Ibrahimi & ors v Commonwealth of Australia

ABBREVIATIONS ADOPTED FOR THE PURPOSES OF THIS JUDGMENT

1. The following abbreviations have been adopted for the purposes of this judgment: 1. ABF - Australian Border Force 2. ADF - Australian Defence Force 3. AFP - Australian Federal Police 4. AIA - Acts Interpretation Act 1901 (Cth) 5. AMSOC - Australian Maritime Security Operations Centre 6. ASOC - Amended statement of claim 7. BPC - Border Protection Command 8. CB - Court Book 9. CCOI - Critical Contact of Interest 10. CIA - Christmas Island Act 1958 (Cth) 11. CIRV - Christmas Island response vessel 12. CLAN - Civil Liability Act 2002 (NSW) 13. CLAW - Civil Liability Act 2002 (WA) 14. CNOC - Customs National Operations Centre 15. The Colin Winchester - the vessel Colin Winchester 16. DTS - Daily Maritime People Smuggling Threat Status 17. FASOC - Further amended statement of claim 18. GAMSA - Guide to Australian Maritime Security Arrangements 19. LAN - Limitation Act 1969 (NSW) 20. LAW - Limitation Act 2005 (WA) 21. MA - Migration Act 1958 (Cth) 22. NA - Navigation Act 1912 (Cth) 23. NORCOM - Northern Command Headquarters, Christmas Island 24. PII - Potential Irregular Immigrant 25. The Pirie - HMAS Pirie 26. RAN - Royal Australian Navy 27. RHIB - Rigid Hull Inflatable Boat 28. SATM - SIEV Arrival Threat Matrix 29. The Sea Eye - the vessel Sea Eye 30. SIEV - Suspected Illegal Vessel Entry Vessel 31. SIEV 220 - Suspected Illegal Entry Vessel 220 32. SIEV 221 -Suspected Illegal Entry Vessel 221 33. SOC - Statement of claim 34. SOLAS - Safety Of Life At Sea 35. The Triton - Australian Customs Vessel Triton 36. VMRS - Volunteer Marine Rescue Service

THE HEARING

1. The hearing of the proceedings extended over a number of days, following which submissions were made orally and in writing. Much of the documentary evidence was tendered by consent. That material included transcripts of some of the evidence given at an inquest into the deaths of those on board SIEV 221 which was conducted before the State Coroner for Western Australia in 2011. The material also contained a document entitled "SIEV 221 Internal Review" [1] , which was the report of a review of the incident giving rise to these proceedings which was conducted by Sharon Nyakuengama, the Acting National Director (Enforcement and Investigations) of the Australian Customs and Border Protection Service. That review was conducted by Ms Nyakuengama pursuant to a direction from the Chief Executive Officer, Mr Carmody, on 17 December 2010 that there be "an internal review into the actions of Customs and Border Protection, including Border Protection Command (BPC), relating to the incident on 15 December 2010 when a vessel now known as (SIEV 221) foundered on rocks at Rocky Point, near Flying Fish Cove, Christmas Island (the incident) with resulting loss of life" [2] .
2. The review concluded (inter alia) that there was no "actionable intelligence that would indicate that the vessel foundered at Christmas Island on 15 December 2010 had departed Indonesia or was likely to arrive at Christmas (sic) around that time", that "the posture of BPC assets on the morning of 15 December 2010 was in accordance with the relevant policies, processes and procedures", and that the material available "indicated that all persons involved have acted in accordance (sic) policies, processes and procedures relevant to the exercise of their duties…" [3] .
3. References were made in the course of submissions to those conclusions. Whilst the report of the review forms part of the evidence before me, I regard it as being of limited weight. Obviously, those persons charged with the responsibility of conducting the review and preparing the report were not bound by the rules of evidence. The conclusions reached following the conduct of the review are not binding on me.

THE WITNESSES

1. The following witnesses gave oral evidence at the hearing before me: 1. Ross Gordon Martin - Chief Engineer, ABF; 2. Matthew David Saunders - Enforcement Commander of the Triton; 3. Mitchell Robert Livingstone - Commanding Officer of the Pirie; 4. Andrew George Stammers - Master of the Triton; and 5. Shane Anwer Adams - a Special Constable in the AFP, the former Vice Commander of the VMRS, and a resident of Christmas Island.
2. To a large extent, the facts are not in dispute and are established by the evidence I have summarised below. To the extent that issues have arisen as to those facts, or as to the acceptance or rejection of particular evidence, I have dealt with those issues in the course of addressing the individual questions that I am required to determine.

