Badraie v Commonwealth of Australia and Ors

Badraie v Commonwealth of Australia and Ors - [2005] NSWSC 1195 - NSWSC 2005 case summary — Zoe

JUDGMENT (ON APPLICATION BY COMMONWEALTH TO CALL PARVIN JALEELI AND TO AMEND ITS DEFENCE)

JOHNSON J: On 29 August 2005, I commenced to hear a claim for damages by Shayan Badraie, by his tutor Mohammad Saeed Badraie, against the Commonwealth of Australia, Australasian Correctional Services Pty Limited ("ACS") and Australasian Correctional Management Pty Limited ("ACM"). At the time of listing on 11 March 2005, the case had been given an estimate of up to 20 sitting days. On Day 18 of the hearing, 21 September 2005, Mr Menzies QC, for the Commonwealth, was cross-examining Mr Mohammad Badraie, a process which had commenced on Day 14. In the absence of the witness, Mr Menzies QC said (T1025, line 56): "I intended to cross examine the witness today about some matters of which I have just obtained instructions, which go to his credit and I rely upon a statement which was received last night which hasn't been served. The reason I raise it is that the orders of the court, when this matter was listed, was that [outlines of the evidence] would be served …" The statement was that of Ms Parvin Jaleeli, the mother of the Plaintiff and former wife of Mr Badraie. This announcement of Mr Menzies QC has provoked a series of applications which fall to be determined in this judgment.
The following issues are considered in this judgment: (a) an application by the Commonwealth to rely upon the statement of Parvin Jaleeli and to call Ms Jaleeli as a witness in the proceedings; (b) an application by the Commonwealth to amend its Defence to the Second Amended Statement of Claim filed on 5 September 2005; (c) an objection by the Plaintiff, based upon the doctrines of issue estoppel, Anshun estoppel and abuse of process, to the Commonwealth seeking to adduce evidence and advance submissions in these proceedings to the effect that Mr Badraie was not a member of the Al-Hagh religion in Iran.
There is some overlap between these issues which will become apparent during the course of the judgment.

[5]

Some Background Facts

The present proceedings were commenced on 27 October 2003 by the filing of a Statement of Claim.
Shayan Badraie was born in Iran on 5 January 1995. His parents, Mohammad Saeed Badraie and Ms Jaleeli, separated and divorced in Iran. Mr Badraie married Zahra Saberi in Iran. The Plaintiff came to Australia in 2000 together with his father, Mr Badraie, and his stepmother, Ms Saberi.
Following their arrival in Darwin on 26 March 2000, the Badraie family were detained as "unlawful non-citizens" under ss.14 and 189 Migration Act 1958 ("Migration Act"). They were conveyed on 27 March 2000, by aircraft, to the Woomera Immigration Reception and Processing Centre ("Woomera").
On 3 March 2001, the Badraie family were transferred from Woomera to the Villawood Immigration Detention Centre ("Villawood"). Whilst the family was detained at Villawood, Shayan was admitted to Westmead Children's Hospital on nine occasions between 3 May and 23 August 2001, spending a total of 94 days as a patient in the hospital.
The Badraie family were detained at Woomera and Villawood by way of "immigration detention" as defined in s.5(1) Migration Act. Woomera and Villawood were "detention centres" under the Act: s.273 Migration Act.
On the occasions when Shayan was admitted to Westmead Children's Hospital during 2001, he was accompanied by an "officer" under the Migration Act and accordingly was in "immigration detention" at all times at the Hospital: ss.5(1), 189 Migration Act.
On 23 August 2001, Shayan was placed in foster care with an Iranian family in Sydney. Whilst Shayan was in foster care, he remained in "immigration detention" under the Migration Act. This necessitated the foster family's home in which he resided and the government school which he attended being declared as "places of detention" under the Migration Act and the foster family and the school principal being required to supervise him during those periods (T42.40). His family remained in immigration detention in Villawood.
On 16 January 2002, Shayan, his stepmother and his half-sister, Shabnam (who was born in detention in Woomera on 21 July 2000), were granted bridging visas under ss.37 and 73 Migration Act. From that time, Shayan lived in the community in Sydney with his stepmother and half-sister. His father remained in immigration detention in Villawood.
On about 9 August 2002, in circumstances which will be considered later in this judgment, the Badraie family, including Mr Badraie, were granted temporary protection visas under ss.30 and 36 Migration Act. From that time, the family has lived in the community in Sydney. I have been informed that their temporary protection visas have expired and they are presently applicants for permanent protection visas. I have been informed that they hold bridging visas at the present time.
I have been informed by Dr Morrison SC, for the Plaintiff, that Shayan is not to give evidence in these proceedings. The explanation for this relates to the age and health of the boy.
Mr Menzies QC, for the Commonwealth, and Mr Morris, for ACS and ACM, have both indicated that the decision not to call the boy as a witness is understandable. Mr Menzies QC has indicated that no submission based on Jones v Dunkel (1959) 101 CLR 298 will be made (T725.42). The principal witnesses as to many facts in the Plaintiff's case are Mr Badraie and Ms Saberi. In addition, evidence in the Plaintiff's case to this time includes that of Mr Wayne Lynch, a nurse and counsellor employed at Woomera at relevant times in 2000 - 2001 and Mr Harold Bilboe, a psychologist employed at Woomera in 2000 - 2001, together with a substantial volume of documents relating to the detention of the Plaintiff and events in Woomera and Villawood in 2000 and 2001.

[6]

