Sovi v Commonwealth of Australia

[2024] SADC 33

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

SOVI v COMMONWEALTH OF AUSTRALIA

[2024] SADC 33

Reasons for Ruling of her Honour Judge Schammer  

27 March 2024

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS

PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS

The applicant, Alex Sovi, claims damages from the Commonwealth of Australia (respondent) for personal injuries allegedly sustained by him arising from his detention at the Baxter Immigration Reception and Processing Centre (Baxter) between 22 September 2002 and 1 August 2005.

The action is listed for trial for 8 weeks commencing 6 May 2024.

The applicant has issued the following interlocutory applications:

1.      Application dated 27 February 2024 seeking leave to file an Amended Substituted Statement of Claim (FDN 217) (the amendment application). This application arises in the context of the recent decision of the High Court of Australia in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor (NZYQ).

2.      Application dated 27 February 2024 seeking an order striking out the respondent’s Substituted Defence, or in the alternative, for the respondent to file an amended pleading (FDN 219) (the strike out application). The Substituted Defence was filed in response to the Applicant’s Substituted Statement of Claim filed on 23 November 2023.

Both applications are made in the context of the parties endeavouring to complete procedural steps in a short time frame arising, inter alia, from the late amendment to the Statement of Claim and the proximity of the trial date.

Held:

1.      As to FDN 217:

(a)     the application is refused.

(b)     having regard to the circumstances in which the application was made, the applicant and respondent are to each bear their own costs of and incidental to the application.

(c)     any costs incurred by the third parties are to be costs in the cause.

2.      As to FDN 219:

(a)     the respondent is to file and serve an Amended Substituted Defence to the Substituted Statement of Claim by close of business, Monday 8 April 2024, in a form which reflects the findings as set out in Schedule A annexed to these Reasons.

(b)     the respondent is to pay the applicant’s costs of and incidental to this application, on a standard costs basis, certified fit for counsel.

(c)     any costs incurred by the third parties are to be costs in the cause.

(d)     the Court will hear the parties as to any ancillary orders required with respect to the provision of expert evidence having regard to the rulings made with respect to [91A]-[91B] of the Substituted Defence.

Migration Act 1958 (Cth) ss 189(1) and 196(1); Law Reform (Ipp Recommendations) Act 2004 (SA) s 27; Civil Liability Act 1936 (SA) ; Limitation of Actions Act 1936 (SA) s 48; Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) s 3(2); Archives Act 1983 (SA) , referred to.
Firuzibahksh & Ors v Commonwealth & Ors [2024] SASC 11; Saadat v Commonwealth of Australia and Ors SCCIV-18-470; Sovi v Commonwealth of Australia [2023] SADC 115; NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCA 37; Al-Kateb v Godwin (2004) 219 CLR 562; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1; Aon Risk Services v Australian National University (2009) 239 CLR 175; Channel Seven Adelaide Pty Ltd v Manock [2010] SASCFC 59; PPG Development Pty Ltd v Capitanio [2016] SASC 169; March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; Sherman v Nymboida Collieries Pty Ltd (1963) 109 CLR 580; Hicks v Hicks [2016] SASC 50; Chattaway v Lloyd and Ors [2021] SADC 141; SBEG v Commonwealth (2012) 208 FCR 235, considered.

SOVI v COMMONWEALTH OF AUSTRALIA
[2024] SADC 33

[Civil]

Introduction

1. The applicant, Alex Sovi, claims damages from the Commonwealth of Australia (respondent) for personal injuries allegedly sustained by him arising from his detention at the Baxter Immigration Reception and Processing Centre (Baxter) between 22 September 2002 and 1 August 2005.

   Applications

2. The applicant has issued the following interlocutory applications:

   ·Application dated 27 February 2024 seeking leave to file an Amended Substituted Statement of Claim (FDN 217) (the amendment application). This application is supported by the affidavits of Rebecca Joy Geyer sworn on 23 February 2024[1] and 27 February 2024.[2]

   ·Application dated 27 February 2024 seeking an order striking out the respondent’s Substituted Defence,[3] or, in the alternative, for the respondent to file an amended pleading (FDN 219) (the strike out application). This application is supported by the affidavits of Rebecca Joy Geyer sworn on 23 February 2024,[4] 27 February 2024[5] and 8 March 2024[6].

   [1]    First Geyer affidavit; FDN 202.

   [2]    Second Geyer affidavit, FDN 218.

   [3]    FDN 172.

   [4]    First Geyer affidavit; FDN 202.

   [5]    Third Geyer affidavit, FDN 220.

   [6]    Fourth Geyer affidavit, FDN 224.

3. Both applications were listed for argument on Wednesday 13 March 2024, at which time the Court made further orders enabling the provision of further written submissions with respect to the applications and reserved its decision.

4. In addition to hearing oral submissions and considering the affidavits filed with respect to the applications, the Court received and considered:

   ·Respondent’s Summary of Argument dated 13 March 2024 (FDN 231).

   ·Summary of Argument of the First and Second Third Parties dated 13 March 2024 (FDN 232).

   ·Applicant’s Submissions on the running of a split trial dated 18 March 2024 (FDN 239).

   ·Supplementary Submissions of the First and Second Third Parties (ACM parties) dated 19 March 2024 (FDN 240).

   ·Commonwealth’s Responding Submissions as to a split trial dated 20 March 2024 (FDN 245).

   ·Written Submissions of Third and Fourth Third parties (G4S Parties) dated 20 March 2024 (FDN 246).

5. These are my Reasons for Decision with respect to both applications.

   Procedural Background

6. This action is one of a cohort of similar matters, numbering more than 60, many of which were recently transferred to the Federal Court of Australia.[7] The responding parties to this action are also the responding parties in the Supreme Court action of Saadat v Commonwealth of Australia and Ors,[8] which proceeded to trial in 2022. Judgment in that action remains reserved.

   [7]    Firuzibahksh & Ors v Commonwealth & Ors [2024] SASC 11.

   [8]    SCCIV-18-470.

7. The action was initially listed for trial for eight weeks commencing Monday 11 September 2023. In July 2023, that trial date was vacated after the Court heard lengthy argument on several interlocutory applications, including an application made by the applicant for leave to amend his Statement of Claim following receipt of the report of Dr Julian Freidin, Consultant Psychiatrist dated 19 May 2023. The amendment was sought to specifically plead matters including alleged deficiencies in the system of medical care provided to detainees, including the applicant, at Baxter.[9]

   [9]    See Sovi v Commonwealth of Australia [2023] SADC 115 for further information as to the procedural background of this action.

8. By order made on 10 August 2023, the action was relisted for trial for eight weeks commencing 6 May 2024. On 11 December 2023, Amended Trial Orders were made, requiring the parties to adhere to a strict timetable to complete all procedural matters prior to trial.[10]

   [10] FDN 163, noting there have been several amendments subsequently made to these orders.

9. The applicant filed his Substituted Statement of Claim on 23 November 2023 (SSOC).[11] The SSOC, by its structure, content and form, differs from the previous five versions of the Statement of Claim, such that the claim was effectively recast.

   [11] FDN 156.

10. The respondent filed a Substituted Defence in response to the SSOC on 12 January 2024.[12] On 18 January 2024, the respondent filed a Substituted Cross Claim (SCC) as against the third parties.[13] The first and second third parties filed a Substituted Defence to the SCC on 23 February 2024.[14] On that same day, the third third party also filed a Defence to the SSOC.[15]

    [12] FDN 172.

    [13] FDN 174.

    [14] FDN 199.

    [15] FDN 210.

11. It is intended that this action will be the first action in the cohort to proceed to trial in the District Court and will be the first action wherein the expert opinion of Dr Freidin as to alleged deficiencies in the system of care provided to detainees in detention will be in evidence. Two other actions in the cohort have been listed for trial in the second half of 2024, with one action being designated a ‘reserve’ for trial.[16] Other actions in the cohort have been listed for trial during 2025. There is some crossover of representation in terms of the solicitors and counsel retained by the parties in these actions.

    [16] The first such trial is in the action of Darvishzadeh v Commonwealth (DCCIV-11-301), listed to commence on 12 August 2024, with eight weeks set aside.

12. Any delay in the commencement and/or completion of the trial in this action therefore has significant implications, not only with respect to this action, but for other actions within the cohort.

    Lawful/Unlawful Detention

13. In the action as presently pleaded, the Court is asked to make findings, inter alia, as to the existence and scope of any duty of care owed by the respondent to the applicant during his detention at Baxter, whether that duty of care has been breached (and if so, in what way) and whether any alleged breach or breaches have resulted in loss and damage to the applicant.

14. As to the latter, it is alleged that the applicant has suffered loss and damage due to psychiatric injuries as particularised at [82] of the SSOC. Damages are sought for past and future pain and suffering, non-economic loss, past and future loss of earning capacity (including loss of superannuation benefits), past and future medical and like expenses and interest on past losses.

15. Depending on its findings, the Court may also be asked to make findings as to whether and how any of the third parties either breached a duty of care owed by them to the respondent and/or breached the terms of their agreement(s) with the respondent and/or are required to indemnify the respondent pursuant to any contractual indemnity.

16. The SSOC in its present form, by inference, assumes that while the applicant was in immigration detention, he was lawfully detained.

17. On 28 November 2023, the High Court of Australia published its reasons for orders made on 8 November 2023 in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor (NZYQ).[17]

    [17] [2023] HCA 37.

18. In NZYQ, the High Court stated answers to three questions of law, relevant to the interpretation and validity of ss 189(1) and 196(1) of the Migration Act 1958 (the MA).

19. By way of very general summary only, in NZYQ, the High Court upheld the reasoning in Al-Kateb v Godwin, (Al-Kateb),[18] as to the proper statutory interpretation of ss 189(1) and 196(1) but determined to reopen the constitutional holding.

    [18] (2004) 219 CLR 562.

20. In Al-Kateb, the High Court had examined the application of ss 189(1) and 196(1) to an unlawful non-citizen in respect of whom there was no real prospect of removal under either ss 198(1) or 198(6) becoming practicable in the reasonably foreseeable future. The High Court in Al-Kateb held, by majority, that on their proper construction, ss 189(1) and 196(1) required the continuing detention of such a person (the statutory construction holding). It also held, by further majority, that as so applied, ss 189(1) and 196(1) did not contravene Ch III of the Constitution (the constitutional holding).

21. The effect of the High Court’s ruling in NZYQ is that there is both a statutory and constitutional limitation on the detention of unlawful non-citizens, such that, in certain circumstances, such detention will be unlawful.

22. The plurality in NZYQ considered the constitutional principle as formulated in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (Lim),[19] namely:

    … the two sections will be valid laws if the detention which they require and authorize is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered. On the other hand, if the detention which those sections require and authorize is not so limited, the authority which they purportedly confer upon the Executive cannot properly be seen as an incident of the executive powers to exclude, admit and deport an alien. In that event, they will be of a punitive nature and contravene Ch III’s insistence that the judicial power of the Commonwealth be vested exclusively in the courts which it designates. (my emphasis)

    [19] (1992) 176 CLR 1.

23. The plurality observed, consistent with the constitutional principle applied in Lim and subsequently followed thereafter, that the MA, being a statute which authorises executive detention, must limit the duration of that detention ‘to what is reasonably capable of being seen to be necessary to effectuate an identified statutory purpose which is reasonably capable of being achieved.’[20]

    [20] NZYQ at [41].

24. The majority determined that if the only purposes peculiarly capable of justifying executive detention of an alien are their removal from Australia or enabling an application for permission to remain in Australia to be made and considered, then the absence of any real prospect of achieving the removal of the alien from Australia in the reasonably foreseeable future refutes the existence of the first such purpose.[21]

    [21] NZYQ at [46].

