Ibrahimi v Commonwealth of Australia (No 9)

[2017] NSWSC 1051

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Ibrahimi & ors v Commonwealth of Australia (No 9) [2017] NSWSC 1051

Hearing dates:

26 September 2016; 27 September 2016; 28 September 2016; 30 September 2016; 4 October 2016; 5 October 2016; 6 October 2016; 10 October 2016; 11 October 2016; 13 October 2016; 14 October 2016; 21 October 2016; 26 October 2016; 1 November 2016; 4 November 2016 and 5 December 2016 Further written submissions 5 December 2016; 6 December 2016

Date of orders:

13 September 2017

Decision date:

13 September 2017

Jurisdiction:

Common Law

Before:

Bellew J

Decision:

(1) Question 1 is answered: 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 2 is answered: No.

 

(3)   Question 3 is answered: No.
(4)   Question 4 is answered: No.
(5)   Question 5 is answered: No.
(6)   Question 6 is answered: 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 7 is answered: 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 8 is answered: The shipwreck risk was “not insignificant” within the meaning of s. 5B(1)(b) of the Civil Liability Act 2002 (WA).

 

(9)   Question 9 is answered: No.

 

(10)   Question 10 is answered: No.

 

(11)   Question 11 is answered: No.

 

(12)   Question 12 is answered: No.

 

(13)   Question 13 is answered: No.

 

(14)   Question 14 is answered: No.

 

(15)   Question 15 is answered: No.

 

(16) Question 16 is answered: 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 17 is answered: No.

 

(18)   Question 18 is answered:
(i)   as to paragraphs [52]-[71] of the FASOC – No;
(ii)   as to paragraphs [80]-[92] of the FASOC – No.

 

(19)   The proceedings are listed for further directions before me on 20 September 2017 at 9:30am.

 (20)   The parties are to bring in Short Minutes of Order on that day reflecting the conclusions that I have reached in this judgment.

Catchwords:

Torts – Negligence – Duty of care – Where a suspected illegal entry vessel with a number of people on board sailed from Indonesia to Australia – Where those on board were attempting to gain entry into Australia illegally – Where vessel experienced monsoonal weather conditions near Christmas Island and became shipwrecked – Where a number of people lost their lives – Where Border Protection Command was carrying out an operation in the vicinity of Christmas Island one of the objects of which was to intercept suspected illegal entry vessels – Whether the defendant owed to passengers on board such vessels which approached Christmas Island between September and December 2010 a duty to take reasonable care in the exercise of its powers and the deployment of its resources so as to avoid foreseeable physical harm to those passengers

 

Torts – Negligence – Duty of care – Where a suspected illegal entry vessel with a number of people on board sailed from Indonesia to Australia – Where those on board were attempting to gain entry into Australia illegally – Where vessel experienced monsoonal weather conditions near Christmas Island and became shipwrecked – Where a number of people lost their lives – Where Border Protection Command was carrying out an operation in the vicinity of Christmas Island one of the objects of which was to intercept suspected illegal entry vessels – Whether the defendant owed the relatives of passengers on board such vessels which approached Christmas Island in the period September to December 2010 a duty to take reasonable care in the exercise of its powers and the deployment of its resources so as to avoid foreseeable psychiatric injury to those relatives

 

Torts – Negligence – Duty of care – Where a suspected illegal entry vessel with a number of people on board sailed from Indonesia to Australia – Where those on board were attempting to gain entry into Australia illegally – Where vessel experienced monsoonal weather conditions near Christmas Island and became shipwrecked – Where a number of people lost their lives – Where Border Protection Command was carrying out an operation in the vicinity of Christmas Island one of the objects of which was to intercept suspected illegal entry vessels – Whether the defendant owed rescuers and onlookers a duty to take reasonable care in the exercise of its powers and the deployment of its resources so as to avoid rescuers and onlookers suffering foreseeable mental harm

 

Torts – Negligence – Duty of care – Where a suspected illegal entry vessel with a number of people on board sailed from Indonesia to Australia – Where those on board were attempting to gain entry into Australia illegally – Where vessel experienced monsoonal weather conditions near Christmas Island and became shipwrecked – Where a number of people lost their lives – Where Border Protection Command was carrying out an operation in the vicinity of Christmas Island one of the objects of which was to intercept suspected illegal entry vessels – Whether the defendant owed to passengers on board such vessels a duty to take reasonable care in the exercise of its powers and the deployment of its resources so as to avoid foreseeable loss of property belonging to those passengers

 

Torts – Negligence – Duty of care – Where suspected illegal entry vessel with a number of people on board sailed from Indonesia to Australia – Where those on board were attempting to gain entry into Australia illegally – Where vessel experienced monsoonal weather conditions near Christmas Island and became shipwrecked – Where a number of people lost their lives – Where Border Protection Command was carrying out an operation in the vicinity of Christmas Island one of the objects of which was to intercept suspected illegal entry vessels – Whether the risk of the suspected illegal entry vessel becoming shipwrecked was a foreseeable risk - Whether such risk was an obvious risk – Whether such risk was an inherent risk – Civil Liability Act 2002 (WA) ss. 5B, 5E, 5F, 5N, 5O and 5P

 

Torts – Negligence – Duty of care – Where a suspected illegal entry vessel with a number of people on board sailed from Indonesia to Australia – Where those on board were attempting to gain entry into Australia illegally – Where vessel experienced monsoonal weather conditions near Christmas Island and became shipwrecked – Where a number of people lost their lives – Where Border Protection Command was carrying out an operation in the vicinity of Christmas Island one of the objects of which was to intercept suspected illegal entry vessels – Whether the risk of the vessel becoming shipwrecked was not insignificant – Civil Liability Act 2002 (WA) s. 5B

 

Torts – Negligence – Duty of care – Where suspected illegal entry vessel with a number of people on board sailed from Indonesia to Australia – Where those on board were attempting to gain entry into Australia illegally – Where vessel experienced monsoonal weather conditions near Christmas Island and became shipwrecked – Where a number of people lost their lives – Where Border Protection Command was carrying out an operation in the vicinity of Christmas Island one of the objects of which was to intercept Suspected Illegal Entry Vessels – Whether in response to the risk of a suspected illegal entry vessel becoming shipwrecked a reasonable public authority in the position of the defendant would have taken the precaution of not permitting other vessels to remain out of survey and thus remain incapable of use in attending to any vessels in distress in Australian territorial waters

 