CHRISTMAS ISLAND

1. Christmas Island is located to the west of the coast of Western Australia. Pursuant to s. 5 of the CIA, it is declared to be accepted as a territory under the authority of the defendant, and is known as the Territory of Christmas Island. The territorial waters of Christmas Island extend 12 nautical miles from its coast.
2. Section 7 of the CIA sets out the laws in force on Christmas Island in the following terms: 7 The laws of the Territory On and after 1 July 1992, the laws in force in the Territory from time to time are: (a) Acts as in force from time to time in or in relation to the Territory on and after that day; and (b) Ordinances made on or after that day as in force from time to time; and (c) laws as in force in the Territory in accordance with section 8; and (d) Western Australian laws as in force in the Territory in accordance with section 8A.
3. Section 8 of the CIA is in the following terms: 8 Operation of existing laws etc. (1) A law in force in the Territory immediately before 1 July 1992 is repealed unless it is specified in the Schedule. (2) Subject to subsection (3), a law that is specified in the Schedule (including any instruments made under that law) as in force in the Territory immediately before 1 July 1992 continues to be in force in the Territory on and after that day. (3) A law specified in the Schedule may be amended or repealed by an Ordinance. (4) In this section: "instruments " includes regulations, rules and by-laws. "law " : (a) includes a principle or rule of common law or equity; and (b) does not include an Act.
4. Section 8A of the CIA is in the following terms: Application of Western Australian laws (1) Subject to this section, section 8G and Part IVA, the provisions of the law of Western Australia (whether made before or after this section's commencement) as in force in Western Australia from time to time are in force in the Territory. (2) To the extent that a law is in force in the Territory under subsection (1), it may be incorporated, amended or repealed by an Ordinance or a law made under an Ordinance. (3) An Ordinance may suspend the operation in the Territory of a law in force in the Territory under subsection (1) for such period as is specified in the Ordinance. (4) To the extent that a law is in force in the Territory under subsection (1), it has no effect so far as it is inconsistent with the Constitution or an Act or Ordinance. (5) For the purpose of subsection (4), a law is consistent with the Constitution or an Act or Ordinance if the law is capable of operating concurrently with it. (6) In this section: "provision of the law of Western Australia " : (a) includes a principle or rule of common law or equity that is part of the law of Western Australia; and (b) does not include an Act or a provision of an Act.
5. Section 15B of the AIA is in the following terms: 15B Application of Acts in coastal sea Coastal sea of Australia (1) An Act is taken to have effect in, and in relation to, the coastal sea of Australia as if that coastal sea were part of Australia. (2) A reference in an Act to Australia, or to the Commonwealth, is taken to include a reference to the coastal sea of Australia. Coastal sea of external Territory (3) An Act that is in force in an external Territory is taken to have effect in, and in relation to, the coastal sea of the Territory as if that coastal sea were part of the Territory. (3A) A reference in an Act to all or any of the external Territories (whether or not one or more particular Territories are referred to) is taken to include a reference to the coastal sea of any Territory to which the reference relates. Definition (4) In this section, coastal sea : (a) in relation to Australia, means: (i) the territorial sea of Australia; and (ii) the sea on the landward side of the territorial sea of Australia and not within the limits of a State or internal Territory; and includes the airspace over, and the sea-bed and subsoil beneath, any such sea; and (b) in relation to an external Territory, means: (i) the territorial sea adjacent to the Territory; and (ii) the sea on the landward side of the territorial sea adjacent to the Territory and not within the limits of the Territory; and includes the airspace over, and the sea-bed and subsoil beneath, any such sea.
6. The effect of s. 15B of the AIA is that laws in force on Christmas Island have effect in, and in relation to, the coastal sea of Christmas Island, being: 1. the adjacent territorial sea; 2. the sea on the landward side of the island; and 3. the airspace over, and the sea-bed and sub-soil beneath, Christmas Island.

MONSOONAL WEATHER CONDITIONS ON CHRISTMAS ISLAND

1. The monsoon season on Christmas Island runs generally from November through to February. It brings with it harsh weather conditions, particularly in and around the north-west area of the island, often characterised by large sea swells and gale force winds. Depending upon their strength, those weather conditions can make it difficult for vessels approaching Christmas Island from the north to navigate the waters off the coast [4] .

PARTICULAR locations on AND around Christmas Island

1. The following particular locations on and around Christmas Island are relevant for the purposes of this judgment: 1. Rocky Point, located at the northwest corner of the island, to the west of North-East Point; 2. North-East Point, located at the northeast corner of the island; 3. Mango Tree Lodge, a hotel located adjacent to the northern coastline of the island between Rocky Point and North-East Point; 4. Nui Nui Point, located on the eastern side of the island; 5. Ethel Beach, located south of Nui Nui Point on the eastern side of the island; 6. The Golden Bosun Tavern, located to the south of Rocky Point; 7. Flying Fish Cove, located on the western side of the island, to the south of the Golden Bosun Tavern.

BORDER PROTECTION COMMAND

1. BPC is the lead Government agency for Australia's border protection, and combines its resources and expertise to provide security for Australia's maritime areas [5] . In doing so, it works in conjunction with the Australian Fisheries Management Authority, the Australian Quarantine and Inspection Service and other Commonwealth, State and Territory agencies. In December 2010 the Commander of BPC was Rear Admiral Timothy Barrett [6] .
2. BPC is specifically responsible for co-ordinating and controlling operations to protect Australia against a number of threats recognised by the Australian Government. These include maritime security threats which, in turn, include threats posed by unauthorised maritime arrivals [7] .
3. BPC conducts law enforcement and security operations on behalf of various Federal Government agencies [8] . In 2010, for the purposes of managing multiple arrivals on Christmas Island, BPC worked with other agencies to improve offload procedures for PIIs, and to destroy unseaworthy vessels quickly in order to return to patrol as soon as possible [9] . In performing these roles, BPC was the primary law enforcement agency for maritime purposes. However, BPC is not an intelligence collection agency. Specifically, it is not an intelligence collection agency in respect of the arrival of SIEVs. It receives, and depends upon, intelligence received from other agencies, as well as from overseas authorities, to carry out its functions [10] .
4. In 2010 BPC had a number of vessels, including seven RAN patrol boats designed to perform surveillance and response activities. The combined assigned workforce to operate BPC vessels was about 330. BPC's assets for the purposes of intercepting SIEVs also included aircraft. All of its assets operated 24 hours per day, 7 days per week and 365 days per year. The assets used by BPC for the purposes of intercepting SIEVs could be deployed in any part of Australia's maritime domain, so as to meet Government policy and related requirements. However, in accordance with what was then Government policy in respect of irregular maritime arrivals, those assets operated by BPC which were directed towards the interception of such arrivals were generally deployed in the area across northern Australia [11] .
5. Importantly, BPC was not a search and rescue organisation, and was not resourced or directed to conduct surveillance for search and rescue purposes. That said, BPC's assets were available to be called upon to respond to emergencies at sea in accordance with responsibilities imposed by the International Maritime Organisation SOLAS Convention, and the NA. It was pursuant to those obligations that BPC responded to the incident which is the subject of these proceedings, such incident being described by Rear Admiral Barrett as "unprecedented" [12] .