Nature of the Claim

By his Second Amended Statement of Claim ("SASC"), Shayan Badraie, by his tutor, Mohammad Saeed Badraie, sues the Commonwealth, ACS and ACM alleging negligence on the part of the Defendants and an entitlement to damages.
The Commonwealth is sued upon the basis that it owned, maintained and conducted immigration detention centres throughout the Commonwealth of Australia, in particular Woomera and Villawood. It is alleged that, on or about 27 February 1998, ACS entered into an agreement with the Commonwealth to provide detention services for the care, supervision, welfare, security and management of immigration detainees at Woomera and Villawood. It is alleged that, at all material times, the Commonwealth and/or ACS contracted with ACM to provide detention services for the care, supervision, welfare, security and management of immigration detainees at Woomera and Villawood. It is alleged that, at all material times, the Commonwealth and/or ACS and/or ACM had the care, control, management and administration of Woomera and Villawood and were each responsible for the care, supervision, control and welfare of immigration detainees.
It is alleged that, between 27 March 2000 and 3 March 2001, Shayan witnessed or experienced a number of traumatic and aversive events whilst in immigration detention at Woomera (particulars of which are provided in paragraph 11 of the SASC). It is alleged that, during the period 27 March 2000 to 3 March 2001, Shayan exhibited behaviour consistent with post-traumatic stress disorder (particulars of such behaviour are provided in paragraph 12 of the SASC). It is alleged that, by July 2000 or at the latest January 2001, the Commonwealth, ACS and ACM had become aware that Shayan was exhibiting symptoms of post-traumatic stress disorder (particulars of such awareness are provided in paragraph 13 of the SASC). It is alleged that, on or about 25 January 2001, Mr Bilboe diagnosed Shayan with post-traumatic stress disorder.
It is alleged that, between 3 March 2001 and 23 August 2001, Shayan (now aged six years) witnessed or experienced further traumatic and aversive events whilst in immigration detention at Villawood which further exacerbated his fragile psychiatric state (particulars of the traumatic and aversive events are provided in paragraph 15 of the SASC). It is alleged that, as a consequence of the matters pleaded in paragraph 15 of the SASC, Shayan continued to exhibit symptoms of post-traumatic stress disorder (particulars of these symptoms are provided in paragraph 17 of the SASC). It is alleged that, as a consequence of the matters pleaded in the SASC, Shayan was also diagnosed by The Children's Hospital at Westmead with acute/chronic post-traumatic stress disorder and was admitted to that Hospital for specialist psychiatric and psychological treatment (particulars of these matters are provided in paragraph 18 of the SASC).
It is alleged that, on 23 August 2001 and contrary to expert medical advice, the Defendants separated Shayan from his parents and placed him in foster care in Sydney with foster parents unknown to him (particulars of this are provided in paragraph 19 of the SASC). It is alleged that, between 23 August 2001 and 16 January 2002, Shayan remained separated from his parents in foster care and continued to suffer post-traumatic stress disorder with ongoing developmental delays and deviation in social, cognitive and behavioural areas.
It is alleged that, throughout the period 27 March 2000 to August 2002, the Commonwealth, ACS and ACM (paragraph 24 of the SASC): "(a) knew or ought to have known that placing a young child such as the plaintiff in immigration detention at Woomera, Villawood or in foster care may result in injury to the plaintiff; (b) knew or ought to have known that exposing a young child such as the plaintiff to numerous traumatic and aversive events whilst in immigration detention at Woomera, Villawood or in foster care may result in injury to the plaintiff; (c) owed the plaintiff a duty to exercise reasonable care to prevent foreseeable injury occurring to him. In respect of the first defendant that duty of care was non-delegable. (d) knew from mid 2000, or at the latest January 2001, that the plaintiff was suffering PTSD as a consequence of the location and nature of his detention and knew that whilst in Woomera there was no appropriate psychiatric treatment available for him but continued to detain him at Woomera, Villawood and in foster care contrary to the medical advice particularised in 13, 18 and 19 above ."
It is alleged that the Commonwealth, ACS and ACM, by themselves or their servants or agents, breached their duty of care so that Shayan suffered and continues to suffer severe injury, loss and damage. Detailed particulars of the alleged breaches of duty of care by the Defendants are provided in paragraph 25 of the SASC.
It is alleged that, in various respects, the Defendants intentionally caused harm to the Plaintiff or were recklessly indifferent to the fact that their acts were causing harm to him or that they demonstrated contumelious disregard for the Plaintiff's rights and needs so as to give rise to an entitlement to aggravated and/or exemplary damages (paragraphs 26A-29 of the SASC).
It is not necessary, for the purposes of this judgment, to set out in detail the matters raised in the Defences already filed on behalf of the Commonwealth, ACS and ACM. Each Defendant denies that it has breached any duty of care owed to the Plaintiff and denies that the Plaintiff is entitled to any relief. I note paragraph 32 of the Commonwealth's Defence to the Second Amended Statement of Claim ("DSASC") where the Commonwealth refers to the Migration Act and says: "32.1 On 27 March 2000, the Plaintiff and his family arrived in the Australian Migration Zone as unlawful non-citizens, that is, they were not Australian citizens and did not hold visas; 32.2 Pursuant to section 189 of the Migration Act, the Commonwealth was required to detain the Plaintiff and his family, and accordingly the Commonwealth's action in detaining the Plaintiff and his family in accordance with section 189 was not of itself subject to a duty of care; 32.3 Pursuant to section 196 of the Migration Act, the Plaintiff and his family were required to be kept in detention, and could not be released from detention, until they were granted a visa, or removed or deported from Australia. Accordingly, the Commonwealth's action in continuing the detention of the Plaintiff and his family prior to their release in accordance with section 196 was not of itself subject to a duty of care. 32.4 Upon the Plaintiff and his family respectively being granted visas, they were released from detention in accordance with the Migration Act."

[7]

Some Legal Issues

Mandatory detention is a form of civil detention and is not a form of extra-judicial punishment: Al-Kateb v Godwin (2004) 78 ALJR 1099; [2004] HCA 37 at paragraph 1. Involuntary deprivation of liberty is involved, but not as a form of punishment: Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs (2004) 78 ALJR 1056; [2004] HCA 36 at paragraph 21. If those who manage a detention centre fail to comply with their duty of care, they may be liable in tort: Behrooz at paragraphs 21, 49-52, 92, 174, 219. The detaining authority owes duties of reasonable care to those whom it detains: Howard v Jarvis (1958) 98 CLR 177 at 183; Behrooz at paragraph 174.
The Commonwealth accepts, in general terms (T67.45), the analysis of Finn J concerning the Commonwealth's duty of care in the context of immigration detention as expressed in S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 252; [2005] FCA 549 at 292-296 (paragraphs 195-203, 207-213). The Commonwealth acknowledges that its duty to take reasonable care of Shayan whilst in immigration detention is non-delegable (T248.31).
The Commonwealth's position is that no breach of such duty of care occurred in this case.
The Commonwealth contends that issues arise in this case which will require consideration of the distinction between policy and operational matters in the context of the law of negligence: Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 469; Graham Barclay Oysters Pty Ltd v Ryan [2002] 211 CLR 540 at 556 [12], 574 [78], Behrooz at paragraphs 49-52.
In the course of his opening address, Dr Morrison SC said (T14.1): "This case is not about the policy of mandatory detention. It's about the way in which it was carried out and the permanent injury inflicted on a young child by a regime which failed to provide for his medical needs, place him in a proper environment and which continued to disregard his welfare even after told by competent and independent medical practitioners of the harm being done to him."
Dr Morrison SC submitted that the alleged failures of the Defendants in this case were failures at the operational level (T76.16-27).
Accordingly, there is a live issue in this case concerning the application of the policy/operational dichotomy: cf State of New South Wales v Paige (2002) 60 NSWLR 371 at 390-391 (paragraph 96).

[8]