Torts – Negligence – Duty of care – Where suspected illegal entry vessel with a number of people on board sailed from Indonesia to Australia – Where those on board were attempting to gain entry into Australia illegally – Where vessel experienced monsoonal weather conditions near Christmas Island and became shipwrecked – Where a number of people lost their lives – Where Border Protection Command was carrying out an operation in the vicinity of Christmas Island one of the objects of which was to intercept suspected illegal entry vessels – Where one such vessel became shipwrecked – Whether in response to the risk of a suspected illegal entry vessel becoming shipwrecked a reasonable public authority in the position of the defendant would have taken the precaution of returning an available vessel to patrol at the usual position of intercept of such vessels to the north of Christmas Island

 

Torts – Negligence – Duty of care – Where suspected illegal entry vessel with a number of people on board sailed from Indonesia to Australia – Where those on board were attempting to gain entry into Australia illegally – Where vessel experienced monsoonal weather conditions near Christmas Island and became shipwrecked – Where a number of people lost their lives – Where Border Protection Command was carrying out an operation in the vicinity of Christmas Island one of the objects of which was to intercept suspected illegal entry vessels – Whether those in command of vessels engaged in the operation knew or had reason to suspect that a suspected illegal entry vessel was approaching Christmas Island from the north in poor weather and in distress at a particular time

 

Torts – Negligence – Duty of care – Where a suspected illegal entry vessel with a number of people on board sailed from Indonesia to Australia – Where those on board were attempting to gain entry into Australia illegally – Where vessel experienced monsoonal weather conditions near Christmas Island and became shipwrecked – Where a number of people lost their lives – Where Border Protection Command was carrying out an operation in the vicinity of Christmas Island one of the objects of which was to intercept suspected illegal entry vessels – Whether in response to the risk of such a vessel becoming shipwrecked and finding itself in distress the defendant should have taken the precaution of attending upon the vessel to assist earlier than it did

 

Torts – Negligence – Duty of care – Where suspected illegal entry vessel with a number of people on board sailed from Indonesia to Australia – Where those on board were attempting to gain entry into Australia illegally – Where vessel experienced monsoonal weather conditions near Christmas Island and became shipwrecked – Where a number of people lost their lives – Where Border Protection Command was carrying out an operation in the vicinity of Christmas Island one of the objects of which was to intercept suspected illegal entry vessels – Whether the vessel would have not have become shipwrecked had the defendant taken other precautions

 

Torts – Negligence – Duty of care – Where a suspected illegal entry vessel with a number of people on board sailed from Indonesia to Australia – Where those on board were attempting to gain entry into Australia illegally – Where vessel experienced monsoonal weather conditions near Christmas Island and became shipwrecked – Where a number of people lost their lives – Where Border Protection Command was carrying out an operation in the vicinity of Christmas Island one of the objects of which was to intercept suspected illegal entry vessels – Where the defendant became the owner of the vessel by virtue of statutory forfeiture – Whether as a result of such ownership the defendant assumed duties and responsibilities analogous to those owed by an occupier of premises to an entrant – Migration Act 1958 (Cth) s. 261A, 261D, 261F

 

Torts – Breach of Statutory Duty – Where a suspected illegal entry vessel with a number of people on board sailed from Indonesia to Australia – Where those on board were attempting to gain entry into Australia illegally – Where vessel experienced monsoonal weather conditions near Christmas Island and became shipwrecked – Where a number of people lost their lives – Where Border Protection Command was carrying out an operation in the vicinity of Christmas Island one of the objects of which was to intercept suspected illegal entry vessels – Whether the defendant’s servants or agents who were in command of nearby vessels owed a statutory duty – Whether any such duty owed was breached – Navigation Act 1912 (Cth) ss. 3, 10, 261A, 265

   

Torts – Breach of Statutory Duty – Where suspected illegal entry vessel with a number of people on board sailed from Indonesia to Australia – Where those on board were attempting to gain entry into Australia illegally – Where vessel experienced monsoonal weather conditions near Christmas Island and became shipwrecked – Where a number of people lost their lives – Where Border Protection Command was carrying out an operation in the vicinity of Christmas Island one of the objects of which was to intercept suspected illegal entry vessels – Where one such vessel became shipwrecked – Where the defendant became owner of the vessel by virtue of statutory forfeiture – Whether by reason of that ownership of the vessel the defendant owed a statutory duty – Whether any such duty owed was breached – Migration Act 1958 (Cth) s. 261A – Navigation Act 1912 (Cth) ss. 208, 227B

 

Practice and procedure – Amendment of pleadings - Limitation period – Whether certain causes of action relied upon the plaintiffs were outside the applicable limitation period – Whether causes of action pleaded in a further amended statement of claim arose out of substantially the same set of facts as those originally pleaded – Limitation Act 2005 (WA) s. 14 – Limitation Act 1969 (NSW) s. 18A – Civil Procedure Act 2005 (NSW) ss. 64, 65

  Words and phrases – “send” – “forfeiture” – “sends any ship to sea”

Legislation Cited:

Acts Interpretation Act 1901 (Cth)
Christmas Island Act 1958 (Cth)
Civil Liability Act 2002 (NSW)
Civil Liability Act 2002 (WA)
Civil Procedure Act 2005 (NSW)
Criminal Assets Recovery Act 1990 (NSW)
Death on the High Seas Act 46 USC Chapter 303
Fatal Accidents Act 1959 (WA)
Law Reform (Miscellaneous Provisions) Act 1941 (WA)
Limitation Act 1969 (NSW)
Limitation Act 2005 (WA)
Migration Act 1958 (Cth)
Navigation Act 1912 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Alexandrou v Oxford [1993] 4 All ER 328
Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37
Bach v Trident Shipping Co. Inc. 708 F. Supp. 776 (ED. La. 1989)
Brickfield Properties Limited v Newton [1971] 1 WLR 862
Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512; [2001] HCA 29
Brookfield Multiplex Limited v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185; [2014] HCA 36
Byrne & Frew v Australian Airlines Limited (1995) 185 CLR 410; [1995] HCA 24
CAL No 14 Pty Limited t/a Tandara Motor Inn v Motor Accidents Insurance Board (2009) 239 CLR 390; [2009] HCA 47
Caltex Refineries (Qld) Pty Limited v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258
Caminiti v Tomlinson Fleet (1981) AMC 201
Capital and Counties PLC v Hampshire County Council and ors [1997] 3 WLR 331
Chapman v Hearse (1961) 106 CLR 112; [1961] HCA 46
Commissioner of Taxation v Consolidated Media Holdings Limited (2012) 250 CLR 503; [2012] HCA 55
Cutler v Wandsworth Stadium Limited [1949] AC 398
CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514; [2015] HCA 1
Crimmins v Stevedoring Finance Committee (1999) 200 CLR 1; [1999] HCA 59
Electro Optic Systems Pty Limited v State of New South Wales; West & Anor v State of New South Wales (2014) 180 ACTR 1; [2014] ACTCA 45
FAI General Insurance Company Limited v Lucre (2000) 50 NSWLR 261; [2000] NSWCA 346
Gardner v State of Victoria [1999] 2 VR 461; [1999] VSCA 100
Gifford v Strang Patrick Stevedoring Pty Limited (2003) 214 CLR 269; [2003] HCA 33
Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54
Heydarkhani v R [2014] WASCA 52
Hunter Area Health Service v Presland (2005) 63 NSWLR 22; [2005] NSWCA 33
International Finance Trust Co Limited v NSW Crime Commission (2009) 240 CLR 319; [2009] HCA 49
Lowns v Woods (1996) Australian Torts Reports 81-376
McDonald v Shoalhaven City Council [2013] NSWCA 81
McGee v Yeomans [1977] 1 NSWLR 273
Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627; [2009] HCA 37
Mobil Oil Corp. v Higginbotham (1978) AMC 1059
Moragne v States Marine Lines Inc (1970) AMC 967
Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60
O’Connor v SP Bray Limited (1937) 56 CLR 464; [1937] HCA 18
Olbers Co Ltd v The Commonwealth (2004) 136 FCR 67; [2004] FCA 229
OLL Limited v Secretary of State for Transport [1997] 3 All ER 897
Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311
Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322; [2013] HCA 53
Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; [2014] HCA 34
Sheehan v State Rail Authority of NSW; Wicks v State Rail Authority of NSW [2009] NSWCA 261
Sheehan v State Rail Authority of NSW; Wicks v State Rail Authority of NSW (2010) 241 CLR 60; [2010] HCA 22
Sovar v Henry Lane Pty Limited (1967) 116 CLR 397; [1967] HCA 31
State of NSW v Radford (2010) 79 NSWLR 327; [2010] NSWCA 276
State of NSW v Tyszyk [2008] NSWCA 107
Stuart v Kirkland-Veenstra (2009) 237 CLR 215; [2009] HCA 15
Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59
Tame v State of NSW; Annetts v Australian Stations Pty Limited (2002) 211 CLR 317; [2002] HCA 35
Tran v Commonwealth (2010) 187 FCR 54; [2010] FCAFC 80
United States Coast Guard v Trosclair (23 April 2014 Smith J, unreported)
Walsh v Zuisei Kaiun K. K (1980) AMC 2788

Texts Cited:

Macquarie Dictionary (6th Edition)

Category:

Principal judgment

Parties:

Median Nazar Ibrahimi – Plaintiff
Hossain Shahvari – Plaintiff
Afshin Noroozi – Plaintiff
Commonwealth of Australia - Defendant

Representation:

Counsel:   
M Cranitch SC and S Prince - Plaintiffs
A S Bell SC, M O’Meara and R Jedrzejczyk - Defendant

  Solicitors:
The People’s Solicitors - Plaintiffs
Australian Government Solicitor - Defendant

File Number(s):

2013/377410

Publication restriction:

Nil

Headnote

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

In December 2010 the Commonwealth of Australia, through Border Protection Command, was conducting an operation in Australian territorial waters in the vicinity of Christmas Island known as “Operation Resolute” which was directed towards responding to identified maritime threats, including irregular maritime arrivals. Part of the operation included carrying out patrols within a designated area off the coast of Christmas Island, which is declared to be a territory under the authority of the Commonwealth. On 14 and 15 December 2010, the area surrounding Christmas Island was beset with monsoonal weather conditions, including gale force winds and large sea swells. These conditions, which were typical of those experienced between about November and February, made it particularly difficult for vessels approaching from the north to safely navigate a path to Christmas Island. On 14 December Suspected Illegal Entry Vessel (“SIEV”) 220, carrying a number of potential irregular immigrants, was intercepted by HMAS Pirie, one of the vessels which was engaged in patrolling. The weather conditions were such that having intercepted and seized SIEV 220, HMAS Pirie was required to keep watch over it and thus did not resume its earlier patrol. In the early hours of 15 December 2010, SIEV 221, a primitive wooden vessel which was unseaworthy by Australian standards and which had sailed from Indonesia carrying a number of potential irregular immigrants, was sighted off the coast of Christmas Island. It was subsequently observed to be in distress and eventually struck the cliff face on the coast of Christmas Island and disintegrated. HMAS Pirie, as well as the Australian Customs vessel Triton, were notified of the fact that SIEV 221 was in distress and assisted in rescue efforts by deploying Rigid Hull Inflatable Boats and Tenders to retrieve survivors. A number of residents of Christmas Island also assisted in the rescue by providing life jackets. Two other vessels, namely the Sea Eye and the Colin Winchester, which would otherwise have been available to the Volunteer Marine Rescue Service operating on Christmas Island, were out of survey at the time. However there was evidence that even if those vessels had been available, they would not, in view of the weather conditions, have been able to be used in any rescue attempt. There was also evidence that even if those vessels had been available to be used, the time that would have taken to launch them and travel to the scene would have been such that neither of them would have reached SIEV 221 before it struck the cliff face.

The plaintiffs brought representative proceedings seeking damages against the Commonwealth of Australia on behalf of (amongst others):

(i) passengers on board SIEV 221 who had suffered physical and/or psychological injury as a result of the events surrounding its loss;

(ii) passengers on board SIEV 221 who lost material possessions as a result of the events surrounding its loss; and

(iii) relatives of passengers on board SIEV 221 who suffered psychological injury as a result of those events.

The plaintiffs’ causes of action were framed in negligence and breach of statutory duty. Broadly speaking, the plaintiffs’ position was that what was an obvious tragedy should never have occurred, and could have been avoided, had HMAS Pirie maintained its normal surveillance patrol (which, it was submitted, would have resulted in SIEV 221 being detected and intercepted) and/or rendered assistance earlier. The plaintiffs also argued that the tragedy could have been avoided had the rescue vessels which were normally available not been out of survey. It was the defendant’s position that the plaintiffs’ principal claim in negligence, which was based upon the defendant’s alleged failure to take reasonable care in the exercise of its powers and the deployment of its resources, was based upon on an asserted duty of care that was unsupported by precedent, contradicted by principle and lacking in evidentiary support. The defendant further argued that the duty of care alleged by the plaintiffs was incapable of arising at law and that even if it was established that such a duty was owed, there was no evidence which established that anything done or omitted to be done by the defendant had caused any of the harm asserted by the plaintiffs. In terms of the claims brought by the plaintiffs alleging breach of statutory duty, it was the defendant’s position that the statutory provisions upon which the plaintiffs relied did not give rise to a cause of action for damages. The issues between the parties gave rise to 18 separate questions which the Court was required to consider.