THE GUIDE TO AUSTRALIAN MARITIME SECURITY ARRANGEMENTS

1. The GAMSA is a document published under the direction of the Australian Government, and issued by BPC. Its stated purpose is expressed in the following terms: The purpose of this Guide to Australian Maritime Security Arrangements (GAMSA) is to provide a common reference point on the arrangements to enhance the management of security in Australia's Maritime Domain [13] .
2. Chapter 2 of the GAMSA, entitled "Stakeholders and Roles" includes the following: Border Protection Command Border Protection Command (BPC), in concert with other government agencies and stakeholders, protects Australia's national interests by generating awareness of activity in Australia's maritime domain, and responding to mitigate or eliminate the risk posed by security threats. BPC is an Australian Government multi-agency command staffed by officers of the Australian Customs and Border Protection service (Customs and Border Protection), the Department of Defence (Defence), the Australian Fisheries Management Authority (AFMA) and the Australian Quarantine and Inspection Service (AQIS). BPC directly controls the assigned ADF, Customs and Border protection and contracted maritime aerial surveillance aircraft and maritime surface response vessels used for maritime security threat management. BPC is the primary government law enforcement organisation in Australia's maritime domain. BPC contributes to the management (through prevention, preparedness, response and recovery) of all security threats within Australia's maritime domain [14] .
3. The GAMSA identifies various security threats, the response to which is the responsibility of BPC. Chapter 8 of the GAMSA, entitled "Irregular maritime arrivals", addresses the security threat posed by irregular maritime arrivals, the consequences of that threat, and the general measures and co-ordination arrangements put in place to manage it. The GAMSA describes the nature of the threat in the following terms: Australia's national interests are threatened by any irregular arrival of people. The Australian Government has responsibility for the lawful and orderly entry of people into Australia, and for ensuring that only those foreign nationals who are appropriately authorised are allowed to stay. Potential security threat events in this category included: ● Arrivals with migration intent. This encompasses the irregular arrival by sea, for any reason, of persons seeking to migrate to Australia. Such persons either attempt the transit to Australian territory independently or are delivered as part of an organised people-smuggling venture. ● Arrivals without migration intent. This encompasses the irregular arrival by sea of people, for any reason, whose intent is to leave Australian territory once their activity is complete [15] .
4. The GAMSA identifies BPC as the lead agency for on-water response [16] .

THE CHRISTMAS ISLAND VOLUNTEER MARINE RESCUE SERVICE

1. In 15 December 2010, the VMRS had approximately 75 members, made up of boat owners along with members of the local Christmas Island community who, although they did not own a boat, had volunteered their time to assist. The levels of knowledge and skill on the part of the members of the VMRS extended from novice to experienced. The possibility that SIEVs would arrive on Christmas Island, particularly in monsoon season, was the subject of discussion at meetings of the Executive of the VMRS. From time to time the VMRS was required to attend to towing SIEVs because they had broken down, or were otherwise unable to operate under their own power [17] .

The Pirie

1. The Pirie was a Darwin based patrol boat, 57m in length and 305 tonnes in weight. It had a crew of about 25 and had a top speed, in fair weather conditions, of about 25 knots [18] . It had the capacity to launch RHIBs.
2. In December 2010 the Pirie's Commanding Officer was Commander Mitchell Livingstone [19] . At that time, the Pirie was part of a border control operation known as "Operation Resolute" which was being conducted in Australian Territorial waters off Christmas Island, and which was directed, at least in part, to the interception of SIEVs [20] .
3. As the Commanding Officer, Commander Livingstone was subject to standing orders from Rear Admiral Barrett [21] . Commander Livingstone agreed that part of the underlying intention of those standing orders was to intercept and escort any illegal or maritime arrival [22] : Q. Among other things, is that right and included among your standing orders although perhaps not on these ones was that part of your duties was to intercept and take on board or prevent people from setting foot on Australia soil who might arrive by boat, is that correct? Perhaps I'm putting it too glibly but you can amplify that if you wish? A. Certainly, the intent was to intercept and escort any illegal or maritime arrivals. Q. Although you set out in your affidavit the function and operation resolute the eight identified security threats so far as Christmas Island was concerned are the major security threat was of course the irregular maritime arrivals, is that correct? A. Absolutely, that was the priority at the time. The quarantine and biohazard issue presented by any unchecked arrival of any form was a big issue out there as well. Q. The two go hand in hand in reality, don't they? A. Certainly in that case, yes.

The Triton

1. The Triton was a part of the Australian Customs fleet and in December 2010 was used to patrol in the northern waters of Australia. It was under the command of Enforcement Commander Matthew Saunders [23] . Its Master was Andrew Stammers who was employed by a private contractor, Gardline Australia [24] . As the Master, he had control of the vessel [25] . Commander Saunders had control of its operational command [26] .
2. The Triton was a trimaran or in other words, a vessel with three hulls. It was approximately 98m in length, and 2,236 tonnes in weight. In 2010 it was used to patrol the maritime zones in the northern part of Australia, and to respond to threats to Australia's maritime domain, including threats of illegal fishing and irregular maritime arrivals [27] . Between 2008 and 2010, 95% of the Triton's functions involved dealing with SIEVs [28] . Those functions were mainly conducted in the area of Ashmore Reef (located off the northern coast of Western Australia) but were also conducted in the vicinity of Christmas Island [29] .
3. The Triton carried two response tenders with boarding teams to enable the boarding of vessels at sea. It was surveyed to carry a total of 98 persons including 35 crew members. Of the 35 crew members, about 20 were Customs officers and the remaining 15 were civilians [30] .
4. On 6 December 2010 the Triton departed Broome, Western Australia, to commence patrol in Australia's northern waters. The primary purposes of that patrol included detecting illegal fishing activity, and detecting the presence of, and intercepting, SIEVs. On about 8 December 2010, the Triton intercepted two SIEVs at Ashmore Reef which were carrying a total of 108 PIIs. Having taken them on board, the Triton departed Ashmore Reef on the morning of 9 December 2010 and made its way to Christmas Island with the intention of unloading the PIIs there. The Triton arrived at Christmas Island on 12 December 2010 [31] .
5. Enforcement Commander Saunders had originally intended to offload the PIIs at Flying Fish Cove. However, when the Triton arrived at Christmas Island the weather was extremely rough, with 4 to 5 metre swells and winds of 30 to 35 knots. These conditions prevented the PIIs from being off loaded at Flying Fish Cove. Accordingly, Enforcement Commander Saunders made a decision to steam the Triton on a short racetrack in the lee on the eastern side of Christmas Island, the lee providing some shelter from the prevailing weather conditions. The Triton remained on the eastern side of Christmas Island for the next 48 hours [32] .

