Ibrahimi & Ors v Commonwealth of Australia (No 3) [2016] NSWSC 1438

Supreme Court New South Wales

Medium Neutral Citation: Ibrahimi & Ors v Commonwealth of Australia (No 3) [2016] NSWSC 1438 Hearing dates: 30 September 2016 Date of orders: 04 October 2016 Decision date: 04 October 2016 Jurisdiction: Common Law Before: Bellew J Decision: See [73] Catchwords: EVIDENCE – Expert opinion evidence – Admissibility of expert report – Whether witness appropriately qualified to express opinions – Whether the reasoning process leading to those opinions was exposed in the report – Evidence excluded Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Dasreef Pty Limited v Hawchar (2011) 243 CLR 588; [2011] HCA 21 Makita (Aust.) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Ocean Marine Mutual Insurances Association (Europe) OV v Jetopay Pty Limited (2001) 20 FCR 146; [2000] FCA 1463 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 1. On 15 December 2010 an incident occurred off the coast of Christmas Island, as a result of which a Suspected Illegal Entry Vessel ("SIEV") was shipwrecked. A number of persons were injured in that incident, and a number of persons died. The plaintiffs, who are said to belong to a group of persons who have suffered loss and damage by reason of the incident, have brought proceedings against the Commonwealth of Australia. 2. It is part of the plaintiffs' case that the Commonwealth was involved in an ongoing operation for the interception of SIEVs in the territorial waters north of Christmas Island. One of the principal issues in the proceedings is whether or not the Commonwealth owed the passengers on board the SIEV a duty to take reasonable care so as to avoid foreseeable harm to them. Broadly speaking it is the Commonwealth's position that no duty of care was owed, and that if it was, it was not breached in all of the circumstances. Before the hearing commenced before me earlier this week, the proceedings had been the subject of extensive case management. 3. The plaintiffs seek to rely upon the expert report of Roderick Douglas Pike dated 24 March 2016. The defendant took objection, in effect, to the entirety of that report. 4. I heard argument in relation to the defendant's objections on 30 September 2016. At the commencement of the proceedings on the next sitting day, namely 4 October 2016, I made orders excluding those parts of the report to which objection had been taken. My reasons for that determination now follow.