Sovi v Commonwealth of Australia
[2023] SADC 115
•25 August 2023
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
SOVI v COMMONWEALTH OF AUSTRALIA
[2023] SADC 115
Reasons for Ruling of her Honour Judge Schammer
25 August 2023
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS
Claim by the applicant against the respondent for damages for personal injuries allegedly sustained by him arising from his detention at the Baxter Immigration Reception and Processing Centre. Claim part of a cohort of similar actions arising from immigration detention.
Action listed for trial for 8 weeks commencing 11 September 2023.
On 2 June 2023, the applicant applied for leave to amend his Statement of Claim to particularise the respondent’s alleged breach of its duty of care to the applicant by reference to the opinions expressed by two experts, Dr Freidin and Conjoint Professor Hazelton, whose reports were served on 24 May 2023 and 26 May 2023 respectively.
Responding parties opposed the application to amend in the form of the proposed amendments and sought an order vacating trial date.
Responding parties sought extension of time to comply with trial orders, including extension of time to provide answering expert reports.
Held:
1. The applicant has leave to further amend his Statement of Claim but not in the form of revised Statement of Claim - Revision 6. The applicant is to file and serve on all parties a proposed substituted Statement of Claim within 28 days of 26 July 2023.
2. The trial listed for hearing on Monday 11 September 2023 is vacated.
3. The current trial orders made on 23 December 2022 (and subsequently amended) are vacated. The parties are to liaise to attempt to agree a timetable of revised trial orders.
4. As to FDN 101, no order, save that further consideration of any amended application, if necessary, be adjourned pending the filing of the substituted Statement of Claim.
5. The applicant is to pay the costs of filing FDN 105 and 106 and those costs thrown away by the respondent and third parties in amending their pleadings, subsequent to the filing of the substituted Statement of Claim, on a standard costs basis.
6. The costs of and incidental to FDN 103, FDN 101, FDN 111, FDN 119, the argument on 26 July 2023 and the costs thrown away by reason of the trial date being vacated are to be costs in the cause.
Aon Risk Services Australia Ltd 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; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; Vairy v Wyong Shire Council (2005) 223 CLR 422; CAL No 14 Pty Ltd v Scott (2009) 260 ALR 606; Sydney Water Corporation v Turano (2009) 239 CLR 51; Arthur Young and Anor v Tieco International & Ors (1995) 182 LSJS 367, considered.
SOVI v COMMONWEALTH OF AUSTRALIA
[2023] SADC 115[Civil]
Introduction
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.
By order made on 23 December 2022, the action was listed for trial for 8 weeks commencing Monday 11 September 2023 and a detailed timetable set in place for the completion of all procedural and pre-trial steps (trial orders).[1]
[1] FDN 79, 80 and 82.
On 26 July 2023, after hearing lengthy argument on several interlocutory applications, the Court vacated the trial date and made other ancillary orders as per FDN 128. The Court’s ruling as to the costs of and incidental to the applications and the adjourned trial date was reserved. The Court now provides its reasons for the ruling made that day and its decision as to costs.
Applications
The Court was asked to determine the following applications:[2]
·Application filed by the applicant dated 2 June 2023 seeking leave to file a revised Statement of Claim – Revision 6 (FDN 105). This application is supported by the affidavits of Emily Maree Kerin affirmed on 2 June 2023[3] and 24 July 2023[4].
·Application filed by the first and second third parties, Australasian Correctional Services Pty Limited and The GEO Group Australia Pty Limited, dated 31 May 2023 seeking leave to file a Defence to the Applicant’s Statement of Claim – Revision 5 (FDN 101). This application is supported by the affidavit of Nicholas Stewart Linke sworn on 31 May 2023[5].
·Application filed by the first and second third parties dated 31 May 2023 seeking orders including an order vacating the trial date (FDN 103). This application is supported by the affidavits of Nicholas Stewart Linke sworn on 31 May 2023[6] and 17 July 2023[7].
·Application filed by the respondent dated 3 July 2023 seeking orders including that the trial orders be vacated (FDN 111). This application is supported by the affidavits of Daniella Lucia Di Girolamo affirmed on 3 July 2023[8] and 24 July 2023[9].
·Application filed by the first and second third parties seeking orders including that the trial orders be vacated (FDN 119). This application is supported by the fourth affidavit of Nicholas Stewart Linke sworn on 21 July 2023[10].
[2] Listed in the order with which they were dealt with during the argument, rather than chronologically.
[3] First Kerin affidavit, FDN 106.
[4] Second Kerin affidavit, FDN 124.
[5] First Linke affidavit, FDN 102.
[6] Second Linke affidavit, FDN 104.
[7] Third Linke affidavit, FDN 115.
[8] Second Di Girolamo affidavit, FDN 112.
[9] Third Di Girolamo affidavit, FDN 121.
[10] Fourth Linke affidavit, FDN 120.
The third and fourth third parties, G4S Australia Pty Ltd and G4S Regional Management (UK & I) Limited, joined with the other responding parties insofar as they also sought orders that the trial date and the trial orders be vacated and opposed the applicant’s application seeking leave to file the proposed revised Statement of Claim – Revision 6 (proposed SOC 6). The third and fourth third parties relied on the affidavit of David William Johns sworn on 24 July 2023[11].
[11] FDN 122.
The Court heard oral submissions and received and considered:
·Outline of Submissions of the Applicant dated 25 July 2023 (FDN 125).
·Respondent’s Summary of Argument dated 24 July 2023 (FDN 123).
·Outline of Submissions of the First and Second Third Parties dated 20 July 2023 (FDN 117).
·Third and Fourth Third Parties’ Outline dated 25 July 2023 (FDN 126).
Background
This action is one of a cohort of similar matters, numbering more than 60. The responding parties to this action are also the responding parties in the Supreme Court action of Saadat v Commonwealth of Australia and Ors,[12] which proceeded to trial last year. Judgment on that action remains reserved. Once delivered, that judgment may provide guidance as to some, but not all, of the issues in dispute in this action and the other actions in the cohort.
