Ibrahimi v Commonwealth of Australia - [2023] SADC 33

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application)
IBRAHIMI v COMMONWEALTH OF AUSTRALIA AND ORS
[2023] SADC 33
Judgment of his Honour Judge Slattery
3 April 2023
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS
Reasons of his Honour Judge Slattery along with consequential orders.
Uniform Civil Rules 2020 (SA), referred to.

IBRAHIMI v COMMONWEALTH OF AUSTRALIA AND ORS
[2023] SADC 33

Following a directions hearing involving all of the parties, on 17 March 2021, I made orders which are annexed to these reasons and are marked ‘A’.
These reasons are concerned with arguments connected with paragraph 8 of those orders. These reasons announce my decision. about the contentious issues that arose under those paragraphs. Other issues for determination arising under those paragraphs have been listed for further argument. The orders in respect of them are reflected in a further suite of orders that I have made this day and which are annexed to these reasons and are marked ‘B’. Before proceeding, it is worthwhile canvassing some background material.
In the making of the orders on 17 March 2023 (annexure A) I took account of the submissions made in court by counsel for the parties. The first in principle issue upon which submissions were made involved a second report by a psychiatrist Dr Freidin about the applicant and upon which the applicant seeks to rely. I was told that this report was delivered on Monday 13 March 2023, a public holiday. A number of issues arose as result as a result of the delivery of this report. One of them was whether permission should be granted to the applicant to rely upon that report at trial. The report is delivered outside of the period allowed for delivery of experts reports in earlier orders made by me. The supporting material filed by the respondent disclosed that there had been some communication with the expert psychiatrist retained by the respondent Dr Hundertmark who says that he was unable to prepare any answering report until 23 May 2023 because of prior commitments. The trial of this action is listed to commence on Monday 13 June 2023.
Following that directions hearing, I made the orders in FDN 133 (see annexure A).
FDN 128 is the applicant’s interlocutory application dated 10 March 2023. It seeks the following orders:-
This application is supported by an affidavit of Emily Maree Kerin of 10 March 2023 (FDN 129) which was read and relied upon by the applicant.
The controversial matters arising out of this application concern the applications about the supplementary report of Dr Freidin, the vocational assessment report from the Altius Group and whether or not leave should be granted to rely upon these reports at trial. There were also contentions about the content of the proposed revised statement of claim revision 5.
In her affidavit of 10 March 2023 (FDN 129) Ms Kerin informs the court that on 3 March 2023, Dr Freidin met with the applicant, on 7 March 2023 notice was given to the other parties of an intention to seek a further report from Dr Freidin, an extension of time was sought until 14 March 2023 to serve the report and for permission to rely upon that report at trial.
In the same affidavit, Ms Kerin informs the court that the applicant attended an appointment with Altius Group for a vocational assessment and a report from Altius Group has now been obtained. It has been delivered to the other parties and the applicant seeks permission to rely upon the report at trial.
The applicant further seeks to make amendments to his statement of claim in the form of (SOC5). That document has been provided to the parties.
Some preliminary comments should be made about the Altius Group report. It consists of three reports and the second and third reports within it are said to address topics already covered in other reports to be relied upon by the applicant. That is one issue, amongst others that require further consideration.
The respondent reads and relies upon an affidavit of Erin Louise Shriner (FDN 134) dated 23 March 2023. Ms Shriner refers to her affidavits of 20 February 2023 and 9 March 2023 (FDN 105 and FDN 122), and she informs the court that the respondent does not oppose orders being made in relation to: the further report of Professor Jureidini; the supplementary report of Mr Scott Taylor; reliance upon those reports at trial by the applicant; an extension of time for the applicant to file and serve his affidavit; and for the filing and service of any affidavits of lay witnesses and reliance upon them at trial.
Ms Shriner identifies that objection is raised to the supplementary report of Dr Freidin and to the report of the Altius Group.
