Shabib v Commonwealth
[2013] VSC 586
•30 October 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2010 02765
| MAHMOUD ABED SHABIB | Plaintiff |
| – and – | |
| COMMONWEALTH OF AUSTRALIA | Defendant |
| – and – | |
| AUSTRALASIAN CORRECTIONAL SERVICES PTY LTD, THE GEO GROUP AUSTRALIA PTY LTD and G4S AUSTRALIA PTY LTD | Third Parties |
JUDGE: | MUKHTAR AsJ | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 15 October 2013 | |
DATE OF JUDGMENT: | 30 October 2013 | |
CASE MAY BE CITED AS: | Shabib v Commonwealth | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 586 | |
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PRACTICE AND PROCEDURE ― Pleading ― Statement of claim on third party notice ― Principal claim in negligence ― Non delegable duty on defendant ― Contracting out of defendant’s functions to third parties ― Claim for indemnity against third parties ― Sufficiency of pleading for a claim for indemnity
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | No appearance (not a party to the application) | |
| For the Defendant | Mr R Knowles | DLA Piper |
| For the first and second Third Party | Mr S J Moloney | Meridian Lawyers |
| For the third Third Party | Mr A Foster, solicitor | Foster Nicholson Jones Lawyers |
HIS HONOUR:
The Commonwealth of Australia has responsibilities under the Migration Act including the detention of “unlawful non citizens”.[1] The responsible Minister has the power on behalf of the Commonwealth to cause detention centres to be established and maintained. In this case, the plaintiff who came from Iran was detained at the Immigration Reception and Processing Centre in Curtain and at Baxter from about December 2000 to May 2005. In his statement of claim, the plaintiff says he has committed acts of self harm, has suffered depression and anxiety, and attempted suicide. He has sued the Commonwealth in negligence for psychiatric and psychological injuries which he alleges he has suffered from the conditions of detention and the failure to give him medical care and treatment for those injuries.
[1]See s 189 of the Migration Act.
As the plaintiff’s statement of claim acknowledges, the Commonwealth does not actually provide the “detention services” as they are called. Those services are provided by private agency. Thus, the Commonwealth has filed a third party notice against three corporations with whom it made agreements to operate and manage the detention centre at Curtain and at Baxter. That included the provision of medical care and treatment. Under those agreements the Third Parties took responsibility for the care, supervision, control and welfare of the detainees at the centres.
The Commonwealth disputes the plaintiff’s claims. But in the event that it is found liable to the plaintiff, it claims the third parties are bound to indemnify the Commonwealth for any liability under the express terms of those agreements and coextensively in tort. In short the Commonwealth says the care and welfare of the detainees was a distinct responsibility incurred by the contractors, and they gave an indemnity to the Commonwealth for any loss and damage.
The three Third Parties have brought a pleading summons to strike out the entirety of Commonwealth’s statement of claim in the third party notice. But, the application turns on two paragraphs of that pleading: paragraph 25 and more particularly paragraph 26. The ground of attack is that the pleading is embarrassing. They protest that they cannot discern the case they have to meet. The pleading is said to be so bereft of allegations of material facts concerning their alleged breaches of the detention services agreements that the third parties cannot engage with the Commonwealth on the pleadings and trial will be rendered unfair.
For the reasons that follow, I would not sustain the challenge to the sufficiency of the pleading. I think the attack gives insufficient regard to the special feature or utility of third party procedure. I think the attack is also based on an incorrect analysis or perception of the case being put against the third parties, and an overblown assertion of the unfairness said to be caused by the Commonwealth’s pleading. It might be thought trite to say that the third party claim derives from and is contingent on the legal and factual elements, and the adjudication of, the principal claim as between plaintiff and defendant. But in this case, it is especially important in dealing with the merits of this application, for it is the elements of the principal claim brought by the plaintiff that will necessarily inform the case to be put consequentially against the third parties and to inform them, at the outset, of the case to be met so as to prepare them for trial.
At the outset I shall summarise my view in the following pointed way.
First, the plaintiff makes allegations about the detention conditions and his treatment in detention. The Commonwealth put him in detention. But at the front gate of the detention centres, and to the exit gate, those who agreed with the Commonwealth to take responsibility for the conditions and his treatment were the third parties. Under extensive contracts, the third parties gave the Commonwealth indemnities if they failed to perform the detention services to standards prescribed in the contracts.
Secondly, the plaintiff does not allege that detention per se caused him injury. He is not suing the Commonwealth on a matter of immigration or detention policy.