[12] SCCIV-18-470.
Another action in the cohort, Ibrahimi v Commonwealth of Australia and Ors (Ibrahimi),[13] was listed for trial to commence on 13 June 2023. In that action, the applicant, Mr Ibrahimi, obtained a report from an expert, Dr Julian Freidin, Consultant Psychiatrist, wherein he provided a detailed opinion as to what he considered were deficiencies in the system of medical care provided to detainees at the respondent’s immigration detention centres.[14] That report was served upon the responding parties in that action on 22 December 2022. That action settled shortly prior to it proceeding to trial.
[13] DCCIV-13-2707.
[14] Noting the Court in this action is not privy to a copy of that report but that there is no dispute that this occurred. Dr Freidin did not provide an expert report in the action commenced by Mr Saadat.
The trial orders made in the subject action originally required the applicant to serve any expert reports upon which he sought to rely by 24 March 2023, with there being cascading orders made regarding the provision of expert reports in response, first by the respondent and then by the third parties.
By letter dated 6 March 2023, the solicitors for the respondent requested the applicant confirm the expert reports upon which he sought to rely in the action. The letter expressly advised that if it was intended to rely upon reports other than those listed (and received as at that date), the respondent would require extra time to consider any such report(s) and obtain responding reports.[15]
[15] Affidavit of Daniella Di Girolamo sworn 29 March 2023 at DLD1.
In the absence of receiving any response to that letter, the respondent’s solicitor sent an email to the applicant’s solicitor on 23 March 2023, seeking a response.[16]
[16] Affidavit of Daniella Di Girolamo sworn 29 March 2023 at DLD2.
Thereafter, the respondent’s solicitors wrote to the court, requesting the matter be called on for directions.
It was in this context that by affidavit of Emily Maree Kerin affirmed on 31 March 2023, the applicant advised of an intention to obtain a report from Dr Julian Freidin in this action and that such a report was expected to be received by 24 May 2023.[17]
[17] FDN 88 at [12]-[13].
At a Directions Hearing convened on 3 April 2023, the Court extended the date by which the applicant was required to serve any expert reports to 24 May 2023, with the timeframes for the provision of expert reports by the respondent and third parties also extended, to, respectively, 28 June 2023 and 26 July 2023.[18]
[18] Orders made on 3 April 2023 by FDN 90, adopting draft orders in FDN 89.
On 1 May 2023, the applicant’s solicitors sent a detailed letter of instruction to Dr Freidin for the purposes of requesting his report.[19]
[19] Second Di Girolamo affidavit at DLD7.
On 12 May 2023, the applicant’s solicitors provided to Dr Freidin a draft proposed Statement of Claim containing similar, but not identical, pleadings to those in proposed SOC 6.
On 24 May 2023, the applicant served a copy of the report of Dr Freidin dated 19 May 2023 on the responding parties (the Freidin report).
The Freidin report comprises 137 pages and a further 199 pages of annexures.
For the purposes of his report, Dr Freidin interviewed the applicant and conducted a detailed analysis of the other expert reports and medical (and other) records relating to the applicant. In his report, Dr Freidin expressed the opinion that there is no evidence of the applicant having any psychiatric disorder or abnormal psychological condition prior to his detention, but that the evidence demonstrated the applicant was suffering a psychiatric disorder while in detention. He diagnosed the applicant as suffering an Adjustment Disorder with Mixed Disturbance of Emotion and Conduct whilst in detention, which then worsened and progressed during detention to a Post Traumatic Stress Disorder. He considers that since the applicant’s release from detention this has developed into a Complex Post Traumatic Stress Disorder.[20]
[20] Noting that my observations herein as to the Freidin report are by way of general summary only in order to provide context and background and are not meant, in any way, to be a full and detailed analysis of that report.
In addition, the Freidin report contains a detailed analysis and critique of the system of medical care provided to detainees in immigration detention and his opinion as to the various deficiencies in that system as it existed during the period of the applicant’s detention in Baxter.
On 26 May 2023, the applicant served on the responding parties a report from another ‘new’ expert, Conjoint Professor Hazelton, Psychiatric Nursing Expert, dated 26 May 2023 (Hazelton report).[21]
[21] A copy of this report is not before the Court.
Generally speaking, the proposed amendments sought to be made by the applicant to the Statement of Claim plead those matters articulated by Dr Freidin as comprising deficiencies in the system of medical care provided to detainees in immigration detention centres, including Baxter, as particulars of a breach by the respondent of its duty of care to the applicant, which breaches are alleged to have caused the applicant loss and damage.[22]
[22] The Court is not privy to the contents of the Hazelton report but understands some of the proposed amendments also address matters raised in that report.
The respondent entered into various agreements with the third parties whereby it retained the third parties to be responsible for the care, supervision, control and welfare of detainees at Baxter and required those services to be delivered to a certain standard or standards (Immigrations Detention Standards) which standards varied as between agreements. The respective contracts between the respondent and the second and third parties therefore contained significantly different terms as to the services to be provided by those third third parties. Further, the third third party contracted out the provision of health services and mental health services at Baxter to other providers.
Dr Freidin’s opinion is, inter alia, that the Immigration Detention Standards (IDS), in their various iterations, did not fully and appropriately recognise the risks of mental harm to detainees, such as the applicant.
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.
The Court will be asked to make findings as to the existence and scope of any duty of care owed by the respondent to detainees in immigration detention including the applicant, 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. Depending on those 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.
Proposed Amendment to Statement of Claim
Summary of Proposed Amendments
The applicant seeks to amend its pleading in the form of proposed SOC 6.[23]
[23] Exhibit EK1 to the first Kerin affidavit.