25. The applicant in NZYQ was an illegal immigrant whose application for a protection visa had been refused and the refusal upheld on appeal, such that the application had been finally determined. He was only being detained for the first such purpose. In addition, in 2022, the applicant wrote to the Minister requesting his removal from Australia such that officers had a duty to remove him from Australia as soon as reasonably practicable.

26. In NZYQ, the High Court stated:[22]

    … expressing the constitutionally permissible period of executive detention of an alien who has failed to obtain permission to remain in Australia as coming to an end when there is no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future follows directly from the principle in Lim. This is the appropriate expression of the applicable constitutional limitation under a statutory scheme where there is an enforceable duty to remove an alien from Australia as soon as reasonably practicable. (my emphasis)

    [22] NZYQ at [55].

27. Relevantly, in rejecting as misconceived, a submission made by the Commonwealth that a legitimate and non-punitive purpose of detention of an alien can be properly identified as separation from the Australian community pending removal (if ever), the majority applied what was said by Gleeson CJ in Re Woolley; Ex parte Applicants M276/2003, namely:[23]

    … If a non-citizen enters Australia without permission, then the power to exclude the non-citizen extends to a power to investigate and determine an application by a non-citizen in detention for the time necessary to follow the required procedures of decision-making. The non-citizen is not being detained as a form of punishment, but as an incident of the purposes of deciding whether to give the non-citizen permission to enter the Australian community. Without such permission, the non-citizen has no legal right to enter the community, and a law providing for detention during the process of decision-making is not punitive in nature.

    Amendment Application

    [23] (2004) 225 CLR 1 at 14, [26].

    Applicant’s Position

28. The applicant seeks leave to amend the SSOC to plead a claim for damages for unlawful detention in the terms of the proposed Amended SSOC as contained in Exhibit RJG-9 to the Second Geyer affidavit.

29. Specifically, the applicant alleges that on 30 November 2023, he learned, for the first time, in accordance with the decision in NZYQ, that the respondent was not justified in detaining him at Baxter, for some or all, of his period in detention there.

30. The applicant seeks to plead, that for ‘all, or in the alternative, some’ of the period during which he was detained in Baxter, such detention was unlawful.[24] It is to be alleged that by reason of that unlawful detention, the applicant suffered loss and damage, particularised as including, inter alia, ‘psychological injuries and/or’ an exacerbation of those conditions.[25] In addition, the applicant seeks aggravated damages and exemplary damages.[26]

    [24] Proposed Amended SSOC at [81AA].

    [25] Proposed Amended SSOC at [81AB].

    [26] Proposed Amended SSOC at [81AC] and [81AD].

31. The proposed amended pleading specifies five different dates,[27] wherein it is alleged that the respondent knew that there was no real prospect of the applicant’s removal from Australia becoming practicable in the reasonably foreseeable future. It is alleged that from the first such date in time (or in the alternative, one of the other such dates), the applicant’s detention was unlawful, namely:

    ·From 3 November 2000, when the respondent first knew the applicant was from Iran.

    ·From 23 March 2001, when the respondent considered and denied the applicant’s application for a protection visa.

    ·From 22 September 2002, when the respondent transported the applicant from Curtin to Baxter.

    ·From 12 November 2003, when the respondent knew the Federal Court had dismissed the applicant’s appeal of the decision of the Refugee Review Tribunal.

    ·From 27 April 2005, when the respondent knew the applicant’s application for special leave to appeal the Federal Court decision to the High Court had been refused.

    [27] These five dates were referred to during the argument as ‘the cascading timeline’.

32. The applicant acknowledges that he could pursue a claim for damages for unlawful detention by way of a separate subsequent action, either in this court or the Federal Court, but is concerned that the respondent will apply for any such action to be dismissed on Anshun estoppel grounds.

33. As such, the applicant sought to protect and preserve his rights, by pursuing the claim in this action. The applicant submitted that the unlawful detention claim is a discrete issue which can be dealt with during the course of the trial, without impacting the current trial date. Specifically, the applicant submitted that the evidence on this issue at trial would likely be confined to proving the various dates within the ‘the cascading timeline’, as, on the applicant’s case, the fact he is Iranian is sufficient to discharge the initial evidentiary burden to prove the detention was unlawful, thus shifting the onus onto the respondent to demonstrate otherwise.

34. The applicant is anxious to preserve the current trial date. The application was made to preserve his rights, rather than to prejudice the trial date.

35. The Applicant submitted that if the unlawful detention claim would either (a) threaten the trial date or (b) delay the judgment on the negligence claim, there were two other ‘viable options’ for the Court, namely:

    1.Dismiss the amending application with a ‘notation’ to protect the applicant against a future Anshun estoppel argument should he proceed to issue that claim in the Federal Court (Option 1); or

    2.Grant the application but make an order for separate trials of the negligence and unlawful detention claims (Option 2).

1. As to Option 1, by letter dated 14 March 2024, the applicant’s solicitors advised the respondent’s solicitors that in any such action, the applicant would seek his full entitlement to damages, which may include damages consequent upon any psychiatric injury arising from his unlawful detention.[28]

   [28] Exhibit SJC2 to the Second Affidavit of Sian Jane Chapman affirmed on 20 March 2024 (Second Chapman affidavit).

2. By letter dated 18 March 2024, the respondent’s solicitors advised the applicant’s solicitors that in such circumstances, it reserved all of its rights to rely on Anshun estoppel, abuse of process or similar defences in any such proceedings. It further advised that if the applicant was to expressly undertake that any such proceeding would not include a claim for psychiatric injury, it would obtain further instructions.[29] The applicant is yet to respond to that letter.

   [29]  Exhibit SJC3 to the Second Chapman affidavit.

3. It was suggested that if an undertaking of the type sought was given by the respondent, this was the simplest way forward insofar as it would protect the applicant’s right to pursue the claim but not otherwise impact on the trial proceeding as currently intended. The unlawful detention claim could then ‘join with’ the other cohort matters in the Federal Court and potentially proceed with those as part of a ‘class action’ in that court.

4. Alternatively, the applicant suggested that the Court grant the application, but make an order that the unlawful detention claim be determined as a separate issue pursuant to r 151.1(2) of the Uniform Civil Rules 2020 (UCR) with independent procedural orders made as to that aspect of the action and a trial date set when the parties were ready to proceed.

5. It was acknowledged that there was a potential crossover of issues between the matters as pleaded in the current negligence claim and the foreshadowed claim, namely issues related to the applicant’s credibility and the assessment of damages. However, it was submitted that any evidence given by the applicant on the latter issue would be brief and relevant to a discrete issue, such that any finding as to the applicant’s credit on the negligence action would not determine his credibility on that discrete issue. As to the assessment of damages, the applicant submitted that any damages awarded by the Court in the negligence action could be taken into account in the assessment of damages arising from his unlawful detention.

   Respondent’s Position

6. Although the respondent formally opposed the application on the basis that it would cause it substantial and irremediable prejudice, it submitted that it would withdraw that opposition if the applicant consented to the trial date bring vacated and an order made that the applicant pay the respondent’s costs thrown away by reason of the adjournment.

7. The respondent relied on the matters outlined in the Fifth[30] and Sixth[31] Affidavits of Daniella Lucia Di Girolamo affirmed respectively on 26 February 2024 and 8 March 2024.

   [30] FDN 212.

   [31] FDN 225.

8. It argued that a proper application of the principles outlined by the High Court in Aon Risk Services v Australian National University (AON)[32] and the ten factors as identified by Bleby J in Channel Seven Adelaide Pty Ltd v Manock (Manock),[33] should result in the application being refused, unless the trial was vacated with an appropriate costs order in its favour.

   [32] (2009) 239 CLR 175.

   [33] [2010] SASCFC 59 at [46].

9. It was submitted that by the amendment application, the applicant was endeavouring to pursue an entirely new course of action, bringing with it a new factual matrix to be investigated, pleaded, heard and determined. Counsel for the respondent argued that there simply was insufficient time prior to the trial for the respondent to properly understand the foreshadowed claim, ascertain whether there were any witnesses who could be located who may be able to depose to the respondent’s knowledge at each step of the ‘cascading timeframe’ and to properly consider any implications relevant to the third party proceedings.

10. The applicant first notified of his intention to pursue the claim by letter dated 12 February 2024, less than 3 months prior to the trial date. It was submitted that no proper explanation had been given in this delay, notwithstanding the respondent had sought advice as to the applicant’s instructions in this respect on 6 December 2023, [34] that is, seven days after the delivery of the High Court’s reasons in NZYQ and in circumstances where most other applicants in the cohort had advised of an intention to pursue such a claim.

    [34] Fifth Di Girolamo affidavit at [5].

11. While the period of ‘delay’ was therefore just over two months, it was submitted this was significant in the context of the circumstances of this action, where the pleadings had already recently been the subject of substantial amendment. As a result, the first trial date was vacated and the parties were required to undertake significant trial preparation for the trial as per the current pleadings in an already confined and necessarily tight timeframe.

12. It was submitted that if the amendment application was allowed, many of those procedural steps would need to be redone or revisited, including further amendments to the Defence and Third Party pleadings, further discovery, additional objections to the applicant’s affidavit, the potential provision of further expert evidence, locating potential witnesses to respond to the claim and then obtaining affidavit evidence from them and amendments to the tender bundle index.[35] This would result in the incurring of additional costs, which may be substantial.

    [35] Sixth Di Girolamo affidavit at [44]-[81].

13. It was submitted that if the application was granted either the trial date would need to be vacated, resulting in a significant waste of public resources, or, alternatively, the trial would not finish in the time as listed, meaning it would need to be further adjourned, and potentially for a very lengthy period having regard to the limited nature of the Court’s resources and the fact other matters in the cohort have already been allocated trial dates during 2024 and 2025.

14. It was submitted that to allow the amendment, but to force the trial to commence on the date as listed, would deny the respondent the opportunity to properly prepare to meet the applicant’s case, and potentially cause delays in the trial and inefficiencies, thus denting public confidence in the administration of civil justice. Although there would be prejudice to the applicant in the trial being vacated, it was submitted such prejudice was largely of the applicant’s own making, such that it should be attributed limited weight.

15. The respondent submitted that viewed globally, this combination of factors should result in the Court determining to refuse the amendment application, unless it also ordered the trial date be vacated and made an appropriate costs order against the applicant.

16. The respondent opposed an order for separate trials on the basis that the factual and legal matters in dispute in the claims cannot be severed while both claims include a claim for damages for psychiatric injury. In addition, the respondent contended that the requirement for both the applicant and, potentially, other witnesses to give evidence with respect to both claims, made this approach untenable.

    Third Parties’ - Standing

17. I accept that the third parties have an interest in the application for two reasons. If the trial is adjourned by reason of the application, this has obvious ramifications in terms of costs for the third parties. Further, the respondent is yet to determine whether, if faced with any claim for damages for unlawful detention by the applicant, it will amend the third party pleadings to seek contribution or indemnity from any or all of the third parties.

    ACM Parties’ Position

18. The ACM parties (ACM) opposed the application. They relied, substantially, on the matters set out in the Eleventh Linke affidavit sworn on 8 March 2024 (FDN 223) and the summary of argument dated 13 March 2024 (FDN 232).

19. ACM submitted that considering the Manock factors and conducting the necessary balancing exercise, the Court should refuse the application.

20. In addition to reiterating the factors raised by the respondent which told against the applicant being granted, ACM submitted that upon a proper reading of the decision in NZYQ, the proposed pleading was not arguable and was doomed to fail.

21. Counsel for ACM argued that the decision in NZYQ did not create a broad foundation for determining whether a person’s detention was unlawful, but rather had a narrow application on is facts, being facts which differed markedly from those relating to the applicant. It was submitted that in this case, on the present status of the law, the applicant’s detention was lawful until at least 27 April 2005, but possibly up to and including the date he was released from detention.