Thirdly, the plaintiff says explicitly it was his treatment or non treatment in detention that caused him injury. The Commonwealth disputes that. But by the third party procedure, it says that if the plaintiff proves his case, then the third parties are responsible for what occurred and are answerable to the Commonwealth under the indemnities. That is because the things about which the plaintiff complains were matters for which the third parties incurred responsibility under their agreements.
Fourthly, although as a matter of legal expression, non observance of the detention standards by the Third Parties under the contracts is described as a “breach”, the breach or default on which the Commonwealth relies is not one to be alleged primarily by it. It makes no allegation of breach. The wrongdoing about the detention services is that which is alleged by the plaintiff. The question will be, depending on precisely what the plaintiff can prove, whether the acts or omissions fall within the terms of the contractual indemnities under the detention services contracts. The Commonwealth are saying that the third parties are answerable for the plaintiff’s allegations about conditions at the detention centres because the third parties took responsibility for those conditions.
They are the material facts of the case being put. That is the case to be met. I see no procedural injustice to the third parties on the Commonwealth’s pleading. Furthermore, I think the third parties’ pursuit of the case to be met by them is not served by picking to pieces the Commonwealth’s pleadings. What ought matter, one would think, for the third parties to prepare for trial is knowing the precise basis for the plaintiff’s claim because that will inform whether the indemnities are attracted. And as I said in argument, if the third parties wished in their own interests to advance their understanding of the precise basis of the plaintiff’s case (and as a consequence their indemnity), they could consider filing a defence to the plaintiff’s statement of claim as permitted under rule 11.09(2) and if necessary engage pre trial process for proper particularisation from the plaintiff of how and in what way the detention and medical services (for which the third parties were responsible) were wanting.
To elucidate those conclusions, I will not copiously recite the contents of the pleadings. I shall confine myself to matters that necessarily inform the derivation of the claim, and the claim for indemnity against the third parties.
It is not controversial that pursuant to the Migration Act, the plaintiff was detained at the Curtain Detention Centre from December 2000 to September 2002. He was then detained at Baxter Detention Centre from September 2002 to May 2005. The Commonwealth accepts it owed the plaintiff a non-delegable duty of care whilst the plaintiff was detained under the Migration Act.
The plaintiff does not allege that the “detention services” at Curtain and Baxter were actually provided by the Commonwealth. Putting aside particular periods of time, the plaintiff alleges explicitly that The Geo Group Australia Pty Ltd (the second Third Party) and GSL (Australia) Pty Ltd provided the detention services on behalf of the Commonwealth.
In its defence, the Commonwealth confirms that it contracted with the first Third Party Australian Correctional Services Pty Ltd (“ACS”) to provide the detention services at Curtain, and contracted with The Geo Group Australia Pty Ltd (the second third party, identified as “ACM”) and G4S Australia Pty Ltd (the third Third Party, identified as “GS4”) to provide detention services at Baxter. Nothing turns on the identity of the Third Parties or any possible differentiation. They all gave contractual indemnities to the Commonwealth and the pleading complaint is applicable to the case brought against all the Third Parties.
So, if the detention services were actually provided by contractors, how does the plaintiff put his case against the Commonwealth? It is a case in negligence referable to the non delegable statutory duty of care. The plaintiff’s case is organised under two headings. The first is “General Conditions of Detention”. The second is “Medical Care and Treatment”. As for the first, the plaintiff alleges in substance –
(a) he was detained in an environment which continuously placed his psychiatric and/or psychological health at risk;
(b) he complained to the Department of Immigration and Multicultural Affairs about his treatment; and
(c) the Commonwealth failed to devise or implement systems and policies or to supervise or monitor the implementation of those systems and policies, in a manner that paid regard to reasonably foreseeable risks of injury or illness to him.
As for medical care and treatment, the plaintiff alleges –
(a) the Commonwealth failed to devise or implement a reasonable system for monitoring the delivery and quality of mental healthcare services at the detention facilities, and in particular, to manage or treat persons with psychiatric or psychological injuries or illness;
(b) the Commonwealth knew or ought to have known of the deficiencies in the general conditions of detention but it failed to take any or any reasonable remedial steps, as a result of which he was not diagnosed in a timely way as having sustained a psychiatric or psychological injury or illness;
(d) his psychiatric or psychological injury arose from the conditions of detention and the Commonwealth’s failure to treat that injury; and
(e) in the detention period, he did not receive any or any appropriate treatment for the psychiatric or psychological injury that he had sustained.
