Habib v Commonwealth of Australia

Introduction 1 There are before the Court two notices of motion. In the first, Mr Habib seeks the Court's leave to file a third further amended statement of claim. In the second, the Commonwealth seeks an order that various amendments previously made to Mr Habib's pleading take effect from the date of their filing rather than, as would usually be the case, from the time the proceedings were commenced. It is convenient to deal with those motions in turn.

Mr Habib's application for leave 2 By a notice of motion filed 9 September 2008 Mr Habib seeks leave to file a third further amended statement of claim. In support of that application, an affidavit of Peter Erman sworn 8 September 2008 was prepared by Mr Habib's advisers. Paragraphs 6 to 13 of that affidavit refer to various documents which are annexed and marked as annexures E to L. Those documents consist of correspondence between the Senate's Standing Committee on Legal and Constitutional Affairs and various witnesses who had appeared before it. 3 The Commonwealth objected to those parts of the affidavit being read. The basis of the objection was s 16(3) of the Parliamentary Privileges Act 1987 (Cth) which provides: (3) In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of: (a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament; (b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or (c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament. 4 The correspondence in question consisted of, first, a letter to a witness who had appeared before the Senate's Standing Committee seeking to clarify that witness's evidence. The letter set out evidence given before the committee. The second letter was that witness's reply to the committee's letter. The third and fourth letters were similar but dealt with a different witness. The fifth letter was sent by a witness before the committee clarifying the evidence the witness had given. The last three documents were formal written answers given by a Commonwealth Department to particular questions asked by Senators during a hearing of the same committee. 5 Section 16(3) directs attention to the purpose for which the material is tendered or received. Mr Evatt, who appeared for Mr Habib, argued in his written submissions that the material tended to show that: (a) in Islamabad in October 2001 one of the Commonwealth's officials, an AFP officer, had discussions with US and Pakistani officials to the effect that the sending of Mr Habib to Egypt was under serious consideration; (b) pursuant to those discussions Australian Government officials considered the matter and resolved only that they "could not agree" to the Applicant's transfer to Egypt; and (c) the Director-General of ASIO, Mr Richardson, passed on to the US Government that the Australian Government's position was that it "could not agree" to the removal of the Applicant to Egypt. 6 Pursuant to s 16(2), the proceedings of the Senate committee in question are "proceedings in Parliament" for the purposes of s 16(3). The question then is whether the tender or receipt of the material in this Court would fall within any of the descriptions appearing in ss 16(3)(a) to 16(3)(c). It seems to me that the use to which the material is to be put is to invite the drawing of inferences along the lines set out in paragraphs (a) to (c) above. That appears to be squarely within s 16(3)(c) which proscribes the tender or receipt of materials for the purpose of "drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament". 7 Accordingly, the privilege arises. Mr Evatt sought to evade that conclusion by submitting that the evidence in question was "publicly reported in newspapers throughout Australia". However, I was not directed to any evidence before me to make good that assertion. 8 It follows that paragraphs 6 to 13 of Mr Erman's affidavit cannot be read and annexures E to L must be rejected as well. At the hearing Mr Erman's affidavit was marked for identification, at which time I indicated to the parties that I would determine the admissibility of Mr Erman's affidavit when I delivered reasons on the amendment application. Paragraphs 1 to 5, 14 and 15 of Mr Erman's affidavit are read. The balance of the affidavit is rejected. In response to Mr Erman's affidavit, the Commonwealth read the affidavit of Irene Maria Sekler affirmed 1 September 2008 without objection. 9 Subject to two matters, the Commonwealth did not oppose a grant of leave to file the third further amended statement of claim. The two matters were, first, that the Commonwealth was not to be seen thereby as abandoning a series of matters said to justify the striking out of the second further amended statement of claim. The hearing of that debate has been fixed for 9 and 10 October 2008. No doubt the grant of leave will mean that the application on those days needs to be made in relation to what will then be the third further amended statement of claim, but that is a minor matter which may readily be attended to. Secondly, the Commonwealth raised objections to a number of individual paragraphs of the proposed pleading. 10 It is convenient to group those objections into four separate classes. The first class consisted of a number of paragraphs which were said to be incapable of being part of a proper pleading. The first was paragraph 4A(i) which alleges that the Commonwealth through its officers has "failed in its legal, social and moral obligations to the applicant". The nature of the legal failings is not particularised and, without more, the allegations about social and moral obligations cannot stand. Leave should not be granted in respect of this paragraph. 11 Also objected to was paragraph 4A(viii) which was to the effect that the Commonwealth had, through its agents, "assisted Nationwide News Pty Ltd in defending a defamation action brought against it by the Applicant". This allegation can only be of relevance to paragraphs 4AW and 4AX. They provide: 4AW. As a result of the matters set out in paragraph 4A to 4VV [4AV] above, the applicant was seriously wounded and injured and suffered great pain of body and mind, mental and psychological shock and distress and was otherwise seriously wounded and injured and has been publicly humiliated and disgraced and held to ridicule and contempt. 