The court had previously been informed of the applicant’s intention to obtain a report from the Altius Group on vocational assessment and of the provision of a first report of Dr Freidin. There has been no information provided to the court about an intention to obtain a second report from Dr Freidin. The respondent contends that the second Freidin report is not confined to the issue of causation (as is represented by the applicant) and it is not supplementary to Dr Freidin’s first report of 22 December 2022. The respondent points to the fact that in the letter of instruction to him, Dr Freidin was asked eleven questions relating to the specific medical treatment provided to the applicant, his diagnosis, his prognosis and the cause of those matters which were the subject of the diagnosis of Dr Freidin. I am told that the second Freidin report comprises some sixty eight pages; it is a comprehensive and wide ranging report.
A further complaint is made that this report represents a consideration by a third psychiatrist of issues which have already been put to two other psychiatrists, Professor Jureidini and Dr Loukas. Each of them have already provided a number of medical reports. This is also said to be an unwarranted expansion of the number of psychiatrists (and experts) relied upon by the applicant. The second report of Dr Freidin has been sent to Dr Hundertmark, the psychiatrist retained by the respondent, on 17 March 2023. The affidavit of Ms Shriner discloses that Dr Hundertmark has indicated that he is not able to respond with a prepared report until 23 May 2023.
In relation to the vocational assessment report from the Altius Group, I am told that there are now three reports from that group namely, earning capacity (vocational assessment), a functional capacity assessment report and a psychological functional assessment report. The applicant solicitors have informed the other parties that all three of the Altius Group reports are to be relied upon by the applicant at trial. I am told that the Altius Group has opined that it could not complete the vocational assessment report without the provision of the psychological functional assessment and functional capacity assessment reports. The three are interrelated. The Altius Group has also not made the declaration made pursuant to UCR 74.
The respondent complains that the number of experts to be called by the applicant is now twelve and there is duplication in the reports of the psychiatrists and within the Altius Group reports. For example, an earlier report has been provided by an occupational therapist who had already assessed the applicant and covered much of the ground of at least one of the Altius Group reports. The respondent, therefore, opposes any leave to file and serve the Altius Group report.
An objection was also raised about paragraph 20A of the proposed statement of claim version (SOC5); there was a query about the intended effect of the pleading about the time that the applicant spent at the Curtin Detention Centre. The applicant’s position has consistently been that no claim can be made about what occurred about Curtin, but this information about Curtin must be understood in the background of the claim made by the applicant.
The first third party has separately brought an interlocutory application (FDN 107) and seeks leave to file an amended defence to the respondent’s third party claim as well as a defence to the applicants statement of claim. It had not previously sought permission to file a defence to the applicant’s statement of claim.
FDN 107 provides:-
I am informed that there is no objection to the second revision to the defence of the respondents third party claim. However, there is a significant contention about whether or not leave should be given to the first and third third parties to file a defence to the applicant’s statement of claim.
I heard arguments on each of these matters in contention on 24 March 2023.
I turn to the pleading arguments. I deal first with the submission in relation to paragraph 20A which is to be found within both SOC4 and SOC5. Mr Krupka confirmed that the wording of paragraph 20A does not suggest that the claim against the respondents includes anything that happened at the Curtin Detention Centre as being actionable. There is no allegation of a breach of duty within that plea. The pleading is relevant to the condition of the applicant from the time he arrived in South Australia in 2002 after having been, inter alia, at the Curtin Detention Centre. It is alleged that sufficient was known by the respondent of his condition to require the respondent to have the applicant psychiatrically assessed at that time. Therefore, the events that occurred prior to that time are factual matters that stand in the background of the pleading about breaches said to have occurred in South Australia.
Mr Krupka also submitted that the latest report of Dr Freidin traverses all of these matters, so that, it is contended, if an assessment was made at the time, the applicant should have been diagnosed as having a persistent depressive disorder or major depressive order or PTSD. That assessment should have been made prior to him coming to the Baxter Detention Centre. It would therefore, on his argument, be artificial to exclude that second report of Dr Freidin from the narrative of evidence before the court.
I consider that there can be no objection to paragraph 20A of the fourth statement of claim or within the proposed fifth statement of claim for the reasons explained by Mr Krupka.
I turn to the balance of the criticisms about the proposed statement of claim (SOC5). The question is whether leave should be given to file that document in its current form. Ms Sibree made submissions on behalf of the applicant on the topic of the balance of the pleading.
Ms Sibree first dealt with paragraph 30.13 of the proposed fifth statement of claim (SOC5). She conceded that this paragraph may be struck out having regard to the criticisms made of it by the other parties.