Held:

(i) there is no general test for determining whether, for the purposes of the law of negligence a duty of care is owed. Different cases necessarily raise different issues. Determining whether a duty of care is owed requires an evaluation of the relevant factors which tend to operate in favour, or against, that conclusion. Those factors include any relevant characteristics of the relationship between the parties. Evaluation may also involve a process of analogical reasoning: at [197].

Caltex Refineries (Qld) Pty Limited v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258 applied.

(ii) control is of fundamental importance in determining whether a duty of care is owed, particularly where the duty is said to be owed by a public authority: at [200]-[201].

Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512; [2001] HCA 29; Crimmins v Stevedoring Finance Committee (1999) 200 CLR 1; [1999] HCA 59; Graham Barclay Oysters Pty Limited v Ryan (2002) 211 CLR 540; [2002] HCA 54 referred to.

(iii) the defendant had no control over the risk that a SIEV, if not intercepted, might be shipwrecked on the coast of Christmas Island due to factors such as poor weather, poor navigation or running out of fuel. Further, the defendant did not put the plaintiffs at any risk of harm. In particular, the defendant:

(a) could not, and obviously did not, direct those in charge of the vessel to navigate a particular route to Australia;

(b) did not control the weather;

(c) did not control and, on the evidence, knew nothing at all about, the level of skill of those operating the vessel; and

(d) had no control over the primitive nature of the vessel: at [202].

(iv) the only matter over which the defendant had any relevant control was its response to the risk of harm which had arisen. The defendant did not create that risk, and did not, by its actions, make it worse. In all of the circumstances, the defendant’s lack of control tended against a conclusion that it owed a duty of care to the plaintiffs: at [203]-[204].

Electro Optic Systems Pty Limited v State of New South Wales; West & anor. v State of New South Wales (2014) 180 ACTR 1; [2014] ACTCA 45; Warragamba Winery Pty Limited v State of New South Wales (No. 9) [2012] NSWSC 701 referred to.

(v) those on board SIEV 221 were not vulnerable in the relevant sense. In this context, vulnerability referred to the inability of those on board to protect themselves from the consequences of the defendant’s conduct which was said to have been negligent. Those on board could have protected themselves simply by not undertaking the voyage in the first place. The absence of any relevant vulnerability was a further factor tending against a conclusion that a duty of care was owed: at [206]-[207].

Hunter Area Health Service v Presland (2005) 63 NSWLR 22; [2005] NSWCA 33 applied.

(vi) Australian courts have consistently concluded that there is no general duty to rescue. There is no authority which supports the proposition that in a maritime context, a duty of care is imposed upon any person to rescue a stranger in peril: at [219].

Walsh v Zuisei Kaiun K. K (1980) AMC 2788; Moragne v States Marine Lines Inc (1970) AMC 967; Mobil Oil Corp. v Higginbotham (1978) AMC 1059; Bach v Trident Shipping Co. Inc. 708 F. Supp. 776 (ED. La. 1989); Caminiti v Tomlinson Fleet (1981) AMC 201; Stuart v Kirkland-Veenstra (2009) 237 CLR 215; [2009] HCA 15 considered; Lowns v Woods (1996) Australian Torts Reports 81-376 distinguished.

(vii) the evidence did not support a conclusion that the defendant, by exercising its power to address maritime threats, had assumed any responsibility to ensure the safe arrival of persons who were seeking to enter Australia illegally. There was no duty to rescue imposed on the defendant. The fact that the defendant had engaged in rescue efforts did not mean that it owed a duty of care to those on board: at [222]-[224].

Capital and Counties PLC v Hampshire County Council and ors [1997] 3 WLR 331; State of NSW v Tyszyk [2008] NSWCA 107; Alexandrou v Oxford [1993] 4 All ER 328 referred to.

(viii) the fact that nothing done by the defendant in the course of assisting with the rescue increased the relevant risk of harm was a further factor tending against a conclusion that a duty of care was owed: at [225].

Graham Barclay Oysters Pty Limited v Ryan (2002) 211 CLR 540; [2002] HCA 54 referred to.

(ix) the statutory forfeiture of the vessel to the defendant, pursuant to which the defendant became the owner, did not result in the defendant assuming duties and responsibilities analogous to those owed by an occupier of premises to an entrant: at [239].

International Finance Trust Co Limited v NSW Crime Commission (2009) 240 CLR 319; [2009] HCA 49; Tran v The Commonwealth (2010) 187 FCR 54; [2010] FCAFC 80; Olbers Co Ltd v The Commonwealth (2004) 136 FCR 67; [2004] FCA 229; referred to.

(x) the broader underlying policy of the Migration Act 1958 (Cth) was also inconsistent with the existence of the duty of care posited by the plaintiffs: at [240]-[243].

Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; [2014] HCA 34; Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37; CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514; [2015] HCA 1 referred to.

(xi) to recognise a common law duty of care in the circumstances, the objective effect of which would be to stimulate the conduct which was sought to be suppressed by the underlying policy of the Migration Act 1958 (Cth), served to highlight the obvious tension between that policy, and the assistance of persons who unlawfully come to Australia and, in doing so, find themselves in distress at sea: at [242]-[243].

CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514; [2015] HCA 1; CAL No. 14 Pty Limited v Tandara Motor Inn v Motor Accidents Insurance Board (2009) 239 CLR 390; [2009] HCA 47 referred to.

(xii) it followed that no duty of care was owed by the defendant to the plaintiffs: at [242].

(xiii) no duty of care was owed by the defendant to the relatives of passengers on board SIEV 221 to avoid foreseeable psychiatric injury to those persons: at [264]-[265].

Tame v State of NSW; Annettes v Australian Stations Pty Limited (2002) 211 CLR 317; [2002] HCA 35; Sheehan v State Rail Authority of NSW; Wicks v State Rail Authority of NSW (2010) 241 CLR 60; [2010] HCA 22; Gifford v Strang Patrick Stevedoring Pty Limited (2003) 214 CLR 269; [2003] HCA 33 referred to.