Pausing there, the statement of claim recognises that the operation of the detention centres was not being conducted by the Commonwealth. The case, as I see it, is encapsulated in paragraph 13 of the statement of claim which says –
At all material times throughout the detention period, the Commonwealth knew, or ought to have known, that systemic deficiencies in the manner or operation of the detention centres were creating an ongoing risk of psychiatric and/or psychological injury and/or illness to the plaintiff and to other detainees.
Paragraph 32 of the statement of claim, in which all these allegations culminate, is significant. It says –
As a result of the negligence of the Defendant in:
a. failing to treat his psychiatric and/or psychological injury or illness;b.failing to assess his psychiatric and/or psychological injury or illness; and
c.detaining him in conditions which caused and contributed to his psychiatric and/or psychological injury or illness;
the Plaintiff suffered injury, loss and damage.
The Commonwealth accepts in its defence that it had a non-delegable duty “to take reasonable care not to expose the plaintiff to an unnecessary and foreseeable risk of injury”.[2] The Commonwealth denies any breach of duty as alleged and says that “at all times during his detention at Curtain and Baxter, the plaintiff received appropriate medical care as required, including psychiatric, psychological and other treatment…”[3] Otherwise, such is the way the case has been pleaded by the plaintiff, that the Commonwealth denies, without much more, the allegations of wrongdoing or breach of duty of care. I think it is one of those common law actions where the Commonwealth by its pleading accepts, as it must, its duties under the Migration Act, the fact of detention, its duty to take reasonable care, and raises the shield of saying that the plaintiff received appropriate medical care. It is then for the plaintiff to prove its case by showing precisely how and in what way the general conditions of detention together with the medical care and treatment caused him to suffer the injuries sustained, and how it is the Commonwealth knew or ought to have known that.
[2]See paragraph 8 of defence.
[3]See paragraph 18 of defence.
This might be thought to mean that the Commonwealth is alleged to be independently liable irrespective of the operation of the detention centres by the contractors. As between plaintiff and defendant, a non delegable duty of care owed by the Commonwealth necessarily means that. But despite that, the question for the plaintiff’s case will be whether the detention centres were being operated in a way that created an ongoing risk of psychiatric or psychological injury or illness to the plaintiff. This to my mind is a crucial feature of the plaintiff’s case and is a crucial feature to exposing why I think the Third Parties have misapprehended or incorrectly understood the basis upon which the Commonwealth seeks by the Third Party Notices to transfer the liability to the Third Parties. For the plaintiff is not saying that detention per se under the Migration Act was responsible for his psychological or psychiatric injury. The plaintiff’s case is that the conditions of detention and the medical care and treatment is what gave rise to the risk of, and caused the infliction of psychiatric or psychological injury.
The third party claim
The third party notice pleads an agreement made between the Commonwealth and ACS and G4S under which those contractors agreed to provide the detention services and manage the detention facility. It is a distinct feature of the contractual relationship that whatever may be the Commonwealth’s responsibilities under the Migration Act, and the presence under that statute of a non-delegable duty of care, the provision and management of the detention facilities including medical care was all contracted to ACS and G4S. ACM is a related corporation to ACS and is in a slightly different position legally, but not for indemnity purposes. Avoiding details, the case against ACM as pleaded is that –
(a)ACS and ACM were related companies;
(b)ACS subcontracted to ACM certain obligations that ACS owed to the Commonwealth under their agreement, including the performance of detention services in compliance with standards under the agreement between the Commonwealth and ACS;
(c)ACM guaranteed to the Commonwealth the performance by ACS of the detention services agreement;
(d)ACM indemnified the Commonwealth for any loss suffered by the Commonwealth caused by any failure by ACS to perform the detention services.
For the purposes of this application, it is convenient to isolate the case as against ACS to test the sufficiency of the pleading, as the allegations against the other third parties are identical or similar in nature or legal effect. That is how argument proceeded.
The primary source of imposing liability on ACS is contractual. I shall avoid a detailed reproduction of the composition of the allegations, and confine myself to their substance. These are substantial agreements and there ought be no dispute about the content of their terms. In essence, the terms were –
(a)ACS was responsible for the care, supervision, control and welfare of the detainees;
(b)ACS must provide services for detainees in accordance with stated “Detention Standards”;
(c)ACS was obliged to provide services “to encompass all that is required to provide care and security for detainees from the point of transfer of a detainee from the [Commonwealth] to ACS to completion of removal or release from detention …”;
(d)the detention services included welfare and health services;
(e)the Detention Standards required ACS to have staff that are trained to recognise and deal with the symptoms of depression and psychiatric disorders and to minimise the potential for detainees to do self-harm, and to have medical personnel who have the capacity to recognise, assess and deal with detainees who have suffered torture or trauma and to require ACS to give detainees in need of psychiatric treatment access to such services.