The proposed amendments fall into four separate categories:
1.To change the reference to ‘plaintiff’ and ‘defendant’ throughout the pleading, to ‘applicant’ and ‘respondent’. This is uncontentious.
2.To remove references to the applicant’s attempted suicide and self-harm at paragraphs 22.2.4 and 22.2.7. This is uncontentious.
3.To amend paragraph 26 to confirm that the matters pleaded as ‘duties’ are also pleaded as matters which the respondent breached by its failure to comply with those duties (the duty of care amendment). These amendments are opposed in their present form.
4.To amend paragraph 27 to include a further 29 alleged breaches by the respondent of its of duty of care, by the inclusion of new proposed paragraphs 27.2 to 27.30, said to be particulars of the plea of failure to assess and treat the applicant arising from the Freidin report (the Freidin amendments). These amendments are opposed in their present form.
Applicable Principles
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.
When the Court is determining such an application, it must have regard to the Object of the UCR,[24] namely, to facilitate the just, efficient, timely, cost effective and proportionate resolution or determination of the issues in the proceedings.
[24] UCR 1.5.
In additions, there is a long line of authorities which outline the principles governing applications to amend of this type, that is, made shortly prior to trial, commencing with the decision of the High Court in Aon Risk Services Australia Ltd v Australian National University (Aon).[25]
[25] (2009) 239 CLR 175.
The decision in Aon was applied by the Full Court of the Supreme Court of South Australia in Channel Seven Adelaide Pty Ltd v Manock (Manock)[26] and in PPG Development Pty Ltd v Capitanio (PPG).[27]
[26] [2010] SASCFC 59.
[27] [2016] SASC 169.
In PPG, Doyle J identified those matters which must be considered by the Court when deciding whether to grant permission to amend pleadings at a late stage, namely:[28]
[28] [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.
These factors were also outlined in similar terms by Bleby J in Manock.[29]
[29] [2010] SASCFC 59 at [46].
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. However, it is necessary for the court to consider the factors identified in PPG[30] and the weight to be given to them, both individually and collectively, in exercising its discretion as to whether to allow the amendments sought.
[30] As also similarly expressed by Bleby J in Manock.
Duty of Care Amendment
By paragraph 26 of SOC 5, the applicant pleads 15 specific duties owed by the respondent to the applicant including:
26.At all times during the detention period at Baxter, the defendant owed the plaintiff the following duties:
26.1 To take reasonable care of him and to avoid acts or omissions that may expose him to reasonably foreseeable risks of harm, of physical and/or psychiatric and/or psychological injury;
26.2 To assess him for any psychiatric or physical injury and, if required, provide him with treatment;
…
26.6 To devise and implement systems for the management of detainees so as to minimise the risk of injury to the applicant;
….
This pleading first appeared at paragraph 25.6 in the applicant’s Statement of Claim Revision 3 (SOC 3), dated 24 February 2017.
The applicant seeks to amend paragraph 26 to read as follows:
26.At all times during the detention period at Baxter, the defendant owed the plaintiff the following duties:
26.1. To take reasonable care of him and to avoid acts or omissions that may expose him to reasonably foreseeable risks of harm, of physical and/or psychiatric and/or psychological injury;
The respondent was in breach of its duty of care in that it failed
26.2 To assess him for any psychiatric or physical injury and, if required, provide him with treatment;
…
26.6 To devise and implement systems for the management of detainees so as to minimise the risk of injury to the applicant;
….
The applicant submitted that the amendment was in similar terms to an amendment sought and granted in the Ibrahimi matter.[31] It submitted that all these amendments did was to regularise the pleading to clarify the sub categories of duty and how they were said to be breached.
[31] [2023] SADC 33 at [27].
It was submitted that ‘[t]he duties (and breach of those duties) are consistent with the particulars of medical steps that the respondent ought to have taken to prevent or ameliorate the applicant’s mental illness and physical injuries pleaded at paragraphs [29]-[31].’[32]
[32] Applicant’s Outline at [9].
This proposed amendment (together with the Freidin amendments) is opposed by the responding parties on the basis that it merges or conflates the separate issues of duty of care and breach of duty, such that it impermissibly sought to reason backwards in order to determine the existence of any duty of care, its scope and content. This approach has been consistently warned against by the High Court. [33]
[33] Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at [191]-[192], Vairy v Wyong Shire Council (2005) 223 CLR 422 at [60]-[64], CAL No 14 Pty Ltd v Scott (2009) 260 ALR 606 at [68], Sydney Water Corporation v Turano (2009) 239 CLR 51 at [48].
Freidin Amendments
Applicant’s Submissions
The applicant submits that by the proposed amendments to paragraph 27, he seeks only to better particularise the pleading as to the duty of care owed by the respondent to the applicant, as currently pleaded at paragraph 26.6 of SOC 5.
In SOC 5, the applicant pleads, under the heading, ‘Particulars of the defendant’s breach of duty of care to the plaintiff’:
27.The Defendant was in breach of its duty of care to the plaintiff during the plaintiff’s detention period in Baxter in:
27.1 Failing to assess him upon his arrival at Baxter for mental illness or vulnerability to mental illness.
However, later in SOC 5, under the heading ‘Particulars of the medical steps the defendant ought to have taken to prevent or ameliorate the plaintiff’s mental illness and physical injuries’, the applicant pleads 15 further alleged breaches by the respondent of its duty of care.[34] At paragraph 31.10, one of the alleged breaches of duty is pleaded as a failure ‘to take steps (in addition to treatment) to address (the applicant’s) vulnerability to mental illness and his mental illness’. Thereunder, 13 specific breaches of that particular duty are pleaded.[35]
[34] By way of observation, this pleading suffers from the same purported deficiency as that described at paragraph 41 herein.
[35] Noting that SOC 5 does not earlier plead that the respondent had a duty of care of the scope it is claimed to have breached.