(xiv) the defendant did not owe a duty to rescuers and/or onlookers to avoid foreseeable mental harm to such persons: at [288].

Chapman v Hearse (1961) 106 CLR 112; [1961] HCA 46; Mt Isa Mines v Pusey (1970) 125 CLR 383; [1970] HCA 60; Sheehan v State Rail Authority of NSW; Wicks v State Rail Authority of NSW [2009] NSWCA 261; McDonald v Shoalhaven City Council [2013] NSWCA 81; FAI General Insurance Company Limited v Lucre (2000) 50 NSWLR 261; [2000] NSWCA 346 referred to.

(xv) the defendant did not owe a duty of care to passengers on board the vessel to avoid foreseeable loss of property belonging to those passengers: at [292].

(xvi) there was a risk that a SIEV heading south through territorial waters towards Christmas Island would, if not intercepted, be shipwrecked on the cliffs of Christmas Island resulting in catastrophic loss of life. However that risk was not brought about by any conduct on the part of the defendant and was, in any event, both inherent and obvious, and thus one in respect of which the defendant was not liable: at [307]; [312].

Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311 referred to.

(xvii) the 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, was both foreseeable and not insignificant: at [315]; [317].

(xviii) two other vessels which might otherwise have been available to the Volunteer Marine Rescue Service on Christmas Island were out of survey and thus unavailable to be used in the attempted rescue. However even if they had been available, the evidence established that as a result of the prevailing weather conditions, they could not have been put to use. Moreover, the activity which created the harm in the present case was the travel to Australia, on an unseaworthy vessel, by a group of persons whose aim was to enter Australia illegally in contravention of the Migration Act 1958 (Cth). In these circumstances that activity had no social utility and a reasonable public authority in the position of the defendant would not have taken the precaution of not permitting the two vessels to remain out of survey: at [327]-[329].

(xix) the decision made by the Commanding Officer of the HMAS Pirie, Commander Livingstone, to remain in close proximity to Suspected Illegal Entry Vessel 220 on the afternoon of 14 December 2010 and into the morning of 15 December 2010 was well founded, responsible and a proper discharge of his duties: at [344].

(xx) on the information which was made available to him at about 06:00 on 15 December 2010, Commander Livingstone did not know, nor did he have reason to suspect, that SIEV 221 was in distress: at [352]-[354].

(xxi) the response by HMAS Pirie and Australian Customs vessel Triton to the events which unfolded was not delayed, let alone delayed unreasonably: at [371]; [373].

(xxii) because of the weather conditions at the time, it would have been neither safe nor viable to launch vessels which might otherwise have been available to the Volunteer Marine Rescue Service: at [389]-[390].

(xxiii) the evidence did not support a conclusion that even if the HMAS Pirie had relinquished its position in close proximity to Suspected Illegal Entry Vessel 220 and had undertaken a patrol further to the north of Christmas Island it would have detected SIEV 221 and been able to intercept it: at [391].

(xxiv) towing SIEV 221 away from the cliff face was not a viable option for a number of reasons: at [393].

(xxv) the nature of section 265 of the Navigation Act 1912 (Cth), namely a penal provision prescribing a term of imprisonment, tended against the proposition that it imposed an additional civil liability on the defendant: at [411].

Byrne & Frew v Australian Airlines Limited (1995) 185 CLR 410; [1995] HCA 24; Stuart v Kirkland-Veenstra (2009) 237 CLR 215; [2009] HCA 15; Cutler v Wandsworth Stadium Limited [1949] AC 398; Sovar v Henry Lane Pty Limited (1967) 116 CLR 397; [1967] HCA 31; O’Connor v S P Bray Limited (1937) 56 CLR 464; [1937] HCA 18; Gardner v State of Victoria [1999] 2 VR 461; [1999] VSCA 100 referred to.

(xxvi) there was no failure on the part of the Commanding Officers of either HMAS Pirie or Australian Customs Vessel Triton to proceed with all practical speed to the assistance of passengers on board SIEV 221 once they became aware that SIEV 221 was in fact in distress: at [420].

(xxvii) the defendant became the owner of SIEV 221 by virtue of statutory forfeiture but it did not, as a consequence, assume obligations in relation to either the condition of the vessel or the safety of its passengers: at [428]-[429].

(xxviii) the defendant did not, by reason of its ownership of SIEV 221, owe any statutory duty to the plaintiffs derived from the provisions of the Navigation Act 1912 (Cth): at [437]; [441]-[442].

(xxix) the defendant did not “send” SIEV 221 to sea. The phrase “sends any ship to sea” as it appears in s. 208 of the Navigation Act 1912 (Cth) did not mean to “allow any ship to remain at sea”: at [439]-[440].

(xxx) sections 208 and 227B of the Navigation Act 1912 (Cth) are penal provisions, the nature of which tends against the proposition that they ground a cause of action for breach of statutory duty: at [443]

Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627; [2009] HCA 37 referred to.

(xxxi) a court has power to grant leave to amend a pleading so as to include a new cause of action which would otherwise be statute barred, providing the claim based on the new cause of action arises substantially out of the same facts as those involved in the original claim. Whether that test is met is a matter of general impression: at [456].

Brickfield Properties Limited v Newton [1971] 1 WLR 862; McGee v Yeomans [1977] 1 NSWLR 273; State of NSW v Radford (2010) 79 NSWLR 327; [2010] NSWCA 276 referred to.

(xxxii) the causes of action brought by the plaintiffs were not statute barred: at [460]; [464].