4AX. Further and in the alternative the respondent by itself, its consular officers, servants and agents, was in breach of its fiduciary duty owed to the applicant in that it failed to prevent, acquiesced in and otherwise engaged in the conduct referred to in paragraph 4A to 4LL [4AL] above. 12 No direct attack was made on these paragraphs in the Commonwealth's written submissions, no doubt, because it intends to attack them at the hearing next week. During the hearing Mr Evatt made clear that paragraph 4AW and the allegation as to assisting Nationwide News Pty Ltd was an allegation of maintenance or "maintenance in equity". Mr Toomey QC, who appeared for the Commonwealth, submitted that the Maintenance, Champerty and Barratry Abolition Act 1993 (NSW) meant this was doomed to fail. I accept the submission. Section 4 of that Act operates to abolish the tort of maintenance. Further, I am not satisfied that there is any such thing as maintenance in equity. Accordingly, paragraph 4A(viii), insofar as it is linked to paragraph 4AW does not disclose a cause of action. However, paragraph 4A(viii) is also linked to paragraph 4AX. The Commonwealth did not seek to argue, at least on this application, that paragraph 4AX should be struck out. It is possible - I express no view - that if a fiduciary duty existed then assisting Nationwide News in its defamation action may have been a breach of that duty. It follows that paragraph 4A(viii) is not embarrassing in a pleading sense. 13 Next the Commonwealth took issue with paragraph 4Q which alleges that the Commonwealth failed to inform Mr Habib of the intention of the United States and/or Pakistani governments to send him to Egypt. On its face, it is difficult to see how this advances the claims made in paragraphs 4AW or 4AX. If, however, one makes the assumption that those paragraphs are not liable to be struck out - and for the purpose of this application I am not asked to make any other assumption - it is difficult to say that this allegation could not have some impact on those allegations. A failure to inform Mr Habib that he was to be sent to Egypt could conceivably increase his mental shock upon finding out, perhaps in a more confronting fashion, that that was going to occur. I do not think in that circumstance that leave should be refused in relation to this paragraph. 14 The Commonwealth also resists the amendment insofar as it relates to paragraphs 4AB to 4AD. Those paragraphs allege that during his interviews with an officer of the Commonwealth, Mr Habib was shackled by chains to the floor so he could not stand up, that the interviews were only partially taped and that Mr Habib was interviewed in a similar way at Guantanamo Bay from time to time. Given that Mr Habib's claim is that he suffered, inter alia, "great pain of body and mind" by reason of these matters it is difficult to see how they are not relevant. The chaining of a person to a floor is quite capable of generating that sort of distress. Leave should be granted with respect to these paragraphs. 15 Next objected to are paragraphs 4AM to 4AV. Compendiously these paragraphs allege that Mr Habib has suffered a number of indignities since his return. Specifically, it is contended that he was refused a passport; that the Commonwealth assisted Nationwide News Pty Ltd in defending Mr Habib's unsuccessful defamation suit against that company; that the Commonwealth has deliberately delayed the conduct of these proceedings; and that it has neither offered him compensation nor apologised. 16 Mr Toomey pointed to the fact that the passport decision was made by the Administrative Appeals Tribunal and submitted that it would now be an abuse of process to re-litigate that issue. However, no issue estoppel can arise from such an administrative decision. No doubt, showing that the Tribunal's decision was part of an alleged pattern persecutory conduct on the part of the Commonwealth is going to have its share of forensic challenges, however, those challenges do not make the allegation such that it should be struck out. So too, since it is not clear what torts are alleged in paragraph 4AW (and since no direct attack is made on that paragraph) it is difficult to say that the other matters are such that they cannot succeed. Of course, that observation is merely to delay the question to the time at which paragraphs 4AW and 4AX are directly challenged. However, until that is done, I see no reason not to grant leave in respect of these paragraphs on the contended for basis. 17 The second class of objections raised by the Commonwealth related to paragraphs 4AO to 4AP. Those paragraphs allege that the Commonwealth's present solicitor in these proceedings provided evidence and documents to Nationwide News Pty Ltd and thereby maintained that company's defence in Mr Habib's claim against it. The Commonwealth's objection is not to the allegation of maintenance but rather to the suggestion that its solicitor has behaved in the way alleged. The affidavit of Ms Sekler explains the Commonwealth's account of the events in question. Its basic point is that the Commonwealth and its officers were subject to subpoenas and they really had no choice about the matter. That, it seems to me, is really a matter of defence. On the other hand, the Commonwealth's complaint that there is no basis for the allegation that its solicitor "wrongly and improperly" provided that assistance seems to me to be a sound one - nothing I have seen comes near a basis for such an allegation. I would permit the paragraphs but not the words "wrongly and improperly" in paragraph 4AO. 18 The third class of objections fix upon paragraph 4P. It provides: The respondent made no effort and made no representations to the US, Pakistani and/or Egyptian Governments to prevent the applicant being taken to Egypt or to ensure that the applicant was given legal representation for the purpose of seeking orders from an appropriate court to prevent his removal to Egypt. 