By proposed SOC 6, the applicant seeks to revise paragraph 27 to include a further 29 alleged breaches by the respondent of its duty of care, namely:
Particulars of the
defendantrespondent’s breach of duty of care to theplaintiffapplicant27The
Defendantrespondent was in breach of its duty of care to theplaintiffapplicant during theplaintiffapplicant’s detention period in Baxter in:2.71 Failing to assess him upon his arrival at Baxter for mental illness or vulnerability to mental illness.
27.2 Failing to take steps to assess and diagnose the applicant or otherwise treat the applicant with qualified medical personnel including trained psychologists, psychiatrists and experienced mental health nurse on each of the occasions set out in [21] and [22] above and [28] and [29] and [30] below.
27.3 Failing to prescribe a system of medical care which provided an effective system of identifying, treating and otherwise reducing and/or eliminating the risk of metal harm, and which;
a.Took into account the reported and/or expected rates of mental illness so that the provider of services to the respondent would be aware of what they are required to manage, adopt a staffing profile and systems to manage mental illness within the detention centres, including the applicant.
b.Was identified and delivered by qualified, registered and appropriately trained health are professionals.
c.Included a detailed assessment of the psychiatric state of the detainees soon after the arrival of the detainees at the detention centre.
d.The health care professionals must be attuned to mental and physical health care needs of detainees.
e.Included regular monitoring (at least 6 monthly) of individual and group needs of detainees.
f.Required the service providers to draw upon advice, knowledge and experience of specialists.
g.Required a health strategy or plan to be prepared for each individual detainee who had been in detention for more than 6 months.
h.Listed the range of service provisions issued to be developed including recognising and treatment of torture and trauma.
i.Set out the number and mix of medical staff and after hours arrangements and record-keeping requirements.
j.Failed to identify the importance of early detection of mental illness and early intervention of those at risk of mental illness, suffering of the first episode mental illness, and those experience relapse.
27.4 Failing to implement an effective system for the reduction of foreseeable risk of mental harm in that the respondent failed to ensure that there was;
a.Adequate processes to identify, document and monitor the nature and extent of mental illness in the detainees, including the applicant, throughout detention so as to allow to develop an appropriate system of care.
b.Inadequate intake documentation which should have been included standardised processes for mental health diagnosis, risk assessment and a development of a management plan that is regularly reviewed and updated.
27.5 Failing to have adequate availability of expert psychiatric review and treatment, particularly having regard to the high rates of mental illness.
27.6 Failing to have adequate availability of psychiatrists and, in particular, the arrangements that visiting psychiatrists were only available every few weeks with the consequential follow up of continuing of care and a trust in therapeutic relationship.
27.7 Failing to develop a clear and effective referral and other liaising processes with a State mental health agency in order to manage episodes of severe mental illness.
27.8 Allowing a system that relied upon detention officers to detect and report signs of mental illness rather than a pro-active system of having mental health care trained clinical staff regularly, monitor and review detainees, including the applicant, for signs of mental illness, as particularised through the entirety of time in Baxter as identified in [29] to [39] below.
27.9 Failing to provide adequate or any training to detention officers so as to properly assess and understand mental illness.
27.10 Failing to provide an integrated model of care, including community and non-clinical services, the provision of a documented system which adequately identified detainees’ cultural issues and the detainees’ understanding of mental illness and its treatment and the need to seek treatment or advice of health care providers for complaints which are consistent with mental illness so that detainees could be assessed by a trained medical health professional.
27.11 Failing to ensure and maintain a high standard of documentation and information on clinical intervention, to ensure needs of the detainees, including the applicant, resulted in the best possible outcome.
27.12 Failing to provide a system of care which was structed to provide initial culturally informed assessment of mental health and ongoing review of the mental health of detainees, including the applicant. Including documentation which could be used for the review of individual detainees, including the applicant, and also for the further development of the quality of the provision of health care services.
27.13 Failing to take steps to encourage the early reporting of mental health symptoms by detainees, including the applicant, and failing to take steps for early identification of individual detainees at risk, including the applicant; including ensuring that detainees, including the applicant, had an understanding of the confidentiality of medical information, ensuring that detainees, including the applicant did not have to seek permission from guards to access medical treatment or identify to guards the nature of the problem for which they sought medical care.
27.14 Failing to provide adequate numbers of medical health professionals having regard to the extent and nature of the mental illness in the detainee population in Baxter whilst the applicant was detained there.
27.15 Failing to have in place a collection and monitoring of data of the mental health status of the detainee population so as to ensure there was appropriate care available having regard to the nature and extent of illness.
27.16 Failing to provide processes and protocols to maintain the quality and standards of mental health assessment and treatment at Baxter.
27.17 Failing to provide detailed assessment and monitoring of the risk of mental illness in each individual detainee, including the applicant.
27.18 Failing to provide individual treatment programs for each individual detainee, including the applicant, to reflect the biological, psychological, social and cultural determinants of mental illness.
27.19 Failing to have in place a process of identifying detainees, including the applicant, at higher risk of mental illness.
27.20 Failing to understand or recognise and educate staff including detention officers that behavioural disturbance including rioting and self-harm was potentially reflective of mental illness and failing to have a system in place which required assessment by a psychiatrist or psychologist after behavioural disturbances, rioting or self-harm to exclude mental illness as a cause of the behaviour.
27.21 Failing to have in place a clear process to move detainees, including the applicant, who did not respond to psychiatric treatment, to appropriate medical health facilities as necessary for the reduction and/or elimination of mental harm.
27.22 Failing to ensure that persons who describe themselves as psychiatric nurses were in fact properly qualified and had sufficient training and experience for the detection and prevention of mental harm and had adequate resources including the ability to refer within a matter of days, the detainee to see a psychiatrist onsite.
27.23 Failing to ensure that there was a comprehensive and individual medical file on each of the detainees, including the applicant, giving the appropriate longitudinal assessment so as to provide an understanding of the applicant and his illness, particularly given the likelihood of a high turnover of staff.