22. On 27 April 2005, the High Court refused the applicant’s application for special leave to appeal, such that ACM conceded that it was, at least, arguable that as of this date the ‘administrative purpose’ for the applicant’s detention, that is, to determine whether the applicant had a right to remain in Australia, was finally determined. In other words, it was arguable that as at that date the only purpose capable of justifying executive detention of the applicant was his removal from Australia. If so, and, at that time, there was no real prospect of the applicant’s removal from Australia becoming practicable in the reasonably foreseeable future, then, applying the decision in NZYQ, his continued detention thereafter was unlawful.

23. It was submitted that, at least, the proposed amendments at paragraph 81AA should not be permitted insofar as they simply recorded the active steps the applicant was pursuing from 3 November 2000 to 27 April 2005 in the hope of obtaining a visa and being allowed to remain in Australia. It was submitted that it was irrelevant if, at any time during that period, it became apparent that there were no real prospects of the applicant’s removal from Australia becoming practicable in the reasonably foreseeable future, as he was being legally detained for the administrative purpose.

24. ACM conceded that thereafter, the applicant’s claim for damages for unlawful detention was arguable. However, it submitted that thereafter, the applicant still had on foot an active request to the relevant Minister for intervention, which request was resolved on 26 June 2005 when the applicant received an invitation to apply for a protection visa. The applicant was released from detention on 1 August 2005. It was submitted that it was certainly arguable that a legitimate administrative purpose remained for the applicant to be detained throughout the entire period of his detention.

25. After carefully considering the effect of the proposed amended pleading, ACM submitted that there was an inconsistency between the claim as currently pleaded and the addition of the new claim for damages for unlawful detention, such that the Court should not allow the inconsistent proposed plea.

26. That inconsistency was argued to arise from the fact that on the basis of the SSOC as currently pleaded, ACM will be running a case at trial that it was the very fact of detention, rather than the quality of that detention or any specific events during that detention, which caused any psychiatric injury to the applicant, with any such losses flowing therefrom being non compensable and non-actionable. If the action also included a pleaded claim by the applicant for damages for unlawful detention, the necessary effect of such claim was to require the applicant to argue, as to that claim, that the fact of the detention itself was causative of any loss or damage, being entirely conflicting and inconsistent with the clam as presently pleaded (with respect to causation).

27. ACM also foreshadowed that further expert evidence on this issue may be required from either Dr Furst and/or Dr Clarke if the amendment was allowed.

28. In those circumstances, ACM submitted that the application ought to be refused. The applicant would retain the right to pursue the unlawful detention claim in the Federal Court, with the very fact he had endeavoured to bring this claim, unsuccessfully, as part of the within action, providing some safeguard in terms of any future challenge to that claim on Anshun estoppel grounds.

29. It was submitted the amendment application should be refused with costs.

    G4S Parties’ Position

30. The G4S parties (G4S) opposed the application. In addition to relying on the matters deposed to in the Fourth Johns Affidavit,[36] counsel for G4S argued that refusing the application was the obvious solution, as it would both preserve the applicant’s right to pursue this claim in another forum and preserve the trial date.

    [36] FDN 233.

31. While acknowledging that the respondent may seek to rely on the defence of Anshun estoppel (or similar such defences) if subsequent proceedings were issued by the applicant in the Federal Court, G4S argued that given the special circumstances that applied in this case, the risk of the claim being successfully defended on such a basis was minimal.

32. Further, it was submitted that it was impractical and unnecessary to attempt to deal with the unlawful detention claim as a separate issue as part of this action.

33. G4S submitted that until it knew whether a claim would be pursued against it by the respondent arising from any unlawful detention claim, it was not in a position to determine what, if any, prejudice it would suffer, if the amendment was allowed and the trial proceeded on the date as currently listed. As such, if the application was granted, the only appropriate order would be to vacate the trial date.

    Applicable Principles

34. The application is made pursuant to UCR 69.2 which gives permission to a party to amend their Claim or pleading either by consent or with the leave of the Court.

35. In determining such an application, the Court must have regard to the Object of the UCR,[37] namely, to facilitate the just, efficient, timely, cost effective and proportionate resolution or determination of the issues in the proceedings.

    [37] UCR 1.5.

36. In addition, consistent with the decisions in Aon and Manock, and as articulated by Doyle J in PPG Development Pty Ltd v Capitanio (PPG),[38] the Court must have regard to numerous factors when deciding whether to grant permission to amend pleadings at a late stage, namely:

    [38] [2016] SASC 169 at [39].

    ·The nature and importance of the proposed amendment, including the extent to which it raises new issues of fact or law.

    ·The merits of the proposed amendment, at least in the sense that the proposed amendment is arguable or tenable.

    ·The stage of the litigation at which the application to amend is made, and the likely impact upon, or disruption to, the progress of the proceedings (and in particular the trial).

    ·The explanation for the application to amend and its timing, and the fact and extent of any undue delay in this regard.

    ·Whether the party has had a sufficient opportunity to plead their case earlier.

    ·The time, cost and inconvenience associated with any delay or disruption of the proceedings.

    ·The uncertainty and strain of litigation on the parties and their witnesses as a result of any disruption or delay likely to be occasioned by the amendment.

    ·The impact of any delay and disruption upon judicial and court resources, and the access of other litigants to those public resources.

    ·The impact upon the public’s confidence in the just and efficient administration of justice.

37. It does not follow that an amendment sought to be made shortly prior to trial, even one that may raise new issues of fact, will never be permitted. Each case depends on its specific circumstances. The Court must consider the various factors identified in PPG[39] (and in Manock) and the weight to be given to them, both individually and collectively, in exercising its discretion as to whether to allow the amendment as sought.

    [39] As also similarly expressed by Bleby J in Manock.

    Discussion

    Alleged Inconsistency

38. Pursuant to UCR 67.2(3)(a), a pleading must not make inconsistent allegations of fact unless one is expressed to be in the alternative to the other.

39. The term ‘fact’ is defined to mean ‘a proposition of fact or law’.

40. The ACM parties submitted that the proposed pleading was inconsistent with the case as presently pleaded and for that reason should be disallowed.

41. In the SSOC, the applicant pleads:

    Causation

    81B.Each of the breaches detailed above in relation to system of medical care, harmful conditions, failure to implement protective measures and failure to diagnose and treat caused or materially contributed to the applicant’s injuries as particularised at paragraph 82 below.

    Particulars of the applicant’s Injuries

    82.The applicant has suffered the following injuries:

    82.1. Aggravation of pre-existing adjustment disorder suffered at Curtin;

    82.2. Anxiety;

    82.3. Depression;

    82.4. A new Adjustment Disorder (not experienced at Curtin);

    82.5. A Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood and/or with Mixed Disturbance of emotion and conduct;

    82.6. Post Traumatic Stress Disorder;

    82.7. A Complex Post-Traumatic Stress Disorder; and

    82.8. A Major Depressive Disorder. (“the Injuries”).

42. At paragraph 81AB of the Proposed Amended SSOC, the applicant pleads:

    81ABBy reason of the unlawful detention by the respondent, the applicant suffered loss and damage.

    Particulars

    81AB.1The applicant suffered a loss of liberty for the period of his detention.

    81AB.2The applicant suffered distress, discomfort, inconvenience, injury to dignity and mental injury during the period of detention.

    81AB.3The applicant has suffered psychological injuries and/or has had those conditions exacerbated.

43. ACM submits that these pleas are inconsistent. Specifically, ACM submits:[40]

    By introducing a plea to the effect detention was not only unlawful (giving rise to a potential right to general damages), but also that the fact of detention (ie detention per se) caused a psychiatric injury, the Applicant will seek to pursue, in effect, entirely conflicting and inconsistent arguments, the first being that detention itself was not causal of loss; and the second being that detention itself was causal of loss.

    [40] FDN 240 at [1.4].

44. As a preliminary observation, SSOC [82] provides particulars of the injuries alleged to have been caused by the respondent’s negligence, collectively referred to as ‘the Injuries’. SSOC [85]-[88] particularises the loss and damage alleged to have been sustained by the applicant, under the heading ‘Particulars of loss and damage suffered by the applicant due to psychiatric injury’.

45. Proposed paragraph 81AB.3 refers to ‘psychological injuries’ which are not otherwise particularised. The use of this conflicting terminology in the proposed amended pleading, and the absence of particulars of that alleged injury, causes ambiguity in terms of precisely what injuries are alleged to have been suffered by the applicant arising from his alleged unlawful detention.

46. The claim for loss and damage arising from any alleged psychological injuries caused by the fact of the alleged unlawful detention has not been pleaded as an alternative claim to that in SSOC [81B] and [82].

47. At a trial of the action on the current pleadings, if the Court determines that the respondent was in breach of any duty of care it owed to the applicant, it will then need to determine what if any loss or damage was caused by that breach of duty. Absent any breach of duty (ie negligence), there will be no requirement for the Court to proceed to answer that second question. The action will fail in its entirety.

48. If the Court determines there has been a breach of duty, it will need to carefully consider all of the evidence to determine if the applicant has proved, on the balance of probabilities, that such breach has caused him to suffer loss and damage and if so, what loss and damage.

1. The common law test of causation will apply, having regard to Schedule 1 - Transitional provisions under the Law Reform (Ipp Recommendations) Act 2004, which, by s 27, introduced Part 6 of the Civil Liability Act 1936. In other words, the applicant will need to prove that the respondent’s negligence caused or materially contributed to his loss and damage.[41] This does not equate to a requirement to prove that detention per se was not a cause of his loss or damage. At common law, a wrongdoer may be responsible for damage when their wrongful conduct is one of a number of conditions sufficient to produce that damage.[42]

   [41] March v E & MH Stramare Pty Ltd (1991) 171 CLR 506.

   [42] Sherman v Nymboida Collieries Pty Ltd (1963) 109 CLR 580 at pp 590-591.

2. To prove the claim at Proposed Amended SSOC at [81AB.3], the applicant will need to prove on the balance of probabilities:

   1.that he was unlawfully detained for at least part of his period in detention at Baxter; and

   2.that the fact of his unlawful detention, per se, caused or materially contributed to the harm suffered by him.

3. Adopting the reasoning of Blue J in Hicks v Hicks,[43] I do not consider that these two cases are factually mutually exclusive insofar as it could be said that as a matter of logic one of those cases must be false (and/or that the pleas relate to the knowledge or state of mind of the applicant), such that the pleading is in breach of r 67.2(3)(a).

   [43] [2016] SASC 50.

4. However, if I am wrong about that, a simple solution would be for the pleading at paragraph 81AB.3 of the Proposed Amended SSOC to be pleaded in the alternative to that SSOC [81B].

   The Manock/PPG Factors

5. The proposed amendment involves the addition of an entirely new cause of action. Given the decision in Al-Kateb, it was not reasonable for the applicant to have included the claim in the action prior to the delivery of the decision in NZYQ, as such a claim had no real prospect of success.

6. I have set forth in some detail the effect of the decision in NZYQ. It is certainly arguable that on the present status of the law, any claim for damages for unlawful detention made by the applicant for the period prior to 27 April 2005 would likely be unsuccessful, on the basis that during that period he was being detained for the ‘administrative purpose’. However, the law in this area is quite clearly in a state of flux. In addition, the applicant remained in detention for just over three months after exhausting his appeal rights.

7. It is not appropriate for this Court to, in effect, summarily determine the proposed claim. Suffice to say, the Court is of the view that, at this stage, it is arguable that the claim has merit.

8. The practical reality is that the applicant had no opportunity to plead the unlawful detention claim until mid-December 2023 at the very earliest, being after he filed the SSOC.

