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 the evidence is given orally.
5.      An order, pursuant to UCR 154.12, that the applicant have a period of two days expand upon written affidavit evidence will give the Court time to assess the applicant and the applicant the opportunity to give evidence orally as to personal matters.
6. Although credit is in issue, this is not a case where what was said in oral conversations is critical: Thomas & Ors v SMP (International) Pty Ltd & Ors [2010] NSWSC 822 distinguished.
7. The giving of evidence orally would interfere with the orderly determination of these proceedings and would likely interfere with cases brought by other applicants in immigration detention matters and also with the other business of the Court generally: Expense Reduction Analysts Group Pty Ltd & Ors v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303 applied.
Migration Act 1958 (Cth), referred to.
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 97 ALJR 1005; Concrete Pty Limited v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577; Thomas & Ors v SMP (International) Pty Ltd [2010] NSWSC 822; Expense Reduction Analysts Group Pty Ltd & Ors v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; Lantrak Holdings Pty Ltd v Yammine [2023] FCAFC 156; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, considered.

MOUSA SHANNUN v COMMONWEALTH OF AUSTRALIA
[2024] SADC 9
Introduction

The applicant has brought proceedings against the respondent, the Commonwealth of Australia, in relation to the detention of the applicant in the immigration detention facilities at Curtin and Baxter. The respondent has brought a cross claim against Australasian Correctional Services Pty Limited and the GEO Group Australia Pty Limited and a separate cross claim against G4S Australia Pty Ltd and G4S Regional Management (UK & I) Limited who were the parties operating the detention centres at the relevant times. The matter is listed for a trial for eight weeks commencing on 5 May 2025.
The respondent has proposed minutes of order that set out the pre-trial steps to be undertaken by the parties. Those minutes of order included orders that lay witnesses, including the applicant himself, give their evidence by way of affidavit or witness statement.
The applicant objected to the provision of evidence in chief by way of affidavit or witness statements. The applicant has brought an interlocutory application in which he seeks an order that the evidence of the applicant and his other lay witnesses is to be adduced orally. The respondent and third parties oppose that application although they do not object to the applicant having one day to give oral evidence supplementing his written evidence.
For the reasons which I will set out, I dismiss the application of the applicant although I permit the applicant to give evidence orally for two days supplementing his written evidence.
Background
The applicant was a refugee and escaped from Iran and arrived in Australia on or about 1 November 1999. The applicant had suffered torture and trauma in Iran before he came to Australia as a refugee.
Upon his arrival in Australia, the applicant was detained in immigration detention centres pursuant to the provisions of the Migration Act 1958 (Cth). The applicant was in detention from about 1 November 1999 to 27 June 2005. He was detained first at the Curtin Immigration and Reception Processing Centre (Curtin) in Western Australia from about 5 November 1999 to 21 September 2002, a period of over two years and 10 months. He was subsequently detained at the Baxter Immigration and Reception Processing Centre (Baxter) at Port Augusta in South Australia from 21 September 2002 to 27 July 2005, a period of over two years and 10 months.
The applicant alleges that he suffered psychiatric injuries as a result of his detention at Curtin and Baxter and in particular in respect of the conditions in which he was detained. The applicant pleads that the respondent breached its duty of care in relation to a failure to properly assess him upon arrival at Baxter for his mental health conditions and failing to provide appropriate diagnosis and treatment for those conditions. The applicant also pleads that the respondent knew or ought to have known of his mental health issues by reason of events that occurred whilst he was in detention. The applicant further pleads that the respondent breached its duty to him in that it detained him in a detention environment and in conditions which aggravated or caused mental health issues. The applicant relies upon some of the actions by the operators of the detention facility as a basis for the claim of a breach of the duty of care. The applicant further claims that when placed in restrictive or solitary confinement at Baxter, he suffered assault and battery as a result of the conditions in which he was held which included the use of handcuffs.
The applicant claims as a consequence of the alleged acts of the respondent he suffered or aggravated his existing mental health conditions as well as sustaining some physical injuries. In addition, he claims future economic loss.