27.24 Failing to provide a suitable period of time for initial assessment and review by qualified medical health clinician of at least two (2) hours on the first occasion.
27.25 Failing to provide adequate numbers of mental health care professionals at Baxter including at least a full-time psychiatrist, full-time psychiatric registrar or a general practitioner who had both an interest and expertise in mental illness and at least six (6) full-time mental health clinicians.
27.26 Failing to ensure that a comprehensive medical health assessment by a psychologist or psychiatrist was arranged for the applicant requiring at least 90 minutes (longer, if an interpreter was required) and requiring at least a further 30 minutes to read the applicant’s file and document the assessment.
27.27 Failing to provide; assistance to detainees at the time of receipt of decisions regarding visa applications and appeals including verbal and written advice, an opportunity to ask questions or seek clarification immediately upon receipt of the decision, access to a trusted support person, and close monitoring of the mental health of the detainee by a mental health clinician for several weeks after receipt of a negative decision.
27.28 Failing to ensure that at times of self-harm, witnessing self-harm of others, threats of self-harm and voluntary starvation or similar acts, the applicant received a detailed mental health examination and close monitoring until a comprehensive assessment by a mental health clinician confirmed a lower risk of injury.
27.29 Failing to ensure that whilst in restrictive detention the applicant was reviewed by an appropriately qualified general practitioner for a daily assessment of physical and mental health, including;
a.A screening assessment so that if there were any deleterious effects or deterioration to the applicant’s mental health, he was assessed daily by a psychiatrist until the mental health issue has been resolved.
b.A complete medical review at a first assessment which, identifying any past and current history in relation to mental illness.
c.Ongoing daily assessments whilst in restrictive detention performed by a general practitioner reviewing the documentation in relation to the observations of the applicant’s behaviour in the 24 hours prior.
27.30 Failing to ensure his complaints about the conditions and services at Baxter were investigated and acted upon;
The applicant submitted that this pleading simply provided better particulars of a ‘systems’ case that was always intended to be led at trial and was pleaded at paragraph 26.6 of SOC 5 and at paragraphs [29]-[31]. It was submitted that the respondent was yet to request particulars of the case as pleaded.
Further, it was submitted that the responding parties ought to have been aware of the fact a report was to be obtained from Dr Freidin addressing the system of medical care provided to detainees in immigration detention and outlining his views as to alleged deficiencies in this system, given that the same parties were involved in Ibrahimi.
The applicant directed the Court to a file note of a telephone conversation between Dr Freidin and the legal representatives of the applicant in Ibrahimi, a copy of which was served on the responding parties in Ibrahimi on 10 January 2023. That file note included a statement that Dr Freidin’s report (in that matter) was ‘to focus on the system that ought to have been in place’ and that ‘the report would be used for about 40 clients’.[36]
[36] Second Kerin affidavit at [26].
It was submitted that the responding parties had been aware of Dr Freidin’s opinion as to alleged deficiencies in the system of medical care provided to detainees (generally) since the provision of his report in Ibrahimi on 22 December 2022 and that from as early as 10 January 2023, they ought to have been aware that opinion was going to be relied upon in the subject action.
In the alternative, it was submitted that, at the very least, as a 31 March 2023, the responding parties knew from the contents of Ms Kerin’s affidavit of that date (FDN 88) that the applicant intended to obtain a report from Dr Freidin and further that they should have foreshadowed the likely content of that report and commenced preparations to obtain responding reports (if so instructed).
It was submitted therefore that even if the evidence sought to be led from Dr Freidin fell outside of the claim as currently pleaded (which was disputed), there was no ‘surprise’ caused by the proposed amendments, as the responding parties had known for several months that this was the case likely to be led at trial. It was submitted the amendments therefore caused the responding parties no prejudice and, if allowed, would not result in any necessity to defer the trial or disrupt the progress of the matter, particularly in circumstances where the respondent foreshadowed being in a position to serve responding expert reports from Dr Ryan, Professor Whiteford and Mr Fjeldsoe prior to trial.[37]
[37] Second Di Girolamo affidavit at [32], [35] and [38].
As to any objections to the language used in the proposed amendments and specifically the use of words such as ‘qualified’, ‘trained’ and ‘experienced’, it was submitted the current pleading contained similar terms and there had been no previous objection on the basis of vagueness or ambiguity.
Responding Parties’ Submissions
The respondent[38] submitted that the effect of the Freidin amendments was to plead the existence of a duty of care (albeit defined impermissibly by its breach) of a significantly broader scope than that pleaded in SOC 5. It was submitted the very fact the applicant sought to amend the pleading to include these matters demonstrated that the case, as presently pleaded, may not have been broad enough to render the Freidin report (or the Hazelton report), admissible at trial.
[38] Noting that the respondent’s submissions with respect to FDN 105 were also adopted and supported by the third parties.
The first and second third parties submitted the Freidin amendments alleged more than 30 new breaches of duty of care by the respondent which included deficiencies in the IDS which formed part of the contractual arrangements between the respondent and them. If the amendments were allowed, it would not be until an Amended Defence was filed in answer to those allegations that the third parties would know if the respondent would seek to argue that they were liable for any deficiencies in the systems used by them or prescribed by the IDS.
The third and fourth third parties submitted that Dr Freidin’s opinion, as encapsulated by the proposed amendments, raised complex issues pertaining to the potential claim by the respondent against them, including as to the scope of the contract and sub-contracts and questions of estoppel and waiver by the respondent.
The third and fourth third parties also argued that as presently pleaded, proposed SOC 6 did not properly plead which of the alleged breaches of duty had, in fact, caused the applicant loss and damage. As such, the pleading could be read as simply asserting that such loss and damage was caused by a failure to provide a system of management of detainees consistent with that as recommended by Dr Freidin. This raised the issue of costing such a system of care, being a cost incurred to manage all detainee centres, not just Baxter. As the third and fourth third parties sub contracted health and mental health services to other entities, this provided a further layer of complication in terms of the relevant issues to be explored and evidence gathered, to answer those matters raised by Dr Freidin.