9. However, it was not until 12 February 2024 that the applicant communicated his intention to apply to amend the pleadings following the delivery of the decision in NZYQ. I accept the reasons for that delay as articulated by counsel for the applicant. That is, in this case, the applicant needed to carefully consider not only the implications and potential application of the decision in NZYQ to his individual circumstances, but to balance those considerations with the potential for any application to amend to (again) jeopardise the trial date and any necessary cost implications arising therefrom. The decision for the applicant involved different considerations to those of the other detainees in the cohort given the proximity of the trial date and the procedural status of the action.

10. As at the date of these Reasons, there will be 24 more working days prior to the commencement of trial. This leaves limited time for the parties, particularly the respondent, to practically (and properly) complete the procedural steps which will necessarily flow in the event the amendment application is granted.

11. I am satisfied that those steps will include:

    ·the filing and service of amended pleadings. I accept that this may include a revised substituted cross-claim and any revised substituted defences, having regard to the matters raised in the Sixth Di Girolamo affidavit at [51.3]-[51.5] and at Exhibit DWJ-9 of the Fourth Johns affidavit.

    ·a requirement for the applicant to file a further affidavit including his evidence-in-chief on this issue.

    ·the notification of any objections to that affidavit.

    ·ongoing discovery, which I accept may include the respondent endeavouring to identify and locate any policy or operational documents or documents containing data about how many Iranians were returned to Iran at each of the five stipulated times in the ‘cascading timeline’ and documents created or maintained by particular department personnel.

    ·The respondent (and potentially the G4S parties) identifying, locating, proofing and obtaining affidavits from appropriate witnesses.

    ·Mr Wallis, who has already provided an affidavit of evidence, may need to provide a further affidavit. He will be overseas from 11-25 April 2024.

    ·further expert evidence may need to be obtained, specifically on the issue of causation.

    ·The revision of any Tender Bundles (and Indexes).

    ·The revision of Written Openings.

12. As a flow on effect, it is likely that the Court will be unable to fully hear and determine any objections as to the admissibility of documents and/or aspects of the lay affidavit evidence and/or any objections to expert reports prior to trial, as had been intended.[44]

    [44] See Orders 21-27 and 34-36 of the Amended Trial Orders dated 11 December 2023 (FDN 163).

13. I am satisfied that if the amendment application is granted, the trial date will need to be vacated.

14. Even if the trial was able to commence on the date as presently listed, these matters will likely disrupt the efficient progress of the trial. If the trial is unable to commence and to conclude within the allocated timeframe, this will result in the loss of considerable time, further cost and inconvenience to the parties and the Court.

15. In a number of the other cohort actions, including at least one such action listed for trial later this year, some of the responding parties are represented by the same solicitors and senior counsel as in this action. Those parties would suffer significant prejudice if required to retain alternative solicitors and/or counsel in the other action(s) simply because of the amendment application. Further, even if the trial starts on the date as listed, resourcing issues require it to be concluded during July, to ensure those matters in the cohort that remain in this court and are listed for trial can, in fact, proceed to trial on the dates as listed. If the trial starts but does not conclude within that timeframe in all likelihood it could not resume part heard until a date in 2025.

16. The trial in this action has already been adjourned once. This action and the other matters in the cohort have attracted considerable publicity having regard not only to the issues to which they relate, but the delays that have already occurred in the resolution of such claims. A further delay in the completion of the trial will have financial implications for all parties and will likely cause considerable strain and uncertainty for the applicant and other detainees in the cohort.

17. I am satisfied that to vacate the trial date at this late stage will impact upon the public’s confidence in the just and efficient administration of justice.

18. In such circumstances, it is necessary to consider the two options proposed by the applicant. I will deal with Option 2 first.

    Option 2 - Order for Separate Trials

19. In my Reasons for Decision in Chattaway v Lloyd and Ors,[45] I outlined the relevant legal principles to be applied when determining an application for separate trials pursuant to UCR 151.1. I repeat those observations.

    [45] [2021] SADC 141 at [72]-[79].

20. As a general rule, all issues should be dealt with in a single trial. There is a clear danger in ordering separate trials, not limited to the incurring of additional time and expense necessary to call evidence on factual matters which overlap more than one issue.

21. There is a clear overlap in the issues required to be determined by the Court with respect to the claim in the negligence action and the unlawful detention claim, namely what, if any, psychiatric injury, with resulting loss and damage, was caused by any tort (or torts) committed by the respondent. The applicant has not addressed how any potential duplication in the expert evidence as to the nature and cause of any psychiatric (or psychological) injury suffered by the applicant could be addressed if a separate trial was ordered with respect to the unlawful detention claim.

22. While the likely evidence to be given by the applicant on the unlawful detention claim may be limited in scope, the fact remains that findings as to both the credibility and reliability of the applicant’s evidence will need to be made with respect to both claims. Similarly, there may be lay witnesses called by the respondent (and/or third parties), who will be required to give evidence at both trials. In the ordinary course, a Court’s findings as to a witness’ reliability and credibility are informed by a consideration of all of the witness’ evidence, over a cross-section of topics, having regard to all of the evidence.

23. Further, the applicant has suggested that any trial on the new case not be listed for hearing until judgment is delivered on the case as currently pleaded. However, this neglects to consider the possible impact of any appeal being lodged to such judgment and the resulting delay from both the delivery of judgment and the finalisation of any appeal process thereafter.

24. Having carefully considered this option, I am not satisfied that to order separate trials on these issues will result in utility, economy and fairness to the parties. This is not an appropriate option.

    Option 1

25. If the amendment application is refused, the applicant intends to pursue a claim for damages arising from his allegedly unlawful detention in the Federal Court. The applicant has suggested that any such claim could be joined with a possible Class Action in the Federal Court.

26. While the unlawful detention claim continues to include a claim for damages for psychiatric injury, the respondent has confirmed it reserves all of its rights to rely on Anshun estoppel, abuse of process or similar defences in any such proceedings.

27. The applicant suggested the Court may be able to make a ‘notation’ as part of this ruling to protect his right to pursue the claim in the Federal Court. However, an order (or notation) of this Court will not be binding on the Federal Court.

28. The submissions made by G4S canvassed in some detail the prospects of any such defence being successful. I do not intend to repeat the content of those submissions.

29. However, as previously stated, it was not reasonable for the applicant to have pursued a claim for damages for unlawful detention in this action, given the state of the authorities, prior to the delivery of the High Court’s reasons in NZYQ. The fact that this issue came to light shortly prior to trial was through no fault of the applicant.

30. As previously discussed, although there was a short delay while the applicant considered his position, he then issued the amendment application, that being the only avenue for him to include the unlawful detention claim in the action.

31. The applicant is in a special and unique position in that the trial in his action is the first trial of the cohort matters scheduled to proceed after the delivery of the decision in NZYQ. The trial has already been delayed once, and the parties have been working towards an extremely tight procedural timeline in any event with a view to the trial date being preserved.

32. If the applicant pursues the claim in the Federal Court, his unique and special circumstances will likely play a significant role in that Court addressing any defence of the type as foreshadowed by the respondent, particularly in circumstances where the applicant has made appropriate and reasonable attempts to include the foreshadowed claim in this action.

    Summary

33. I am satisfied that if the amendment application is granted this will necessitate an adjournment of the trial date and/or at the very least, the very real likelihood of the trial not completing in the allocated timeframe and thus becoming part heard.

34. I have already outlined in detail the ramifications if the trial date is vacated, or, alternatively, if the trial commences but does not conclude in the time available. Those ramifications will be felt by all parties, the Court, the other detainees in the cohort and, given the public interest in the cohort matters, the general public.

35. In circumstances where the applicant has a right to pursue the foreshadowed claim in another proceeding, and, after carefully balancing and considering all of the relevant factors, including the Object of the rules, the application must be refused.

    Strike Out Application

    Context

36. On 25 August 2023, I made an order granting leave to the applicant to further amend his statement of claim, but not in the form that had been sought by him (revised Statement of Claim – Revision 6). I ordered the applicant serve a copy of the proposed amended Statement of Claim on all parties within 28 days thereafter, which order was complied with.[46]

    [46] See Sovi v Commonwealth of Australia [2023] SADC 115 and discussion at [7] herein.

37. Thereafter the responding parties opposed the filing of that proposed Amended Statement of Claim on numerous grounds, including that the proposed pleading was defective, non-compliant with the rules as to pleadings and contained new allegations of fact. There were more than 50 separate complaints with respect to the proposed pleading, which was critiqued on effectively a paragraph by paragraph basis.

38. Following a lengthy oral argument heard on 12 October 2023 and the subsequent provision of written submissions on the alleged deficiencies in the proposed pleading, the Court delivered an ex tempore ruling on 16 November 2023, addressing the complaints, again, on a paragraph by paragraph basis. The applicant was granted leave to file and serve a Substituted Statement of Claim in a form consistent with this ruling, by Thursday 23 November 2023.[47]

    [47] FDN 150.

39. The SSOC was filed that same day. The respondent was ordered to file an Amended Defence to the SSOC by 22 December 2023.[48] The Substituted Defence was filed on 12 January 2024.

    [48] Amended Trial Orders, FDN 163 at [6].

    Basis for Application

40. By letter dated 16 February 2024, the applicant’s solicitors wrote to the respondent’s solicitors outlining in detail alleged deficiencies in the Substituted Defence.[49] That letter, which I will refer to as ‘RJG-14’, is 16 pages long and identifies more than 180 separate complaints with respect to the pleading, grouped under various categories.

    [49] Exhibit RJG-14 to the Third Geyer affidavit.

41. As a general proposition, the applicant submitted that by its form and content, the Substituted Defence does not perform the fundamental purpose of a pleading in that it does not define the issues between the parties, nor does it give fair notice of the case the respondent will put at trial.

42. The applicant submitted that the pleading does not comply with the rules as to pleadings and specifically, does not comply with:

    ·UCR 67.2(1)(c), which imposes a mandatory requirement for the pleading to ‘be as concise and precise as practicable’.

    ·UCR 67.2(2)(a), which imposes a mandatory requirement for the pleading to set out the affirmative facts relied upon to establish the respondent’s defence to the claim.

    ·UCR 67.2(2)(c), which imposes a mandatory requirement for the pleading to give fair notice of the respondent’s case so as to avoid the applicant being taken by surprise at or in preparation for trial.

    ·UCR 67.2(3)(b), which imposes a mandatory requirement that the pleading must not contain material that is irrelevant or unnecessary to perform the functions of the pleadings as set forth in UCR 67.2(2).

    ·UCR 67.2(3)(c), which imposes a mandatory requirement that the pleading must not contain material that is evasive or ambiguous.

    ·UCR 67.2(3)(e), which imposes a mandatory requirement that the pleading must not be an abuse of process of the Court.

43. Further, it was submitted the pleading did not comply with the specific pleading rules relating to a Defence (UCR 67.6) in that the pleading did not specifically admit, not admit or deny, with or without qualification or elaboration, each allegation of fact in the SSOC. It was further submitted that on multiple occasions the Substituted Defence pleaded evidence, rather than facts.

44. As such, the applicant submitted that the Substituted Defence needed to be rewritten in its entirety, to cure these procedural defects.

45. In addition, the applicant raised several specific objections to the substance of the pleading, and in particular:

    1.What was said to be the withdrawal of an admission without leave.

    2.What was said to be an entirely new plea of actual prejudice arising from the applicant’s failure to issue the action within the relevant limitation period.

    3.The inclusion, for the first time, in any version of the Defence, of a plea of contributory negligence.

    4.What it submitted was an unnecessarily argumentative and wholly unreasonable pleading in response to SSOC [22], by reference to the historical genesis of that pleading.