Some Events Relevant to the Present Applications

On 26 June 2000, the Badraie family lodged an application for Protection (Class XA) Visas with DIMIA under the Act. Following the birth of Shabnam on 21 July 2000, she was taken to be an applicant for a protection visas as well. An applicant for a Protection (Class XA) Visa is entitled to be considered against the criteria for each of its subclasses: subclass 785 (Temporary) Protection and 866 (Protection), Migration Regulations 1994 Cth.
A delegate of the Minister for Immigration and Multicultural Affairs refused the application for visas and that decision was upheld by the Refugee Review Tribunal ("RRT") on 9 March 2001. The Badraie family sought review of the RRT decision by the Federal Court of Australia. In May 2001, that application was dismissed with costs. On appeal, the Full Federal Court, on 8 April 2002, allowed the appeal and made the following orders: (a) the application for review be granted; (b) the decision of the RRT made 9 March 2001 be set aside and the matter remitted to the RRT for redetermination; (c) the respondent pay the applicant's costs.
Following a hearing before RRT member, Paula Cristoffanini, including the taking of oral evidence from Mr Badraie on 7 July 2002, a decision was made by the RRT on 7 August 2002 (Exhibit P). The reasons of the RRT extended over 41 pages culminating in the following conclusion and decision: "CONCLUSION The Tribunal is satisfied that the applicants are persons to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicants satisfy the criterion set out in s.36(2) of the Act for a protection visa. They will therefore be entitled to protection visas, provided they satisfy the remaining criteria. DECISION The Tribunal remits the matter for reconsideration with the direction that the applicants are persons to whom Australia has protection obligations under the Refugees Convention."
I shall return to aspects of the RRT decision later in this judgment. For present purposes, it is sufficient to note that a central issue before the RRT was whether Mr Badraie had been a member of the Al-Hagh religion in Iran. The RRT made a finding that he was, and this finding underlay the conclusion that the four members of the Badraie family were persons to whom Australia had protection obligations under the Refugees Convention.
On 9 August 2002, temporary protection visas were granted by the Minister to each of the four members of the Badraie family, such visas being for a three-year period.
Given the issues in the present applications, it is appropriate to set out contact between officers of the Commonwealth and Ms Jaleeli since 2001.
A cable dated 9 September 2001 from the Tehran Embassy to DIMA and the Attorney-General's Department stated that Ms Jaleeli had visited the Tehran Embassy unannounced on 6 September 2001 and spoken to officials with the assistance of a Farsi interpreter indicating, amongst other things, "information that she and her ex-husband are of Kurdish ethnicity but that neither of them belong to the Al-Haqq group" (Exhibit S, page 7). Ms Jaleeli discussed with Commonwealth officers her desire to obtain custody of Shayan.
In a minute dated 17 September 2001 directed to Mr Ruddock, the then Minister for Immigration and Multicultural Affairs, senior Departmental officers (Ms Christine Sykes and Mr Greg Kelly) stated (Ex. S, page 10): "On Thursday 6 September 2001, Ms Jalili attended the Australian Embassy in Tehran and spoke with the DFAT Second Secretary and DIMA Senior Migration Officer with the assistance of an interpreter. Ms Jalili asked for information about her son's current situation and for assistance in having him returned to Iran. She volunteered information that she and her ex-husband are of Kurdish ethnicity but that neither of them belong to the Al-Haqq group. Ms Jalili was informed that due to privacy considerations, information on Shayan's situation could not be released but she was assured that his health and welfare were of primary concern to Australian authorities." I was informed that this document was produced on discovery by the Commonwealth to the Plaintiff in 2004. I am informed that the Commonwealth has served outlines of evidence from Ms Sykes and Mr Kelly and proposes to call them as witnesses in this case.
On 16 October 2001, Ms Jaleeli again visited the Australian Embassy in Tehran and discussed with Commonwealth officers her application to obtain legal custody of the Plaintiff in Iran.
DIMA documents reveal that, during October 2001, steps were being taken by officers of the Commonwealth to facilitate the obtaining of advice by Ms Jaleeli concerning a custody application with respect to the Plaintiff in Australia. Ms Jaleeli was informed that DIMA officers would assist her by giving a letter written by her to Shayan who, by then, was in foster care by way of immigration detention.
Contact between Commonwealth officers at the Tehran Embassy and Ms Jaleeli occurred, from time to time, in December 2001 and February 2002. Ms Jaleeli visited the Tehran Embassy on 9 July 2002 and discussion took place concerning a possible application by her in Australia to obtain custody of the Plaintiff. Further contact took place between Ms Jaleeli and Commonwealth officers in Tehran in August and September 2002 by way of telephone call or visit to the Embassy. Commonwealth officers in Tehran assisted Ms Jaleeli in liaising with the Legal Aid Commission of New South Wales for the purpose of obtaining a grant of legal aid and advice with respect to a possible custody application in Australia relating to the Plaintiff. A Commonwealth officer at the Tehran Embassy communicated with Ms Jaleeli by email on 31 October 2002.
In August 2003, the Commonwealth facilitated contact between Ms Jaleeli and the Legal Aid Commission of New South Wales for the purpose of a possible custody application with respect to the Plaintiff, including conveying correspondence from Australia to Iran via the diplomatic bag.
On 26 August 2003, a Commonwealth officer, Mr Ford, spoke to Ms Jaleeli concerning her interest in obtaining a visa to pursue a custody case in Australia. Mr Ford advised Ms Jaleeli that persons with little evidence of assets and funds and no prior travel would generally be refused a visa (Exhibit S, page 57).
As previously mentioned, the present proceedings were commenced on 27 October 2003 by the filing of a Statement of Claim.
On 2 March 2004, the Court ordered the Commonwealth to file its Defence by 30 March 2004.
On 23 April 2004, Mr Jones, Junior Counsel for the Commonwealth, provided written advice which included the following (Ex S, pages 92 - 93): "104. It will be important to obtain as much information as possible about the history and presentation of the Plaintiff prior to his arrival in Australia. 105. Within the documents which I was provided with, I saw reference to the Plaintiff, when he was approximately two years of age, being kidnapped by his father. … 107. Attempts should be made to locate the Plaintiff's birth mother and a signed statement should be taken from her."
