Supreme Court New South Wales Medium Neutral Citation: Ibrahimi & Ors v Commonwealth of Australia (No 5) [2016] NSWSC 1413 Hearing dates: 4 October 2016 Date of orders: 05 October 2016 Decision date: 05 October 2016 Jurisdiction: Common Law Before: Bellew J Decision: See [25] Catchwords: EVIDENCE – Relevance – Whether evidence relevant to any pleaded issue Legislation Cited: Evidence Act 1995 (NSW) Migration Act 1958 (Cth) Cases Cited: Banque Commerciale SA (in Liq) v Akhil Holdings Limited (1990) 169 CLR 279; [1990] HCA 11 Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70 Category: Procedural and other rulings Parties: Median Nazar Ibrahimi & Ors - Plaintiffs Commonwealth of Australia - Defendant Representation: Counsel: M Cranitch SC and S Prince - Plaintiffs A S Bell SC, M J O'Meara and R Jedrzejczyk - Defendant Solicitors: The People's Solicitors - Plaintiffs Australian Government Solicitor - Defendant File Number(s): 2013/377410 Publication restriction: Nil Judgment – EX TEMPORE (revised) 1. The plaintiffs in these proceedings seek to rely upon a statement of Paul Maxwell Kimber who is the manager of the Volunteer Marine Rescue Service of Western Australia. The plaintiffs' initial position was that they relied on the statement of Mr Kimber in the absence of any intention to call him. The defendant objected to that course on the basis that Mr Kimber's statement plainly offended the hearsay rule. 2. Having indicated that I was minded to uphold that objection, the plaintiffs sought leave to call oral evidence from Mr Kimber. Upon leave being granted, the defendant then objected to the evidence of Mr Kimber on the basis that it was not relevant to any pleaded issue in the proceedings. In order to resolve that question it is necessary to firstly give a very brief overview of the case and secondly, to outline the relevant pleadings in the further amended statement of claim. 3. On 15 December 2010, a suspected illegal entry vessel ("SIEV") was shipwrecked on the northern coast of Christmas Island. A number of persons were injured in that incident and a number of other persons died. The plaintiffs have brought proceedings against the Commonwealth of Australia alleging that they have suffered loss and damage by reason of a breach of duty of care. 4. The proceedings are being conducted on the basis of a further amended statement of claim which was filed on 11 May 2015. Paragraph 25 pleads that by no later than September 2010, and from that time until December 2010, in the exercise of its statutory powers under the Migration Act 1958 (Cth), the defendant was engaged in an ongoing operation which was directed (inter alia) to the surveillance, detection and interception of SIEVs approaching Christmas Island from the north. That operation is referred in the pleadings as the 'Interception Operation.' 5. Commencing at para. 27, the further amended statement of claim pleads the duties of care owed by the defendant which are said to have arisen in the conduct of the Interception Operation. It is pleaded, in particular, that in the period between September and December 2010 the defendant owed to the passengers of SIEVs approaching Christmas Island a duty to take reasonable care in the exercise of its powers, and the deployment of resources in the conduct of the Interception Operation, so as to avoid foreseeable risk of physical injury, death and damage. 6. Paragraph 28 pleads that given the potentially catastrophic consequences for passengers of a SIEV if it were shipwrecked on the coast due to any failure by the defendant to take reasonable care in the conduct of the Interception Operation, the defendant ought to have foreseen (inter alia) that the family members of a passenger, upon learning of the passenger being killed, injured or put in peril, might suffer a recognised psychiatric illness. 7. Paragraph 29 pleads that by reason of such matters, the defendant owed to the family members of passengers on any SIEV approaching Christmas Island, and to bystanders and rescuers, a duty to take reasonable care in the conduct of the Interception Operation, so as to avoid a foreseeable risk of mental harm to them. 8. The relevant risk of harm is referred in the pleadings to as the 'shipwreck risk' and is pleaded in para. 30 in the following terms: "In September to December 2010 there was a risk that in the course of the Interception Operation a SIEV might, if not intercepted on approaching Christmas Island from the north, be shipwrecked on the rocky coast of Christmas Island due to the poor weather, poor navigation, running out of fuel, or a combination of those factors thereby leading to catastrophic loss of life (the shipwreck risk)." 