The respondent denies the claims of the applicant. It is clear that the credibility of the applicant will be in issue at trial.
The respondent has issued a cross claim against four third parties. The first and second third parties (who I will refer to as ACS and ACM respectively)[1] are related to each other. The third and fourth third parties (who I will refer to as G4S and Group 4 Falck)[2] are related to each other.
[1] The second third party GEO Group Australia Pty Ltd was formerly known as Australasian Correctional Management Pty Ltd.
[2] The fourth third party was formerly known as Group 4 Falck Global Solutions Limited.
In its cross claim, the respondent pleads that the respondent and ACS had entered into an agreement in 1998 pursuant to which ACS agreed to provide services to the respondent in connection with the detention of persons and to be responsible for the detention, care, supervision and welfare of detainees. ACS was required to provide the services according to specified immigration detention standards. ACS and ACM entered into a subcontract pursuant to which ACM agreed to provide the services on behalf of ACS. ACM gave a guarantee to the respondent whereby it guaranteed the performance of ACS under the first agreement. The respondent entered into similar arrangements with G4S and Group 4 Falck in 2003.
Pursuant to the agreements to which I have just referred, Curtin was managed by ACM for and on behalf of ACS throughout the period from 1 November 1999 and 20 September 2002, being the period during which the applicant was detained at Curtin. Also pursuant to same agreements, Baxter was managed by ACM on behalf of ACS in the period from 21 September 2002 to 19 January 2004. In the period from 19 January 2004 to 27 July 2005, Baxter was managed by G4S pursuant to the agreements that G4S had entered into with the respondent.
In respect of the time that the applicant was in detention centres managed by ACS or ACM, the respondent pleads that if it is liable to the applicant, it is entitled to an indemnity from ACS and ACM in that any liability of the respondent arose out of breaches by the third party of their agreement or breaches of the duty of care they owed to the respondent. Alternatively, the respondent was entitled to contribution from ACS and ACM in respect of their responsibility for the harm that was suffered by the applicant.
The respondent makes similar claims against G4S and Group 4 Falck in respect of the period of time that G4S operated Baxter.
The applicant has indicated, although he has not finalised his list of witnesses, that he proposes to call three lay witnesses in addition to himself. Counsel for the applicant asserted, without evidence or any factual basis, that the examination in chief of the applicant, if given orally, would take about four days. As counsel for the applicant properly conceded, this may well prove to be an under-estimation. It is likely that the applicant will give evidence about his experiences in Iran, his life throughout the period in which he was held at Curtain and Baxter, including the circumstances of his detention and the events that occurred as well as his mental and physical injuries.
In correspondence prior to the hearing of the application, the respondent requested the applicant confirm how long the applicant’s evidence in chief, if adduced orally, would take and how many lay witnesses were intended to be called and how long that evidence would take. The applicant responded by letter dated 7 July 2023 that he was not in a position to respond.
The respondent and third parties referred to the trial in Sadaat v The Commonwealth, which was heard in the Supreme Court, where the evidence of the applicant in that case took some 31 days in total and some 13 days in examination in chief, 17 days in cross-examination and one day in re-examination (although noting that not all of these days were full days). This time was spent even though witness statements had been provided. The applicant requires the use of an interpreter to give his evidence and that is likely to increase the time that examination in chief would take if given orally. The voluminous documents to which reference might be made during examination in chief would also likely increase the time spent in examination in chief.
The claim and cross claims raise matters of complexity, both in terms of the medical evidence and causation and also proof of the events which are alleged to have occurred, and the conditions under which the applicant was detained, at Baxter and Curtin. The discovered documents are very significant in volume in that the life of a detainee, such as the applicant, was intricately documented on a daily basis. The types of documents that were kept by the operators of Curtin and Baxter are set out in the affidavit of the solicitor for ACS and ACM. The applicant submitted that in these proceedings extensive lists of documents had been filed and that “once reviewed it is evident that the proceedings are document heavy and tender bundles presented to the Court will be extensive.” Almost 5,000 documents have been discovered by the parties.