The Commonwealth served its Defence on 23 April 2004 with the Defence being duly filed on 12 July 2004.
In May 2004, a DIMA officer (Ms. O'Brien) prepared a cable which, on its face, was intended to be sent to the Tehran Embassy. That cable included the following (Exhibit S, page 59): "Counsel for the Commonwealth has indicated that it is important to obtain as much information as possible about the history and presentation of the plaintiff prior to his arrival in Australia. Specifically we would be seeking information in relation to Shayan's early childhood in Iran, including an allegation that he was abducted by his father, removed from his natural mother and the likely impact that this had on him. Counsel has suggested that attempts should be made to locate the birth mother and take a signed statement from her." In evidence, Ms Boyle stated that she could not confirm that this cable had been sent. Having regard to all the evidence on this topic, I infer that it was not.
According to an email dated 5 November 2004, Mr Ian Munro of the Detention Case Co-Ordination Section within DIMIA, stated that a cable was to be sent to Tehran to establish whether any updated information concerning Ms Jaleeli might be provided (Exhibit S, page 61). An email from Annabelle O'Brien to Jim Williams dated 5 November 2004 included the following statement (Exhibit S, page 63): "I was conscious that the family are on TPV's and did not wish to create any sur place [sic] claims. I could perhaps expand the request to ask Tehran to use their judgment to determine whether any direct contact with Shayan's mother might attract any official attention? Your thoughts?"
On 8 November 2004, a cable was sent from DIMIA in Canberra to the Tehran Embassy (Exhibit S, page 67). The cable appears to have been drafted using the unsent May 2004 cable as a template. However, the last sentence in the passage set out earlier referring directly to Counsel's advice that attempts should be made to locate Ms Jaleeli and obtain a statement from her had been deleted. The cable did not directly request that attempts be made to locate Ms Jaleeli and take a statement from her. The cable included the following statement: "Unfortunately, we are working to a tight time frame on this. At this stage, our inquiries are restricted to information you currently hold, or may have ascertained from agencies such as UNHCR." There is no evidence that Commonwealth officers in Iran took steps to contact Ms Jaleeli thereafter for the purposes of the present proceedings.
On 23 December 2004, Ms Jaleeli wrote letters to the Prime Minister of Australia and the "Interior Minister of Australia" (Ex S, page 69) with respect to her claim for custody of the Plaintiff in Australia. The letters were received in Canberra on 21 January 2005. It appears that the letters were held by officers of the Commonwealth Attorney-General's Department and were not handed over to DIMIA until 21 September 2005. The letters contained Ms Jaleeli's address in Kermanshah in Iran.
In written advice dated 11 January 2005, Mr Menzies QC advised (Exhibit S, page 99): "Enquiries should be made to see whether the plaintiff's mother can be found and if possible, interviewed. No doubt she would have a different perspective on the plaintiff and his father."
On 11 March 2005, this matter was fixed for hearing on 29 August 2005 with an upper estimate of 20 days. It does not appear that any mention was made of the possibility of overseas witnesses from Iran. Nor was any indication given that the possibility of evidence by audio-visual link might arise.
In an email dated 19 May 2005 from Ms Peterswald, Solicitor for the Commonwealth, to Ms Margaret Leach of DIMIA, a request for follow-up action on the part of DIMIA included the following (Ex S, page 101): "Issues relating to the plaintiff's biological mother, Parvin Jaleeli - Jim Williams mentioned that he thought she might have been in touch - I understand there are sensitivities but we to [sic] either advance this or close it off as an avenue of enquiry."
On 3 June 2005, Assistant Registrar Howe ordered the Commonwealth, ACS and ACM to serve outlines of evidence of its lay witnesses by 15 August 2005.
On 28 June 2005, a cable was sent from DIMIA in Canberra to the Tehran Embassy (Exhibit S, page 78) which was in similar terms to that which had been sent on 8 November 2004 (Exhibit S, page 67). Again, this cable did not contain an express request to locate Ms Jaleeli and obtain a statement from her as had been included in the draft unsent cable of May 2004.
The Commonwealth served a number of outlines of evidence on and after 15 August 2005 and before the hearing of the case commenced before me on 29 August 2005. No outline of evidence of Ms Jaleeli was served.
On Monday 5 September 2005 (day 6 of the hearing), an email was sent from Michael Fitzgerald to Jim Williams of DIMIA in the following terms (Exhibit 8, page 80): "The mother of the badraie boy has been contacting the embassy since last wednesday wanting to speak to someone re the condition/situation of her son. apparently she wrote to the minister some time ago however has not received a response. any advice?" It was this contact by Ms Jaleeli which set in train events leading to the service of her statement on 21 September 2005. It is apparent that Ms Jaleeli contacted the Tehran Embassy for her own purposes and not in response to any attempt by Commonwealth officers to locate her. I infer that there had been no such attempts made in Iran.
By email dated 7 September 2005, Ms Boyle requested Mr Fitzgerald to discuss with Ms Jaleeli a number of issues which were considered relevant to the present proceedings (Exhibit S, page 81). At that time, no request was made to raise the Al-Hagh issue with Ms Jaleeli.
By email dated 15 September 2005, Ms Boyle requested that Mr Fitzgerald direct a series of questions to Ms Jaleeli for the purposes of the present proceedings (Exhibit S, page 83). A request was made for Ms Jaleeli to be questioned about the Al-Hagh issue in this email.
A teleconference took place on 19 September 2005 between the Commonwealth's legal representatives in Sydney and Ms Jaleeli and Commonwealth officers in Tehran. Mr Fitzgerald provided Ms Jaleeli's responses to Ms Boyle's questions, including Ms Jaleeli's statement that Mr Badraie was Shiite and had never been a member of the Al-Hagh religion (Exhibit S, pages 109-111). A draft statement of Ms Jaleeli was prepared and, on 21 September 2005 (Day 18 of the trial), Mr Menzies QC drew to the attention of the Court and the Plaintiff the existence of Ms Jaleeli's statement.