The second matter of contention was a plea informing the duty of care said to have arisen which is described in paragraph 29 of SOC5. There are now additional words contained within the plea and it is alleged that the respondent breached the duties set out therein. Ms Sibree explained that originally those paragraphs of paragraph 29 were pleaded as a number of duties. However, paragraph 29 is a pleading of a duty of care which is said to have been breached. The pleading of a duty of care and its breach gives rise to the cause of action at common law. Ms Sibree explains that the pleading at 29.2 – 29.17 of SOC5 are subcategories of the duty and they are said to be breached. These are pleaded specifically at paragraph 30. A schedule of three pages has now been provided by the applicant to the respondent setting out the duties pleaded at paragraph 29 and how they are said to relate to the breaches pleaded at paragraph 30. The respondent contends that this schedule should now form part of the pleading for the sake of clarity. I disagree. The schedule has been provided and it clarifies the position. The respondent knows the case that it has to meet and the schedule can be relied upon if there is any dispute.
A second pleading issue concerns paragraph 30.2 of SOC5 and a new reference to paragraph 23. This subparagraph pleads a breach of duty. The original plea in paragraph 30.2 included only a reference to paragraph 22 and the failure of the respondent to have the applicant psychiatrically assessed on or soon after the date specified in paragraph 22. That paragraph avers a number of interactions between the applicant and service providers as well as other relevant events. It is submitted that the facts pleaded at paragraph 23 refer to those times at which the applicant was placed into the management unit, that he suffered a psychiatric condition, he was stripped searched, handcuffed, suffered insomnia and there was property damage. The pleading at paragraph 23 is therefore a more general and broader pleading that contained in paragraph 22 and the inclusion of that paragraph within sub paragraph 30.2 seeks to expand the particulars of the breach to those matters pleaded in paragraph 23.
I accept that the matters contained in paragraph 23 are far broader. Following submissions made by Ms Sibree and the concessions made by her, I am satisfied that the matters pleaded in subparagraphs 23.1, 23.2, 23.6, 23.7.1, 23.10, 23.11 and 23.12 are matters which are specifically relevant, do not broaden the scope of the allegations and are properly pleaded as particulars of the allegations. I would allow a pleading of those subparagraphs to be included within paragraph 30.2 in addition to the reference to paragraph 22.
The pleading at paragraph 30.10 concerns whether a suitably qualified psychologist or counsellor was provided to the applicant at the appropriate time. It seeks to expand the persons referred to therein to a General Practitioner, a Psychiatrist or Mental Health Professional. It is alleged that this significantly expands the issues or the scope of the trial. The extant paragraph 34 of the SOC4 alleges that in breach of duty, the respondent permitted the applicant to be treated by psychologist, nurses and a general practitioner in Woomera and Baxter who did not have sufficient expertise to deal with the applicant or who were working under the guidance of a psychiatrist.
I consider that the amendment to the pleading at paragraph 30.10 regularises the pleading at paragraph 30.4 so there is no inconsistency between the two pleadings. That is so even if there was a composite plea concerning those persons as to whether or not the applicant could develop a therapeutic relationship with suitably qualified people.
The second Freidin report and the Altius Group report
The first submission of the applicant was that the orders made by me on 17 March 2023 foreclosed any dispute concerning the delivery and reliance upon the second Freidin report. That submission misapprehends the operation of my orders. Under them, I directed the applicant to file and serve any further experts reports upon which he relies and to confirm in writing to the other parties the expert reports he intends to rely upon at trial by 4.30 pm on 17 March 2023 (my emphasis). A similar order was made for a different date in relation to the respondents filing of any experts reports and the third parties filing any experts reports.
The Court then heard preliminary submissions from all of the other parties about the second Freidin report and the Altius Group report. Orders have been made for arguments about those matters to be heard and determined on Monday 17 April at 8.45 am.
FDN 107; the application of the first and third parties to file a defence to SOC5
I turn then to FDN 107, the application by the first and third third parties to file a defence to the applicant’s statement of claim. Reliance is placed upon the operation of UCR 65.8. The principal point in contention is that this defence seeks to plead that the fact of detention was a cause of the psychiatric disorder suffered by the applicant. That is, detention per se, can be a cause of a psychiatric illness. It is submitted that this is not a new issue, because in one of his reports Dr Jureidini has dealt in part with that topic. The assertion has not been positively pleaded by the respondent in its defence. The first and third third parties also contend that in performance of their duties, they relied upon the immigration detention standards about the requirement upon them to maintain good order and security. There was a clinical triage system in place at Curtin, Woomera and Baxter.