The indemnity which the Commonwealth seeks to enforce in the third party notice says –
ACS indemnifies, and agrees to keep indemnified, the defendant [Commonwealth] against all liabilities, expenses, losses, damages and costs (including legal costs on a full indemnity basis) for which the defendant may become liable in respect of or arising from, among other things:
(i) any default by ACS in providing, relevantly, the ACS Detention Services …
…
(iii) any negligent, wilful, unlawful or reckless act or omission of ACS or its staff, agents or subcontractors in connection with the ACS general agreement or the ACS detention services contract …
…
Pausing there, the words “any default by ACS” is especially seized upon by the third parties as their principal source of attack. They complain that the default is not pleaded. “What is it said we did wrong?” they exclaim.
A case in tort is also pleaded, but it is based on a duty of care which is evidently coextensive with the contractual relationship. The allegation in paragraph 12 is –
At all times from on or about 23 December 2000 to on or about 19 January 2004, ACS owed the defendant a duty to exercise reasonable skill and care not to expose detainees … to an unnecessary and foreseeable risk of injury …
Particulars
The duty of care existed as a result of the relationship between the defendant and ACS which arose out of the ACS agreement and the supplementary ACS agreement.
Now, up to this point, there is simply no difficulty or embarrassment in the third parties pleading to the allegations of the contractual relationship. There would be no basis at all to strike such allegations out. It will be an elementary matter for the third parties to plead to each of the clauses which ought not be controversial assuming they have been accurately alleged.
I come now to the eye of the storm. It is to be found in paragraphs 25 and 26 of the statement of claim on the third party notice. As far as paragraph 26 is concerned, I need only refer to that part of it which concerns ACS. The allegation is –
25.In his statement of claim filed in this proceeding, the plaintiff alleges that:
(a)in respect of his detention at Curtin and Baxter:
(i)the defendant owed the plaintiff a duty of care; and
(ii)the defendant breached the duty of care owed to the plaintiff;
(b)as a result of any breach or breaches of the duty of care owed to him by the defendant, the plaintiff has suffered injury; and
(c)as a consequence of the injury, the plaintiff has suffered loss and damage,
(together, the “plaintiff’s allegations”).
26.If, which is denied, the defendant is liable to the plaintiff in respect of the plaintiff’s allegations, the defendant is entitled to be indemnified by:
(a)ACS in respect of:
(i)such liability insofar as it relates to or arises out of any breach or breaches by ACS of:
A.the ACS agreement or the supplementary ACS agreement or both of them;
B.ACS’s duty of care; and
(ii)expenses, losses, damages and costs incurred by the defendant and arising out of any such breach or breaches; and
The expression “breach or breaches” is seized on by the Third Parties.
In the prayers for relief, the claim for indemnity is commensurately put this way –
A.An order that the first third party indemnify the defendant in respect of:
(1)any liability that the defendant may have to the plaintiff insofar as such liability relates to or arises out of any breach or breaches by the first third party of:
a.the ACS agreement or the supplementary ACS agreement or both of them;
b.the duty of care owed by first third party to the defendant; and
(2)expenses, losses, damages and costs incurred by the defendant and arising out of any such breach or breaches.
B.Damages.
On 2 August 2013, the Commonwealth filed a substantial document giving further and better particulars of paragraphs 25 and 26, in response to the third parties’ request. I was told the Commonwealth did so not from a concession that the pleading was inadequate, but out of a desire to explicate the basis of the indemnity and avoid any pleading skirmish. I shall not refer to the contents of those further particulars. The particulars serve the purpose, though, of sharpening the basis of the indemnity by reference to the plaintiff’s case as put against the Commonwealth.
The particulars expose what I think is critical. That is, that the foundation of the plaintiff’s case is the general conditions of the plaintiff’s detention at Curtin and Baxter, and the medical care and treatment that he received or did not receive throughout his detention. They are the “relevant matters”. From there, there is a comprehensive recitation of the terms of the contract concerning the third parties’ obligations under the “Detention Standards” as stipulated under the contract. Those standards are widespread and most certainly concern medical treatment and health care for detainees in need of psychiatric treatment, and the need to recognise and deal with symptoms of depression and psychiatric disorders and to minimise the potential for detainees to do self-harm. That is precisely the plaintiff’s complaint.
