Palmer v Australian Capital Territory - [2022] ACTSC 173

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Palmer v Australian Capital Territory
Citation:	[2022] ACTSC 173
Hearing Date:	31 May 2022
DecisionDate:	15 July 2022
Before:	McCallum CJ
Decision:	See [27].
Catchwords:	PRACTICE & PROCEDURE – EVIDENCE – EXPERT EVIDENCE – application for experts to give concurrent evidence – expert evidence regarding the use of excessive force – where experts disagree – whether concurrent evidence gives rise to unnecessary costs – where concurrent expert evidence could narrow the issues in dispute
Legislation Cited:	Court Procedures Rules 2006 (ACT) r 1211 Evidence Act 2011 (ACT) s 79
Cases Cited:	Booth v De Francesco [2002] NSWSC 154 Spasovic v Sydney Adventist Hospital [2002] NSWSC 164
Parties:	Paul Palmer ( Plaintiff) Australian Capital Territory ( Defendant)
Representation:	Counsel D Richards ( Plaintiff) S Whybrow ( Defendant)
Solicitors Maliganis Edwards Johnson ( Plaintiff) ACT Government Solicitor ( Defendant)
File Number:	SC 208 of 2020

McCallum CJ:

The plaintiff in these proceedings claims damages for personal injury arising from events that occurred while he was an inmate at the Alexander Maconochie Centre, which serves as the prison for the Australian Capital Territory. On 8 September 2017, following a series of disturbances at the Centre, the plaintiff was extracted from his cell and taken downstairs to another cell or holding area. He claims to have been injured as a result of the way in which he was handled by corrections officers during those events.

The proceedings are listed for hearing commencing on 29 August 2022. By application in proceedings dated 26 May 2022, the plaintiff seeks orders pursuant to r 1211 of the Court Procedures Rules 2006 (ACT) requiring the expert witnesses to prepare joint reports and give concurrent evidence. This judgment determines that application, which is opposed by the defendant.

Circumstances in which the application is brought

The pleadings allege that, as a result of actions by the plaintiff, he was placed in an isolated cell. I understand that to be the cell referred to in the evidence as “Cell 19”. The pleadings then make the following allegations:

“1.9 Three of the corrections officers that entered the cell then forced the Plaintiff to the         ground on his front and handcuffed his hands behind his back.
1.10 As the Plaintiff was forced to the ground, his legs contacted against the glass on the       floor of the cell.
1.11 The corrections officers then forcefully lifted the Plaintiff off the ground by lifting his arms which were handcuffed behind his back.
1.12 The corrections officers then forcefully took the Plaintiff out of the cell and down a set     of stairs into the exercise yard at the premises.
1.13 The force used by the corrections officers caused the Plaintiff injury, loss, and damage.”

The case as pleaded accordingly focusses on two phases of the interaction between the plaintiff and the corrections officers: the cell extraction and the journey down the stairs into the exercise yard. However, as I will explain, the expert evidence addressed a third…

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.

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Details

Case: [2022] ACTSC 173
Decision Date

CaseChat Overview and Summary

Paul Palmer has commenced proceedings against the Australian Capital Territory (the "Territory") seeking damages for injuries he sustained while an inmate at the Alexander Maconochie Centre ("AMC"). The case focuses on the alleged use of excessive force by corrections officers in extracting the plaintiff from his cell and taking him to a holding cell. The Territory opposes an application by the plaintiff to require the experts to prepare joint reports and give concurrent evidence. The court was required to determine whether the proposed process of concurrent expert evidence would narrow the issues in the case and thereby save costs. The court found that while the experts' opinions differed, a meeting between them could reasonably be expected to clarify and narrow the issues, and shorten the trial. The court accepted that the costs of the exercise could be contained within reasonable bounds. The court therefore ordered the experts to meet, prepare joint reports identifying areas of agreement and disagreement, and give concurrent evidence at the upcoming hearing.

Orders