[11]

Issue Estoppel, Anshun Estoppel and Abuse of Process

It is appropriate to consider the Plaintiff's submissions concerning issue estoppel, Anshun estoppel and abuse of process at this stage. If the Plaintiff made good any of these submissions, then the Commonwealth would be prevented from adducing evidence from Ms Jaleeli with respect to the Al-Hagh issue.
The onus lies upon the Plaintiff, as the party seeking to rely upon issue estoppel, to establish that the requirements of the doctrine of issue estoppel have been met: Kuppers v New South Wales Fire Brigades [2005] NSWSC 193 at paragraph 22.
The Plaintiff contends that a number of the findings of the RRT made on 7 August 2002 give rise to an issue estoppel so that the Commonwealth may not adduce evidence nor make submissions in these proceedings for the purpose of contradicting such findings. Put shortly, the findings which the Plaintiff submits give rise to an issue estoppel are those concluding that Mr Badraie was a member of the Al-Hagh religion in Iran. Other specific findings of the RRT are relied on by the Plaintiff, but it is not necessary to refer to them expressly in this judgment, in particular given non-publication orders which have been made with respect to some of these matters.
It was common ground before me that there is no decision of a court in Australia which deals directly with the question of whether a decision of the RRT is capable of giving rise to an issue estoppel for the purpose of subsequent civil proceedings.
At the outset, I note that the Plaintiff submits that issue estoppel and not res judicata (cause of action estoppel) arises in this case. For the doctrine of issue estoppel to apply in a second set of proceedings, the requirements are that, firstly, the same question has been decided; secondly, that the judicial decision which is said to create the estoppel was final; and thirdly, that the parties to the judicial decision or their privies were the same persons as the parties to which the estoppel is raised or their privies: Kuligowski v Metrobus [2004] 208 ALR 1 at 7 (paragraph 21).
The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court, and its jurisdiction is derived from statute or from the submission of parties, and it only has temporary authority to decide a matter ad hoc: Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353 at 453; Kuligowski v Metrobus, at 7 (paragraph 22).
The RRT is an administrative tribunal created under federal law. The cases have acknowledged that federal administrative tribunals are in a different class from State tribunals with respect to the availability of issue estoppel given the constitutional requirements that the judicial power of the Commonwealth can only be exercised by the judiciary and not by administrators: Lambidis v Commissioner of Police (1995) 37 NSWLR 320 at 331-2; Miller v University of New South Wales (2003) 132 FCR 147 at paragraphs 9, 48ff.
Assuming, for present purposes, that the doctrine of issue estoppel is capable of extending to a decision of a federal administrative tribunal, it is necessary to decide precisely what jurisdiction the body is exercising. As Kirby P observed in Lambidis at 324C-D, it could scarcely be expected that a tribunal composed of temporary lay appointees, involved in broad policy decisions and conducted by wholly informal procedures could reach decisions which would later bind the parties in related litigation before a court of law.
In order that a judicial decision may involve an estoppel as to the matter decided, it is necessary that the tribunal should possess jurisdiction to decide the matter conclusively and for all purposes between the parties, and not merely incidentally for a limited purpose. Unless an intention appears to confer jurisdiction to determine that collateral matter inter partes conclusively and for all purposes, a decision of a tribunal upon a collateral matter lying outside its special jurisdiction creates no estoppel, notwithstanding that the matter was raised and that it was necessary to form an opinion upon it for the purpose of deciding the matter to which the tribunal is invested with a special jurisdiction. No estoppel can arise from a decision by a tribunal of limited jurisdiction of a matter lying outside its jurisdiction: Ex parte Amalgamated Engineering Union (Australian Section); re Jackson (1937) SR(NSW) 13 at 19-20 per Jordan CJ; Miller v University of New South Wales at paragraph 65.
Proceedings before the RRT are not adversarial. No issues are joined between parties and there is no contradictor: Minister for Immigration and Multicultural Affairs v Wang [2003] 215 CLR 518 at 526 (paragraph 18), 531 (paragraph 37), 540-541 (paragraph 71). A person who seeks a review by the RRT seeks a particular administrative decision, the grant of a protection visa, and puts to the RRT whatever material or submission that person considers will assist that claim. The findings of fact that the RRT makes are those that it, rather than the applicant, let alone adversarial parties, considers to be necessary for it to make its decision. Those findings cannot be treated as a determination of some question identified in any way that is distinct from the particular process of reasoning which the RRT adopts in reaching its decision: Wang at 541 (paragraph 71).
The review by the RRT involves a hearing de novo. The RRT stands in the shoes of the decision maker performing the function assigned to it by the Migration Act: Bramwell v Repatriation Commission (1998) 158 ALR 623 at 627. The question is whether the RRT is, or is not, satisfied of the matters under the Migration Act: s.415. That state of satisfaction must exist at the time of the decision following the hearing and must be formed on the view of all the information before the RRT at that time: Wang at 526 (paragraph 18), 531 (paragraph 37), 542 (paragraph 77). The RRT must prepare a written statement including reasons for the decision and findings of fact: s.430.
In effect, a review undertaken by the RRT constitutes a type of statutory ex parte hearing at which the applicant has a right to be present and to give evidence. The Secretary of the Department may provide written argument relating to the issues arising in relation to the decision under review: s.423(2) Migration Act. The Secretary has no entitlement to appear and cross-examine an applicant or witnesses called in support of the applicant's case. The Secretary is entitled to know the date when a decision will be handed down (s.430A(2)) and has a right of appeal on a question of law to the Federal Court of Australia.
Given that the review being undertaken by the RRT in July and August 2002 involved a hearing de novo, at which the question was whether the RRT was satisfied of relevant matters at the time of the decision, it was open to the Commonwealth to seek to rely upon the information which it acquired in September 2001 concerning Ms Jaleeli's assertion that Mr Badraie and she had not been members of the Al-Hagh religion. This was information known, in September 2001, to the Minister and senior departmental officers. It is not apparent, from the evidence before me, that the Secretary of the Department, drew this material to the attention of the RRT in 2002 either as part of the departmental file or by way of written argument.
I return to the question posed by the Plaintiff's submission - does the decision of the RRT of 7 August 2002 give rise to an issue estoppel in the present civil proceedings with respect to the finding of the RRT that Mr Badraie was a member of the Al-Hagh religion? I am not satisfied that an issue estoppel arises in these proceedings from that finding. Firstly, the weight of authority points to the unavailability of issue estoppel arising from a decision of a federal administrative tribunal. Secondly, even if the doctrine of issue estoppel was available with respect to a federal administrative tribunal, I am not satisfied that a decision of the RRT is capable of constituting an issue estoppel with respect to subsequent civil proceedings before a court of law. I reach this conclusion by application of the principles in Jackson, Daera Guba, Lambidis and Miller.
Anshun estoppel, arising from the decision of the High Court of Australia in Port of Melbourne Authority v Anshun Pty Limited (No. 1) (1980) 147 CLR 589 has been applied to proceedings in the nature of judicial review of administrative action: Wong v Minster for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 at paragraph 39. Anshun estoppel arises where an issue now raised for the first time properly belonged to the subject of an earlier proceeding but, by negligence, omission or accident, was not raised in the earlier proceeding. Where the issue was so relevant to the subject matter of the earlier action that it would be unreasonable not to have raised it at the time, it is an abuse of process to endeavour to raise that issue for the first time in a subsequent proceeding between the parties: Anshun at 602; Wong at paragraph 37.
In Lambidis, Kirby P at 325 expressed the view that, at least in the case of a tribunal such as Government and Related Employees Appeal Tribunal in NSW ("GREAT"), the Anshun doctrine was capable of application. The other members of the court in Lambidis (Priestley and Powell JJA) did not consider this issue.
I am not satisfied that Anshun estoppel may arise from proceedings before the RRT so as to operate with respect to later civil proceedings before a court. The statutory functions of the RRT are different to that of GREAT, which attracted the observation of Kirby P in Lambidis.
The features of the RRT and its powers and functions which militated against applicability of the doctrine of issue estoppel, in my view, support a similar conclusion with respect to Anshun estoppel.
The Plaintiff submits that the principles of abuse of process operate to prevent the Commonwealth litigating the Al-Hagh issue in these proceedings. It has been said that abuse of process may exist where issue estoppel or Anshun estoppel do not arise: Walton v Gardiner (1993) 177 CLR 378 at 393; Rogers v The Queen (1994) 181 CLR 251 at 255, 287; Rippon v Chilcottin Pty Ltd (2001) 53 NSWLR 198. The Plaintiff's argument is reduced to one of the Commonwealth not being allowed, in these separate civil proceedings, to advance an argument and adduce evidence not apparently placed before the RRT in 2002, where that body made a finding contrary to that now advocated by the Commonwealth. In my view, these circumstances do not give rise to an abuse of process. They are matters which bear upon the exercise of discretion with respect to the applications made by the Commonwealth to which I will shortly turn.
In summary, I am not satisfied that the doctrine of issue estoppel, Anshun estoppel or abuse of process operate so as to prevent the Commonwealth from adducing evidence in these proceedings to the effect that Mr Badraie was not a member of the Al-Hagh religion.
Nothing that I have said in this regard bears upon the circumstances of a decision maker under the Migration Act, whether the initial decision maker or the RRT, should these matters fall for consideration as part of a visa application by the Badraie family under that Act. It might be thought that the structure and operation of the Migration Act points to acceptance of a decision of the RRT, which is undisturbed on appeal, in any later decision-making process under the Act with respect to the same applicants and the same subject matter. This is so, in particular, where relevant information was available to the Minister and the Department at the time of the original RRT decision and was capable of being advanced to the RRT at that time. However, those issues do not arise for determination before me and I say no more about them.

[12]

Discretionary Application to Amend Defence and to Rely Upon Evidence of Ms Jaleeli