The Colin Winchester

1. The Colin Winchester was a 7.5m patrol catamaran delivered to the AFP in 2008 which was used around the area of Christmas Island. Its Master in 2010 was Shane Adams who was also the Vice Commander of the VMRS [33] . It was used for a number of purposes including general patrol work, specific marine patrols which were undertaken to search for illegal fishing, search and rescue functions and, on occasions, assisting in the interception of SIEVs until such time as assistance from the RAN or ABF became available.
2. The Colin Winchester was generally stored at Flying Fish Cove. However on 15 December 2010 it was out of survey, as a consequence of which the AFP had been directed to cease using it for patrol operations other than in a SOLAS situation, and only then if the seas were at least partially smooth, and the wave height did not exceed 1.5m from crest to trough [34] .

The Sea Eye

1. The Sea Eye was the designated volunteer rescue boat for Christmas Island. It was a 7.5m catamaran owned by the Australian Government which provided it to the VMRS for use in rescue operations. It was stored at the VMRS operations centre at Flying Fish Cove. If the Sea Eye was unavailable or out of service, the VMRS could also use a number of privately owned vessels [35] .
2. As at 15 December 2010 the Sea Eye was out of survey. However, the vessel could still be used in a SOLAS emergency at the discretion of its Master, providing that it was considered safe to do so [36] .

OPERATION RESOLUTE

1. Operation Resolute was a BPC operation in force on 14 and 15 December. Its purpose was to respond to identified maritime threats, including irregular maritime arrivals in Australian territorial waters. As part of Operation Resolute, the Pirie departed Darwin on 5 December 2010 and proceeded directly to Christmas Island to be the CIRV in lieu of HMAS Wollongong. It arrived on 9 December 2010 and after refuelling, commenced a barrier patrol generally north of Flying Fish Cove. The barrier patrol involved establishing, and then patrolling within, what is known as a "racetrack", so as to be ready to detect, and respond to, any maritime threat. The Pirie's racetrack was established about 4 nautical miles to the north of Christmas Island, and about 5 nautical miles to the west [37] .

The threat status AT CHRISTMAS ISLAND on 14 and 15 December 2010

1. The DTS was a classified document designed to inform relevant parties, on a daily basis, of the existence of maritime threats. It provided an assessment of the threat status (in respect of individual vessels departing for Australia [38] ) based on an analysis of material obtained from a variety of sources.
2. A SATM was also produced daily for the purposes of allowing BPC to organise its assets in order to intercept any SIEV to which it was alerted. The SATM detailed the name of the organiser of the vessel(s), the likely departure date, the likely arrival location, the arrival window dates and the likely number of PIIs on board [39] .
3. A SATM was issued on 14 December 2010 at 16:00 AEDT [40] containing 2 entries. The first had a threat status of "medium", based on a probable arrival at Christmas Island sometime between 10 and 14 December 2010. The second had a threat status of "low" based on a probable arrival at Ashmore Reef between 14 and 17 December 2010.
4. A further SATM was issued on 15 December 2010 at 09:40 AEDT. It contained two entries both of which had a threat status of "low". The first referred to an expected arrival at Ashmore Reef [41] . The second was an expected arrival at Christmas Island between 21 and 26 December 2010 [42] .
5. The documents in Exh. C establish that the threat status for arrivals of SIEVs was medium between 12:00 midday on 14 December 2010 and 5:40 on 15 December 2010, and was low thereafter. That generally accords with the evidence of Commander Livingstone [43] .