The claim by the applicant is part of a cohort of a large number of similar claims brought by applicants who were detainees at the Baxter or Curtin Detention Centres or both. There were initially about 70 such claims. A relatively small number of those claims have settled. Almost thirty claims have recently been the subject of an order made by the Supreme Court that they be transferred to the Federal Court.[3]
[3] Firuzibahksh & Ors v Commonwealth & Ors [2024] SASC 11.
Even given the transfers of those matters and the settlement of some proceedings, there remains a large number of claims before this Court. The number of claims and their complexity and the length of any potential trials places a very significant burden on the Court. Currently, it has been the practice of the Court to list each trial for eight weeks. Trial dates currently extend to 2027. There is a very significant number of cases that do not as yet have trial dates. In many cases, there is a relatively short time between the completion of one case and the start of the next.
Currently, only one matter, Sadaat, has gone to trial. That trial was heard in the Supreme Court and was initially listed for 12 weeks. Mr Sadaat gave oral evidence through an interpreter for over 31 days. The trial ultimately proceeded for approximately 150 days in court. The parties have requested that the Trial judge in that matter delay giving final judgment, pending consideration of the High Court decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs,[4] and whether it gives rise to further claims by the applicant in that case.
[4] (2023) 97 ALJR 1005; [2023] HCA 37
Basis of Application
Uniform Civil Rules 2020 (UCR) 172.2(1) provides:
Unless the Court otherwise orders or these Rules otherwise provide, evidence of a witness at the trial of a claim will be taken orally.
The applicant submitted that UCR 172.2 gave rise to a presumption that evidence was to be taken orally and that it is consistent with the common law practice over many centuries and also with UCR 154.7 which permits a party to serve a notice on the other parties that it intends to adduce evidence from a witness in the form of an affidavit that had been filed in the proceedings. The applicant submitted that there was no statutory support for evidence in chief to be given other than in the usual way, that is orally.
The primary argument of the applicant was based on fairness to the applicant. The applicant submitted that he wished to invoke his right to tell his story in his own words and provide his own narrative to the Court. This is particularly important, it was submitted, in the present case where the evidence was of a very personal and sensitive nature including torture and trauma that the applicant suffered prior to detention in Iran and also the impact of these experiences in detention. The applicant has submitted that these were matters of a personal and sensitive nature and therefore were best given in the applicant’s own voice rather than through an affidavit. The applicant submitted that he was entitled to his trial and have it heard without short cuts for convenience. The applicant submitted that it was irrelevant that he formed a cohort of applicants with similar claims.
The applicant referred to a number of difficulties that might arise if evidence is given by way of affidavit. Many of these matters had been referred to by the courts or judges, writing extrajudicially.
First, the applicant submitted that oral evidence has a spontaneity and genuineness, often lacking in affidavit material. The applicant submitted that in many cases the affidavit material will be the product and refinement of the lawyers rather than the applicant himself or herself.
In support of this contention the applicant referred to the decision of Callinan J in Concrete Pty Limited v Parramatta Design and Developments Pty Ltd[5] where His Honour held:
The Federal Court has adopted a docket system. In that system a number of cases are assigned to a particular judge who then oversees, and makes directions with respect to, all interlocutory matters before hearing a case assigned to him or her. The procedure for trials in the jurisdiction also involves the preparation, exchanging and filing of statements and documents in advance of the hearing which may, and almost always will, be read before the trial begins.
This system has its disadvantages and dangers. On the one hand, the trial judge will be well educated in many of the details of the case on each side by the time that the hearing starts. But on the other hand, it may sometimes be difficult for the trial judge, apparently fully conversant with the facts and issues, not to have formed some provisional view at least of the outcome of the case. The justifications for the provision of written statements in advance of trial have been thought to be the avoidance of surprise and the shortening of hearing time. These advantages will often be more illusory than real. The provision of written statements by one side will afford to the other an opportunity to rehearse in some detail his or her response. It is also impossible to avoid the suspicion that statements on all sides are frequently the product of much refinement and polishing in the offices and chambers of the lawyers representing the parties, rather than of the unassisted recollection and expression of them and their witnesses. This goes some way to explaining the quite stilted and artificial language in which some of the evidence is expressed in writing from time to time, as it was here. Viva voce evidence retains a spontaneity and genuineness often lacking in pre-prepared written material. It is also open to question whether written statements in advance do truly save time and expense, even of the trial itself. Instead of hearing and analysing the evidence in chief as it is given, the trial judge has to read it in advance, and then has the task of listening to the cross-examination on it, and later, of attempting to integrate the written statements, any additional evidence given orally in chief, and the evidence given in cross-examination.
