allegation that between 5.40am and when the Commanding Officers of the Pirie and the Triton were told something at about 6.00am that there was any breach of any duty owed to the appellants.

289. The relevant separate question, Question 12, addresses the issue arising on the pleading, and not this new case, as follows:

Question: Whether in response to the Shipwreck Risk, and SIEV 221 being in distress at about 06:00 on 15 December 2010, a servant or agent of a public authority in the position of the defendant, owing the duty of care owed by the defendant, would have taken the precaution of sailing the HMAS Pirie and the ACV Triton to attend to SIEV 221 earlier than they in fact did (“the Earlier Response Precaution”)?

290. No case was conducted below or pleaded about what is said to be some failure immediately to communicate information which was obtained at 5.40am.

291. The appellant should not be permitted to run this new case on appeal. If this case had been run, it is plain that the Commonwealth could have led evidence to address it.

292. In any event, underpinning the appellants’ case on unreasonable delay was an assumption that it was possible or practical for the Pirie and the Triton instantaneously to react to Mr Martin’s sighting of SIEV 221 at 5.40am. This assumption is obviously unrealistic, and there was simply no evidence led by the appellants about this issue.

293. Grounds 21-24 of the notice of appeal should be dismissed.

c.   Issue 3: Was there an error in the finding that there was no causation of any loss or damage:

i.   by any breach of the duty to carry out the interception operation because no consideration was given to the accepted facts that there had been a very high percentage of successful interceptions at Christmas Island, there was good visibility, the SIEV had tracked north of the Island since 4 am; and there was a successful interception the day before of SIEV 220 in similar conditions.

294. This part of the case addressed grounds 13-15, 29 and 34 of the notice of appeal. The primary judge did not err in finding that the evidence did not disclose that “even if the Pirie had undertaken a patrol further to the north of Christmas Island it would have detected SIEV 221 and, if so, would have been able to intercept it”.

295. First, the evidence did not support a finding that the Pirie would have been able to detect SIEV 221 in the dark on the morning of 15 December 2010 and prior to it approaching the cliffs. The performance of the Pirie’s radar systems was substantially hampered by weather conditions at Christmas Island on 14 and 15 December 2010.

296. Secondly, references to SIEV 220 being detected the day before are unhelpful. SIEV 220 was intercepted by the Pirie in daylight on 14 December and only after the Pirie had been informed that a SIEV had been sighted 300 yards north of Flying Fish Cove. In contrast, it was dark when SIEV 221 came within visual range of Christmas Island. In addition, SIEV 220 was a smaller and more manoeuvrable vessel than SIEV 221. What was possible in daylight on 14 December in dealing with SIEV 220 is of little assistance in seeking to infer what was possible for the Pirie in detecting and intercepting SIEV 221 on 15 December.

297. Thirdly, little weight can be given to the number of SIEVs which had been detected and intercepted near Christmas Island between 1996 and 2010. Numerical comparisons, without knowing something about the size of the relevant vessels and the weather and sea conditions at the time of the interceptions are apt to mislead. Commander Livingstone rejected the “oversimplified” proposition that, had the Pirie conducted a barrier patrol further to the north of Christmas Island on 15 December 2010, it would have detected SIEV 221, because the precise course of the patrol might have varied according to the commanding officer’s discretion and it might have taken a different approach. Further, even if the Pirie had detected SIEV 221 on radar, it would not necessarily have investigated that indication in the absence of visual confirmation, which would have been difficult in the darkness and prevailing weather conditions. No sufficient reason was advanced to question the acceptance of that evidence by the primary judge.

298. The evidence was that the crew and passengers on board SIEV 221 only attempted to make their presence known prior to arriving within sight of Christmas Island between 4 and 5am on 15 December. The methods used to get the attention of those on the shore, yelling and using flashlights, were evidently not effective in the inclement weather and darkness.

299. The Pirie’s racetrack on the evening of 14 December and early morning of 15 December was as follows:

300. As I have concluded at [271], the exact position of the racetrack was not mandated.

301. The primary judge did not err in concluding that there was no causation of any loss or damage by any breach of the duty to carry out the interception operation.