In his response, the applicant raised three issues about this proposed pleadings namely: an entitlement issue, a timing issue and content issue.
In relation to the entitlement issue, the applicant relies upon an interpretation of UCR 65.8 which would require an election to be made for a defence to be filed by a respondent or an interested party. This argument treats the preposition ‘or’ as a disjunctive and so, requires an election between these two alternatives. I am unable to accept this argument. If it were correct and a respondent elected to file a defence to a claim, there would be no ability to file a defence to a cross claim and a cross claim might raise, for example, different issues than are raised in the statement of claim.
That said, I think this discussion indirectly raises a very important issue which lends some weight to the applicant’s argument. On the assumption that the respondent admits a fact or the legal effect of a fact or facts and the third party wishes to deny one or either of them, I think that a very significant difficulty arises with which the settled authorities do not seem to deal. Disjoinder of the third parties in those circumstances is not an answer based upon prejudice issues. As well, for the same reasons, it is equally prejudicial for an applicant to face two inconsistent defences. I consider that this matter requires attention.
On the timing issues, the rules require that the applicant file the defence to the statement of claim at the time of filing a response to the cross claim. However, the SOC5 remains in issue and there has been no amended defence or amended cross claim in relation to that pleading. I think therefore, that the question of timing carries very little weight in those circumstances.
The applicant argued that the respondent has not alleged that the detention in and of itself caused the injuries suffered by the applicant. The respondent has made a bare denial of breach and a bare denial of psychiatric injuries in response to the matters set out in paragraphs 34 of SOC4 or SOC5. If any such pleading affected the applicant’s case against the respondent, there is a significant timing issue in the filing of the document which is just too late. That, it is said, would also cause irreparable prejudice to the case of the applicant.
In relation to the timing issue, the applicant says that the first draft of this defence document came forward on 8 February 2023, more than nine years after the applicant had commenced his proceeding. This is five years after the first and third third parties had prepared the defence to the third party claim. There has been no application to file such a defence for a period of five years. Also, this defence purports to plead a cause of the applicant’s psychiatric condition different from what is said by the applicant in his statement of claim. It is not a pleading made by the respondent. Finally, the applicant submits that the leave given to the first and third parties on 12 December and 22 December 2022 was to make an application to file the defence. There is no explanation in any affidavit evidence why there was a delay in filing the defence, why it was not filed earlier or why there are further matters attempted to be pleaded.

The first and third third parties also now wish to plead that the standard of medical care provided to the applicant was to be the equivalent to the mental health services generally available to the members of the public in regional or remote locations. However, the respondent has admitted a non-delegable duty of care and has not raised this issue at all in its defence and there is no meaning to be given to the words ‘regional or remote locations’. The first and third third parties have admitted that the respondent had a non delegable duty of care and have not attempted to narrow that duty to allege, for example, that the duty was somehow a lesser duty. The first and third third parties have been asked to say what facts are referred to justify that plea. There has been no response and it is unclear whether the applicant now has to meet a case not pleaded by the respondent that there was some lower standard of care due because of the place where the respondent chose to put their facility.
In response, the first and third third parties refer to paragraph 29.13.2 which describes the standard of medical care which the first and third third parties were required to provide. It is consistent with the defence of those parties. However, I am satisfied that it is more than a response to the respondents third party claim, it is confusing and at a number of levels, it is a remarkable attempt at a plea in defence. I would not allow paragraph 29.13.2 of this proposed defence for those reasons. I would also not allow paragraphs 34.4.1 and 34.4.2 as pleadings. These pleadings are too general apart from the allegation in paragraph 34.4.2 about an inability to obtain a visa. I would also not allow paragraph 34.4.4 because it merely refers to events occurring after the applicant is released; it is too general, it is not informative and it is a bad plea. It must be deleted.