[5] (2006) 229 CLR 577; [2006] HCA 55 at [174] and [175].

Secondly, the perceived advantages of shortening the length of trial and avoidance of surprise by use of affidavit material often proven more illusory than real. That is again referred to in the statement of Callinan J which is set out above. The applicant further submitted that the preparation of affidavits could be time consuming and costly.
Thirdly, the applicant submitted that where evidence is controversial and credit is in issue, affidavit evidence is not always the most suitable means of giving evidence. Clearly, in this case, credit is in issue and is central to the claim of the applicant and the defence of the respondent and the third parties. The applicant also submitted their other lay witnesses would be providing confirmation of the applicant’s evidence and his time in detention and their credit would also be in issue.
The applicant referred to the decision of Pembroke J in Thomas & Ors v SMP (International) Pty Ltd[6] where he held:[7]
…Affidavits have an important function and serve a useful purpose. But they are not necessarily always the best means of leading evidence-in-chief. Where there are disputed issues of fact involving oral representations and conversations, affidavit evidence can sometimes be an unsatisfactory medium for leading the evidence-in-chief.
It is well known that eminent jurists with unparalleled trial experience have expressed misgivings about the elicitation of evidence-in-chief by affidavits in cases whose success or failure depends on disputed representations and conversations. …
Justice Emmett elaborated more fully on the difficulties to which affidavits and witness statements can give rise in Practical Litigation in the Federal Court of Australia – Affidavits (2001) 20 Australian Bar Review 28.
Where evidence is controversial, particularly where credibility of the witness is involved, the adducing of the evidence in written form is often undesirable and can be quite unfair. An honest witness, albeit nervous, in unfamiliar and overbearing surroundings, will be better able to defend in cross-examination evidence given by the witness in his or her own words. With the very best of intentions a lawyer who settles an affidavit or a witness statement will invariably reduce the language of the witness to the lawyer's own language. That may entail changes in meaning and emphasis that, although not intended, may expose a witness to unnecessary difficulties in the course of cross-examination. On the other hand, a dishonest witness will always be assisted by having evidence put into credible form by a lawyer. Where an assessment of credit is required, a judge will have a much better prospect of assessing a witness who gives evidence-in-chief orally rather than being exposed to cross-examination immediately upon entering the witness box.
[6] [2010] NSWSC 822.
[7] Ibid at [23]-[25].
Pembroke J went on to hold:[8]
A common thread in the commentary is that the studied reconstruction, and formulation in writing, of contentious conversations and oral communications in language that is usually settled and refined by lawyers, can sometimes be unreliable and unintentionally misleading. In an appropriate case, a more reliable touchstone of the truth is the witness' frank and honest recollection of the communication, given orally in the witness box, without the formality of an affidavit or the supervising hand of an interested lawyer. Even if the recollection is spare, and perhaps because it is so, it will very often be more credible. And the process of leading the evidence in chief orally may well be fairer to the witness.
[8] Ibid at [28].
As senior counsel for the respondent observed, Pembroke J made those observations in the context of an oppressive affidavit that was some 6,657 paragraphs in length and extended to almost 500 pages.
Fourthly, the applicant submitted that the Court and the applicant lose the ability to obtain a deeper understanding of the issues in the evidence by the loss of the ability to ask questions or clarify matters. The applicant further submitted in this regard that the Court faces a difficult task of integrating written evidence in chief with some oral evidence in chief and oral cross-examination.