The applications of the Commonwealth to amend its Defence and to rely upon the evidence of Ms Jaleeli involve discretionary determinations in the course of a civil trial. Since 15 August 2005, the Civil Procedure Act 2005 has governed such applications. In Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Limited [2005] NSWSC 1174, Einstein J said at paragraph 22: "The 'overriding purpose' of the Civil Procedure Act 2005 and of the rules of court in their application to civil proceedings is set out namely in s.56 (1) 'to facilitate the just, quick and cheap resolution of the real issues in the proceedings'. Parties to civil proceedings are under a duty to assist the court to further that overriding purpose and to that effect to participate in the processes of the court and to comply with directions and orders of the court. The timely disposal of proceedings at a cost affordable by the respective parties comprises one of the important aspects of case management dealt with in s. 57. The court in determining whether to make any order or to give any direction is required to seek to act in accordance with the dictates of justice: s.58(1). For the purpose of determining what are the dictates of justice in a particular case, the court may have regard to the degree to which the respective parties have fulfilled their duties under s. 56(3) and to the degree of injustice that would be suffered by the respective parties or either of them as a consequence of any order or direction. Section 61(1) gives the court power by order to give such directions as it thinks fit for the speedy determination of the real issues between the parties to proceedings. Section 61(3) gives the court power, if a party to which a direction has been given fails to comply with a direction to strike out a defence and to give judgment accordingly or to make such other order or give such other direction as it considers appropriate."
Much of the rationale underlying these provisions emerged from the decision of the High Court of Australia in Queensland v JL Holdings Pty Ltd (1996-1997) 189 CLR 146. However, the provisions of the Act go beyond that decision. In the course of the Second Reading Speech with respect to the Civil Procedure Bill, the Attorney General Mr Debus, said (Hansard, Legislative Assembly, 6 April 2005): "Part 6 of the Bill introduces a number of new provisions relating to the conduct of court proceedings. The provisions recognise the importance of case management as a tool for increasing the efficiency of the court system and for reducing the cost of litigation. They seek to strike a balance between protecting the interests of justice in an individual case and protecting the interests of justice for other litigants and the courts. Section 56 sets out the overriding purpose of the Bill and Rules which, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. … It is important to note that the dictates of justice will not be limited to the dictates of justice only as between the parties, which has been argued to be the effect of the majority judgment of one of the leading cases on case management: State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146. Clause 59 requires the court to implement its practices and procedures with the object of eliminating any lapse of time between the commencement of proceedings and their final determination beyond that which is reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial. Clause 60 requires the court to implement its practices and procedures with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject matter in dispute. Clause 61 sets out the Court's powers to give directions in relation to practice and procedure. Failing to comply with directions to take specified steps within a specified time is an important reason why proceedings can be delayed. Delays in one set of proceedings have a flow-on effect on other proceedings before the Court. Clause 61 allows the court to impose sanctions if parties fail to comply with directions."
Accordingly, in addition to the interests of the parties to the present litigation, the interests of other parties with pending litigation before the Court are relevant to the present applications. This case was fixed for hearing on 11 March 2005 to commence on 29 August 2005 with a 20-day estimate. I am delivering this judgment on Day 32 of the trial. The present estimate is that some 55 days will be required to complete the hearing. Since the passing of Day 20, the hearing time devoted to this case has operated to deprive other litigants of a judge to hear their cases. Those other litigants obtained hearing dates in accordance with usual procedure. The continuation of this case has operated to the detriment of other litigants and the orderly conduct of civil proceedings in this Court. This factor is relevant to a discretionary determination of the present type: s.59 Civil Procedure Act 2005.
Dr Morrison SC points to the model litigant obligations of the Commonwealth as being relevant to the present discretionary decisions. This concept is well known: Scott v Handley (1999) 58 ALD 373; Wodrow v Commonwealth of Australia (2003) 129 FCR 182. Dr Morrison SC points to parts of the model litigant provisions, in particular, the obligation of the Commonwealth and its agencies to act fairly in litigation bought against the Commonwealth by dealing with claims promptly and not causing unnecessary delay in the handling of claims and litigation and not taking advantage of a claimant who lacks the resources to litigate a legitimate claim: Wodrow at paragraph 38. The courts have spoken positively of a public body's obligation of conscientious compliance with the procedures designed to minimise cost and delay: Scott v Handley at paragraph 45; Wodrow at paragraph 46.

[13]

Application to Amend Defence

The Commonwealth applies to amend the Defence to the Second Amended Statement of Claim filed on 5 September 2005 by inclusion of the following paragraphs: "33. Further, and in the alternative, the Commonwealth states that the plaintiff's injuries which are not admitted, were caused by the actions of his parents, including, but not limited to the following matters: Particulars 33.1 causing the plaintiff's detention by entering Australia as an unlawful non citizen; 33.2 prolonging the plaintiff's detention by refusing to agree to leave Australia; 33.3 engaging in behaviour which encouraged the plaintiff not to eat; 33.4 engaging in behaviour which by its very nature promoted or led to the injuries and disabilities alleged by the plaintiff. 34. Further, in answer to the whole of the plaintiff's claim, the Commonwealth states that (a) any application made by the Plaintiff and his family for temporary protection visas were made, and (b) the Plaintiff's temporary protection visa and the temporary protection visas of his family entitling them to remain in Australia were obtained, fraudulently. Particulars ..."
Dr Morrison SC objects to the amendment contained within paragraph 33.1, 33.2 and the whole of paragraph 34. It is submitted for the Plaintiff that leave to amend ought be refused on the grounds of futility, as well as on discretionary grounds. I raised with Dr Morrison SC whether an objection on the grounds of futility ought be entertained in the midst of the trial. He submitted that, if the amendments were made, it would affect the nature of evidence which the Plaintiff may need to adduce and thus there was utility in this matter being determined at this point in the trial.
In these circumstances, I propose to consider these submissions and make a ruling upon them.
I have already set out aspects of the Plaintiff's claim, the way in which it is put by the Plaintiff and is sought to be met by the Defendants. The Plaintiff's claim is not based upon what are said to be the bare incidents of detention. Rather, the Plaintiff contends that acts and omissions on behalf of the Defendants constituted breaches of the duty of care owed to the Plaintiff.
It is necessary to keep in mind that the Plaintiff was aged between five and seven years at the time of events relevant to these proceedings. He was placed in immigration detention by operation of Commonwealth law. He was, of course, in immigration detention as a result of his arrival in Australia with his father and stepmother.
In support of the futility argument with respect to paragraphs 33.1, 33.2 and 34 in the proposed Amended Defence, Dr Morrison SC referred to relevant legal principles where an issue arises as to whether there was more than one cause for a particular injury. It is a basic principle of the law governing the recovery of damages that a Plaintiff does not have to prove that an impugned event was "the" cause, in the sense of the one and only cause. It is enough that the Plaintiff shows that the event is "a" cause of the condition for which damages are claimed: March v Stramare Pty Limited (1991) 171 CLR 506 at 511; Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 6-7; Henville v Walker (2001) 206 CLR 459 at 480, 490; Shorey v PT Limited (2003) 77 ALJR 1104 at 1110-1111. The principle of law is that a negligent defendant must take its victim as it finds him and must pay damages accordingly: Watts v Rake (1960) 108 CLR 158 at 160; Shorey at 1111.
Insofar as paragraph 33.1 and 33.2 seek to allege that the Plaintiff's injuries were caused by the actions of his father and stepmother, being their actions in bringing him into Australia and prolonging his immigration detention under the Migration Act, it is said that these matters are incapable of constituting a basis for defeating or reducing the Plaintiff's claim. Such factors are as irrelevant to this claim as would be the reasons why a prisoner was sentenced to imprisonment in a claim brought by the prisoner against prison authorities in negligence. The Plaintiff also submits that the Commonwealth has not sought to cross claim against the father and stepmother of the Plaintiff.
Mr Menzies QC submits that these matters are capable of constituting a defence or basis for reducing damages which might otherwise be awarded to the Plaintiff and that this matter ought not be determined now, but should be left, with other issues, until the end of the trial. I do not accept the Commonwealth's submission. It should be borne in mind that the Plaintiff is a child who sues the Commonwealth for alleged acts or omissions said to have occurred in breach of the Commonwealth's non-delegable duty of care to the Plaintiff whilst held in immigration detention. In Queensland v JL Holdings Pty Ltd, it was said at 154 that, except perhaps in extreme circumstances, case management principles ought not be employed to shut a party out from litigating an issue which is fairly arguable. I am satisfied that the matter alleged in paragraphs 33.1 and 33.2 are not fairly arguable. I am satisfied that the matters alleged in paragraphs 33.1 and 33.2 cannot give rise to an arguable defence or a triable issue in this case. I take into account the gravity of a step which operates to exclude an issue which the Commonwealth seeks to agitate in the proceedings: General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125 at 129. However, I am clearly of the view that it would be futile to allow this amendment.
The matters raised in paragraph 34 allege that a fraudulent claim was made in visa applications. It may be accepted that Ms Jaleeli's evidence on the Al-Hagh issue goes to the credibility of the Plaintiff's father and is admissible under s.106 Evidence Act 1995. The evidence of Mr Badraie is of considerable importance to the Plaintiff's case. However, I do not see how the alleged fraudulent conduct on the part of the Plaintiff's father can defeat the claim of the Plaintiff, a child, with respect to an alleged breach by the Commonwealth of the non-delegable duty of care which it owed to the Plaintiff whilst he was held in immigration detention. I do not consider that this aspect is capable of constituting a basis upon which the Plaintiff's claim for damages can be defeated or an award of damages to him reduced. In my view, Mr Menzies QC was correct when he submitted on 21 and 22 September 2005 (T1025, 1062) that this matter went to credit and was not capable of operating to defeat or reduce the Plaintiff's claim. I am comfortably satisfied that to allow the amendment sought in paragraph 34 would be futile. The matters there alleged are not capable of defeating or reducing the Plaintiff's claim. The matters might be capable of affecting the credibility of the Plaintiff's father as a witness, and thereby operating adversely to the Plaintiff's case with respect to important findings of fact in the case, but those circumstances do not give rise to a matter which may be pleaded by way of defence. I refuse the Commonwealth leave to amend the Defence to allege the matters contained in paragraph 34.
I propose to grant the Commonwealth leave to amend the Defence to the Second Amended Statement of Claim in the form set out hereunder. I have made an alteration to the introductory words in paragraph 33 consistent with the matter raised by me with Mr Menzies QC during submissions: "33. Further, and in the alternative, the Commonwealth states that the plaintiff's injuries, which are not admitted, were caused by the following actions of his parents: Particulars 33.3 engaging in behaviour which encouraged the plaintiff not to eat; 33.4 engaging in behaviour which by its very nature promoted or led to the injuries and disabilities alleged by the plaintiff."
Mr Menzies QC indicated during submissions that paragraph 33.4 was intended to encompass alleged conduct on the part of the Plaintiff's father in Iran and Australia. Insofar as conduct in Iran is alleged, the Commonwealth will seek to rely upon the evidence of Ms Jaleeli. Further particulars of paragraph 33.4 will be sought by the Plaintiff and Mr Menzies QC has stated that no order is required for the purposes of the Commonwealth providing answers to a request for particulars in that regard.

