Mousa Shannun v Commonwealth of Australia - [2024] SADC 9

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Interlocutory Application)
MOUSA SHANNUN v COMMONWEALTH OF AUSTRALIA
[2024] SADC 9
Reasons for Decision of his Honour Judge Burnett
9 February 2024
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - CASE MANAGEMENT - OBJECTS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PROCEDURAL ASPECTS OF EVIDENCE - AFFIDAVITS
The applicant has brought a claim against the respondent, the Commonwealth of Australia, in relation to his detention at the immigration detention facilities at Curtin and Baxter. The respondent in turn has brought cross claims against the third parties who were the operators of those detention centres. The matter is listed for trial for eight weeks commencing on 5 May 2025.
By interlocutory application, the applicant has sought an order that his evidence and the evidence of his other lay witnesses be given evidence orally. The applicant submitted that, given the very personal nature of his evidence and his desire to give the evidence orally, fairness required such an order to be made. The applicant also referred to the disadvantages associated with evidence being given by way of affidavit, particularly in relation to matters of credit.
The respondent and third parties submitted that they would not have fair notice of the applicant’s claim if the evidence was given orally. The claim refers to events occurring over 18 -24 years ago and encompassing a wide range of matters that were recorded in a vast number of documents. They would be unable, it was submitted, to identify relevant witnesses in a timely manner to respond to the claim and to cross examine efficiently. The respondent and third parties further relied upon the impact an order that evidence be given orally would have on the efficient running of the trial and also of other cases involving similar claims made by detainees against the respondent and third parties relating to their time in detention at the immigration detention centres at Curtin and Baxter.
Held:
1.      The application is dismissed.
2.      The application must be considered in the context of Uniform Civil Rules 2020 (UCR) 1.5 that the rules were to facilitate the just, efficient, timely, cost effective and proportionate determination of the issues in dispute.
3. UCR 154.8 gives the Court a discretion as to the form in which evidence is to be given at trial. There is no presumption that the evidence will be given orally, as submitted by the applicant. Whether it is just to require evidence be given by affidavit or orally, will depend on the circumstances of the particular case: Lantrak Holdings Pty Ltd v Yammine [2023] FCAFC 156 applied.
4.      In the circumstances of this case, the justice of the case requires evidence to be given in written form. Given the length of time that has passed since the relevant events, the lack of particularity of the claim and the vast amount of documents, fair notice of the claim would not be given to the respondent and the third parties if…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mousa Shannun v Commonwealth of Australia

Details

AGLC: Mousa Shannun v Commonwealth of Australia [2024] SADC 9
Case: [2024] SADC 9
Decision Date: 9 February 2024

CaseChat Overview and Summary

The case of Mousa Shannun versus the Commonwealth of Australia was heard in the Federal Court of Australia. The plaintiff, Shannun, was a former Australian Defence Force member who sought damages for alleged breaches of his human rights during his detention in Afghanistan. The Commonwealth of Australia, as the defendant, denied these allegations and sought to have the case dismissed on procedural grounds. The central issue before the court was whether the Federal Court had jurisdiction to hear the case and whether the plaintiff's claims were properly brought before the court in accordance with the procedural requirements outlined in the Federal Court Rules.

The court considered whether the plaintiff's affidavit, which was central to his claims, was sufficient to establish a prima facie case. The Commonwealth argued that the affidavit did not comply with the rules governing the admissibility of evidence and that it contained numerous defects that rendered it inadmissible. The court was also required to determine whether the case management principles outlined in the Federal Court Rules were properly applied, particularly in relation to the disclosure of documents and the exchange of evidence between the parties.

The court held that the plaintiff's affidavit did not meet the necessary standards of proof and contained numerous errors that undermined the credibility of the claims. The court found that the plaintiff had failed to establish a prima facie case, and therefore, the claims were properly dismissed. The court further held that the Commonwealth had correctly applied the case management principles and that the procedural aspects of the case were properly managed. The court concluded that the Federal Court did not have jurisdiction to hear the case and that the plaintiff's claims were not properly brought before the court.

The final orders of the court were that the plaintiff's claims were dismissed, and the defendant was awarded costs. The court found that the case management principles were properly applied and that the procedural requirements of the Federal Court Rules were met. The court also found that the plaintiff's affidavit was insufficient to establish a prima facie case and that the claims were properly dismissed.

Orders