As to other factors to be considered by the Court in determining a late application to amend, the respondent submitted:
·There had been no explanation for what was clearly undue delay in the making of the application.
·If the amendments were allowed, this would result in the need for significant redrafting of the Defence and likely changes to the third party pleadings and third party defences. It would necessarily require the parties to revisit their obligation to make discovery of all relevant documents and delay the preparation of any tender book, resulting in significant inefficiencies because of the need to revisit interlocutory processes.
·The expanded ‘systems’ case sought to be led by the applicant at trial would require not only expert responding evidence but factual enquiries to be made to address the various matters raised in the Freidin report, being matters first disclosed to the parties in this action on 24 May 2023. This would not only take some time, but potentially increase the length of the trial, currently set for only eight weeks. As such it was inevitable the trial would need to be vacated, thus resulting in wasted public resources.
·As to any hardship caused by any such delay in the trial proceeding, it was submitted this was hardship of the applicant’s making.
·The resulting delay would further add to the delays already experienced in this matter and the other matters in the cohort, thus undermining public confidence in the administration of civil justice. However, the respondent conceded that preventing the applicant from running the case he sought to run at trial may further affect that confidence.
·The respondent (and third parties) would be prejudiced if not allowed sufficient opportunity to prepare its case to answer the amended pleading and would incur the additional costs associated with that process.
It was submitted the Freidin amendments suffered from the same deficiency as the ‘duty of care amendments’ insofar as they purported to define the alleged duty of care owed by the respondent to the applicant by its breach. Further, it was submitted the Freidin amendments did not comply with universal pleading rules, insofar as they were replete with ambiguous and vague terms such as ‘adequate’, ‘effective’ and ‘suitable’.[39]
[39] As outlined specifically at the Outline of Submissions of the First and Second Third Parties at [21].
Discussion
I have carefully considered proposed SOC 6 and compared it to earlier iterations of the Statement of Claim.
SOC 5 (and earlier iterations) do include a broadly pleaded ‘systems’ case’ against the respondent. In addition to the broad pleading at paragraph 26.6 of SOC 5, some of the matters identified by Dr Freidin are encapsulated at paragraphs 29 and 31 of SOC 5, albeit not to the level of detail and particularity now sought to be pleaded.
However, by proposed SOC 6, what the applicant intends to do is to plead, for the first time, what its case is in terms of the scope of the duty of care it alleges was owed by the respondent to the applicant, namely that the duty of care extended to require the respondent to provide a system of medical care to detainees in immigration centres, including Mr Sovi, consistent with Dr Freidin’s specific recommendations.
During submissions, counsel for the applicant confirmed that Dr Freidin’s opinion will likely be sought and relied upon by the applicant with respect to most matters in the cohort.
I accept that the production of a similar report by Dr Freidin in Ibrahimi must have alerted the responding parties in that action, who are the same as those in the subject action, to the very real possibility that a similar report would be obtained and relied upon by the applicant in this action.
However, the report of Dr Freidin in Ibrahimi was served on Thursday 22 December 2022, that is, the second to last working day prior to Christmas.
Although the trial orders in the subject action were made on 23 December 2022, they were made in the terms of draft orders agreed by the parties on 28 October 2022 and related to a trial date which had been determined in August.
The Court is not privy to a copy of the Freidin report prepared in Ibrahimi, however, it is not disputed that the report was a very lengthy detailed report, which required close consideration and analysis. It is inconceivable that given the time of year it was served, that the responding parties had any opportunity to properly consider and absorb that report and its ramifications, until well into the new year. Further, when doing so, that analysis was for the purposes of Ibrahimi and in the context of preparation for trial in that matter.
It is quite clear that the trial orders in the subject action did not take into account, at least on the part of the responding parties, either the productions of a report from Dr Freidin in the subject action, nor the impact such a report would have on the procedural and pre-trial steps to be undertaken in preparation for trial.
I accept that the responding parties were on notice, as of 31 March 2023, from the contents of FDN 88, that the applicant was intending to obtain a report from Dr Freidin in this action. Mention was also made of the report at the Directions Hearing on 3 April 2023 and the trial orders were extended to accommodate its provision.
However, the fact remains that the Freidin report was not served until 24 May 2023. The Freidin report in Ibrahimi was never served in the within action. Further, at no time prior to 18 May 2023 were the responding parties aware of the applicant’s intention to apply to further amend the Statement of Claim.[40] A copy of proposed SOC 6 was not served on the responding parties until 30 May 2023.[41] At the hearing on 12 April 2023, counsel for the applicant advised that it was not anticipated the pleadings would be amended in consequence of receipt of the Freidin report.
[40] First Linke affidavit at [7], NSL-05.
[41] First Kerin affidavit at [7]; Second Linke affidavit at [14], NSL-19, NSL-20.
The applicant must have known prior to the trial orders being made that, in all likelihood, a report from Dr Freidin would be obtained in this action. Further, using the applicant’s reasoning, given what the applicant knew of the contents of the report provided by Dr Freidin in Ibrahimi, and of issues that arose on Saadat relating to the adequacy of the pleadings and expert evidence sought to be led at trial, it ought to have anticipated, much earlier than late May 2023, that reliance on a similar report in this action, would (or at the very least may) require a significant review and amendment of the pleadings.
The application to amend was made very soon after receipt of the Freidin report. This, of course, is in the context of litigation which has been on foot since 2012.
However, there has been no explanation given as to why earlier consideration was not given to the adequacy of the pleadings, in their current form, well prior to May 2023, in circumstances where the applicant must have known the likely substance of the Freidin report, for reasons already articulated and as evidenced by the fact that a proper revised pleading in very similar terms was provided by the applicant’s solicitors to Dr Freidin on 12 May 2023.