[14]

Application to Call Ms Jaleeli

I have set out earlier in this judgment a number of events occurring between September 2001 and September 2005 which bear upon the application of the Commonwealth to call Ms Jaleeli. I make the following findings for the purpose of this application: (a) since September 2001, officers of the Commonwealth have been aware of the whereabouts of Ms Jaleeli in Iran and have had the ability to contact her when required; (b) Ms Jaleeli was not a stranger to the Commonwealth - contact between officers of the Commonwealth between September 2001 and September 2005 have fulfilled a number of purposes, including the facilitating of contact between New South Wales legal aid authorities and Ms Jaleeli for the purpose of a possible custody application relating to the Plaintiff in Australia - there is nothing improper or inappropriate in Commonwealth officials taking such steps - these events, however, cast light upon the nature, frequency and quality of the contact undertaken in this period between officers of the Commonwealth and Ms Jaleeli; (c) the Commonwealth received legal advice from Junior Counsel in April 2004 and from Senior Counsel in January 2005 that efforts should be made to locate Ms Jaleeli and take a statement from her for the purpose of the present proceedings - such advice was understandable given that the evidence of Ms Jaleeli may relate to the upbringing and treatment of the Plaintiff in Iran and the question of causation of any psychiatric injury suffered by him; (d) despite the receipt of prudent advice from Counsel passed on by the solicitor from the Australian Government Solicitor, officers of DIMIA do not appear to have taken reasonable steps to contact Ms Jaleeli and take a statement from her; (e) the departmental records suggest there may have been some diffidence in contacting Ms Jaleeli for this purpose - whether this be so or not, it cannot be said that officers of DIMIA exercised reasonable diligence with respect to the advice from Counsel to contact Ms Jaleeli; (f) insofar as available evidence from Ms Jaleeli may touch upon the Al-Hagh issue, senior departmental officers had been aware since September 2001 that Ms Jaleeli gave a different account on this issue to that given by Mr Badraie; (g) to the extent that it was considered that Ms Jaleeli may be in a position to give evidence with respect to a fact in issue in the proceedings, namely any adverse incidents or stressors upon the Plaintiff in Iran which may have caused any psychiatric injury, the Commonwealth understood through its own legal advice that Ms Jaleeli should be contacted and spoken to in this respect - this was an issue in relation to which the Commonwealth's Defence ought to have included such a claim, of the type now advanced in paragraph 33.4 of the proposed Amended Defence; (h) despite the fact that an order of the Court made on 3 June 2005 required the Commonwealth to serve any outlines of evidence of lay witnesses by 15 August 2005, departmental officers did not exercise reasonable diligence to contact Ms Jaleeli before that date; (i) at the time when the hearing commenced before me on 29 August 2005, the Commonwealth had no reasonable expectation that any evidence from Ms Jaleeli would become available for the purposes of the trial; (j) on 31 August 2005 (Day 3 of the hearing), Ms Jaleeli contacted the Tehran Embassy for her own purposes to enquire with respect to her letter of 23 December 2004 and such contact was brought to the attention of DIMIA in Australia on 5 September 2005 (Day 6 of the trial) - there had been no step taken to contact her, rather she initiated contact for her own purposes; (k) between 5 and 21 September 2005, the Commonwealth and its legal representatives obtained information from Ms Jaleeli and a view was formed that her statement dated 20 September 2005 should be relied upon in the present proceedings; (l) in the manner described above, Ms Jaleeli fell into the Commonwealth's lap as a potential witness after the trial had started - the opportunity having presented itself, the Commonwealth utilised information from her for the purposes of cross-examination and seeks to adduce evidence from her on issues touching matters of credit and facts in issue.
In support of the application, Mr Menzies QC submits that no actual prejudice has been occasioned to the Plaintiff by the provision of a statement some five weeks late, namely the period between 15 August 2005 and 21 September 2005. The Commonwealth points to the fact that, by way of exception, directions were given in this case for the provision of outlines of evidence of witnesses. But for the existence of that order, which the Commonwealth did not comply with in connection with Ms Jaleeli, it would have been open to the Commonwealth to call Ms Jaleeli in its case when the time came.
Mr Menzies QC relies, by analogy, upon the decision of the Court of Appeal in Commercial Union Assurance v Beard (1999) 47 NSWLR 735 at 750. There, it was held, in the context of an insurance case, that s.21(2)(c) Insurance Contracts Act 1984 (Cth) required actual knowledge - the relevant matter must be known to an appropriate officer or agent of the insurer, ordinarily the appropriate officer will be the person handling the particular insurance on behalf of the insurer. I do not consider that this proposition bears upon the present case. Officers of DIMIA in Australia were asked to take steps to locate Ms Jaleeli and obtain a statement from her. No effective step was taken to have this done in Iran. The September 2001 minute, which referred to Ms Jaleeli and the Al-Hagh issue, was known to senior DIMIA officers and was discovered by the Commonwealth to the Plaintiff in 2004. It ought to have been known to DIMIA officers that further documents existed in Tehran relating to Ms Jaleeli and the ability of the Commonwealth to locate her. In my view, Beard does not assist the Commonwealth.
Dr Morrison SC submits that the Commonwealth's submission overlooks the fact that at least one of the issues in relation to which the Commonwealth wishes to call Ms Jaleeli ought to have been the subject of pleading in the Commonwealth's Defence, as indeed the Commonwealth now seeks to plead by way of amendment to paragraph 33.4. According to Dr Morrison SC, that step ought to have been taken in April 2004 when the Commonwealth's Defence was to be filed. Further, Dr Morrison SC points to the fact that provision of Ms Jaleeli's statement on 15 August 2005 would have raised a number of interlocutory issues which would need to have been confronted before the trial commenced on 29 August 2005. Amongst these would have been the prospect of an application by the Commonwealth to adduce evidence from Ms Jaleeli by way of audio visual link from Iran under the Evidence (Audio and Audio Visual Links) Act 1998 and Part 31.3 of the Uniform Civil Procedure Rules. The Plaintiff submits that it would have been clear that the 20-day estimate was inadequate so that the parties would have been obliged to bring this state of affairs to the attention of the Court with the prospect that the 20-day hearing fixed to commence on 29 August 2005 may have been vacated.