302. Grounds 13-15, 29 and 34 of the notice of appeal should be dismissed.

ii.   By any breach of the duty to conduct the rescue operation with reasonable care by wrongly excluding the evidence of the plaintiffs expert Mr Dag Pike but admitted the evidence of Commanders Livingston and Sanders as to the capacity of the RHIBs to get a line to the SIEV to hold it off the rocks had they arrived before it broke up and by failing to deal with whether an earlier arrival would have occurred (had Pirie been tasked by the defendant earlier than it was) and consequently failed to deal with whether an earlier arrival would have substantially reduced the risk of harm to the members of the class.”

303. This part of the case addressed grounds 25-28 and 30-34 of the notice of appeal. There was no error in the primary judge’s admission in evidence of the statements of Commanders Livingstone and Saunders. Both men were highly experienced in their roles, and both were present on 15 December 2010 and personally observed the weather conditions and the scene which confronted SIEV 221 and the rescuers. Both also set out their reasoning underpinning their opinions.

304. In relation to the evidence of Mr Pike, the trial judge was correct to exclude his report: Ibrahimi (No 3) [2016] NSWSC 1438. Mr Pike’s reports made no attempt to set out the calculations and reasoning upon which he based his opinion that certain boats would have been capable of towing SIEV 221 away from danger.

305. The plurality in Dasreef said:

“[30] Section 79(1) of the Evidence Act must be understood in its statutory context. Section 76(1) of the Evidence Act provides that "[e]vidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed". That exclusionary rule is referred to in the Evidence Act as "the opinion rule". Subsequent provisions of the Evidence Act provide a number of exceptions to the opinion rule. Section 79(1) provides that:

"If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge."”

306. To be admissible under s 79(1), the evidence must satisfy two criteria. The first is that the witness "has specialised knowledge based on the person's training, study or experience"; the second is that the opinion expressed "is wholly or substantially based on that knowledge". As the plurality explained in Dasreef:

“[42] A failure to demonstrate that an opinion expressed by a witness is based on the witness's specialised knowledge based on training, study or experience is a matter that goes to the admissibility of the evidence, not its weight. To observe, as the Court of Appeal did, that what Dr Basden said about the volume of respirable dust to which Mr Hawchar was exposed over time was "an estimate" that was "contestable and inexact" no doubt did direct attention to its worth and its weight. But more importantly, it directed attention to what exactly Dr Basden was saying in his evidence and to whether any numerical or quantitative assessment he proffered was admissible. And if, as the Court of Appeal observed, his opinion on that matter lacked reasoning, the absence of reasoning pointed (in this case, inexorably) to the lack of any sufficient connection between a numerical or quantitative assessment or estimate and relevant specialised knowledge.” (footnote omitted)

307. Mr Pike’s report fell well short of admissibility under s 79 of the Evidence Act 1995 (Cth). Shortly put, there was a failure to demonstrate that the opinions expressed by Mr Pike were based on his specialised knowledge founded on training, study or experience.

308. There is no doubt that Mr Pike had considerable potentially relevant expertise. The primary judge found as much. It is, however, also correct, as the primary judge found, that the formula used by Mr Pike was not explained nor was its source identified. The formula was acknowledged to relate to tugs and vessels with displacement hulls rather than the vessels involved in this case. Mr Pike did not identify any basis for concluding that the formula was applicable here. The reasoning process for his conclusion that “it would require a bollard pull of 2 tonnes to start making any progress to windward when towing SIEV 221” was not exposed. No assumptions about apparently critical integers to that calculation such as the power of the vessel doing the towing, and the sea conditions, were exposed in Mr Pike’s reasoning. Despite these gaps, Mr Pike’s report expressed opinions about the towing capacity of individual vessels - the Zodiac 773 Hurricane (either alone or in combination with another such vessel), the Norsafe 850 RHIB (either alone or in combination with another such vessel) and the Wiltrading Pursuit 640 vessel. None of his calculations or reasoning for the opinions expressed was exposed.

309. The primary judge correctly concluded that these omissions and lack of explanation was a matter going to the admissibility of the evidence, and not its weight. There were also issues addressed by Mr Pike which were outside the appellants’ pleaded case. His Honour correctly rejected those parts of the report.

310. His Honour’s ruling was made on 4 October 2016. The trial was completed on 5 December 2016. In that time, the appellants could have supplemented Mr Pike’s report and made an application for leave to tender a revised report. No such leave was sought.