Fifthly, the applicant further referred to the unfairness a witness may suffer when being cross-examined, if questioned about matters that they may have considered when preparing an affidavit some months prior to trial. The applicant submitted that the witnesses’ recollection of evidence is often context based and therefore is easier for a witness to respond in cross-examination to a question in a context of evidence in chief that has just been given.
The Respondent and Third Parties Position
The respondent and third parties opposed the application on a number of bases.
First, they disagreed with the suggested construction of the rules as creating a presumption in favour of evidence in chief being given orally and submitted that the Court had a discretion in deciding how evidence would be given.
Secondly, they submitted that the fairness required the Court to consider the interests of all parties. In this case, the interest of the respondent and third parties required them to have fair notice of the evidence that was to be given and the case against them. This is a case where the events occurred between 18 - 24 years ago. The activities of the applicant in detention were recorded in thousands of documents and from a variety of resources on a daily basis. Until the evidence is given or notice of it, they submitted that was impossible for them respond in a timely manner to the evidence given, identify potential witnesses that they wish to call and the documents upon which the wish to rely and cross-examine the applicant.
Thirdly, the respondents and the third parties submitted that the interest of speed and efficiency are essential to a just resolution of the proceedings. The third parties referred to the likely significant extension of the trial duration if evidence is not given by way of affidavit.
The respondent referred to the decision of the High Court in Expense Reduction Analysts Group Pty Ltd & Ors v Armstrong Strategic Management and Marketing Pty Ltd[9] where the Court held:[10]
In Aon Risk Services Australia Ltd v Australian National University, it was pointed out that case management is an accepted aspect of the system of civil justice administered by the courts in Australia. It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants. The decision in Aon Risk Services Australia Ltd v Australian National University was concerned with the Court Procedures Rules (ACT) as they applied to amendments to pleadings. However, the decision confirmed as correct an approach to interlocutory proceedings which has regard to the wider objects of the administration of justice.
[9] (2013) 250 CLR 303; [2013] HCA 46.
[10] Ibid at [51].
In Lantrak Holdings Pty Ltd v Yammine,[11] Jackman J noted that an inarticulate and not well educated witness may be at a very considerable disadvantage at giving evidence in chief orally and that difficulty was illustrated in the present appeal. Jackman J went on to hold that a lesser educated and inarticulate witness may be at a substantial disadvantage if required to give evidence orally in responding to non-leading questions that often require relatively lengthy answers which must be expressed clearly in a well-ordered manner if the case is to be revealed at its best.
[11] [2023] FCAFC 156 at [278].
Thirdly, the respondent submitted that there was no evidence justifying the orders being sought by the applicant.
The respondent and third party submitted that the difficulties of notice could not be overcome by the applicant providing dot points on topics to be covered and that they required notice of a particular event and the occasion to be relied upon. The respondent submitted that the efficiency of the trial would be compromised because there would be delays in cross-examination and potentially even applications to adjourn the trial as they would not have had fair notice of the matters to be adduced.
Determination
The application must be considered in light of the object of the rules. UCR 1.5 states that the object of the rules is to facilitate the just, efficient, timely, cost-effective and proportionate resolution or determination of the issues in proceedings governed by these rules. In Aon Risk Services Australia Ltd v Australian National University[12] French CJ held:[13]
..Undue delay can undermine confidence in the rule of law. To that extent its avoidance, based upon a proper regard for the interests of the parties, transcends those interests. Another factor which relates to the interests of the parties but which transcends them is the waste of public resources and the inefficiency occasioned by the need to revisit interlocutory processes, vacate trial dates or adjourn trials...
[12] (2009) 239 CLR 175; [2009] HCA 27.
[13] Ibid at [24].
The plurality, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ held:[14]
Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a “just resolution” must be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings…
[14] Ibid at [98].
I have already referred to and set out the text of UCR 172.2. Also relevant is UCR 154.8 (1) which provides that:
The Court may order, or the parties may agree, that some or all of the evidence in chief of some or all witnesses at trial be adduced in the form of affidavits or signed written statements.
UCR 154.12 provides that where an order is made under UCR 154.8, the Court may specify the extent to which a party serving written evidence is entitled to adduce oral evidence from the witness in question.