I accept the submissions of Dr Morrison SC on these issues. These matters bear directly upon the impact of these present applications and their effect on other litigants' proceedings which are displaced by the continuation of this case.
Had officers of the Commonwealth exercised reasonable diligence in locating Ms Jaleeli at an earlier time, then the various matters which confront the Plaintiff and the Court in the midst of this trial would have been considered at appropriate times in advance of the trial. Instead, time which has been allocated for the trial has been diverted to consideration of the Commonwealth's applications thereby further extending the hearing which has already exceeded the estimate given to it.
Dr Morrison SC points to the history with respect to contact between the Commonwealth and Ms Jaleeli in support of a submission that it would be contrary to the dictates of justice for the Commonwealth to be permitted to call Ms Jaleeli in this case. Dr Morrison SC invokes other discretionary considerations which he submits operate to fortify a conclusion that the Commonwealth should not be granted leave to call Ms Jaleeli. In particular, he relies upon the following matters: (a) a suggested history of the Commonwealth failing to comply with orders of the Court in a timely fashion both before the hearing commenced before me on 29 August 2005 and since that time; (b) the advantage which the Commonwealth holds in facilitating the giving of evidence by Ms Jaleeli, its own witness, through the visa-issuing powers of the Commonwealth and the disadvantage in this regard which may operate with respect to any witness or witnesses which the Plaintiff seeks to call from Iran to contradict the evidence of Ms Jaleeli; (c) the fact that this issue has arisen since 21 September 2005 in the context of the hearing which was to resume for three weeks on 7 November 2005 and then to continue until finality at a resumed hearing commencing 30 January 2006 - the shortness of time, the publicity which has surrounded these proceedings in Iran place pressure and difficulty in the way of the Plaintiff in seeking to meet within this time span the matters belatedly bought forward by the Commonwealth from Ms Jaleeli; (d) the fact that the Commonwealth's failure to take reasonable action to locate and to take a statement from Ms Jaleeli in a timely fashion has added cost and delay to the hearing to the prejudice of the Plaintiff.
Mr Menzies QC acknowledges that, as he put it, the "ball was dropped" by the Commonwealth (T1772, line 41) and that there was "a certain amount of dithering" (T1774, line 33) with respect to Ms Jaleeli. He submits, however, that the dictates of justice require that the interests of the Commonwealth be taken into account, as well as the interests of the Plaintiff and other litigants who may be directly or indirectly affected by the protracted hearing time of this case. He submits that any failures by the Commonwealth to comply with Court directions (apart from those concerning Ms Jaleeli) are not substantial and are of a type which occur, from time to time, in the context of civil litigation.
What do the dictates of justice require in the circumstances of this case? I have regard to all of the matters raised on behalf of the Plaintiff and the Commonwealth. I have concluded that officers of DIMIA failed to exercise reasonable diligence with respect to contacting Ms Jaleeli in the manner advised by Counsel for the Commonwealth. This failure has had a significant impact upon this litigation. I have had regard to the obligations of the Commonwealth as a litigant before this Court, under its own model litigant code and, since 15 August 2005, under the provisions of the Civil Procedure Act 2005, some of these obligations having a direct bearing on the present application. There have been failures to comply on the part of the Commonwealth with respect to a number of orders. The manner in which my orders of 13 October 2005 were approached and the way in which the privilege claim unfolded on 7 November 2005 with the disorderly presentation of documents by the Commonwealth did not assist the Court. However, I do not consider that these matters bear significantly on the present question.
Justice is the paramount consideration in determining this application. Save insofar as costs may be awarded against the party seeking leave, such an application is not the occasion for punishment of the party making the application: Queensland v JL Holdings Pty Ltd at 155.
I have reached the conclusion that the dictates of justice do not require that the Commonwealth be shut out, at this first stage, from relying upon the evidence of Ms Jaleeli. Her evidence will touch upon facts in issue and credibility issues in the proceedings. The true issues and the real merits, factual and legal, ought be litigated: Queensland v JL Holdings Pty Ltd at 169. I note the indication from Dr Morrison SC that Ms Jaleeli will herself be subjected to a substantial challenge as to credibility if called as a witness. The Commonwealth is on notice of these matters.
However, the dictates of justice do require that conditions be placed upon the Commonwealth if it wishes to rely upon the evidence of Ms Jaleeli in these proceedings. I will hear the parties on what orders ought be made, including conditions upon the grant of leave to the Commonwealth to call Ms Jaleeli. I have in mind the imposition of conditions which will ensure, so far as is possible, that a just hearing of evidence on this issue may take place. I note, in this regard, that the Commonwealth ought be in a position to facilitate the international movements of persons to Australia for the purposes of giving evidence. I will hear Counsel on the question of costs, both with respect to the present application and any costs order which the Plaintiff seeks as a condition of the grant of leave to facilitate a just hearing on these issues.
Mr Menzies QC has, for some days, been obtaining instructions with respect to practical matters arising from Ms Jaleeli's evidence. Counsel will have an opportunity to address on the question of conditions. In my view, the object of any such conditions ought be the facilitation of the dictates of justice for the balance of this trial. The Commonwealth has crossed the first hurdle. No doubt, the Commonwealth will bear in mind its obligations under the Civil Procedure Act 2005, and as a model litigant, in approaching the question of conditions and orders which the Court should make to facilitate the dictates of justice. The question whether the Commonwealth is, in fact, to be permitted to call Ms Jaleeli will depend upon whether I can be satisfied that even-handed justice can be done in this case.

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