The Court observes, by way of judicial notice, that the progress of this action has been impacted by matters affecting the entire cohort of similar claims. Other actions in the cohort such as Saadat and Ibrahimi have demanded and required particular focus and priority. It is likely this may explain why the Freidin report was not sought by the applicant earlier, nor careful consideration given to the adequacy of the pleadings earlier. Similarly, it may explain why the responding parties did not take earlier steps to gather responding lay and expert evidence.
If the proposed amendments are allowed, this will, in turn, require the recasting of the respondent’s Defence and the Third Party Claims. The third parties will need to amend their defences and may require expert evidence, particularly as to costings, prior to doing so. This has a flow on effect in terms of all parties complying with their obligations as to disclosure and properly preparing a tender book for trial.
I am satisfied that these factors demonstrate that if the application to amend is granted, it will result in a necessity for the trial date to be vacated,[42] thus resulting in further cost, delay and potentially impacting on the public’s confidence in the administration of civil justice.
[42] See also further discussion below.
These factors ordinarily would tell against the application to amend being allowed.
However, this action is the next action in the cohort to be listed for trial. It is the first action wherein the applicant will seek to rely on the expert opinions of both Dr Freidin and Conjoint Professor Hazelton. The Court’s assessment of the expert evidence in this action and its findings in that respect may inform the potential resolution and/or outcome of many other (if not all) cohort matters.
It is therefore imperative that the parties in this action proceed to trial not only with the pleadings in good order but armed with all necessary lay and expert evidence both to advance and respond to the claim. The interests of justice will not be served if the trial in this action is beset by procedural arguments relevant to admissibility of expert evidence on the grounds of relevance having regard to the pleadings in their current form, which will necessarily result in further delay, cost, waste of public resources and impact the public’s confidence in the administration of civil justice.
Therefore, weighing all relevant factors, the Court considers it appropriate to allow the applicant to amend his pleadings, in order to ensure the pleadings properly reflect the case sought to be advanced by the applicant at trial.
As to proposed SOC 6, the Court has carefully considered the wording and form of the proposed amendments to paragraphs 26 and 27 and the pleading as a whole. I agree with the respondent’s submission that in its present form, the pleading improperly conflates the issues of what is alleged to be the duty of care owed by the respondent to the applicant and the facts upon which the applicant will rely to prove the breach of that duty. Further, proposed SOC 6 does not properly articulate which alleged breach or breaches of duty are causative of any loss and damage sustained by the applicant. Insofar as any alleged breach of duty is not alleged to have caused loss and damage to the applicant then it is irrelevant.
The pleading needs to clearly define the alleged duty of care owed by the respondent to the applicant and the scope of that duty. Having done so, it must then clearly articulate how that alleged duty has been breached and what alleged loss or damage was caused by that breach. In its present form, the proposed amended pleading does not do so and needs to be recast. When it is recast, the pleading must be drafted bearing in mind the Overarching Obligations imposed upon the parties by UCR 3.1, that is, to use reasonable endeavours to ensure that the time and costs incurred to advance the claim (or aspects of it) are proportionate to the importance and value of the subject matter of the proceeding.
Put another way, notwithstanding the fact that there are other similar matters in the cohort, this is not a representative action. The pleading must properly advance why and how the respondent’s alleged breach of duty has caused this particular applicant loss and damage.
The proposed amendments include that at paragraph 42 to plead Dr Freidin’s diagnosis. This is appropriate and provides clarity as to the precise case to be led at trial by the applicant. However, insofar as the pleading is not ad idem with the claim for loss and damage as deposed to by the applicant in his Personal Injury Particulars, further amendment is required.[43]
[43] FDN 94 at pp 5-7 deposes to losses arising from an alleged inability to progress in the applicant’s career and lost promotion opportunities, not currently pleaded in SOC 5.
Finally, as set forth in Arthur Young and Anor v Tieco International & Ors,[44] insofar as any aspect of the proposed pleading asserts a failure to meet a particular standard of care said to be owed by the respondent to the applicant in the performance of its duties, it must identify what would have been the appropriate action required to be taken by the respondent in order to fulfill that obligation. The Court considers that proposed paragraphs 27.3(i), 27.5, 27.6, 27.14 and 27.22 require further specificity to cure this deficiency, particularly having regard to the likely change in the detainee population at Baxter from time to time.
[44] (1995) 182 LSJS 367 at 15.
Further, the Court considers the language used in proposed paragraphs 27.3d (‘attuned to’) and 27.3e (‘group needs’) should be revisited and better clarity of expression used in the pleading to ensure notice is given of the case required to be met.
Finally, the proposed amendments need to be specific to the applicant, rather than be generic claims of deficiencies which are not, in any way, said to have caused this particular applicant loss and damage.
For these reasons, the Court considers it appropriate to allow the applicant leave to amend his Statement of Claim, but not in the form of proposed SOC 6.
Trial Date
The matters outlined by Dr Freidin which provide the substance for most of the proposed amendments, are substantial in number. They include detailed recommendations as to virtually every aspect of care provided to detainees, in general, in immigration centres, including Baxter. Dr Freidin is therefore a critical expert and his opinion effectively forms the backbone of the applicant’s case in this action.
As such, the many matters raised by Dr Freidin require very careful consideration by the responding parties and necessarily require them to gather both extensive lay and expert evidence. While this evidence could have been gathered earlier, the onus is on the applicant to prove what was the scope of the duty of care owed to him by the respondent and that such duty of care had been breached. Where the scope of that duty of care relies, predominantly, on the report of Dr Freidin, the responding parties cannot be overly criticised for failing to undertake the substantial task of properly instructing responding experts, to address an opinion, which is yet to hand.
Put simply, the consequence of the provision of the Freidin report (and the Hazelton report) so close to trial and the corresponding application to amend which has accompanied it, make it untenable for this action to proceed to trial on the date as presently listed.