19 This allegation has not previously appeared in the predecessors to the pleading. The Commonwealth submits that Mr Habib has not put before the Court any evidence that indicates that such a claim is viable. On the other hand, Mr Habib points to paragraphs 22.4.4 and 22.4.5 of the Commonwealth's amended defence. They provide: 22.4.4 during a meeting in Pakistan on 22 October 2001, between representatives of the US Government, an ASIO officer and an AFP officer (Mark Briskey), a representative of the US Government raised the possibility of the applicant being transferred to Egypt as one of the options being considered in relation to the applicant. The Australian officers responded that the respondent would not agree to this occurring. 22.4.5 on or about 24 October 2001, the ASIO officer in Pakistan and ASIO's Director-General of Security each, separately, advised representatives of the US Government that after consultation with the respondent's Department of Foreign Affairs and Trade, Department of Prime Minister and Cabinet, Attorney-General's Department and the Australian Federal Police, the respondent could not agree to the applicant being transferred to Egypt. 20 They were in partial answer to the allegation contained in paragraph 30 of the second further amended statement of claim. It provides: The respondent, its officers or agents failed at all relevant times from 4 October 2001 to take any reasonable steps to procure the applicant's release from his imprisonment in Pakistan, Afghanistan, Egypt or Guantanamo Bay or otherwise try to assist him. 21 If the Commonwealth had taken some step to prevent Mr Habib from being transferred to Egypt then it might be expected that that step would have been pleaded in response to the words "or otherwise try to assist him" in paragraph 30. The absence of such an allegation in the amended defence is capable of sustaining an inference that no such step was taken. In particular, when paragraphs 22.4.4 and 22.4.5 are viewed in the context of paragraph 30 they are arguably capable of conveying the matter alleged in paragraph 4P. The paragraph should be permitted. 22 The final class of objections related to matters which the Commonwealth claimed constituted the withdrawal of admissions without leave. There are essentially two points. In the proposed paragraph 4R Mr Habib alleges that whilst at the airport awaiting removal to Egypt he was tortured and maltreated in the presence of Australian officials, that is, more than one Australian official. In all prior forms of that allegation he has alleged that only one Australian official was present. No explanation has been proffered for this alteration by Mr Evatt. Indeed, this point was not addressed in his submissions at all. Order 11 r 8(1) provides: A party shall not in any pleading make an allegation of fact, or raise any ground or claim, inconsistent with a previous current pleading of his. 23 This rule appears, at first blush, to be oxymoronic for it is difficult to imagine a pleading which is at once both previous and current. However, in Murran Investments Pty Ltd v Aromatic Beauty Products Pty Ltd (2000) 191 ALR 579 Mansfield J explained the operation of the rule (at 588 [40]) as being directed to ensuring that a reply was consistent with a statement of claim. It does not, therefore, have any application to the current state of affairs since, if leave is granted, there would be no previous current pleading to which the rule can attach. 24 There are other rules which may be applicable. Order 22 r 4 provides: (1) A party raising any matter in a defence or subsequent pleading may withdraw that matter, at any time, by notice in accordance with Form 30. (2) Subrule (1) does not enable a party to withdraw, without the consent of another party or the leave of the Court, an admission or any other matter operating for the benefit of that other party. 25 However, it is apparent that this rule cannot apply to admissions contained within a statement of claim. Order 18 r 1 provides: (1) A party to a proceeding may, by notice served on another party, admit, in favour of the other party but for the purpose of the proceeding only, the facts specified in the notice. (2) A party may, with the leave of the Court, withdraw an admission under subrule (1). 26 This rule does not specify how the notice in question may be given. In Murran Investments (2000) 191 ALR 579 Mansfield J was of the view that an admission contained in a statement of claim could be withdrawn with leave (at 588-589 [39]-[41]). Although it is not explicit, his Honour's reference to O 18 r 1 (at 588 [39]) makes it likely that his Honour thought both that leave was required to withdraw such an admission and that O 18 r 1 could be the source of the power to grant leave. For myself, it is not self-evident that this rule can apply to a statement of claim. However, since neither party disputed that leave was necessary I propose to proceed on the basis that it is. 27 No attempt was made in Mr Evatt's submissions to explain why leave should be granted. Nor was there any submission to me that the former pleading was not an admission although, for myself, there may also be some question about that. Bereft of submission on Mr Habib's behalf I approach the matter on the basis set forth in Murran Investments, namely, that leave can be granted on cause shown. Since no attempt was made to show cause, there is little choice but to decline leave. 28 The second matter the Commonwealth complained of in this class was the allegation now proposed to be made in paragraph 4AK that Mr Habib was released from Guantanamo Bay without any request from the Australian Government. In prior versions of the pleading he has consistently alleged that he was returned to Australia following a request from the Commonwealth in January 2005. I approach the issue in the same way: no argument having been made that the matter was not an admission or that leave was not required, the issue is one of whether reason to grant leave has been established. Since no attempt was made, at all, to explain why leave should be granted, leave will be declined. 29 Leave will be granted to Mr Habib to file the third further amended statement of claim subject to the conclusions above in relation to particular paragraphs. As to costs, the appropriate order is that Mr Habib pay the costs occasioned by the amendment.