THE INTERCEPTION OF SIEV 220 ON 14 DECEMBER 2010

1. At about 10:20 on the morning of 14 December 2010, in the course of the Pirie conducting its patrol, Commander Livingstone was informed of the sighting of a CCOI which was located 300 yards north of Flying Fish Cove. At approximately 10:47 he established contact with the CCOI, which was later identified as SIEV 220. He watched it proceed in a westerly direction, away from Flying Fish Cove, at a speed of approximately 6 knots [44] . He described the prevailing weather conditions at the time as "particularly rough", such conditions being characterised by rain squalls, winds of 20-25 knots, and a swell of between 3 and 4 metres [45] . Visibility was poor, due primarily to the rain squalls and wind [46] . Commander Livingstone was able to make visual contact with SIEV 220 at a range of 5 nautical miles but due to the weather conditions he could not maintain consistent radar contact [47] . Commander Livingstone agreed [48] that SIEV 220 was typical of the kind of unseaworthy SIEVs arriving at Christmas Island at or around this time.
2. At approximately 11:12 the Pirie found itself in close proximity to SIEV 220 which was then several miles to the north of Flying Fish Cove [49] . Commander Livingstone concluded that in light of the prevailing conditions to the north of Christmas Island, it was not safe to board SIEV 220 at that location. He therefore directed SIEV 220 to alter course, and proceed south-east towards Ethel Beach on the leeward (i.e. eastern) side of Christmas Island which provided some protection from the weather [50] . At approximately 13:47 SIEV 220 reached Ethel Beach and was boarded by crew members from the Pirie. There were 8 PIIs and 3 crew members on board SIEV 220. At about 18:00 they were transferred ashore to Ethel Beach in RHIBs launched from the Pirie. The Pirie then oversaw the safety of the hulk of SIEV 220 [51] .
3. A considerable amount of evidence was given which went to the issue of whether it was necessary in the circumstances for the Pirie to continue to oversee SIEV 220, or whether it could have left and resumed patrol in its racetrack. In his evidence, Commander Livingstone firstly explained that anchoring SIEV 220 was not an option [52] : …The area around Ethel Beach, other than the boat ramp itself was unsurveyed, and so we take a fair amount of faith in our hydrographers that if it is unsurveyed we generally don't go there, even in a small boat. Anchoring the SIEV would've posed problems as far as finding a suitable anchorage. We would've had to conduct a small survey ourselves to establish a safe swinging circle, as small as that is, there's quite a lot of rocks. The darkness was a big issue at that point, it was getting on to sunset, and so trying to conduct a small survey in the dark in an area that we're not particularly familiar with in north or south of that boat ramp precluded any thought of trying to anchor.
4. The weather conditions also made it difficult for the Pirie to maintain visibility of SIEV 220 during the night, as a consequence of which there was a need to remain close by. There was a strong north-west wind, averaging 27 knots and gusting to 35 knots, with consistent drizzle and occasional rain squalls. Visibility had been reduced to 5 nautical miles outside the rain squalls, and 200 yards within them. The swell was from the north-west at a level of 3m [53] . These conditions brought about not only reduced visibility, but a corresponding reduction in the efficacy of the radar systems on the Pirie, which was further reduced in the case of small wooden vessels such as SIEV 220. As a matter of practicality, it was not possible to maintain simultaneous surveillance over all areas [54] . The Triton had maintained a position further to the south-east of Christmas Island, seeking shelter from the prevailing conditions. No other Australian Government vessels were operating in the vicinity of Christmas Island on 14 or 15 December 2010 [55] .
5. Commander Livingstone explained that, leaving aside the difficulties in anchoring SIEV 220, it was necessary to have the Pirie remain in the vicinity of the lee of Christmas Island, in close proximity to SIEV 220, because of the need to ensure the safety of the members of the steaming party who were on board. He explained that SIEV 220 was a vessel which was barely seaworthy, and that the members of the steaming party on board (who were from the crew of the Pirie) had no navigational aids and were experiencing extremely rough weather conditions. He also explained that there was a necessity to be in a position to give the steaming party on board SIEV 220 advice as to the presence of any relevant hazards, to supply them with necessary provisions, and to recover them if conditions required it. In making this decision, Commander Livingstone took into account the fact that the threat level was such that the imminent arrival of a further SIEV was not expected. He also considered that these were tasks that he could not delegate to the Triton, bearing in mind that at that time the Triton had on board in excess of 100 PIIs, and that it too was sheltering from the weather [56] .
6. In cross-examination, Commander Livingstone rejected the suggestion that there was no need for the Pirie to remain in such close proximity to SIEV 220, and that the Pirie's racetrack could have been extended to the north [57] : Q. A simple extension of your racetrack to the north would have allowed you to carry out visual and radar surveillance to the north west would it not? A. Again, based on the conditions we're dealing with at the time I do marry up a response to SIEV 220 in the event I need to evacuate that team and with that a response sorry, with a surveillance profile to the wharf. Q. It was about one and a half nautical miles from the top of your racetrack until you cleared the northern tip of that edge of the island, on the eastern side was it not? A. Yes. Q. How fast would it take you to do one and a half nautical miles, how long? A. It depends on what speed we're travelling. Q. On your patrol speed? A. Again, we were at low speed. I'd confirm but we'd be on one engine, approximately four knots. But again that Q. That's a little over 15 minutes to get up to the top of the island, and the same back I take it? A. Yes. So the factors were response time to the SIEV 220, crew fatigue. The further north we headed up towards that north east point obviously the rougher it got so I was trying to balance keeping my team as fresh as possible to relieve potentially the people in SIEV 220 with surveillance and with that response time. Q. You'd only need to, what, four people in a steaming party if you were going to relieve them? A. On a crew of 24, yes that's a large factor. You need two people to drive the RHIB, someone to launch the RHIB, yeah, so to transfer a steaming party involves almost half the crew. They need to be fed at some point so there's a cook. Almost everything on the patrol boat is a whole ship evolution, so it's launching a RHIB is no small matter. Q. But you'd had 17 hours behind the island, in the lee of the island, since the day before? A. In fairly adverse conditions still, yeah. The lee is a - it's a relative term, and was relatively, it was only marginally better than the conditions to the north. Q. We got vision of the lee, I guess we can take a look at that some stage. What I'm going to suggest to you sir is that the sea state was considerably better, considerably better, then the sea state to the north west of the island? A. Which is one factor of the environmental conditions we were factoring. The wind, the rain squalls all combined to worsen that scenario. Q. You haven't got people standing out on the deck have you in these patrol boats? A. It only depends on the conditions, yeah, it was what we were doing. We'll have we'll post lookouts externally if required if we're looking for survivors or conducting evolutions. Q. But on these sort of patrols, and I'm suggesting as you may