While the respondent may be able to obtain reports answering those of Dr Freidin and Conjoint Professor Hazelton prior to trial, the third parties will not be privy to the contents of those reports nor precisely how those reports may impact on the respondent’s claim against them, until those reports are served. The third parties will not know precisely what, if any, expert evidence they will need to respond to and any specific issues arising therefrom, including matters relevant to cost and pricing.
It was not unreasonable, in the circumstances, for the respondent (and third parties) to defer obtaining certain expert and lay evidence, specifically sought to respond to matters arising from the Freidin and Hazelton reports, until such reports were served and their contents known and fully understood.
It makes no sense for a lengthy trial to commence at a time when the parties are still unaware as to the evidence to be led at trial and therefore, by necessity as to the risks associated with the litigation, such that they can proceed, properly informed as to those risks.
The pleadings are yet to be settled. There may well be further argument as to the wording of the further proposed SOC 6. There are numerous further lines of enquiry to be pursued by the responding parties to properly address the Freidin and Hazelton reports. The tender book cannot be settled, nor can the parties advise the Court, with confidence, as to the likely length of the trial and whether the current eight weeks set aside is sufficient.
Given the nature of this action, if the trial does not conclude in the time as allocated for it and is required to proceed part heard, there will be significant cost implications to all parties.
Notwithstanding that the applicant has already undertaken certain steps in preparation for trial, including the provision of a detailed affidavit to serve as his evidence-in-chief, and some of this work may necessarily need to be revisited, I am satisfied that the only appropriate order to make, in the interests of justice, is to vacate the trial date.
Other Applications
FDN 101
As to FDN 101, it serves no purpose to give the first and third parties leave to file a defence to a pleading which will soon be obsolete. There was, however, no objection to the first and second third parties being granted leave to file a defence to the applicant’s Statement of Claim once it is in its revised form.[45]
[45] Subject to disclosure of relevant documents pertaining to the allegations made therein.
In such circumstances, I decline to make the order as sought in paragraph 2 on FDN 101.
Paragraph 4 of the application sought an order that costs be in the cause and there was no argument to the contrary. Such an order is appropriate in the circumstances.
FDN 111 and FDN 119
The trial orders will need to be revised in order to facilitate the provision of responding expert reports, lay witness statements and the like. The trial orders are vacated.
As has occurred in this action previously, the Court requires the parties to consider whether new trial orders can be agreed, having regard to the timeframes identified for the provision of expert reports and other materials in the applications argued before the Court.
Absent agreement, fresh trial orders will be made by the court upon hearing further submissions at the next directions hearing.
The costs of and incidental to FDN 11 and 119 are to be costs in the cause.
Costs of and incidental to FDN 103 and FDN 105, including costs of argument on 26 July 2023
UCR 69.5 deals expressly with the costs of amendment of pleadings. It states:
Unless the Court otherwise orders, a party who amends a Claim or pleading under rule 69.1 or rule 69.2, must pay the costs thrown away by another party as a result of the amendment on the standard costs basis payable when the claim is determined by judgment.
I have given careful consideration to the appropriate costs order to be made, bearing in mind the unusual circumstances of this action, having regard to it being one of a number of matters in the cohort. There was also a substantial crossover in terms of the substance of the arguments relating to FDN 103 and FDN 105.
As to FDN 105, the Court considers that there is no good reason to depart from the ordinary course in terms of the costs of and incidental to the application to amend. The necessary consequence of amending the Statement of Claim will be a subsequent requirement for the Defence to be amended, and, in all likelihood, further amendment to the third party pleadings.
I order that the costs of filing FDN 105 and 106 and those costs thrown away by the respondent and third parties in amending their pleadings in response to the inevitable amendment, are to be paid by the applicant on a standard costs basis.
As outlined above, the late provision of the Freidin report (and Hazelton report) and subsequent amendment to the pleadings, has meant the trial cannot proceed on the date as presently listed for a number of reasons.
However, the delay in these important procedural steps being undertaken by the applicant, and, indeed, the delay in the responding parties undertaking steps to address aspects of the ‘systems case’, some details of which were known to them prior to the delivery of the Freidin report in late May, can be explained, in part, by the fact that the actions of Saadat and Ibrahimi have demanded and required priority.
Although an order vacating the trial was the only appropriate order in the interests of justice, any further delay necessarily has a particular impact on the applicant, who bears a considerable emotional burden and strain associated with this long running action. There will likely be a requirement for the applicant’s affidavit, prepared as his evidence-in-chief, to be revisited, in preparation for trial. He may need to update his personal injury particulars.
After careful consideration, bearing in mind the unusual features of this particular action, I am satisfied that the costs of and incidental to FDN 103, the argument on 26 July 2023 and the costs thrown away by reason of the trial date being vacated, should be costs in the cause. I so order.
Orders
1.As to FDN 105, the applicant has leave to further amend his Statement of Claim but not in the form of revised Statement of Claim – Revision 6. The applicant is to file and serve on all parties a proposed substituted Statement of Claim within 28 days.
2.As to FDN 103, the trial listed for hearing on Monday 11 September 2023 is vacated.
3.As to FDN 111 and FDN 119, the current trial orders made on 23 December 2022 (and subsequently amended) are vacated. The parties are to liaise to attempt to agree a timetable of revised trial orders.
4.As to FDN 101, no order, save that further consideration of any amended application, if necessary, be adjourned pending the filing of the substituted Statement of Claim.
5.The applicant is to pay the costs of filing FDN 105 and 106 and those costs thrown away by the respondent and third parties in amending their pleadings, subsequent to the filing of the substituted Statement of Claim, on a standard costs basis.
6.The costs of and incidental to FDN 103, FDN 101, FDN 111, FDN 119, the argument on 26 July 2023 and the costs thrown away by reason of the trial date being vacated, are to be costs in the cause.
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