The particulars identify the obligations under the contract which the Commonwealth would contend would attract the indemnity should it be that the plaintiff proves its case concerning the “relevant matters”. Likewise, in the tortious claim in the third party notice, which is based upon the contractual undertakings, the very same contractual obligations would come into play. In my view, although the particulars were not saying anything new or different to the contents of the third party notice, nevertheless it was a clear articulation of the basis on which the indemnity was being sought. That is, the case that the third parties must meet.
None of this satisfied the third parties. I trust I do their arguments no disservice if I summarise them as follows –
(a)the Commonwealth does not plead any material facts concerning the breach of the detention services contract, but pleads only the legal conclusion of a breach;
(b)the Commonwealth must plead material facts which it says constitutes a breach of the detention services agreement;
(c)it is impermissible to use particulars to fill the gaps of a deficient pleading;
(d)detention itself may have caused the plaintiff’s problems, and if that was so, that is no part of the responsibility of the third parties;
(e)if detention per se is harmful, then that is something for which the Commonwealth is responsible, and if the third parties did something that added to that harm, the Commonwealth must specify precisely what it is the third parties did; and
(f)“Just because we ran the facility does not mean that we are liable”.
I am afraid to say, all of these arguments are unsound. They seem to be preoccupied with the technical rules of pleading, rather than concerning themselves with the substance of the case put, and moreover, an appreciation of how the case is being put against the third parties, depending as it is, on the way the case is put by the plaintiff against the defendant.
I think it is a misconception to somehow view the plaintiff’s case as based upon detention per se. Detention is a statutory obligation under the Migration Act. It is plain from the statement of claim that the plaintiff is not complaining about detention per se. His complaint is about his treatment whilst in detention. His treatment in detention is manifestly the subject of the contractual arrangements made between the Commonwealth and the third parties, under which an indemnity was given.
The third parties were intent on seizing on the words “in breach of” or “default” in the third party statement of claim. The submission was: in any breach of contract case, the charged party is entitled to know how or in what way it was in breach and that should be stipulated by material fact not particulars. That is so. But this is an indemnity claim. The Commonwealth is not alleging a breach in the ordinary way in an ordinary breach of contract case. It cannot allege a conceptual or theoretical breach. It can do more than expose the plaintiff’s allegations of wrongdoing in detention. From there the Commonwealth looks to say “That wrongdoing falls within the scope of your obligations under the agreements and therefore the indemnity”. It is in that sense, that the Commonwealth cannot avoid using the language of “breach” or “default”. But that should not govern the legal analysis and the nature of the case to be met. It is certainly no basis for a strike out.
Further, the Commonwealth does not and can not make positive allegations of breach or default. But that is not to visit the third parties with any unfairness in the conduct of the litigation. It is to do no more than recognise that the case against the third parties is wholly dependent upon awaiting the evidence and proof of the allegations made by the plaintiff against the Commonwealth concerning his mistreatment at the detention centre. From there, as I have endeavoured to emphasise in this judgment, the question will be whether those allegations of “default” or “breach” (to use those terms generally) come to fall within the purview of the litany of obligations incurred by the third parties and on which the indemnity was given to the Commonwealth.
I need hardly refer to well established principles concerning the function or utility of pleadings: see Wheelahan v City of Casey.[4] Pleadings serve the overarching purpose of the Civil Procedure Act. The essential requirement is to alert an adversary to the case that must be met, which is a basic requirement for procedural fairness.
[4][2013] VSC 316 at [25].
On no account can it be said that the third parties’ statement of claim is vague or not intelligible, or does not expose the issue for determination. The prolonged argument in this case really comes down to the allegation of “breach” by the third parties. In my view, the third parties have incorrectly perceived the case against them, or are seeking to have it pleaded on their terms. The Commonwealth is not saying, “I allege you breached the contract, and here is how I say you breached”. The Commonwealth is saying, “If the plaintiff makes out his case based as it is on the conditions of the detention and the medical treatment, then dependent on what is found, they are responsibilities which fell within the purview of obligations that the third parties incurred to the Commonwealth, and for which the third parties agreed to indemnify the Commonwealth for any loss and damage suffered by the Commonwealth”.
It is for those reasons that I would refuse the application. I would order that the summons of the first and second third party dated 4 September 2013 be dismissed with costs. I would also order the summons of the third third party dated 9 September 2013 be dismissed with costs.
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