In the exercise of my discretion, I allow the first and third third parties leave to file a defence in the form as proposed but subject to the specific orders I have made about the content of the pleading. I consider that none of the discretionary issues raised by the applicant are of sufficient weight that I would refuse the application. That is especially the case where I have given leave to the applicant to file and deliver SOC5. I consider there is a positive advantage in ensuring the applicant knows the approach taken by opposing parties.
The parties have agreed that the applicant is to provide an affidavit addressing the issue of extension of time, (is so advised ) by 12 April 2023.
I consider that further time is required to hear and determine arguments about evidentiary material and separately in relation to the tender bundles. Order 30 stands but only in relation to the tender bundle. There were submissions made in relation to cross examination and topics for cross examination. I am satisfied that proposed orders 15 and 16 (annexure B to these reasons) reflect the orders to be made. I am also satisfied that proposed orders 30A, 30B, 30C, and 30D reflect the matters agreed.
I consider that there needs to be a new paragraph 35A. Many submissions have been made about the likely length of this trial. It is my decision that this court must take complete control of the trial. I have therefore made an order that the parties must provide to the court an agreed trial plan for the internal control of this trial by the court. I consider that as a matter of a public policy as well as the administration of justice, the court must exercise careful control of this trial. That trial plan must specify the time allowance for each of the applicant, the respondent and the third parties to lead evidence in chief, cross examination and re-examination of all witnesses and for the provision of addresses. Those matters are all to be completed within the six weeks allowed for the date of the trial namely, from 13 June 2023.
If the parties are unable to bring a trial plan by on or before that time, I will publish a trial plan to the parties on or before 4.30 pm on 7 June 2023. If I do so, the trial plan will be the basis upon which the matter will proceed. For the avoidance of any doubt, the trial plan published will be the basis upon which the matter proceeds at court. Parties must comply with the time periods allowed in the trial plan for their case or cases.
I make the following orders:-
1.   Order 8 of the trial orders dated 12 December 2022 requiring the applicant to serve expert evidence by 17 February 2023 be extended nunc pro tunc until:-
1.124 February 2023 with respect to the statement of Professor Jureidini dated 24 February 2023.
1.21 March 2023 with respect to the supplementary report of Scott Taylor.
2.   Order 5 of the orders dated 21 February 2023 requiring the applicant to file and serve his affidavit by 4.30 pm on 3 March 2023 be extended nunc pro tunc to 6 March 2023.
3.   Order 6 of the orders dated 21 February 2023 requiring the applicant to file lay witness affidavits by 4.30 pm on 24 February 2023 be extended nunc pro tunc to 27 February 2023 for the affidavit of Ms Glenda Koutroulis.
4.   The Court will hear and decide the application by the applicant for permission to serve the expert report of Dr Julian Freidin of 14 March 2023 and the vocational assessment report from Altius Group of 17 March 2023 on Monday 17 April 2023 at 8.45 am.
5.   That, subject to the matters set out in subparagraphs .1 and .2 below, the applicant has leave to file and serve by 4.30 pm on 5 April 2023 a revised statement of claim in the form of revision 5 (SOC5) annexed to the affidavit of Emily Maree Kerin of 10 March 2023 (FDN 129) :-
.1         Paragraph 30.13 of SOC5 is removed
.2        The reference to paragraph 23 within proposed pleading paragraph 30.2 be limited only by a reference to subparagraphs 23.1, 23.2, 23.6, 23.7.1,23.10, 23.11, and 23.12.
6.   The first and third third parties have leave to file and serve a defence to the applicant’s claim in the form of the defence attached to the affidavit of Nicholas Stuart sworn 20 February 2023, FDN 108, subject to the following matters:-
.1        Paragraph 29.13.2 is deleted.
.2        Subparagraph 34.4.1 and 34.4.2 are deleted save and except that the pleading of the inability to obtain a visa stands.
.3        Subparagraph 34.4.4 deleted.
7.   The court will hear the parties further in relation to the orders about the filing of any amended defence or further pleading in response to the pleadings described in paragraphs 1 to 6 hereof. In the meantime, the parties shall bring in agreed or proposed minutes order to reflect the filing and delivery of any further pleading as contemplated by this paragraph.
8.   Liberty to any party to apply.
9.   Costs in the cause.
Annexure ‘A’
Annexure ‘B’