1. Paragraphs 35 pleads what is referred to as the 'readiness precaution' which is in the following terms: "[35] On or about 14 January 2008, the defendant through its agency, the AFP, procured the vessel Colin Winchester for use by the AFP in marine operations at Christmas Island, including search and rescue. [36] On about 14 January 2008, the defendant through its agency, the AFP, procured the vessel Sea Eye for use by the Volunteer Marine Rescue Service in search and rescue operations at Christmas Island. [37] Throughout 2010, both the Colin Winchester and the Sea Eye were out of survey and unfit for use in search and rescue in Christmas Island due to defects in the ships' design and build which rendered them unsafe for use in a sea-state of greater than level 1. [38] From about August 2010, as a result of inspections and reports by the Australian Maritime Safety Authority (AMSA) dated 11 and 12 August 2010, the AFP knew that the Colin Winchester and the Sea Eye were unfit for use in search and rescue on Christmas Island due to defects in the ships' design and build which rendered them unsafe for use in a sea-state of greater than level 1. [39] Between September and December 2010, a reasonable public authority in the position of the defendant and its servants and agents, owing the duties of care said to be owed by the defendant, would have in response to the shipwreck risk taken the following precaution defined as the readiness precaution (a) not permit the Colin Winchester and the Sea Eye to remain out of survey and incapable of use as search and rescue vessels in poor weather despite advice of AMSA as to defects in those ships, AMSA's requirement that those defects be corrected by 11 and 12 November 2010 respectively, and concerns raised by the Volunteer Marine Rescue Service on 1 December 2010 that it was unable to provide a dedicated, viable marine rescue service; or (b) alternatively replaced the Colin Winchester and the Sea Eye with vessels capable of use as search and rescue vessels in bad weather close to shore." 1. Causation is pleaded in the following terms commencing at para. 72: "[72] Had the defendant taken the readiness precaution, the Colin Winchester or the Sea Eye or both of them would have been capable of use as a search and rescue vehicle on 14 to 15 December 2010. [73] The AFP would have, on 14 to 15 December 2010, deployed the Colin Winchester to the usual station in territorial waters north of Christmas Island while both ACV Triton and HMAS Piriewere attending to SIEV 220 in the east of Christmas Island. [74] The AFP personnel on board the Colin Winchester would have intercepted SIEV 221 prior to its arrival at Flying Fish Cove and avoided the shipwreck. [75] Alternatively, the Volunteer Marine Rescue Service would have deployed the Sea Eye no later than 5.20am on 15 December 2010 to attend to SIEV 221 in Flying Fish Cove. [76] The Sea Eye would have anchored SIEV 221 before it reached the shore or towed the SIEV to safer waters in the eastern side of Christmas Island and avoided the shipwreck. [77] Had the defendant taken the ongoing patrol precaution on the evening of 14 December 2010, the HMAS Pirie would have been deployed in the usual station in territorial waters north of Christmas Island and intercepted SIEV 221 prior to its arrival at Flying Fish Cove and avoided the shipwreck." 1. Against that background, I turn to the evidence of Mr Kimber who, since 1999, has been the manager of the Volunteer Marine Rescue Services of Western Australia. His statement runs to some 24 pages. The form of much of it is plainly inadmissible. However, senior counsel for the plaintiffs outlined three specific areas of evidence which would be sought to be elicited from Mr Kimber if he is called. 2. Firstly, Mr Kimber will give evidence of the procurement and deployment of the vessels 'Colin Winchester' and 'Sea Eye' as vessels capable of being used as search and rescue vessels, Mr Kimber having had some involvement in their procurement. 3. Secondly, Mr Kimber will give evidence going to the issue of whether or not those two vessels were suitable as search and rescue vessels. It is anticipated that when asked, Mr Kimber will say that they were not. 4. Thirdly, Mr Kimber will give evidence as to what type of vessel was suitable for that purpose, and the capacity of such vessel. 5. Senior counsel for the defendant objected to the entirety of that evidence on two bases. Firstly, he submitted that the evidence was not relevant to any pleaded issue in the case. In the alternative, he submitted that the evidence ought be excluded under s 135(c) of the Evidence Act 1995 (NSW) on the basis that its probative value was substantially outweighed by the danger that it may result in an undue waste of time. 6. In advancing the first of those submissions senior counsel took me at some length to those parts of the pleadings which I have outlined. He submitted that the pleadings did not assert that either the Colin Winchester or the Sea Eye were not suitable vessels. This, he submitted, went directly to the relevance and admissibility of the first area of Mr Kimber's proposed evidence. 