311. The appellants did not establish that towing SIEV 221 using a RHIB or tender would have been feasible, and the primary judge was correct so to conclude. With respect to the trial judge’s answer to Question 13, the appellants’ contention that the RHIBs and tenders would have been able to rescue the passengers of SIEV 221 had they been deployed at an earlier time was comprehensively rejected by Commander Livingstone during cross-examination. No error was revealed in the primary judge’s acceptance of that evidence, which was compelling and, by reason of the inadmissibility of Mr Pike’s report, essentially uncontradicted.

312. Mr Adams gave evidence that his “understanding” was that the Christmas Island Volunteer Marine Rescue Service had assisted the Australian Federal Police in towing a SIEV “from time to time” and that in August 2010 a tow of a SIEV had been effected to sheltered waters off North West Point. Mr Adams was not involved in any such operation. He did not know what vessels were involved in the tow. He did not know whether, in any of the towing events he had heard about, the SIEV had lost power or not. The primary judge did not err in failing to give this tentative and non-specific hearsay evidence any significant weight.

313. I have earlier concluded that this breach (being an alleged failure immediately to communicate to Commanders Livingstone and Sunders at 5.40am rather than 6.00am) was not pleaded or raised before the primary judge. Nor did the appellants establish any causal link between such a breach and the loss and damage claimed.

314. It was critical to such an argument that Commander Livingstone could and would have acted differently. The evidence, however, was to the contrary. When informed at 6.00am of the possibility of the SIEV at Rocky Point, Commander Livingstone travelled to Rocky Point as quickly as he could. Unchallenged findings to that effect were made by the primary judge:

“[98] [Commander Livingstone] explained that by this time [6.32am] his priority had changed from one of “care taking” SIEV 220, to “shaping the best response (he) could with Pirie to a SIEV to the north”. However, he emphasised that the objective of getting to Rocky Point as quickly as he could had in fact commenced when he was originally alerted [just after 6am] to the possible presence of a SIEV by Enforcement Commander Saunders…” (emphasis added)

315. The hypothesis on which the appellants’ causation argument was based was that if informed of the existence of the SIEV at 5.40am on 15 December 2010, Commander Livingstone would immediately have travelled to Rocky Point, leaving crew behind on the unanchored SIEV 220 at Ethel Beach. The matter was explained by Senior Counsel for the appellants thus:

“CRANITCH: Yes. The position was this. I don't think there's any dispute that exactly the same things would have happened with one minor exception that is the retrieval or otherwise of the shore party on SIEV 220. He would have made exactly the same dispositions that he made when he was appraised of the actual situation.”

316. Suppose, for the sake of argument, that hypothesis is accepted. Given the unchallenged finding that from 6.00am Commander Livingstone was operating with the objective of getting to Rocky Point as quickly as he could, it would have followed that, at best for the appellants, he would have started addressing that objective 20 minutes earlier, if informed at 5.40am rather than 6.00am of the presence of SIEV 221.

317. It will be recalled that at about 6.15am, SIEV 221 was struck by an incoming swell and its fuel drum was washed overboard causing the engine to fail. This changed the situation “drastically”. At about 6.38am, the launch of the RHIBs from the Pirie commenced. By about 6.46am both had been launched and were proceeding to Rocky Point. Both, however, were prevented from traveling at their full speed because of “the large swell, frantic sea state and reduced visibility”. I reject the submission that the evidence permits a finding that the Pirie or its RHIBs would have arrived at Rocky Point before 6.15am, even if Commander Livingstone had been told of the existence of SIEV 221 at 5.40am. There is no basis in the evidence for the suggestion that he would have abandoned the crew members on SIEV 220 before proceeding to Rocky Point, no matter what he was told at 5.40am. It was never suggested to Commander Livingstone that he would do such a thing.

318. Even assuming that it was possible for an immediate communication at 5.40am to have been made to Commander Livingstone, at the very best (for the appellants) that would have moved the timeline forward a maximum of 20 minutes. That timeline would then need to contend with the uncontested evidence that the majority of the Pirie’s crew were asleep at 5.40am. Assuming, however, a 20-minute timeline change in favour of the appellants, the Pirie’s RHIBs would not have arrived at Rocky Point until 6.40am, well after SIEV 221 had lost power.

