DY (by his tutor MY) v The Commonwealth of Australia

DY (by his tutor MY) (First plaintiff) PARTIES : TA (Second plaintiff) The Commonwealth of Australia (First defendant) International Organization for Migration (Second defendant)

COUNSEL : S Pritchard (Plaintiffs) R E Williams QC with P Jones (Defendants)

SOLICITORS : Legal Aid NSW Australian Government Solicitors

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

2007/00265347 DY (by his tutor MY) & anor v The Commonwealth of Australia

1 HIS HONOUR: These proceedings concern four members of the Y family who are natives of Iraq. The family comprises the father, MY, mother, TA, and two boys, DY (born 1996) and SY (born 1994). Up until now the plaintiffs in the proceedings have been DY and TA, with MY appointed as tutor for DY.

2 The events upon which their grievance with the defendants is based commenced with their departure from Indonesia as asylum seekers on a boat identified as SIEV-4 in October 2001. It is claimed that when the SIEV-4 came into the Australian contiguous zone it was boarded by Commonwealth defence personnel and the Y family (and others) were taken to Christmas Island. They were then transferred to Manus Island, Papua New Guinea, where they remained in an Offshore Processing Centre until 26 September 2002. On that date they were removed by Australian forces from Manus Island and transported to the Republic of Nauru. It is pleaded that the family remained on Nauru in an Offshore Processing Centre until MY was granted refugee status in December 2004. The family was then allowed to enter and reside in Australia.

3 It is alleged that whilst on Nauru the family were mistreated in a variety of ways. It is claimed that DY was sexually assaulted and that this was not properly investigated, or investigated at all. It is claimed that TA was held in a prison for a period of time. It is now sought to advance a further claim that all four members of the family were unlawfully imprisoned in the period 26 September 2002 to 9 October 2002, being the date the family was removed from Manus Island and the date when, apparently unknown to them until recently, they were granted a Special Purpose Visa under the provisions of the Immigration Act of the Republic of Nauru.

4 By notice of motion filed on 6 November 2009 the plaintiff seeks the following orders: 1. Leave to amend the Second Further Amended Statement of Claim in the form of the proposed Third Further Amended Statement of Claim annexed to the affidavit of Joe Tan sworn 6 December 2009.

2. Order under section 72 of the Civil Procedure Act 2005 that the Third and Fourth Plaintiffs be referred to in these proceedings by their initials, namely, "MY" and "SY" respectively and the tutor for the Fourth Plaintiff be referred to in these proceedings as "MY".

5 The matter came before me on Monday of this week when sitting as the duty judge. Ms Pritchard appeared for the plaintiffs and Mr Williams QC with Mr Jones appeared for the first defendant. The second defendant has not entered an appearance or participated in any way to date in the proceedings.

6 There are three issues raised for determination. The first is the plaintiffs' application to plead an additional cause of action in false imprisonment with a claim for exemplary and aggravated damages. This, at least in part, has arisen from further information that has come to hand in the course of the exchange of particulars between the parties. The Commonwealth does not oppose this additional pleading. It was not suggested that there would be any significant prejudice to the defendants. I propose to grant leave for the filing of the Third Further Amended Statement of Claim in this respect.

7 A further aspect of the proposed Third Further Amended Statement of Claim is that it is sought to add as plaintiffs MY, the father, and SY, the eldest son. It is also sought to appoint MY as tutor for SY. In the affidavit of Mr Joe Tan, solicitor for the plaintiffs, it is indicated that the necessary consents have been provided.

8 The Commonwealth does not oppose the amendment insofar as it concerns the addition of SY as a plaintiff and it seems to me appropriate that leave be granted for the amendment in that respect.

9 However, the Commonwealth does oppose the joinder of MY as a plaintiff. This opposition arises from its contention that the action proposed to be brought in respect of MY is caught by laws governing limitation of actions. There is an issue between the parties as to whether the applicable law in this respect is the lex loci delicti or the lex fori. This is no easy question to resolve and will require an examination of the applicable laws of Papua New Guinea and the Republic of Nauru. The adoption by Nauru at the time of independence in 1968 of English law may add an additional layer of complexity. The length and complexity of a hearing and determination of this issue is well beyond the scope of a matter that a duty judge can undertake and the parties did not suggest otherwise.

10 It was submitted on behalf of the Commonwealth that this is an issue that should be determined prior to a decision being made as to the joinder of MY. Alternatively it was suggested that the court might grant leave for MY to be joined but that the limitation issue then be the subject of a separate hearing prior to the final hearing of the proceedings. On behalf of the plaintiffs it was submitted that the appropriate course was to permit the joinder of MY, leave it for the Commonwealth to plead the limitation defence and then to have that issue determined along with all of the other issues at final hearing.

11 I accept as a general proposition that ordinarily limitation defences should be determined at trial after all of the relevant evidence has been taken. In Wardley Australia Ltd v State of Western Australia [1992] HCA 55; (1992) 175 CLR 514 at 533-534, Mason CJ, Dawson, Gaudron and McHugh JJ observed: "We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases. Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question."

12 It may be, perhaps, that the determination of the limitation issue concerning MY could be dealt with as a discrete issue separate from the hearing of all other issues in the case. However I am unable to see that there would be any useful purpose served in the Court proceeding in this fashion. If the Commonwealth were to succeed with it's contention it would not serve to shorten the prospective length of the final hearing in any significant way. The claim of false imprisonment that is sought to be raised by MY is identical, as far as I can determine from the pleadings, to that which is raised by the other three plaintiffs. Moreover, whilst I have said that the limitation issue may be a discrete issue, it is also possible that it's determination will necessitate reference to facts found in respect of the substantive claim.

13 Pleadings in the matter are incomplete. I do not think it is appropriate to foreclose at this stage on the suggestion raised by the Commonwealth that there be a preliminary hearing of the limitation issuing concerning MY. Once the pleadings are complete it may emerge that the better course would be to have a separate determination of this issue. However, as the matter stands at the moment, it seems to be appropriate to permit the joinder of MY to enable the proceedings to move forward; leave it to the Commonwealth to plead the limitation issue in it's defence; and then leave that issue to be determined at the final hearing.

14 The final issue for determination is the question of whether the two new complainants should be referred to by their initials, MY and SY. The Commonwealth does not oppose this application. Hoeben J made orders on 15 May 2008 that the first and second plaintiffs and the tutor for the first plaintiff be referred to by their initials for the purposes of preserving their anonymity. Part of the pleaded claims are allegations that DY, a minor, was the victim of sexual assault. The Commonwealth consented to the orders made by Hoeben J. It was submitted on behalf of the plaintiffs that it is inevitable that exposure of the identity of any single member of the one family will have the consequence of identifying other members of that family. I accept that there is a significant risk of that occurring. Moreover, to refuse to make the order would be contrary to the purpose of, and would undermine, the orders made by Hoeben J.

Orders 1. Grant leave to amend the Second Further Amended Statement of Claim in the form of the proposed Third Further Amended Statement of Claim handed up in Court by the Plaintiffs' counsel on 15 February 2010 as initialled and placed on the Court file.

2. Direct the filing of the Third Further Amended Statement of Claim within 14 days of the date of this judgment.

3. Order pursuant to s 72 of the Civil Procedure Act 2005 that the third and fourth plaintiffs be referred to in these proceedings by their initials, namely, "MY" and "SY" respectively, and the tutor for the fourth plaintiff be referred to in these proceedings as "MY".

4. Direct the matter be listed before the Registrar for further directions on Friday, 12 March 2010 at 9:00am. **********

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