Thompson v Department of Defence t/as Commonwealth of Australia [2023] NSWDC 475

District Court New South Wales

Medium Neutral Citation: Thompson v Department of Defence t/as Commonwealth of Australia [2023] NSWDC 475 Hearing dates: 7 November 2023 Date of orders: 7 November 2023 Decision date: 07 November 2023 Jurisdiction: Civil Before: Abadee DCJ (as List Judge) Decision: See paragraphs [41]–[42] Catchwords: CIVIL PROCEDURE – late application for directions regarding the adducing of expert evidence – hearing scheduled for March 2024 - consideration of multiple objections by respondent – discretionary considerations Legislation Cited: Defence Force Discipline Act 1982 (Cth), s 101X(2) Uniform Civil Procedure Rules 2005, rr 15.7, 15.8, 31.19, 31.20 Evidence Act 1995, s 79 Category: Procedural rulings Parties: Sophie Louise Thompson (plaintiff/applicant) DEPARTMENT OF DEFENCE trading as Commonwealth of Australia as represented by Department of Defence (defendant/respondent) Representation: Counsel: Mr A Khoury (plaintiff/applicant) Ms L Johnston (defendant/respondent) Solicitors: Operational Legal Australia for the plaintiff Thompson Cooper Lawyers for the defendant File Number(s): 2023/00110053 Publication restriction: Nil

Ex Tempore Reasons for JUDGMENT

Background 1. The plaintiff was at all material times a Private in the Australian Army and member of the Australian Defence Force. On 13 February 2020, a warrant was issued for the seizure of the plaintiff's mobile phone under s 101X(2) of the Defence Force Discipline Act 1982 (Cth) ('DFD Act'). This was after the Joint Military Police Force (JMPF) commenced an investigation, on or about 18 February 2019 into suspected fraud committed by the plaintiff relating to a rental allowance concerning a lease that was entered in June 2019. The plaintiff's mobile phone was seized on 17 February 2020. Eventually it was returned to her in December 2022. 2. By this proceeding, which commenced on 5 April 2023, the plaintiff sues the Department of Defence, trading as the Commonwealth of Australia (the 'Commonwealth') for different causes of action under the rubric of Trespass to Goods. She contends that the warrant was unlawfully issued and therefore the seizure of her mobile phone was not justified; that if the seizure was justified, then this was only conditional upon its return by a certain point, and that persons within the Department committed the torts of detinue and conversion after she had demanded the return of her mobile phone. 3. Part of the applicant's argument appears in sub-paragraph 10(b) of her amended pleading. This part of her case is premised upon acceptance of the Commonwealth's argument that seizure of her mobile phone was authorised. On that premise, she alleges that a trespass was committed since the mobile phone was retained 'for a period longer than was authorised'. Specifically, at sub-paragraph 10(b)(iii), as an alternative, she alleged that there was a trespass in 'continuing the passing of a time reasonably necessary to allow data to be extracted from the mobile phone, and continuing until the mobile phone was returned.' 4. The plaintiff sues for damages, including aggravated and exemplary damages. I note however, that contrary to rr 15.7 and 15.8 of the Uniform Civil Procedure Rules 2005 ('UCPR'), no particulars appear to have been supplied to the Commonwealth to support claims of exemplary and aggravated damages, respectively. By the same token, no point has been taken by the Commonwealth about these omissions. 5. The Commonwealth admits that the plaintiff's mobile phone was seized, but denies liability. In particular, it contends, as a complete answer to the claims, that it had lawful excuse to possess and examine the plaintiff's mobile phone under s 101X of the DFD Act. 6. The Commonwealth requested further and better particulars generally on 10 May 2023. Amongst other things, the Commonwealth requested particulars about sub-paragraph 10(b). In answer to a request as to how long the warrant authorised retention of the mobile phone for, the plaintiff said that this was a matter for evidence. Asked for the time and date when the trespass commenced, the plaintiff responded, as one alternative, that it followed and continued after the time reasonably necessary to allow data to be extracted from the phone and continued until the time the phone was returned. 7. The Commonwealth did not, so far as I am aware, dispute the adequacy of those, or any other answers to requests for particulars. 8. In relation to the part of plaintiff's argument that I have singled out, being sub-paragraph 10(b) of her amended pleading, the Commonwealth said that the mobile phone was brought to the Executive Officer of the plaintiff's then unit on 24 November, but otherwise denied the allegations. 9. This proceeding has been fixed for hearing for 18 March 2024, with an estimate of 4 days. 10. On 13 October 2023, the plaintiff (who I will henceforth refer to as the applicant), filed a notice of motion in which she sought an order from the Court under r 31.19(2) of the UCPR to make directions to facilitate the plaintiff in leading expert evidence at trial. It appears from the Court file that the applicant had suggested such evidence might be led at the Status Conference on 20 September 2023, which was the date that the Judicial Registrar fixed the hearing. 11. The motion was returnable before me, when sitting as Civil List Judge, on 30 October 2023 and I made directions for the exchange of evidence and submissions.