recall that you could have extended your racetrack to the north by one and a half nautical miles and then have had a good chance of seeing anything coming from the north or north west. In those conditions it's not so difficult is it? A. Sorry, what's not so difficult? Q. You could do that without undue stress to your men, you wouldn't have to post them outside on the deck, or even on the boat deck unless you were changing over RHIBs for example, the lookouts weren't to be incommoded by being exposed to the weather? A. The track we were on was based on the conditions at the time, based on a number of factors I've mentioned. Adding an extra mile and a half to that northerly approach obviously I weighed it up and the gains verse losses kept us on the track we were on. Q. I'm just trying to work out what the losses were exactly because most of that racetrack would have been in the lee of the island substantially, apart from the last perhaps quarter of a mile or maximum half a mile, to the north? A. Sorry, what's the question? Q. It would've been in the lee of the island, most of the racetrack leading for that mile and a half extension would've been in the lee of the island and a very substantial hill on the eastern side of the island heading towards North East Point? A. Again to balance my response time to SIEV 220 in the event that I had to rescue my team from that ship, from that SIEV. Q. Even if you cycled through every second transit that wouldn't put your SIEV 220 at risk to any significant extent, would it? A. The risk was we were not able to see SIEV 220 visually and give them directions on when or where to turn. Had we gone further north by that one and a half miles we would've lost visual sighting of the SIEV 220 with the risk they would run aground. Q. They could always call you on their FM radio presumably and say well we're going to cycle back to the south because we can see the lights of the casino or whatever they were guided by. That's not so hard, is it? A. The conditions they were facing in the SIEV in the lee of Christmas Island and their navigational their idea of where they were in relation to that, the NAV hazards was considerable. Without us maintaining that close watch on them from a reasonably close range there was a very real risk of them running aground, to any steering, engineering failures, the weather, by themselves; they needed very regular updates from Pirie to confirm their safety. Q. You heard on the communications from the RHIB when you I wasn't sure whether it was you or your XO was asking how you're holding weather wise and they said it's not too bad here, there's a good lee, I'm not getting too much wind. You see that, page 1, channel 0? A. Again you know for a position in time, you know, the weather changed regularly, the racecourse came through, they were unable to see where they were in relation to the land so. Q. Was that correct, I mean you yourself were being guided to some degree by the lights on the casino and the lights at I think it's called is it Nui Nui Point? A. That's correct pronunciation, we were being guided by our navigation system. The lights at the casino aren't charted so we can't use them for a fix. Nui Nui Point is unlit from memory so our navigation was completely independent of any lighting on Christmas Island. Q. But we know you did in fact leave the SIEV 220 to its own devices and if necessary in order to continue your surveillance posture you could have sent a RHIB back from where you were if someone had to get back quickly, could you not? A. Sorry, I don't understand your question. Q. There are two things that happened; we know that you did in fact leave the SIEV 220 to its own devices and it survived because they had, at the very least, hand steering and they had reverse. We know that, don't we? A. We do and very rudimentary and quite unsafe and because we were responding to a greater threat to life. Q. It would not have been difficult for you to have extended your racetrack further to the north at a point of time when the SIEV 220 was, for example, at the southern end of its racetrack and knowing where it was going to in the north in the way that it in fact did; it was asking you, we're ready to turn now and they or your ship and the orders were given that they could at that point so what's to stop them on a designated track heading up to the north while you slipped up to the north and had a quick look to see what was happening up there? A. Fuel conservation is a large factor when you're out at Christmas Island. Your fuelling options are very limited to any increase in speed, you know, obviously burns more fuel and again any time away from 220, I could tell them to go north but they were basing it on some very rudimentary navigation aids. Again, a sprint to the north to extend my radar coverage, yeah, burnt more fuel and provided greater risk to the SIEV 220. Q. Alternatively you could have done what you were planning to do on the morning of the 15th and left a RHIB behind to look after the 220? A. Again, had I then encountered a vessel to the north I would've had to try and attempt something with one RHIB. You've always got to be conscious of your redundancies for any scenario that you may face. Leaving a RHIB behind would limit that response option. Q. It wouldn't really, would it, because you'd come to the view the day before you couldn't launch your RHIBs to the north and it was certainly no better on the 15th, was it? A. That's true but if I'd left a RHIB to the south it would have been equipped for a different role. I would've had no boarding team embarked so I would have had to recover that RHIB at some point which means I would have had to leave the northern area to the lee to recover my second RHIB and re-equip it and relaunch it so there's little gain by having that RHIB looking at SIEV 220 if I'm to respond to another boarding to the north. Q. But you see if you were to the north and you picked this up a kilometre, two kilometres, four kilometres out you wouldn't have needed the RHIBs because A, you couldn't have launched them and B, you could come close by with the Pirie and give them directions to follow you, isn't that the case? A. Assuming they follow or understood those directions, you know, there's no guarantee they would've followed me, there's no guarantee that their engineering state would've enabled them to follow me or understand what I was trying to get to them.
7. In the period leading up to the morning of 15 December 2010, the Pirie remained overseeing SIEV 220 on a short racetrack in the vicinity of Ethel Beach, east of Christmas Island. In his evidence at the Coronial Inquest, Rear Admiral Barrett explained that between midnight on 14 December 2010 and dawn on 15 December 2010, the Pirie was operating to the east and north-east in the lee of Christmas Island performing surveillance duties. He explained that the area of surveillance covered by the Pirie at that time was a smaller area than might otherwise have been the case, due to the fact that the Pirie had custody of SIEV 220, and was required to ensure the safety of that vessel, and the Pirie crew members who comprised the steaming party on board, until such time as the vessel could be safely sunk. He also explained that the Pirie was sheltering in the leeward of the island so as to give the crew some temporary respite from the conditions on the northern side of the island, as well as to provide an engineer with appropriate conditions in which to undertake maintenance work on one of the Pirie's engines [58] .
8. It was always the intention of Commander Livingstone to resume patrol as soon as he could do so [59] . Further, and even though the Pirie was positioned on the leeward side of the island, Commander Livingstone was aware of the deteriorating weather conditions to the north-west in the hours leading up to 15 December. He agreed that the conditions he had observed on 14 December were likely to be significantly worse by the early morning of the following day [60] .