46. The respondent denied that the pleading, when considered in its entirety and in context, failed to give fair notice of the respondent’s case.

47. It was submitted that the nature of the action, and how it was pleaded in the SSOC, meant that the rules as to pleadings ought not be applied in a rigid or overly technical way to the Defence, particularly having regard to the fact the SSOC had been entirely recast, so soon prior to trial.

48. It was submitted that it was not the case that the Substituted Defence was unable to be understood, rather, the applicant’s complaints related to the fact that he did not like the style and/or content of the pleading.

49. Insofar as it was submitted the pleading was neither concise, not precise, it was submitted that regard must be had to the SSOC, which was some 41 pages in length (absent the Appendix), was long, complicated, used defined terms and itself was lacking in precision. In comparison, the Substituted Defence was not only far shorter, being 29 pages, but had been able to be confined to that length only by including various cross references to what was outlined in other paragraphs, thus avoiding unnecessary repetition and ensuring consistency.

50. It was submitted that the applicant’s objections ignored the effect of UCR 67.6(7) which required the respondent to plead in the defence any jurisdictional objection, namely its defence that a decision (or decisions) of the Minister was non-justiciable.

51. It was acknowledged that as a result of the requirements imposed by the rules as to pleadings and the content and form of the SSOC, the Substituted Defence was necessarily ‘clunky’. However, it was submitted that it was not ambiguous, it was not vague or evasive and it fairly put the applicant on notice if read in its entirety.

52. Schedule A to the Respondent’s Summary of Argument contains a detailed response, comprising 36 pages, to the various objections listed in RJG-14. Given time constraints I do not intend to repeat what is in either of those documents and I refer to those documents for their full terms and effect.

    Observations/Findings

    Preliminary

53. The Strike Out application is made pursuant to UCR 70.3 which states:

    (1)    The Court may strike out all or part of a Claim or pleading if –

    (a)It does not comply with the Rules;

    (b)It is frivolous, vexatious or an abuse of process of the Court; or

    (c)It does not disclose a reasonable cause of action or defence (as applicable).

    (2)    If the Court strikes out all or part o a document under subrule (1), it may if it thinks fit grant leave to file within a specified time an amended or substituted document rectifying the matter that caused the original document to be struck out.

1. Insofar as the objections to the Substituted Defence in fact amount to a request for further particulars, I note the commentary to UCR 70.2, which states that ordinarily the Court will only order better particulars if the want of particularity, results in the pleading not complying with the pleading rules in Part 7 and the party seeking the particulars will otherwise suffer prejudice.

2. In addressing the various objections raised, I have had specific regard to the rules, including the Object of the rules and, of course, to the purpose/s that the pleading is intended to serve.

3. Having done so, I am satisfied that the Substituted Defence in its present form does not comply with the rules as to pleadings, nor does it clearly define the issues or give fair notice to either the applicant or the Court of the case the respondent intends to lead to trial. Indeed, the time taken by the Court to navigate the pleading for the purpose of this application confirmed that in its present form, the pleading is almost impossible to comprehend. It needs to be recast.

   Irrelevant and Unnecessary Material (Category 1 of RJG-14)

4. The Substituted Defence contains numerous comments which criticise how the SSOC has been drafted. This is notwithstanding that the respondent’s application to strike out the SSOC, argued on a ‘paragraph by paragraph’ basis, has already been the subject of determination by this Court.

5. An example is that at [4.2], which is a paragraph complaining about the fact the SSOC defined the term ‘detention period’ to include both the period of detention in Curtin and in Baxter, when the claim does not contain any allegation of any breach of duty by the respondent while the applicant was detained at Curtin.

6. The respondent contended that this caused it embarrassment as there were other paragraphs in the SSOC which used this defined term.

7. However, when you carefully peruse the SSOC, it rarely uses that defined term[50] and clearly stipulates various matters as having occurred ‘during the period of the applicant’s detention at Curtin’, or ‘during the period of the applicant’s detention at Baxter’.

   [50] It appears at SSOC [7] and [11] being paragraphs under Part 2 – Background/Uncontroversial Matters.

8. There is simply no need for the comment at [4.2]. The use of this defined term does not create uncertainty or cause any embarrassment. This paragraph of the Substituted Defence is struck out.

9. A similar such example is at [8.4] where the respondent criticises the use of the defined term ‘service providers’, which is again said to cause the respondent embarrassment and to result in uncertainty. This defined term is, again, rarely used in the SSOC.[51] The use of this defined term does not create uncertainty or cause any embarrassment. This paragraph of the Substituted Defence is struck out.

   [51] It appears at SSOC 12, 35.22 and 36A 2.2.

10. Paragraph 10.2 of the Substituted Defence attempts to impose a requirement on the applicant to identify the agents or employees for which the respondent is vicariously liable as referred to in SSOC [10]. There is no requirement for the applicant to do so. This paragraph of the Substituted Defence is struck out.

11. In addition, the Substituted Defence contains numerous statements to the effect that the SSOC is uncertain or vague and is prone to cause embarrassment. These statements are unnecessary and irrelevant. They serve no purpose other than to criticise the drafter of the SSOC. Paragraphs [11.6], [16.2], [22.2], [40.2], [41.2], [47.2] and [60.2] of the Substituted Defence fall into this category and are struck out.

12. SSOC [11] is included by way of background only. There is no allegation of any breach of duty relating to the allegations contained therein. As such, [11.4] and [11.5] of the Substituted Defence are unnecessary and irrelevant and are struck out. Further, while there is some potential ambiguity in the use of the phrase ‘had available’, this does not cause any prejudice to the respondent given the purpose of SSOC [11]. As such, [11.3] of the Substituted Defence is also unnecessary and is struck out.

13. SSOC [14] and [15] are background pleadings outlining various matters relating to the establishment and maintenance of Baxter. Those paragraphs do not of themselves plead any breach of duty. As such, the commentary at [14.2], [14.3] and [15.2] of the Substituted Defence is unnecessary and irrelevant. Those paragraphs are struck out.

14. If the respondent seeks to plead that a decision of a Minister (or Ministers) is non-justiciable, such a pleading can be included in the Substituted Defence as a standalone pleading. It can be drafted to encapsulate those matters pleaded by the applicant alleging any breach of the duty of care which the respondent says relate to any non-justiciable decision of the Minister. This will avoid unnecessary repetition (and cross referencing) while providing fair notice of the respondent’s case on this issue.

15. Paragraph 16A of the Substituted Defence serves no purpose. SSOC [22] makes it clear that the references to Curtin in the pleadings relate only to the respondent’s alleged knowledge of the applicant’s vulnerability and pre-existing psychological condition at the time he was transferred to Baxter. As such, there is simply no need for this to be restated at [16A.1] of the Substituted Defence and it is irrelevant that the applicant does not plead to have suffered any ‘compensable’ physical injury or mental harm while at Curtin. Paragraph 16A of the Substituted Defence is struck out.

16. SSOC [89] pleads the applicant’s request for an extension of time to issue the action under s 48 Limitation of Actions Act 1936. Paragraph 89.4(5) of the Substituted Defence does not respond to that pleading and simply repeats the respondent’s assertion that the applicant is seeking to prosecute challenges to non-justiciable decisions. Paragraph 89.4(5) of the Substituted Defence serves no purpose and is struck out.

17. Paragraph 91.1 of the Substituted Defence is a pleading in response to those matters relied upon by the applicant as particulars as to why it is just in all of the circumstances of the case to grant the extension of time.

18. Paragraph 91.1 of the Substituted Defence pleads:

    As to paragraph 91, that:

    91.1The applicant’s reliance on the whole of his Claim is not relevant unless it succeeds substantially on the basis of the matters pleaded, and then as one circumstance only.

19. The Court is unable to comprehend this pleading. Further, it appears to bear no response to SSOC [91]. This paragraph is struck out.

    Failure to Specifically Admit, Not Admit or Deny (Category 2 of RJG-14)

20. The applicant has identified certain paragraphs in the Substituted Defence where it claims that the pleading does not specifically admit, not admit or deny an allegation of fact in the Statement of Claim. Instead, these pleadings use terminology such as ‘it admits only as a matter of generality’ or ‘without limiting the generality of … the denial’.

21. Although technically the use of this terminology is unnecessary, insofar as it merely adds extra words, of no substance, to the pleading, the Court considers this complaint to be more one of form. The Court declines to strike out any of the paragraphs of the Substituted Defence as identified under this category.

    Pleading Evidence (Category 3 of RJG-14)

22. The applicant contends that on multiple occasions the Substituted Defence pleads evidence rather than facts. It has identified six sub-paragraphs which fall into this category.

23. The Court disagrees with the objections made as to [21.2], [66.1], [66.2] and [66.3] having regard to what is pleaded in the SSOC to which those pleadings respond.

24. As to [23.1], the pleading must be read in its full context.

25. SSOC [23] pleads that during the applicant’s detention at Baxter, he experienced stressors, exhibited signs and suffered symptoms as articulated therein.

26. Paragraph 23.1 of the Substituted Defence admits that there is a record of all of the matters as set forth in SSOC [23], albeit, having regard to [23.2], it does not admit the accuracy of that record. Having done so, it puts the Court and the parties on notice as to its case with respect to factual inferences to be made from that documentary record. The Court disagrees with the objection made as to [23.1].

27. However, what is pleaded at [82.8] of the Substituted Defence under the heading ‘Particulars’ is evidence, rather than facts. That portion of [82.8] is struck out.

    Evasive, Irrelevant and Unnecessary (Category 4 of RJG-14)

28. Throughout the Substituted Defence, many paragraphs contain circuitous pleas wherein reference is made to other paragraphs in the Defence.

29. The applicant contended that by pleading in this manner, the reader was effectively sent on a ‘treasure hunt’ to both understand the pleading and, importantly to ascertain whether or not any admissions, and if so what admissions, were contained in those paragraphs.

30. Paragraph 24.4 of the Substituted Defence was highlighted as an example. SSOC [24] pleads that during the period the applicant was detained in Baxter, he experienced a number of additional stressors listed therein.

31. Paragraph 24 of the Substituted Defence states:

    As to paragraph 24, that:

    24.1it repeats sub-paragraphs 14.3 and 15.2 above and sub-paragraphs 47.4, 48.4 and paragraphs 33-35 below;

    …

    …

    24.4save as is expressly admitted in sub-paragraphs 14.3 and 15.2 above and sub-paragraphs 47.4, 48.4 and paragraphs 33 - 35 below, it denies the facts alleged in paragraph 24 and each sub-paragraph thereof.

32. During oral submissions and in its Summary of Argument, the respondent identified some typographical errors in [24.4],[52] which ought to read:

    Save as is expressly admitted in sub-paragraphs 14 and 15 above and sub-paragraphs 47.1, 47.5 and paragraphs 33 and 35 below, it denies the facts alleged in paragraph 24 and each sub-paragraph thereof.

    [52] But did not identify any similar errors in [24.1].

33. The mere fact that these errors were made highlights the problems associated with a pleading which contains such a significant degree of cross-referencing.

34. Further, by cross-referencing paragraphs contained not only previously in the document, but much later, creates considerable practical difficulties for any reader of the document, including the Court.

35. Further, some of the paragraphs to which cross-reference is made, in fact include their own cross references. [47.4] refers to [16A], [21], [33] to [35], [40] and [41]. Paragraph 35 repeats the matter set out in [34].

36. Accordingly, to understand [24.4], it is necessary for the reader to revisit and consider nine other separate sub-paragraphs, some of which are yet to be pleaded at that point in the Substituted Defence.