TABLE OF CONTENTS

INTRODUCTION - paragraph 1

ABBREVIATIONS ADOPTED FOR THE PURPOSES OF THIS JUDGMENT - paragraph 4

THE HEARING - paragraph 5

THE WITNESSES - paragraph 8

CHRISTMAS ISLAND - paragraph 10

MONSOONAL WEATHER CONDITIONS ON CHRISTMAS ISLAND - paragraph 16

PARTICULAR locations on AND around Christmas Island - paragraph 17

BORDER PROTECTION COMMAND - paragraph 18

THE GUIDE TO AUSTRALIAN MARITIME SECURITY ARRANGEMENTS - paragraph 23

THE CHRISTMAS ISLAND VOLUNTEER MARINE RESCUE SERVICE - paragraph 27

VESSELS at christmas island on 14-15 december 2010

The Pirie - paragraph 28

The Triton - paragraph 31

VESSELS AVAILABLE TO THE CHRISTMAS ISLAND VMRS

The Colin Winchester - paragraph 36

The Sea Eye - paragraph 38

OPERATION RESOLUTE - paragraph 40

The threat status AT CHRISTMAS ISLAND on 14 and 15 December 2010 - paragraph 41

THE INTERCEPTION OF SIEV 220 ON 14 DECEMBER 2010 - paragraph 46

THE EVENTS OF 15 DECEMBER 2010

The initial positions of the Pirie and the Triton - paragraph 54

The first sightings of SIEV 221 - paragraph 56

SIEV 221 commences to lose power - paragraph 69

The Triton and the Pirie are notified of the presence of SIEV 221 - paragraph 71

The response of the Pirie - paragraph 79

SIEV 221 in distress - paragraph 87

The availability of the Colin Winchester and the Sea Eye - paragraph 91

The Pirie tracks north - paragraph 97

The launch of the RHIBs from the Pirie - paragraph 100

SIEV 221 commences to break up - paragraph 106

The response of the Triton - paragraph 112

The arrival of the Pirie, the Triton, the RHIBs and the tenders at Rocky Point - paragraph 117

The viability of towing SIEV 221 - paragraph 126

THE RESULTS OF THE RESCUE EFFORTS - paragraph 152

A BRIEF SUMMARY OF THE COMPETING POSITIONS OF THE PARTIES - paragraph 153

The plaintiffs’ position - paragraph 154

The defendant’s position - paragraph 158

THE QUESTIONS FOR DETERMINATION

QUESTION 1: 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”)?

Submissions of the plaintiffs - paragraph 163

Submissions of the defendant - paragraph 164

Answer to Question 1 - paragraph 165

QUESTION 2: 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?

The plaintiffs’ case - paragraph 166

Submissions of the plaintiffs - paragraph 167

Submissions of the defendant - paragraph 179

Consideration - paragraph 196

Answer to Question 2 - paragraph 246

QUESTION 3: 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?

Submissions of the plaintiffs - paragraph 247

Submissions of the defendant - paragraph 250

Consideration - paragraph 255

Answer to Question 3 - paragraph 267

QUESTION 4: 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?

Submissions of the plaintiffs - paragraph 268

Submissions of the defendant - paragraph 270

Consideration - paragraph 282

Answer to Question 4 - paragraph 289

QUESTION 5: 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?

Submissions of the plaintiffs    - paragraph 290

Submissions of the defendant - paragraph 291

Consideration - paragraph 292

Answer to Question 5 - paragraph 293

QUESTION 6: 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”)?

Submissions of the plaintiffs - paragraph 294

Submissions of the defendant - paragraph 295

Consideration - paragraph 299

Answer to Question 6 - paragraph 314

Question 7: 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)?

Consideration - paragraph 315

Answer to Question 7 - paragraph 316

Question 8: 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)?

Consideration - paragraph 317

Answer to Question 8 - paragraph 318

Question 9: 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”)?

Submissions of the plaintiffs - paragraph 319

Submissions of the defendant - paragraph 320

Consideration - paragraph 324

Answer to Question 9 - paragraph 330

QUESTION 10: 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”)?

Submissions of the plaintiffs - paragraph 331

Submissions of the defendant - paragraph 332

Consideration - paragraph 334

Answer to Question 10 - paragraph 347

QUESTION 11: 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?

Submissions of the plaintiffs - paragraph 348

Submissions of the defendant - paragraph 350

Consideration - paragraph 352

Answer to Question 11 - paragraph 356

QUESTION 12: 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”)?

Submissions of the plaintiffs - paragraph 357

Submissions of the defendant - paragraph 360

Consideration - paragraph 367

Answer to Question 12 - paragraph 375

QUESTION 13: 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?

Submissions of the plaintiffs - paragraph 376

Submissions of the defendant - paragraph 379

Consideration - paragraph 384

Answer to Question 13 - paragraph 394

QUESTION 14: 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)?

Submissions of the plaintiffs - paragraph 395

Submissions of the defendant - paragraph 398

Consideration - paragraph 400

Answer to Question 14 - paragraph 415

QUESTION 15: 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?

Submissions of the plaintiffs - paragraph 416

Submissions of the defendant - paragraph 417

Consideration - paragraph 419

Answer to Question 15 - paragraph 421

QUESTION 16: 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?

Submissions of the plaintiffs - paragraph 422

Submissions of the defendant - paragraph 424

Consideration - paragraph 428

Answer to Question 16 - paragraph 429

QUESTION 17: 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)?

Submissions of the plaintiff - paragraph 430

Submissions of the defendant - paragraph 431

Consideration - paragraph 435

Answer to Question 17 - paragraph 444

QUESTION 18: 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?

The plaintiffs pleaded case - paragraph 445

Submissions of the plaintiffs - paragraph 447

Submissions of the defendant - paragraph 449

Consideration - paragraph 452

Answer to Question 18 - paragraph 469

ORDERS - paragraph 470

Judgment

INTRODUCTION

1. In the early hours of the morning of 15 December 2010, Suspected Illegal Entry Vessel No. 221, which had sailed from Indonesia carrying a number of persons seeking illegal entry into Australia, became shipwrecked off the coast of Christmas Island. As a consequence, a number of those on board were drowned, and a number were rescued. By a further amended statement of claim, the plaintiffs have brought proceedings for damages against the defendant arising out of that incident.

2. The plaintiffs bring the proceedings as representative proceedings on behalf of:

1. passengers on board the vessel who suffered physical and/or psychological injury as a result of the events surrounding its loss;

2. passengers on board the vessel who lost material possessions as a result of the events surrounding its loss;

3. persons who were not passengers on board SIEV 221, but who suffered psychological injury as a result of the events surrounding its loss;

4. 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 the estate of a deceased passenger, to bring an action for the benefit of the relatives of a passenger who died as a result of the events surrounding the loss of the vessel; and

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 the vessel who lost material possessions as a result of the events surrounding its loss, to bring an action for damages arising from that loss.

3. The proceedings have been continued by the plaintiffs pursuant to Part 10 of the Civil Procedure Act 2005 (NSW). Consequent upon an order made pursuant to r. 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) by Beech-Jones J on 30 October 2015, I am required to consider and determine a total of 18 specific questions which are set out below.