319. A further difficulty for the appellants’ causation case is that a 20 minute earlier arrival time of the Pirie also was not shown as likely to result in any different outcome. The Pirie rounded North East Point at 6.58am. Had it done so 20 minutes earlier, it would not have reached Rocky Point before 6.20am. By that time, SIEV 221’s engine had failed and there was no prospect of its “shepherding” the vessel away from the shore or giving it directions. This was conceded by Senior Counsel for the appellants to be the only action which the Pirie might have taken had it arrived earlier:

“CRANITCH: That's the next issue. Commander Livingstone, we say, would have been in a position to shepherd the vessel away from the shore and give it directions, as had happened the day before. A, "Follow me," sign, it's not too hard to make that understood, and take it in the lee of the island where people could be safely disembarked from it. What Commander Livingstone didn't agree to was that he could do much once he got there. He said, "Even if the ship was still afloat all I could do was stand by."”

320. The appellants did not demonstrate that a 20-minute earlier arrival time would have avoided or made any difference for the, undoubtedly tragic, outcome.

321. Grounds 25-28, 30-34 of the notice of appeal should be dismissed.

Conclusion and orders

322. At the outset of the appeal the Court was informed that the lead appellant, Mr Ibrahimi, had apparently changed his name by deed poll. Orders were made for the filing of documents changing his name in the proceedings.

323. On 23 July 2018, the solicitors for the appellants sent an e-mail to the Court which noted that their clients had leave to file in the registry an amended notice of appeal within seven days of 4 July 2018 including a change of name identifying the first appellant as “Henry Smith” in substitution for his former name “Median Nazar Ibrahimi”, but stated that:

“We felt it was our duty to inform the court of our client’s change of name.

However we don’t have instructions to change the name of the case.”

324. Accordingly, the contingency upon which the order changing the name of the proceedings was made has not been fulfilled. No additional order on this issue is necessary.

325. For the forgoing reasons I propose that the appeal be dismissed with costs.

326. SIMPSON AJA: I agree with Payne JA.

**********

Annexure A – separate questions and answers

The primary judge answered the following separate questions:

(1) Question: Whether, by no later than September 2010, the defendant was involved in an ongoing operation for the interception of SIEVs in territorial waters north of Christmas Island (“the Interception Operation”)?

Answer: Yes. In 2010, Border Protection Command, an agent of the defendant, had stationed a permanent response vessel at Christmas Island for the purposes of conducting surveillance on the northern approaches to Christmas Island to detect and respond to maritime security threats, including to detect and intercept Suspected Illegal Entry Vessels and transfer their crew and Potential Illegal Immigrants to Christmas Island for processing under the Migration Act 1958 (Cth).

(2) Question: Whether, in the period September to December 2010, the defendant owed to passengers on board SIEVs which approached Christmas Island, a duty to take reasonable care in the exercise of the defendant’s powers and the deployment of the defendant’s resources in the Interception Operation, so as to avoid foreseeable physical harm to those passengers?

Answer: No.

(3) Question: Whether, in the period September to December 2010, the defendant owed the relatives of passengers on board SIEVs which approached Christmas Island, a duty to take reasonable care in the exercise of the defendant’s powers and the deployment of the defendant’s resources in the Interception Operation, so as to avoid foreseeable psychiatric injury to those relatives?

Answer: No.

(4) Question: Whether, in the period September to December 2010, the defendant owed rescuers and onlookers at Christmas Island a duty to take reasonable care, in the exercise of the defendant’s powers and the deployment of the defendant’s resources in the Interception Operation, so as to avoid foreseeable mental harm to those rescuers and onlookers?

Answer: No.

(5) Question: Whether, in the period September to December 2010, the defendant owed to passengers on board SIEVs a duty to take reasonable care in the exercise of the defendant’s powers and the deployment of the defendant’s resources in the Interception Operation so as to avoid foreseeable loss of property belonging to those passengers?

Answer: No.

(6) Question: Whether, in the period September to December 2010, there was a risk that a SIEV heading south through territorial waters towards Christmas Island would, if not intercepted as part of the defendant’s Interception Operation, be shipwrecked on the cliffs of Christmas Island resulting in catastrophic loss of life (“the Shipwreck Risk”)?

Answer: There was a shipwreck risk. However, that risk did not arise from any conduct on the part of the defendant and was, in any event, a risk which was both inherent and obvious.