37. Numerous other examples of similar cross-referencing occur throughout the pleading.

38. The court acknowledges that it is at times permissible and indeed preferable for a pleading to cross-refer to an affirmative fact pleaded elsewhere, rather than restating the pleading in total in each instance that it is applicable. However, the pleading must be able to be understood and clearly define the issues between the parties. Excessive and constant cross-referencing serves only to confuse the reader.

39. The purpose of the pleadings is to define the issues and to give fair notice of a party’s case at trial.

40. If the Defence clearly sets forth a pleading of a relevant affirmative fact, there can be no criticism if that pleading is not otherwise repeated, throughout the Substituted Defence, at every juncture where it may be applicable.

41. For example, [34] of the Substituted Defence pleads that ‘the respondent … has and had no duty to devise a system of detention which obviates the effect on the applicant of those features of incarceration which are characteristic of detention’. The respondent’s case on this point is clear. It does not need to repeat this specific point numerous times throughout the pleading.

42. The applicant has identified numerous paragraphs which it says, are bad because they are evasive and ambiguous and ought to be repleaded.

43. Again, if a particular paragraph of the Substituted Defence contains an admission or alternatively, a denial, then it is not necessary for that admission or denial to be constantly repeated in the pleading.

44. An example of this appears at paragraph 40[53] of the Substituted Defence. SSOC [40] pleads that the respondent knew or ought to have known that the applicant was suffering from psychological harm or, in the alternative, was vulnerable to suffering such harm, for various reasons.

    [53] This appears to have been erroneously identified at sub-paragraph 4.9 on p 4 of RJG-14 as [30.4].

45. At [40.1] and [40.3], the respondent repeats and relies on matters set out in [16A], [17], [18] and [21] of the Defence, none of which appear to contain any admissions. At [40.4], it states:

    save and except as expressly admitted herein, it denies the facts alleged in paragraph 40 and each sub-paragraph thereof.

46. As such, despite its wording, which seems to suggest otherwise, [40] does no more than deny the facts alleged in SSOC [40]. Paragraph 41 falls into the same category.

47. There are several paragraphs in the Substituted Defence which state ‘save and except as is expressly admitted herein it denies the facts alleged in …’. Often there is no discernible admission contained in the paragraph.

48. The following paragraphs listed in Category 4 contain unnecessary and excessive cross-referencing (and therefore repetition) and are struck out. When they are repleaded, careful attention needs to be paid by the drafter to ascertain if, in fact, the pleading contains any admissions:

    [7.1],[54] [11.7],[55] [24.4], [26.2], [38], [40], [41.4],[56] [42], [47.4], [49.3], [50.3], [52.2], [53.2], [56], [57], [58], [59.3], [60.3], [61], [62], [63], [64], [65], [68.2], [69.2], [70.2], [71.2], [72], [73], [74.2], [75.2], [76], [77], [78], [79.2], [80.2], [81.2], [81A.1], [86.4] and [88].

    [54] This pleading simply repeats [4.2] which is struck out under category 1.

    [55] There do not appear to be any admissions of fact in this paragraph.

    [56] There do not appear to be any admissions of fact in this paragraph.

49. As to [13.4], this paragraph only makes sense if the words ‘it admits’ are included after the phrase ‘As to paragraph 13’ at the start of [13].

50. The Court disagrees with the objections made with respect to [31], [35.5], [66.4] and [91.4].

    Unnecessary Repetition (Category 5 of RJG-14)

51. The applicant contends that contrary to UCR 67.2(3)(b), there are numerous paragraphs in the Substituted Defence which contain material which is unnecessarily repetitive, such that it obscures the meaning of the plea and makes it difficult to comprehend.

52. This objection is of a similar type to that raised in Category 4 and relates to the fact that many of the pleadings cross-reference others throughout the document and unnecessarily so.

53. The Court agrees with the many of the objections as made by the applicant, particularly where the cross-referencing includes a reference to a paragraph which follows in the pleading and where there are simply too many cross references to enable the pleading to be readily understood.

54. The following paragraphs of the Substituted Defence as listed hereunder are struck out but may be repleaded.:[57]

    [22.1], [24.1], [26.2], [40.1], [41.3], [42], [47.1], [48.1], [49.1], [50.1], [51], [55], [70.1], [79.1], [82], [83.1], [84.1], [85.1] and [86.1].

    [57] This does not include those paragraphs already ordered to be struck out under Category 4.

55. There are other paragraphs listed under this category which will need to be repleaded having regard to my earlier orders striking out other paragraphs from the pleading, including:

    [52.1], [53.1], [59.1], [60.1], [68.1], [69.1], [71.1], [74.1], [75.1], [80.1], [81.1], [81B.1] and [87.1].

56. I disagree with the applicant’s objections to the following paragraphs:

    [36], [36A], [36B], [37], [48.4.3(1)] and [54].

57. As previously stated, affirmative facts relied upon by the respondent can be pleaded in standalone paragraphs. Specific factual admissions which may relate to more than one pleaded paragraph of the SSOC can be similarly pleaded. This will not only reduce repetition, and excessive circuitous cross referencing but will result in increased clarity while providing fair notice to the parties and the Court of the respondent’s case.

    Vague, Ambiguous Pleas and Pleas requiring Further and Better Particulars (Category 6)

58. The applicant identified 21 separate paragraphs of the Substituted Defence wherein it alleged the pleading was either vague, ambiguous and/or required further and better particulars.

59. I have carefully considered each particular complaint, bearing in mind the commentary under UCR 70.2.

60. I make the following findings:

    1.As to [12.2], I am satisfied that in its present form this pleading provides fair notice of the respondent’s case as to SSOC [12]. It does not require further particularity.

    2.As to [15.2] - this paragraph was struck out under category 1.

    3.As to [21.3], although this pleading contains a grammatical error which makes it somewhat difficult to interpret, upon careful reading, the prejudice identified is that of an inability to have the applicant medically examined at a time contemporaneous with when the alleged condition was said to have arisen, that is, in or about May 2001 or any time thereafter before October 2023. The pleading can stand.

    4.As to [23.2], the pleading makes it clear that the respondent’s case is that although there is a record of the applicant experiencing the stressors, exhibiting the signs and suffering the symptoms as set out in SSOC [23], SSOC [23] does not contain a comprehensive or accurate account of what is comprised in those records. To require the respondent to plead precisely how the description in SSOC [23] is inaccurate or what is not pleaded therein but is otherwise referred to in the records, is onerous and not required.

    5.As to [43], in its present form it is vague and evasive. The respondent is required to plead to whether it prescribed a system of medical care by IDS1 and/or IDS2. It is also required to either admit or deny that those documents were directed to the health care needs of the applicant and other detainees.

    6.As to [47.5.2(24)], there is no requirement for further particulars.

    7.As to [47.5.2(33)], there is no requirement for further particulars.

    8.As to [48.4.1(2)], there is no requirement for further particulars.

    9.As to [48.4.2(3)], there is no requirement for further particulars.

    10.As to [66.3], there is no requirement for further particulars (see discussion as to [23.2] above).

    11.As to [82.1], there is no requirement for further particulars, noting that various paragraphs of the SSOC plead the applicant’s alleged mental health illness in general terms.[58]

    [58] At SSOC [40] it is pleaded the respondent knew or ought to have known the applicant was suffering from ‘psychological harm’ or was vulnerable to suffering ‘psychological harm’; at SSOC [68.2] it is pleaded that the respondent ought to have ensured that there was an initial assessment carried out by a psychologist or psychiatrist upon his admission to Baxter, as this would have identified he was suffering from ‘a diagnosable psychiatric condition’. At SSOC [78.1] it is pleaded that the respondent failed to diagnose the applicant’s ‘underlying psychiatric disorder’. In addition, SSOC [82] pleads that as a result of the respondent’s breach of duty, the applicant suffered both the aggravation of a pre-existing adjustment disorder suffered at Curtin, and a New Adjustment Disorder. This demonstrates the practical difficulty in attempting to retrospectively (and accurately) define what, if any, mental illness was suffered by the applicant at various points in time, particularly over 20 years ago.

    12.As to [82.4], there is no requirement for any further particulars.

    13.As to [82.8], insofar as this pleading is inconsistent with other pleadings in the Substituted Defence, it ought be pleaded as an alternative. There is no requirement for further particulars.

    14.As to [85.4.(2)], there is no requirement for further particulars. However, there appears to be a typographical error insofar as this pleading responds to SSOC [85.3], rather than SSOC [85.2].

    15.As to [85.6], there is no need for further particulars.[59]

    16.As to [87.4], there is no need for further particulars.[60]

    17.As to [89.4(1)], to require the provision of further particulars would result in the respondent being required to plead evidence. There is no need for further particulars to be provided.[61]

    18.As to [89.4(2)], save for correcting a typographical error, such that the reference is to the period commencing 9 November 2000, there is no requirement for this paragraph to be repleaded. The request for further particulars amounts to a request for the respondent to plead evidence.

    19.As to [90.1], there is no requirement for this paragraph to be repleaded. The request for further particulars amounts to a request for the respondent to plead evidence.

    20.As to [90.2.1], the pleading under the heading ‘Particulars’ must refer to the facts as set out in the Job Capacity Assessment Reports that are sought to be relied upon to make good this pleading. The paragraph needs to be repleaded to plead facts, not evidence.

    21.As to [91A.2], there is no requirement for this paragraph to be repleaded. The further particulars that are sought would amount to the pleading of evidence, in circumstances where the SSOC in any event refers to several occasions where the applicant refused medical treatment. The pleading does not cause the applicant any prejudice, let alone substantial prejudice.

    Further and Better Particulars, Effect on the Applicant of the Features of Incarceration which are Characteristic of Detention (Category 7)

    [59] See discussion as to [82.1].

    [60] See discussion as to [82.1].

    [61] See also discussion under heading “Pleading of Prejudice (Category 11 of RJG-14)”.

1. The applicant contends that at various points in the Substituted Defence, the respondent pleads that certain allegations ‘would not have obviated the effect on the applicant of those features of incarceration which are characteristic of detention’.

2. It seeks further and better particulars of the features of incarceration which are said to be characteristic of detention and the effects that these are said to have had on the applicant.

3. This phrase is consistent with that used by the Full Federal Court in SBEG v Commonwealth (2012) 208 FCR 235, 248 at [51]. It does not require further and better particularity.

4. Further the applicant’s claim is a claim for damages arising from mental harm. It is quite clear from the pleading that the relevant effect is the alleged foreseeable risk of suffering mental harm. There is no requirement for any further and better particulars of any of the paragraphs as identified in Category 7.

   Miscellaneous Objections (Category 8)

5. Many of the objections listed under this Category relate to paragraphs of the Substituted Defence to which objection has already been taken by the applicant under another category of objection.

6. I will only deal with those paragraphs which have not already been the subject of a finding made herein.

7. As to [21.1], whether any proceedings seeking damages for the condition have ever been issued is irrelevant. That portion of [21.1] is struck out. The balance of the pleading can stand.

8. As to [26], save for my previous order relevant to [26.2], the pleading is responsive and can stand.

9. As to [34], whilst poorly worded, the pleading complies with the rules and can stand.

10. As to [35.4], SSOC [35] is a plea of foreseeability of risk. It is not a plea as to the content of any duty of care. As such, [35.4] does not respond to the said paragraph and is struck out.

11. As [ 40.3] and [40.4], as previously outlined herein, when carefully analysed, these paragraphs appear to simply deny the matters set forth in SSOC [40]. If affirmative facts are relied upon by the respondent in support of that denial, then it is sufficient that such facts are otherwise pleaded in the Substituted Defence. Paragraph 40 in its present form is to be struck out and repleaded.[62]

    [62] See discussion at [180]-[182] herein.