7. Secondly, in terms of causation, senior counsel for the defendant submitted that there was no allegation concerning the deployment of some other vessel as an alternative to the Colin Winchester and/or the Sea Eye. He further submitted that there was no pleaded allegation that the failure to have alternative vessels available was causative of any loss or damage. It was submitted that in these circumstances the proposed evidence of Mr Kimber was not relevant to any aspect of the plaintiffs' pleaded case. 8. Senior counsel for the defendant also took me to previous iterations of the pleadings. It was submitted that when they were compared with the further amended statement of claim, the only available conclusion was that a deliberate forensic decision had been made to plead the case in the present terms. 9. Counsel for the plaintiffs responded to these submissions by taking me to various parts of the transcripts of previous directions hearings before Garling J who case managed these proceedings leading up to the hearing. It was submitted that it was apparent, as a consequence of what had been said on one or more of those occasions, that the defendant was on notice that it was part of the plaintiffs' case that the Colin Winchester and the Sea Eye were unsuitable as search and rescue vessels. It was submitted that in all of those circumstances there was a danger in adopting the submissions of senior counsel for the defendant because to do so, in light of what had been ventilated before Garling J, would be to approach the issue in an artificial way. 10. One of the primary functions of pleadings is to identify the issues in dispute. In performing that function pleadings serve to facilitate the assessment of the relevance and admissibility of evidence which is sought to be called. It is the relevance and admissibility of evidence that I am now being asked to determine: Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70 at [6]; Banque Commerciale SA (in Liq) v Akhil Holdings Limited (1990) 169 CLR 279; [1990] HCA 11 at [15]. 11. As to the first area of Mr Kimber's evidence, it is no part of the plaintiffs' pleaded case that the Colin Winchester or the Sea Eye were unsuitable as search and rescue vessels. In fact the pleading in para. 39a of the amended statement of claim tends to the opposite effect. In the absence of a specific pleading that the Colin Winchester and the Sea Eye were unsuitable as search and rescue vessels, evidence from Mr Kimber as to such unsuitability is not relevant. 12. In terms of the second and third areas of Mr Kimber's evidence, para. 39b of the amended statement of claim pleads that in all of the circumstances the defendant, in response to the shipwreck risk, should have taken the precaution of replacing the Colin Winchester and the Sea Eye with vessels which were capable of being used as search and rescue vessels in bad weather close to shore. Evidence from Mr Kimber as to what was an appropriate vessel may, if that paragraph were taken in isolation, have some prima facie relevance. However, the plaintiffs do not plead that a failure to replace the Colin Winchester and the Sea Eye was causative of the damage which is said to have been suffered. 13. Clearly in the proceedings before Garling J on 11 November 2014 and 10 February 2015 there were discussions between the parties about the pleadings. It was following the proceedings on 10 February 2015 that the further amended statement of claim was filed on 11 May 2015. In those circumstances the plaintiffs can draw no comfort from what may or may not have been said in the course of any directions hearing prior to that time. It is the pleadings which define the issues in the case, not statements made from the Bar table. 14. I was also taken to a transcript of a directions hearing before Garling J on 14 April 2016. At T6 reference was made to Mr Kimber and the evidence that he may give at the hearing. At T6 L47 his Honour observed that he assumed that the defendant was on notice of the suggestion from someone in the position of Mr Kimber as to the unsuitability of particular vessels. Counsel for the plaintiffs replied in the affirmative. However for the reasons I have explained, the defendant was not on notice of any such suggestion. As I have indicated, there is no pleading whatsoever to that effect in the further amended statement of claim which had been filed almost 12 months before. 15. It follows that the evidence of Mr Kimber is not relevant to any pleaded issue. Accordingly it will be excluded. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 October 2016