UCR 172.2 or the rules generally, do not create any presumption that evidence will be given orally. That is the default position if the court does not make any order to the contrary or the rules otherwise provide. UCR 154.8 and 172.2 provide the court with the discretion whether or not to order all or some of the evidence in chief of witnesses by way of affidavit or signed written statements. UCR 154.8 clearly provides a discretion in the Court whether or not to make such an order. UCR 172.2 deals with the situation where the Court does not make an order under UCR 154.8. When exercising its discretion whether or not to order evidence be given by way of affidavit or written statement, the Court must take into account the object of the rules.
As the courts have made clear there is no absolute rule requiring that the justice of the case requires evidence to be given by way of affidavit or orally. What is just will depend on the circumstances of the particular case. That point was made clear by Kiefel CJ (writing extra judicially):[15]
Different views held about the practice of allowing statements of evidence as a witness’ evidence in chief. Certainly it is a matter which should require careful consideration of the nature of the case and the evidence involved. Its use, as a matter of course, may be questioned when the credibility of a witness is in issue and where the witness statement appears to reflect more of the lawyer’s pen than the witness’s own account.”
[15] Kiefel J (as she then was) “Oral Advocacy-The Last Gasp” presented at the Supreme Court and Federal Court Judges Conference, 2010.
To similar effect are the statements made by Lee J in Lantrak Holdings Pty Ltd v Yammine,[16]where he held:
Each case is different, and the lodestar in making the case management decision as to the mode of receiving evidence in chief is what best facilitates the resolution of issues “according to law, and as quickly, inexpensively and efficiently as possible”: see s 37M(1)(b) of the FCA Act. A controversy determined “according to law” is a resolution that is just and, as Gleeson CJ observed in relation to a cognate provision of the Supreme Court Rules 1970 (NSW), there is a reason why there is a comma after the word “just”: the Hon Murray Gleeson AC ‘Managing Justice in the Australian Context’ (Speech, ALRC Conference, 19 May 2000).
[16] [2023] FCAFC 156 at [24].
In this case, I consider that the justice of the case requires the lay witnesses to give their evidence by way of affidavit or witness statement. I have come to this conclusion because I consider that a very important factor in this case is that the parties are able to identify in advance of the trial the case that they have to meet. The events under consideration took place 18 - 24 years ago. The respondent and third parties are not easily able to identify what witnesses they may need to call when the evidence of the applicant has not been provided in advance. Further, as I have indicated, there are a vast number of documents that may be relevant and relate to a particular allegation. However, until such time as the applicant provides the evidential detail of his experiences, it is not possible in advance to identify those documents. The respondent and third parties are not able to comprehensively prepare their cross-examination in advance because of these matters. I accept the submission of the respondent and third parties that they would be severely prejudiced if the applicant gave evidence orally.
In making orders of this kind, the Court is inevitably involved in a balancing exercise and must consider the interests and prejudice to all parties when making the order.
The applicant submitted that the use of the witness statement would be unfair to the applicant as he would be immediately exposed to cross-examination and therefore would not have the opportunity of giving evidence in his own words. I consider that disadvantage or potential disadvantage can be overcome by the applicant having a period of two days in which to expand upon his affidavit evidence and give oral evidence. That period of time would permit the applicant to speak in his own voice and in the less hostile environment than cross-examination. The applicant has a right to a fair trial, but that right is not impeded by an order that he give evidence by way of affidavit. I do not consider that ordering evidence in chief to be by way of affidavit in any way interferes with the right of the applicant to be heard or will lead to an unfair trial. While some of his evidence will be deeply personal, the applicant will have the opportunity to give that evidence orally (in the two days that I have set aside for him to expand upon his written evidence) as well as by way of affidavit. I consider that will also give the judge hearing the matter time to assess the applicant and the other lay witnesses before they are cross-examined.
I accept that an affidavit, if prepared by a lawyer, may be written in the lawyer’s words. In these proceedings, where the evidence relates to events that occurred so long ago, in my view, a written statement would permit the applicant’s evidence to be given in a logical and orderly manner and addressing all of the matters that require consideration. Matters such as the linking of evidence to documents will be enhanced if the evidence is given by way of affidavit. It could be expected that if a witness is required to give evidence orally, particularly in cases where an interpreter is required, the time for examination in chief will increase significantly.