12. As to [47.5.2(23)], this pleading is relevant to the issues in dispute and can stand.

13. As to [85.4.4], this pleading is relevant to the issues in dispute and can stand.

14. As to [86.2.5], this paragraph is irrelevant and is struck out.

15. As to [86.3], the pleading is clear and responsive to SSOC [86] and can stand.

16. As to [87.1], the pleading is unnecessarily repetitive, is unresponsive and is struck out.

17. As to [91C], this pleading is untenable at law. Any liability of the respondent will not be an ‘apportionable liability’ within the meaning of s 3(2) of the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001. As such, if the applicant is entitled to damages against the respondent, its damages will not be reduced at law to the extent of the responsibility of the third parties, rather the respondent is entitled to seek contribution from those third parties to the extent that their acts or omissions have contributed to the applicant’s harm. Paragraph 91C is struck out.

    Impermissible Withdrawal of Admission (Category 9 of RJG-14)

18. At [27] of the applicant’s Third Statement of Claim (FDN 16), under a heading ‘Particulars of the Defendant’s Breach of Duty of Care to the Plaintiff”, it is pleaded:

    The plaintiff says that the defendant knew or ought to have known that he was suffering from a mental illness, and that he was a person of less than normal fortitude, and therefore s 33(1) and (2) of the Civil Liability Act 1936 (SA) do not apply to the plaintiff when he arrived in Baxter because:

    …

    27.4The defendant prior to the plaintiff’s arrival at Baxter was aware of the matters set out in Appendix one at paragraphs 1 to 73 and on the bases there set out the defendant had knowledge that the plaintiff was likely to have a psychiatric or psychological illness at the time.

19. In the Defence (FDN 19) it is pleaded at [27.4]:

    … as to paragraph 27.4, it admits only that it had either actual or constructive knowledge, as the case may be, of the particular statements contained in the Appendix that pre-date the plaintiff’s arrival at Baxter (paragraphs 1-73 of the Appendix). It further says that knowledge of those matters does not equate to either actual or constructive knowledge by it that the Plaintiff was likely to have a psychiatric or psychological illness upon his arrival at Baxter for the purpose of s 33 of the Civil Liability Act or at all.

20. At SSOC [35] under the heading “Foreseeability/Risk of Harm”, the applicant pleads:

    35At the time the applicant was admitted to Baxter, the respondent knew or ought to have known through research reports, commentary by expert groups, and its own Immigration Detention Standards that:

    35.1  Immigration detainees were at high risk of developing mental health problems, being a risk that was higher than that of the general population; and

    35.2  Detention was likely to be harmful to detainees’ mental health.

    Particulars

    35.2.1The respondent, prior to the applicant’s arrival at Baxter was aware, or had access to and ought to have been aware, of the matters set out in Appendix One at paragraphs 1 to 39 and 66 to 70.

    35.2.2…

    35.2.3…

21. At [35] of the Substituted Defence, the respondent pleads:

    As to paragraph 35, that it:

    35.1…

    35.2does not know and so cannot admit which (if any) of its officers had read or knew of the publications identified in the Particulars sub-joined to paragraphs 35 and 36, or as set out in the sub-paragraphs of paragraph 36B (Publications);

    35.3says, even if the respondent (by its relevant officers) knew of the Publications, it denies the conclusions set out in sub-paragraphs 35.1, 35.2, 36A.1 and 36A.2 of the Claim;

    35.4…

    35.5…

22. The applicant submitted that the pleading at [35.2] of the Substituted Defence impermissibly withdrew the previous admission as contained at [27.4] of the Defence (FDN 19).

23. The respondent disagreed and submitted that as the content of the pleading now differed from that to which the original admission was made, the applicant no longer maintained the benefit of that admission.

24. There is a subtle difference in the wording of the relevant paragraphs.

25. However, the effect of the admission made by the respondent at [27.4] of its Defence (FDN 19) was confined to the fact that it had either actual or constructive knowledge of the statements in the Appendix that pre-dated the plaintiff’s arrival at Baxter, being those contained in paragraphs 1 to 73 of the Appendix. Strictly read, it does not amount to an admission that such knowledge was held at the time of the applicant’s arrival at Baxter.

26. However, it may be that a broader admission than that I have identified was in fact intended. That is, that the respondent was admitting that its officers had such knowledge prior to the applicant’s arrival at Baxter.

27. If that is in fact the case, then the respondent should have pleaded to SSOC [35.2.1] by simply admitting that paragraph. In other words, it should have maintained its prior position, that it was aware (because it had either actual or constructive knowledge as the case may be), prior to the applicant’s arrival at Baxter, of the matters set out in Appendix 1 at paragraphs 1 to 39 and 66 to 70.

28. Insofar as the pleading at paragraph 35.2 differs from that prior admission and withdraws the same, leave is required. In the absence of leave being granted, the withdrawal of that admission is impermissible and paragraph 35.2 of the Substituted Defence, requires repleading.

    Plea of Contributory Negligence (Category 10)

29. Paragraph 91A of the Substituted Defence pleads:

    If, contrary to the matters pleaded herein, the applicant has suffered (or continues to suffer) harm by reason of the respondent’s breach of duty as alleged or at all, then the applicant contributed to his own harm by reason of his failure to exercise reasonable care for his own protection, namely:

    91A.1he failed to report his alleged mental health symptoms to staff at Baxter;

    91A.2he refused medical assistance at Baxter;

    91A.3he delayed in seeking medical treatment for the alleged psychiatric injury following his release from detention.

30. At sub-paragraph 91B of the Substituted Defence, it is pleaded:

    The applicant’s damages are liable to be reduced pursuant to s 7 of the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) (as it was prior to 1 October 2005) by reason of his contributory negligence as set out in paragraph 91A above.

31. The applicant submitted that this is the first time in any iteration of the Defence, that there has been any pleading to the effect that the applicant was contributorily negligent. No explanation has been provided as to why such a plea has been included in the Substituted Defence at this late stage, particularly given that there is no similar pleading in any of the other cohort matters.

32. In addition, it is alleged that the pleading itself is defective insofar as no appropriate duty that would base a plea of contributory negligence has been pleaded and the alleged failings on behalf of the applicant have not been properly particularised.

33. Further, it was submitted that the pleading at [91A.3] was not in fact a pleading relevant to contributory negligence, but rather a plea relating to conduct of the applicant after his release from detention and therefore after any alleged breach of duty. As such it was in fact a pleading that the applicant had failed to mitigate his loss, rather than a pleading of contributory negligence. No earlier iteration of the Defence contained a pleading that the applicant had failed to mitigate his loss.

34. The respondent submitted that the pleading of contributory negligence is simply the legal consequence of factual matters that have already been in issue by virtue of the applicant’s own pleadings.

35. In this respect, it referred to those pleadings contained in various iterations of the Statement of Claim to the effect that the applicant was fearful of complaining about his mental health while in Baxter, lest he be returned to the Management Unit and pleadings that he refused medical treatment at Baxter.

36. The respondent contended that therefore, there was no prejudice to the applicant in the pleading for contributory negligence being allowed to stand, noting that the factual basis for the pleading has already been the subject of discovery. Further it was submitted that in circumstances where the applicant had been required to recast his pleading, the respondent ought also be allowed the ability to do likewise.

37. However, no explanation was offered as to why it was that the pleading of contributory negligence was only now being included in the Defence. Further, the respondent failed to address what was the proper characterisation of the pleading at [91A.3].

38. Turning first to the pleading at [91A], [91A.1] and [91A.2].

39. While the pleading is one of contributory negligence, the factual matters pleaded therein are relevant not only to contribution, but to two critical aspects in dispute between the parties, namely:

    1.What was the scope of any duty of care owed by the respondent to the applicant. Specifically, did the scope of any such duty of care extend to identifying that the applicant was suffering a psychiatric illness from time to time (despite his pleaded reluctance to discuss his mental health with staff at Baxter) and, if so, did the duty extend to requiring the applicant to undergo treatment and take medication, if the evidence established the applicant was unwilling to accept such treatment.

    2.Did any breach of duty by the respondent cause the applicant loss and damage (causation).

40. The evidence admitted by way of proof of such matters is directly relevant to the proposed pleading at [91A], [91A.1], [91A.2] and [91B].

41. Determining the scope of the duty of care involves a consideration of matters also relevant to the proposed pleading of contributory negligence including, inter alia, the respondent’s knowledge of the applicant’s vulnerability to psychiatric harm at various points in time, the adequacy of the system of medical care provided and the matters specifically pleaded at SSOC [48.1.1.7] and [50].[63]

    [63] Noting this list is by no means meant to be exhaustive.

42. The premise of the pleading at [91A.3] is that because the applicant delayed in seeking medical treatment after his release from detention, he suffered additional loss and damage, over and above any loss and damage caused by his negligent detention at Baxter. This is clearly a plea that the applicant has failed to mitigate his loss and damage, not a plea of contributory negligence.

43. As to [91A] and [91B] in their entirety, although the respondent was granted leave to amend the Defence to respond to the SSOC, these new pleadings do not arise because of any late amendment to the Statement of Claim. These matters should have been pleaded in earlier iterations of the Defence. In these circumstances, the respondent should have sought leave to include these new pleadings in the Substituted Defence.

44. In addressing any such application, the Court would be required to consider the same factors identified earlier in these Reasons relevant to the determination of the amendment application.

45. As to any such application, dealing with the Manock/PPG factors:

    ·The nature and importance of the proposed amendment, including the extent to which it raises new issues of fact or law.

    As outlined, the pleading at [91A] – [91A.2] and [91B] addresses factual issues which will already be considered by the Court in its determination of the scope of any duty of care owed by the respondent to the applicant, and to issues of causation. The pleading of contributory negligence arising from those facts involves a new legal issue, but not a new factual issue. The pleading at [91A.3] arguably raises a new factual and legal issue, albeit the issue as to when the applicant first sought treatment following his release from detention and what such treatment are matters which have already been the subject of discovery. These issues are clearly of importance to the respondent.

    ·The merits of the proposed amendment, at least in the sense that the proposed amendment is arguable or tenable.

    The applicant has pleaded that he was reluctant to discuss his mental health while at Baxter and that he refused treatment while at Baxter. Whether the applicant was acting unreasonably when he did so is a matter which will be the subject of evidence pertaining to the determination of the scope of the duty of care. Whether any failure by the applicant to take reasonable care for his own safety has caused loss or damage is relevant in any event to the issue of causation.

    Further, there does not appear to be any real dispute that the applicant did, in fact, defer obtaining any psychiatric treatment for some time after leaving Baxter. Whether and to what extent this has caused or contributed to any loss and damage is a matter for expert evidence.

    On its face, the proposed pleadings appear to have merit in the sense that they are arguable.

    ·The stage of the litigation at which the application to amend is made, and the likely impact upon, or disruption to, the progress of the proceedings (and the trial).

    It will likely be necessary for the various medical experts to be asked to provide a brief addendum report to address what, if any, is the impact of the applicant’s failure to report his alleged mental health problems while at Baxter, and/or his refusal of medical assistance and/or his delay in seeking treatment for any alleged psychiatric injury he suffers or has suffered.

    On the assumption the Court grants leave for such reports to be obtained and relied upon, this should not unduly disrupt the trial or the progress of proceedings. These are discrete issues for the medical experts to address and are likely to have been addressed at least already in part by the experts when considering the issue of causation.

    As to the question of the reasonableness of any of the applicant’s acts or omissions, this is subject matter which will already be extensively canvassed insofar as it goes to the Court’s determination of the respondent’s vulnerability to mental harm, the respondent’s alleged knowledge of that vulnerability and the scope of the duty of care in these circumstances.

    ·The explanation for the application to amend and its timing, and the fact and extent of any undue delay in this regard.

    There has been no such explanation.

    ·Whether the party has had a sufficient opportunity to plead their case earlier.