The initial positions of the Pirie and the Triton

1. In the period leading up to 06:00 on 15 December, the Pirie was patrolling southeast of Nui Nui point, approximately 1500m to the east of Ethel Beach, and was using only one engine in order to conserve fuel. At this time, the Triton was also on the eastern side of Christmas Island, to the south of Ethel Beach, and patrolling in a track which required the use of only one engine [61] . The Triton was still waiting for the weather to improve so that the PIIs who had embarked at Ashmore Reef could be offloaded [62] . Enforcement Commander Saunders said that the weather conditions at that time on the eastern side of Christmas Island remained "very rough", with a 2m to 3m swell, and winds gusting up to 25 knots .
2. Although Commander Livingstone was not aware of any precise arrangements for the Triton to take over the control of SIEV 220 on 15 December, he accepted that it was obviously a larger vessel with additional personnel, such that if another SIEV arrived, there would have been discussions about the most appropriate deployment of the available resources [63] .

The first sightings of SIEV 221

1. Ross Martin, Chief Engineer at ABF, had arrived on Christmas Island on 11 December 2010 to conduct induction training for Customs Officers. Mr Martin was staying at Mango Tree Lodge, which is located approximately 100m from the northern coastline of Christmas Island [64] .
2. At about 05:40 on 15 December 2010, Mr Martin walked out onto the balcony of his room at Mango Tree Lodge. He looked to the north and saw what he described as a "very basic" vessel [65] which was about 500 to 600m off the coast of Christmas Island [66] . The vessel was later identified as SIEV 221. At that time, the swell was coming from the north and the vessel was "running with the weather" [67] . Mr Martin said he had no cause for alarm at that point, although he described "whitecaps" (or wave crests) around the vessel, in a swell of 3 to 4m [68] .
3. Mr Martin observed puffs of black smoke coming from the vessel's exhaust on the starboard side, as well as towards its rear, leading him to form the view that it was being propelled by its engine. He also saw that the vessel was bearing from left to right and travelling in a generally south-easterly direction (although, as he described it [69] , "a bit more east than south"). Mr Martin said that at this point the vessel was "making way" [70] or in other words, moving forward under its own power [71] . Mr Martin certainly did not consider that a SOLAS situation had arisen at that point [72] .
4. At about 05:43, Mr Martin telephoned Leslie Jardine, the Customs Duty Officer, and informed Mr Jardine of his observations. Consistent with what he had observed and with the view that he had formed, he mentioned nothing to Mr Jardine about any SOLAS situation having arisen [73] . Mr Jardine indicated to Mr Martin that he had not previously been made aware of the presence of the vessel [74] . At about 05:49, Mr Jardine called CNOC and advised of Mr Martin's report [75] . Based on what he had been told by Mr Martin, Mr Jardine had no reason to, and did not, advise CNOC that SIEV 221 was in distress [76] because he did not think that there was any emergency [77] : Q: But even if you had a contact number for the Pirie at that point, you say you didn't appreciate that there was an emergency? A: That's correct. I mean, my information was that there was a boat 500 metres offshore. Obviously, I knew the weather would not be good, and it was certainly not life-threatening. It wasn't a good place to be - lives were not at risk, …
5. Shane Adams, a special constable in the AFP and the Vice-Commander of the VMRS, lived near the Golden Bosun Tavern. At about 05:45 he heard a transmission over a marine radio from a person whom he recognised as Alan Thornton, another member of the VMRS. Mr Thornton was using the call sign "Christmas Island VMR" and was attempting contact call sign "Australian warship" [78] . Mr Thornton broadcast a message in words to the effect: Australian warship, Australian warship, Australian warship. This is Christmas Island VMR. We have a SIEV close to the rocks near Rocky Point [79] .
6. Mr Adams left his home and walked approximately 100m to a car park at the front of the Golden Bosun Tavern. He thought that it was about 05:55 by this time. He said that there was a strong north-westerly wind, and a heavy sea from the north-west with a swell of about 3 to 4m. The sky was very overcast and it appeared as if a storm was building. The swell was breaking up on the cliff face and washing back out to sea, creating what Mr Martin described as a "washing machine" effect, and rendering the surrounding waters unpredictable and hard to navigate [80] .
7. Mr Adams looked out to sea and saw SIEV 221 about 150m from the shore. He described SIEV 221 as follows [81] : The vessel was about 45 feet long and was made of wood. The wheel house was the aft section and had an exhaust stack above it. There was a wooden veranda structure of the foredeck that was covered with several tarpaulins. I also saw a blue 44-gallon drum sitting upright that had been tied down to the rear deck with 2 ropes.
8. When Mr Adams first sighted SIEV 221 it was under power, moving in a north-westerly direction at a speed of about 8 knots, and attempting to steer around the roughest section of the water. Mr Adams could see dark black smoke coming out of the vessel's exhaust and was able to hear the sound of the diesel engine. He saw approximately 60 people congregated between the wheel house and the bow [82] .
9. Mr Adams did not consider that SIEV 221 was in any immediate danger at that point, or that it was in any danger of breaking down [83] . He stated, in particular, that he did not think that a SOLAS situation had developed, and that the circumstances where not of a kind to which VMRS would usually respond. He expected that the relevant authorities would try and intercept the vessel, and take control of it, and its occupants [84] . Mr Adams reiterated in cross-examination that he did not regard SIEV 221 to be in any immediate danger at this time [85] : When I saw the boat it was under power, steering out of the dangerous water, and I could not see any problem with that particular boat at the time.
10. He added that he did not regard the vessel as being in danger of breaking down [86] .
11. At about 05:50, after speaking with Mr Jardine, Mr Martin returned to the balcony of his room at Mango Tree Lodge. When he did so, he noticed that SIEV 221 had altered course and was now heading south, towards that part of the northern coastline of Christmas Island adjacent to Mango Tree Lodge [87] . He described the vessel as proceeding "beam on", in a swell of close to 6m which was "hitting the coastline and reverberating out" [88] . Mr Martin described the coastline adjacent to Mango Tree Lodge as being of "a similar rocky shape" as the coastline surrounding most of Christmas Island [89] .
12. Mr Martin then left the balcony for a short time to contact his Manager, Warwick Conlon [90] . He explained that he not do because he thought that SIEV 221 was in danger [91] , although he did admit to having what he described as an "abnormal" feeling in light of the fact that the vessel had altered course [92] .
13. Upon his return from speaking with Mr Conlon, Mr Martin noticed that SIEV 221 had altered course again. It was now proceeding (still under its own power) in a generally westerly direction towards Flying Fish Cove and was approximately 100m offshore [93] . Mr Martin saw people standing at the bow of the vessel, in the forward and midship section, and in the area surrounding the wheelhouse. He could hear people on board whistling and shouting, although he said that the shouting did not sound like screaming. At that point, the vessel disappeared from Mr Martin's line of sight as it continued moving generally towards Flying Fish Cove. Mr Martin did not make any further contact with anyone at that stage because he still did not think that SIEV 221 was in any immediate danger. He said that as he observed it proceeding towards Flying Fish Cove, it appeared to be continuing to do so under its own power [94] .