ABBREVIATIONS ADOPTED FOR THE PURPOSES OF THIS JUDGMENT

4. The following abbreviations have been adopted for the purposes of this judgment:

1. ABF – Australian Border Force

2. ADF - Australian Defence Force

3. AFP – Australian Federal Police

4. AIA – Acts Interpretation Act 1901 (Cth)

5. AMSOC – Australian Maritime Security Operations Centre

6. ASOC – Amended statement of claim

7. BPC – Border Protection Command

8. CB – Court Book

9. CCOI – Critical Contact of Interest

10. CIA – Christmas Island Act 1958 (Cth)

11. CIRV – Christmas Island response vessel

12. CLAN – Civil Liability Act 2002 (NSW)

13. CLAW – Civil Liability Act 2002 (WA)

14. CNOC – Customs National Operations Centre

15. The Colin Winchester – the vessel Colin Winchester

16. DTS – Daily Maritime People Smuggling Threat Status

17. FASOC – Further amended statement of claim

18. GAMSA – Guide to Australian Maritime Security Arrangements

19. LAN – Limitation Act 1969 (NSW)

20. LAW – Limitation Act 2005 (WA)

21. MA – Migration Act 1958 (Cth)

22. NA – Navigation Act1912 (Cth)

23. NORCOM – Northern Command Headquarters, Christmas Island

24. PII – Potential Irregular Immigrant

25. The Pirie – HMAS Pirie

26. RAN – Royal Australian Navy

27. RHIB – Rigid Hull Inflatable Boat

28. SATM - SIEV Arrival Threat Matrix

29. The Sea Eye – the vessel Sea Eye

30. SIEV – Suspected Illegal Vessel Entry Vessel

31. SIEV 220 – Suspected Illegal Entry Vessel 220

32. SIEV 221 –Suspected Illegal Entry Vessel 221

33. SOC – Statement of claim

34. SOLAS – Safety Of Life At Sea

35. The Triton – Australian Customs Vessel Triton

36. VMRS – Volunteer Marine Rescue Service

THE HEARING

5. The hearing of the proceedings extended over a number of days, following which submissions were made orally and in writing. Much of the documentary evidence was tendered by consent. That material included transcripts of some of the evidence given at an inquest into the deaths of those on board SIEV 221 which was conducted before the State Coroner for Western Australia in 2011. The material also contained a document entitled “SIEV 221 Internal Review” [1] , which was the report of a review of the incident giving rise to these proceedings which was conducted by Sharon Nyakuengama, the Acting National Director (Enforcement and Investigations) of the Australian Customs and Border Protection Service. That review was conducted by Ms Nyakuengama pursuant to a direction from the Chief Executive Officer, Mr Carmody, on 17 December 2010 that there be “an internal review into the actions of Customs and Border Protection, including Border Protection Command (BPC), relating to the incident on 15 December 2010 when a vessel now known as (SIEV 221) foundered on rocks at Rocky Point, near Flying Fish Cove, Christmas Island (the incident) with resulting loss of life” [2] .

   1. CB Vol. 6/81

   2. At paragraph (21)

6. The review concluded (inter alia) that there was no “actionable intelligence that would indicate that the vessel foundered at Christmas Island on 15 December 2010 had departed Indonesia or was likely to arrive at Christmas (sic) around that time”, that “the posture of BPC assets on the morning of 15 December 2010 was in accordance with the relevant policies, processes and procedures”, and that the material available “indicated that all persons involved have acted in accordance (sic) policies, processes and procedures relevant to the exercise of their duties…” [3] .

   3. At paragraphs (12), (13) and (20)

7. References were made in the course of submissions to those conclusions. Whilst the report of the review forms part of the evidence before me, I regard it as being of limited weight. Obviously, those persons charged with the responsibility of conducting the review and preparing the report were not bound by the rules of evidence. The conclusions reached following the conduct of the review are not binding on me.

THE WITNESSES

8. The following witnesses gave oral evidence at the hearing before me:

1. Ross Gordon Martin – Chief Engineer, ABF;

2. Matthew David Saunders – Enforcement Commander of the Triton;

3. Mitchell Robert Livingstone – Commanding Officer of the Pirie;

4. Andrew George Stammers – Master of the Triton; and

5. Shane Anwer Adams – a Special Constable in the AFP, the former Vice Commander of the VMRS, and a resident of Christmas Island.

9. To a large extent, the facts are not in dispute and are established by the evidence I have summarised below. To the extent that issues have arisen as to those facts, or as to the acceptance or rejection of particular evidence, I have dealt with those issues in the course of addressing the individual questions that I am required to determine.

CHRISTMAS ISLAND

10. Christmas Island is located to the west of the coast of Western Australia. Pursuant to s. 5 of the CIA, it is declared to be accepted as a territory under the authority of the defendant, and is known as the Territory of Christmas Island. The territorial waters of Christmas Island extend 12 nautical miles from its coast.

11. Section 7 of the CIA sets out the laws in force on Christmas Island in the following terms:

7 The laws of the Territory

On and after 1 July 1992, the laws in force in the Territory from time to time are:

(a) Acts as in force from time to time in or in relation to the Territory on and after that day; and

(b) Ordinances made on or after that day as in force from time to time; and

(c) laws as in force in the Territory in accordance with section 8; and

(d) Western Australian laws as in force in the Territory in accordance with section 8A.

12. Section 8 of the CIA is in the following terms:

8 Operation of existing laws etc.

(1) A law in force in the Territory immediately before 1 July 1992 is repealed unless it is specified in the Schedule.

(2) Subject to subsection (3), a law that is specified in the Schedule (including any instruments made under that law) as in force in the Territory immediately before 1 July 1992 continues to be in force in the Territory on and after that day.

(3) A law specified in the Schedule may be amended or repealed by an Ordinance.

(4) In this section:

"instruments " includes regulations, rules and by-laws.

"law " :

(a) includes a principle or rule of common law or equity; and

(b) does not include an Act.

13. Section 8A of the CIA is in the following terms:

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.

14. Section 15B of the AIA is in the following terms:

15B Application of Acts in coastal sea

Coastal sea of Australia

(1) An Act is taken to have effect in, and in relation to, the coastal sea of Australia as if that coastal sea were part of Australia.

(2) A reference in an Act to Australia, or to the Commonwealth, is taken to include a reference to the coastal sea of Australia.

Coastal sea of external Territory

(3) An Act that is in force in an external Territory is taken to have effect in, and in relation to, the coastal sea of the Territory as if that coastal sea were part of the Territory.

(3A) A reference in an Act to all or any of the external Territories (whether or not one or more particular Territories are referred to) is taken to include a reference to the coastal sea of any Territory to which the reference relates.