    There was plenty of opportunity for these matters to be pleaded earlier.

    ·The time, cost and inconvenience associated with any delay or disruption of the proceedings.

    There will be additional expense to the parties in obtaining supplementary medical evidence to address these allegations.

    ·The uncertainty and strain of litigation on the parties and their witnesses as a result of any disruption or delay likely to be occasioned by the amendment.

    There will be some disruption but there is unlikely to be any delay in the trial caused by the amendment.

    ·The impact of any delay and disruption upon judicial and court resources, and the access of other litigants to those public resources.

    If there is any delay it should be minimal.

    ·The impact upon the public’s confidence in the just and efficient administration of justice.

    There should be no such impact.

46. I pause to note that it was submitted this was the only action in the cohort where the respondent had sought to advance such pleas. If that is the case, then that is not determinative. Notwithstanding similar factual issues may potentially arise in other actions in the cohort, these pleadings relate to the specific facts and circumstances of the applicant, whether his acts or omissions at various points in time were reasonable, and if not, to what extent such acts or omissions have caused his alleged loss and damage.

47. I have carefully weighed each of these factors. Having done so, I have determined that it is ultimately in the interests of justice for the pleadings to stand.

48. If any failure by the applicant to disclose his mental health issues to staff in Baxter and/or any refusal of treatment by him, amounts, in his circumstances, to a failure to exercise reasonable care for his own safety, then this is a matter which, in the interests of justice, should be before the Court for determination. Similarly, if any failure by the applicant to seek medical treatment after his release from detention has impacted on any loss or damage he has suffered as a result of the respondent’s negligence, this is a matter which, in the interests of justice, should be before the Court for determination.

49. In these circumstances, balancing the relevant considerations, I refuse the application to strike out [91A], [91A.1], [91A.2] and [91B]. There is no requirement for further particulars. Whether there has been any breach by the applicant of any duty to exercise reasonable care for his safety is a legal question, albeit one which will be informed by expert and other evidence, noting evidence relevant to this issue has already been obtained by the parties having regard to the matters already in issue on the pleadings. The particulars of the alleged breach have been pleaded and the absence of further particulars will not otherwise cause the applicant to suffer substantial prejudice.

50. The pleading at [91A.3] in its present form is to be struck out and repleaded to make it clear that what is alleged is a failure by the applicant to mitigate his loss, with appropriate particulars.

51. The Court will hear the parties as to any ancillary orders required with respect to the provision of any supplementary expert reports.

    Pleading of Prejudice (Category 11 of RJG-14)

1. As previously stated, the applicant requires an extension of time to institute the action. In the original Statement of Claim (FDN 2), this was pleaded at paragraph 30, with particulars of the material facts relied upon set forth in paragraph 30.1.

2. In the Defence (FDN 6) filed on 22 February 2013, the defendant pleaded at [31.2.2]:

   ... even if the preconditions for an extension of time under s 48 of the Limitations of Actions Act 1936 (SA) are met (which is denied), the Court should not grant an extension of time because the Defendant has been prejudiced by the Plaintiff’s delay in bringing the claim and it would therefore not be just to grant an extension of time in all of the circumstances of the case.

3. The applicant’s plea seeking an extension of time now appears at SSOC [89]. At [89] of the Substituted Defence, the respondent pleads:

   As to paragraph 89, that:

   89.1…

   89.2…

   89.3…

   89.4without limiting the generality of the foregoing denial, the respondent further says that it would not be just or equitable to grant an extension of time in all of the circumstances of the case, including because the respondent has been prejudiced by the applicant’s delay in bringing the claim.

   Particulars

   1.   The respondent has been impeded in its ability to source records from the applicant’s periods of detention and before that time, including at Curtin, by the effluxion of time.

   2.   The respondent has been unable to obtain contemporaneous evidence from officers of the respondent relevant to their knowledge in the period of 9 November 2001 (sic) to 1 August 2005.

   3.   The respondent was denied the opportunity to have the applicant examined between 2 August 2005 and 25 October 2012.

   4.   The applicant has amended his claim on at least five occasions requiring the respondent to repeat interlocutory steps and processes at significant cost and expense.

   5.   The applicant seeks to prosecute challenges to non-justiciable decisions of the Minister or the respondent in these proceedings for a purpose not relevant to the applicant’s claim but relevant to the system of detention, per se.

4. I pause to note that the particulars as set forth in sub-paragraphs 4 and 5 under the heading ‘Particulars’ are non-responsive to the pleading at SSOC [89] and I have previously ordered they be struck out.

5. The primary issue identified by the applicant related to the pleading at [89.4(2)]. It was submitted that for the first time, this sub-paragraph raised an allegation of actual prejudice, rather than presumptive prejudice caused generally by the effluxion of time. Further, it was submitted that insofar as it was a pleading of actual prejudice, that prejudice had not been properly particularised insofar as the respondent had not provided particulars of how it had been impeded in its ability to source records or the efforts it had made to obtain evidence from officers and when those efforts were made.

6. It was submitted that by allowing this pleading, the applicant would suffer irremediable prejudice given the proximity of the trial date.

7. The respondent submitted that in fact, all that it had done by virtue of [89.4(2)], was to particularise the prejudice that had been pleaded in the first iteration of its Defence. It was submitted that it had made discovery of the documents it sought to rely upon in this respect and that as it bore the onus of proving any alleged prejudice, no prejudice to the applicant arose from this pleading.

8. In response, the applicant submitted that the respondent’s discovery did not include any documents evidencing attempts to obtain contemporaneous evidence from its officers, nor did the affidavit of Mr Wallis address this issue.

9. Insofar as the Commonwealth is unable to prove, on the balance of probabilities, the prejudice as particularised [89.4], this aspect of the Defence will fail.

10. If the respondent makes late discovery of any documentation relevant to this issue, then that may provide a basis for the applicant to object to the admissibility of such documents. If the respondent has failed to retain records required to be retained by it under the Archives Act 1983, then, arguably, it cannot rely on any such prejudice arising from that failure as against the applicant.

11. These are all matters which need to be overcome by the respondent.

12. The Court considers that by the pleading at [89.4(1)], [89.4(2)] and [89.4(3)] the respondent has simply better particularised the prejudice it claims to have suffered. As such, the Court is not satisfied that in allowing these pleadings to stand, the applicant will suffer prejudice.

13. The Court declines to strike out the pleadings at [89.4(1)], [89.4(2)] and [89.4(3)].

    Objection to the Form of SSOC Paragraph 22 (Category 12)

14. SSOC [22] pleads:

    There are no breaches of duty pleaded in respect of the applicant’s detention at Curtin and any references to Curtin are intended to be relied upon by the applicant only to support the allegation relating to the Commonwealth’s knowledge of the applicant’s vulnerability and pre-existing psychological condition at the time he was transferred to Baxter.

15. At [22] of the Substituted Defence, it is pleaded:

    As to paragraph 22, that:

    22.1it refers to, repeats and relies on paragraph 40 below;

    22.2the plea of the respondent’s alleged knowledge is vague and embarrassing;

    22.3it denies the allegations made therein and each of them.

16. SSOC [22] is in the same form as [20A] of the Fourth Statement of Claim (FDN 46).

17. In paragraph 20A of its Defence Revision 3 (FDN 63), the respondent simply pleaded:

    It does not plead to paragraph 20A as it contains no allegation of fact against it.

18. This was an appropriate pleading, having regard to what is, in fact, pleaded in that paragraph (and what is pleaded at SSOC [22]).

19. By my earlier findings, [22.1] and [22.2] have been struck out in any event. [22.3] is also struck out on the basis that there is simply no allegation of fact in SSOC [22] which is capable of being denied.

    Orders

    1.As to FDN 217:

    (a)the application is refused;

    (b)having regard to the circumstances in which the application was made, the applicant and respondent are to each bear their own costs of and incidental to the application;

    (c)any costs incurred by the third parties are to be costs in the cause.

    2.As to FDN 219:

    (a)the respondent is to file and serve an Amended Substituted Defence to the SSOC by close of business, Monday 8 April 2024, in a form which reflects the findings as set out in Schedule A annexed to these Reasons;

    (b)the respondent is to pay the applicant’s costs of and incidental to this application, on a standard costs basis, certified fit for counsel;

    (c)any costs incurred by the third parties are to be costs in the cause;

    (d)the Court will hear the parties as to any ancillary orders required with respect to the provision of expert evidence having regard to the rulings made with respect to [91A]-[91B] of the Substituted Defence.

    SCHEDULE A

    Category 1

    The following paragraphs are struck out:

    [4.2], [8.4], [10.2], [11.3], [11.4], [11.5], [11.6], [14.2], [14.3], [15.2], [16.2], [16A], [22.2], [40.2], [41.2], [47.2], [60.2], [89.4(5)] and [91.1].

    If the respondent seeks to plead that a decision of a Minister (or Ministers) is non-justiciable, such a pleading can be included in the Substituted Defence as a standalone pleading.

    Category 3

    That portion of [82.8] under the heading ‘Particulars’ is struck out.

    Category 4

    The following paragraphs are struck out:

    [7.1], [11.7], [24.4], [26.2], [38], [40], [41.4], [42], [47.4], [49.3], [50.3], [52.2], [53.2], [56], [57], [58], [59.3], [60.3], [61], [62], [63], [64], [65], [68.2], [69.2], [70.2], [71.2], [72], [73], [74.2], [75.2], [76], [77], [78], [79.2], [80.2], [81.2], [81A.1], [86.4] and [88].

    These paragraphs may be repleaded. When these paragraphs are repleaded, careful attention needs to be paid by the drafter to ascertain if, in fact, the pleading contains any admissions.

    As to [13.4], this paragraph only makes sense if the words ‘it admits’ are included after the phrase ‘As to paragraph 13’ at the start of [13].

    Category 5

    The following paragraphs are struck out:

    [22.1], [24.1], [26.2], [40.1], [41.3], [42], [47.1], [48.1], [49.1], [50.1], [51], [55], [70.1], [79.1], [82], [83.1], [84.1], [85.1] and [86.1].

    There are other paragraphs listed under this category which will need to be repleaded having regard to my earlier orders striking out other paragraphs from the pleading, including:

    [52.1], [53.1], [59.1], [60.1], [68.1], [69.1], [71.1], [74.1], [75.1], [80.1], [81.1], [81B.1] and [87.1].

    Affirmative facts relied upon by the respondent can be pleaded in standalone paragraphs. Specific factual admissions which may relate to more than one pleaded paragraph of the SSOC can be similarly pleaded.

    Category 6

    [43] and [90.2.1] are struck out but may be repleaded.

    Insofar as [82.8] is inconsistent with other pleadings in the Substituted Defence, it must be pleaded as an alternative.

    Category 8

    The following paragraphs are struck out:

    ·That part of [21.1], commencing from the words ‘and no proceedings …’

    ·[35.4].

    ·[40] in its present form but may be repleaded.

    ·[86.2.5].

    ·[87.1] in its present form but may be repleaded.

    ·[91C].

    Category 9

    If the effect of the admission made by the respondent at [27.4] of its Defence (FDN 19) was that, prior to the applicant’s arrival at Baxter, its officers had either actual or constructive knowledge of the statements in the Appendix that pre-dated the plaintiff’s arrival at Baxter, being those contained in paragraphs 1 to 73, that prior position must be maintained.

    Insofar as the pleading at paragraph 35.2 differs from that prior admission and withdraws the same, leave is required. In the absence of leave being granted, the withdrawal of that admission is impermissible and paragraph 35.2 of the Substituted Defence, requires repleading.

    Category 10

    [91A.3] is to be repleaded to plead an allegation that the applicant has failed to mitigate his loss, with appropriate particulars.

    Category 12

    [22] is struck out but may be repleaded.