The applicant has submitted that the prejudice that might be suffered by the respondent and the third parties if evidence was given orally, could be overcome in a number of ways. First, it was submitted that the parties could provide a short precis of the evidence to be given by each witness. I do not consider that would overcome the prejudice that I have referred to. Such a precis would not provide sufficient detail of the evidence to allow the respondent and third parties to identify relevant witnesses and documents and prepare in a timely manner for cross-examination. Secondly, it was submitted that further particulars of the statement of claim could be requested and provided. The statement of claim does not provide particularisation of specific events nor the indemnity of persons. However, I do not consider it to be a question of particulars of the claim, rather it is a question of the proper and timely consideration of the evidence that is to be given. Thirdly, it was submitted that a lengthy opening was likely to be given. I also do not consider that a lengthy opening, even if given some time prior to the commencement of the trial, will overcome the unfairness to the respondent and third parties. The opening address does not go into the detail of the evidence that would be necessary to overcome the lack of fair notice to the respondent and third parties.
This case is very different from an oral misrepresentation case where the particular words spoken by the parties is of critical importance. In the present case, it is the evidence of the events which occurred during the course of detention that is critical.
I accept that witness statements can be expensive and time consuming to prepare, however, that expense is offset by the reduction in court time and the efficiencies in running the trial. I accept also that the Court will have to assimilate evidence given orally, from a witness statement and from exhibits, but that is a process with which the Court is familiar and presents no special difficulties.
I also consider that the efficient and timely determination of the issues is enhanced in this case by the provision of witness statements. If evidence of the applicant is given orally, then I consider that three consequences will ensue. First, the time taken for the applicant to give his evidence is likely to be significantly increased. Secondly, the time spent in cross-examination is also likely to significantly increase and there may be adjournments to allow that to proceed fairly. Thirdly, it will follow that if the applicant gives his evidence in chief orally, the evidence in chief of the lay witnesses of the respondent and the third parties will also have to be given orally. They could not give their evidence by way of affidavit in advance of hearing the evidence of the applicant. It would be unfair to require them to do so. If they were to give evidence by way of affidavit, the trial would have to be adjourned after the evidence of the applicant’s witnesses so as to allow the respondent and third parties to prepare those affidavits. This will cause further substantial delay and prolong the trial significantly.
All of these matters will have impact on the efficient running of the trial and on the business of the Court. For example, case management orders limiting cross-examination or otherwise managing the trial will be impacted. If the trial is not completed within the allocated eight weeks, there will be likely significant prejudice to a number of parties. The parties to this litigation will suffer the cost associated with the delay. Other proceedings in the cohort of immigration detention cases will be prejudiced in that the parties will be diverted from the preparation and even the hearing of those cases. The respondent and third parties referred, which I accept, to the difficulties of there being a large number of matters of a similar sort where one matter will be heard shortly after the other. Any delay in the hearing and completion of one matter is therefore likely to have a significant flow on effect to other matters.
The parties in other cases in the Court list will suffer prejudice by the prolongation of these trials.

While the applicant and his legal advisers have expressed a preference for the applicant’s evidence and the evidence of other lay witnesses to be given orally, ultimately it must be the Court that determines the trial procedures, ensuring that they will lead to a just outcome.
Conclusion
For the reasons that I have stated, the application of the applicant for his evidence and the evidence of other lay witnesses to be given orally is dismissed. The evidence of all lay witnesses, including the applicant, is to be given by affidavit or witness statement save that pursuant to UCR 154.12 an order will be made that the applicant be permitted to give evidence orally for two days expanding upon the matters referred to in his written statement or affidavit. The applicant will have liberty to apply to increase that period once the affidavit or written statement is prepared. The length of time that other lay witnesses should be permitted to expand orally upon their written evidence pursuant to UCR 154.12 is to be determined at a later stage when the nature of their evidence is apparent.