(7) Question: Whether, in the period September to December 2010, the Shipwreck Risk was foreseeable within the meaning of s. 5B(1)(a) of the Civil Liability Act 2002 (WA)?

Answer: The shipwreck risk was foreseeable within the meaning of s. 5B(1)(a) of the Civil Liability Act 2002 (WA). However, that risk did not arise from any conduct on the part of the defendant and was, in any event, a risk which was both inherent and obvious.

(8) Question: Whether, in about September to December 2010, the Shipwreck Risk was “not insignificant” within the meaning of s. 5B(1)(b) of the Civil Liability Act 2002 (WA)?

Answer: The shipwreck risk was “not insignificant” within the meaning of s. 5B(1)(b) of the Civil Liability Act 2002 (WA).

(9) Question: Whether, in response to the Shipwreck Risk, in the period September to December 2010, a reasonable public authority in the position of the defendant and its servants and agents, owing the duties of care owed by the defendant, would have taken the precaution of not permitting the rescue ships Sea Eye and Colin Winchester to remain out of survey and incapable of use in attending to any SIEVs in distress in territorial waters to the north of Christmas Island in poor weather (“the readiness precaution”)?

Answer: No.

(10) Question: Whether in response to the Shipwreck Risk, on the evening of 14 December 2010, a reasonable public authority in the position of the defendant and its servants and agents, owing the duty of care owed by the defendant, would have taken the precaution of returning the HMAS Pirie to patrol at the usual station of intercept of SIEVs in territorial waters to the north of Christmas Island (“the Ongoing Patrol Precaution”)?

Answer: No.

(11) Question: Whether, by about 06:00 on 15 December 2010, the Commanding Officer of the HMAS Pirie knew, or had reason to suspect, that SIEV 221 was approaching Christmas Island from the north in poor weather and in distress?

Answer: No.

(12) Question: Whether in response to the Shipwreck Risk, and SIEV 221 being in distress at about 06:00 on 15 December 2010, a servant or agent of a public authority in the position of the defendant, owing the duty of care owed by the defendant, would have taken the precaution of sailing the HMAS Pirie and the ACV Triton to attend to SIEV 221 earlier than they in fact did (“the Earlier Response Precaution”)?

Answer: No.

(13) Question: Whether, had the defendant taken the Readiness Precaution, the Ongoing Patrol Precaution and/or the Earlier Response Precaution, SIEV 221 would not have been shipwrecked on the north coast of Christmas Island on 15 December 2010?

Answer: No.

(14) Question: Whether on about 15 December 2010 the defendant’s servants or agents in command of the HMAS Pirie and the ACV Triton owed any statutory duty to the Represented Persons pursuant to s. 265 of the Navigation Act 1912 (Cth)?

Answer: No.

(15) Question: Whether the defendant’s servants or agents breached that duty by failing to cause their respective ships to proceed with all practicable speed to the passengers of SIEV 221?

Answer: No.

(16) Question: Whether on the morning of 15 December 2010 the defendant was, by operation of s. 261A of the Migration Act 1958 (Cth), the owner of SIEV 221?

Answer: By virtue of the provisions of s. 261A of the Migration Act 1958 (Cth) SIEV 221 was forfeited to the defendant and the owners of SIEV 221 were divested of title to that vessel. The defendant became the owner of the vessel by virtue of the statutory forfeiture but the defendant did not assume any duty or obligation in relation to the condition of the vessel, or the safety of its passengers.

(17) Question: Whether by reason of its ownership, on the morning of 15 December 2010 the defendant owed any statutory duty or duties to the represented persons consistently with, and derived in part from, a shipowner’s obligations under ss. 208 and 227B of the Navigation Act 1912 (Cth)?

Answer: No.

(18) Question: Whether the causes of action pleaded in paragraphs 52-71 and 80-92 of the FASOC were commenced outside the limitation period in s. 14 of the Limitation Act 2005 (WA) and/or s. 18A of the Limitation Act 1969 (NSW) and are, therefore, statute barred?

Answer:    as to paragraphs [52]-[71] of the FASOC – No;

as to paragraphs [80]-[92] of the FASOC – No.

Amendments

20 December 2018 - Typographical corrections: Headnote, [74], [112], [163], [166], [253], [260].

Grammatical correction: [128].

Decision last updated: 20 December 2018