Definition

(4) In this section, coastal sea :

(a) in relation to Australia, means:

(i) the territorial sea of Australia; and

(ii) the sea on the landward side of the territorial sea of Australia and not within the limits of a State or internal Territory;

and includes the airspace over, and the sea-bed and subsoil beneath, any such sea; and

(b) in relation to an external Territory, means:

(i) the territorial sea adjacent to the Territory; and

(ii) the sea on the landward side of the territorial sea adjacent to the Territory and not within the limits of the Territory;

and includes the airspace over, and the sea-bed and subsoil beneath, any such sea.

15. The effect of s. 15B of the AIA is that laws in force on Christmas Island have effect in, and in relation to, the coastal sea of Christmas Island, being:

1. the adjacent territorial sea;

2. the sea on the landward side of the island; and

3. the airspace over, and the sea-bed and sub-soil beneath, Christmas Island.

MONSOONAL WEATHER CONDITIONS ON CHRISTMAS ISLAND

16. The monsoon season on Christmas Island runs generally from November through to February. It brings with it harsh weather conditions, particularly in and around the north-west area of the island, often characterised by large sea swells and gale force winds. Depending upon their strength, those weather conditions can make it difficult for vessels approaching Christmas Island from the north to navigate the waters off the coast [4] .

    4. T197 L33-50

PARTICULAR locations on AND around Christmas Island

17. The following particular locations on and around Christmas Island are relevant for the purposes of this judgment:

1. Rocky Point, located at the northwest corner of the island, to the west of North-East Point;

2. North-East Point, located at the northeast corner of the island;

3. Mango Tree Lodge, a hotel located adjacent to the northern coastline of the island between Rocky Point and North-East Point;

4. Nui Nui Point, located on the eastern side of the island;

5. Ethel Beach, located south of Nui Nui Point on the eastern side of the island;

6. The Golden Bosun Tavern, located to the south of Rocky Point;

7. Flying Fish Cove, located on the western side of the island, to the south of the Golden Bosun Tavern.

BORDER PROTECTION COMMAND

18. BPC is the lead Government agency for Australia’s border protection, and combines its resources and expertise to provide security for Australia’s maritime areas [5] . In doing so, it works in conjunction with the Australian Fisheries Management Authority, the Australian Quarantine and Inspection Service and other Commonwealth, State and Territory agencies. In December 2010 the Commander of BPC was Rear Admiral Timothy Barrett [6] .

    5. Affidavit of Timothy William Barrett (“Aff. Barrett”) sworn 27 July 2016, [17]

    6. Aff. Barrett, [6], [11]–[12]

19. BPC is specifically responsible for co-ordinating and controlling operations to protect Australia against a number of threats recognised by the Australian Government. These include maritime security threats which, in turn, include threats posed by unauthorised maritime arrivals [7] .

    7. Aff. Barrett, [16]

20. BPC conducts law enforcement and security operations on behalf of various Federal Government agencies [8] . In 2010, for the purposes of managing multiple arrivals on Christmas Island, BPC worked with other agencies to improve offload procedures for PIIs, and to destroy unseaworthy vessels quickly in order to return to patrol as soon as possible [9] . In performing these roles, BPC was the primary law enforcement agency for maritime purposes. However, BPC is not an intelligence collection agency. Specifically, it is not an intelligence collection agency in respect of the arrival of SIEVs. It receives, and depends upon, intelligence received from other agencies, as well as from overseas authorities, to carry out its functions [10] .

    8. Aff. Barrett, [17]

    9. Statement of Timothy William Barrett, 8 April 2011, [3]

    10. Aff. Barrett, [21]–[28]

21. In 2010 BPC had a number of vessels, including seven RAN patrol boats designed to perform surveillance and response activities. The combined assigned workforce to operate BPC vessels was about 330. BPC’s assets for the purposes of intercepting SIEVs also included aircraft. All of its assets operated 24 hours per day, 7 days per week and 365 days per year. The assets used by BPC for the purposes of intercepting SIEVs could be deployed in any part of Australia’s maritime domain, so as to meet Government policy and related requirements. However, in accordance with what was then Government policy in respect of irregular maritime arrivals, those assets operated by BPC which were directed towards the interception of such arrivals were generally deployed in the area across northern Australia [11] .

    11. Coronial Inquest Transcript, pages 629 – 633 CB3/44

22. Importantly, BPC was not a search and rescue organisation, and was not resourced or directed to conduct surveillance for search and rescue purposes. That said, BPC’s assets were available to be called upon to respond to emergencies at sea in accordance with responsibilities imposed by the International Maritime Organisation SOLAS Convention, and the NA. It was pursuant to those obligations that BPC responded to the incident which is the subject of these proceedings, such incident being described by Rear Admiral Barrett as “unprecedented” [12] .

    12. Coronial Inquest Transcript, page 663 CB 3/44

THE GUIDE TO AUSTRALIAN MARITIME SECURITY ARRANGEMENTS

23. The GAMSA is a document published under the direction of the Australian Government, and issued by BPC. Its stated purpose is expressed in the following terms:

The purpose of this Guide to Australian Maritime Security Arrangements (GAMSA) is to provide a common reference point on the arrangements to enhance the management of security in Australia’s Maritime Domain [13] .

1. Question 3 is answered: No.

2. Question 4 is answered: No.

3. Question 5 is answered: No.

4. Question 6 is answered: 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.

5. Question 7 is answered: 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.

6. Question 8 is answered: The shipwreck risk was “not insignificant” within the meaning of s. 5B(1)(b) of the Civil Liability Act 2002 (WA).

7. Question 9 is answered: No.

8. Question 10 is answered: No.

9. Question 11 is answered: No.

10. Question 12 is answered: No.

11. Question 13 is answered: No.

12. Question 14 is answered: “No”.

13. Question 15 is answered: No.

14. Question 16 is answered: 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.

15. Question 17 is answered No.

16. Question 18 is answered:

1. as to paragraphs [52]-[71] of the FASOC – No;

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

19. The proceedings are listed for further directions before me on 20 September 2017 at 9:30am.

20. The parties are to bring in Short Minutes of Order on that day reflecting the conclusions that I have reached in this judgment.

**********

Endnotes

Amendments

18 September 2017 - Typographical error made to coversheet.

Typographical corrections made to [172]; [174]; [175]; 211]; 217]; [229]; [232]; [237]; [262].

Corrections made to endnotes 258, 260 and 274.

13 September 2017 - Correction to formatting

Decision last updated: 18 September 2017