SIEV 221 commences to lose power

1. Assuming that SIEV 221 may attempt to land, Mr Martin drove from Mango Tree Lodge to Flying Fish Cove at about 06:00. Not initially able to see SIEV 221, he parked his vehicle at the Golden Bosun Tavern [95] . At about that time, he received a telephone call from Bruce Christensen from BPC to whom he expressed some concerns about the safety of the SIEV 221 [96] . He agreed that he was worried for those on board [97] . However, he did not accept that it was obvious that a "potential shipwreck" had developed and was adamant that such a possibility did not cross his mind [98] .
2. However when he next observed SIEV 221 at approximately 06:11, Mr Martin could not see any black smoke coming from its exhaust and the vessel was not moving across a fixed point. With the vessel drifting between 20m and 50m from the coastline, Mr Martin considered, for the first time, that it had lost power and may be in distress. He said at that time the weather was overcast and that although it was not raining, it was very windy with "a lot of whitecaps" on the water. Mr Martin also observed that towards the shore, waves were bouncing back off the coastline towards the ocean. As the incoming and outgoing waves passed through each other, they peaked at a high level [99] .

The Triton and the Pirie are notified of the presence of SIEV 221

1. Enforcement Commander Saunders was alerted by AMSOC to the possible presence of a SIEV although there is a slight discrepancy in the evidence as to when this occurred. Enforcement Commander Saunders' evidence was that he took the call at approximately 05:55 [100] . The Triton's log suggests that it was received at 06:00 [101] . In my view, little turns on that difference. At this point, the Triton remained south of the Pirie on the leeward side of Christmas Island.
2. The SIEV which was the subject of the call to Enforcement Commander Saunders was obviously SIEV 221. It was reported to be about 300m off Rocky Point at the time [102] . Although he agreed that he was aware that SIEVs were, generally speaking, not particularly seaworthy, Enforcement Commander Saunders was not informed that the vessel was in danger or in distress, and was not asked to respond [103] .
3. At about 06:00 the Pirie commenced lowering a RHIB into the water to replace the steaming party on board SIEV 220 which had remained nearby [104] . Commander Livingstone estimated that the launch commenced sometime after 6:10 or 6:15 [105] . Notwithstanding the fact that the lee of the island provided some shelter, the weather remained inclement, with rain, reduced visibility and a wind speed of between 27 and 35 knots [106] .
4. Shortly after 06:00, Commander Livingstone received a radio call from Enforcement Commander Saunders on the Triton, who enquired as to whether or not Commander Livingstone had received any information about a SIEV in the vicinity of Flying Fish Cove. Prior to receiving that call Commander Livingstone knew nothing of the possible presence of such a vessel [107] . His evidence was that the information conveyed to him fell short of confirming the presence of a SIEV in the area. He said, in particular, that there was, in that call, "certainly no confirmation or sense of urgency that a response was required", describing the call as "more a question rather than … confirmation" of the presence of a SIEV to the north [108] . It was agreed that the Pirie would investigate the reported sighting, whilst the Triton would move further north in order to maintain oversight of the steaming party on board SIEV 220 [109] . Commander Livingstone then put immediate steps in place to head north [110] .
5. Commander Livingstone agreed that any SIEV which found itself approximately 300 yards off the coast of Christmas Island would be in some danger [111] : A. Certainly the 300 yard margin off the coast there was particularly rough, but the reverberation off the cliffs made that area certainly worse than beyond the 300 yard mark, which is also fairly ordinary. Any ship of that size or type in that proximity would certainly be straying into danger. HIS HONOUR Q. When you say in that proximity, you mean 300 yards off the coastline? A. 300 yards, your Honour, yes. And too much further beyond that, so out to 500 yards, it's not arbitrary areas, but seems in the 300 yards, certainly a dangerous area of water to be in.
6. However, it must be emphasised that the information conveyed to Commander Livingstone fell short of a confirmation of the presence of any SIEV, and was more in the nature of an enquiry.
7. Enforcement Commander Saunders had no immediate concern about the safety of the SIEV, the possible presence of which had been identified at that time [112] . He agreed that he was aware from the information that he had received that the reported vessel was of a type that he had regularly intercepted, and that such vessels were not generally seaworthy according to Australian standards [113] . He also agreed that the sea state was "certainly rough to very rough", and that the vessel was reported to be located on the side of the island which was particularly affected by monsoonal conditions [114] . Enforcement Commander Saunders was cross-examined as to his stated lack of concern [115] : Q. Are you saying that didn't give you cause for concern in relation to safety matters? A. You've got to understand, that we at that time, we were boarding a lot of SIEVs and, you know, I guess, you know, nine times out of ten they were boarded safely without, you know, any - any safety of life at sea or a sinking and the day prior SIEV 220 was in the same area and was, you know, brought around the other side of the island quite safely. So at that stage, without knowing that there was actually a SIEV there, because at that point it was still unknown, I wouldn't say my first thought was the safety of the vessel. My first thought was is there a vessel there and the need to get - get an asset around there to, you know, investigate or Q. Why was there a need to get an asset around there quickly? A. To intercept it, in case it was to make landfall. Q. In your view, was it likely to make landfall in Flying Fish Cove? A. It's possible. Q. In the conditions that prevailed? A. It well, it's been done before. I wouldn't say in those conditions but there has vessels have landed at Flying Fish Cove. Q. I understand that I'm asking you about the conditions which were difficult, even for Christmas Island in monsoon time. A. Well, there's a few reasons. You know, one was to stop it reaching landfall and the other was for it to proceed to the west, like SIEV 220 did and to get around to the other side because they tend they tend to follow the you know, the island around.
8. He was then asked [116] : Q. You've already agreed that these vessels are not seaworthy to Australian standards, correct? A. Yes. Q. Part of the reason for that is their engines are rudimentary and unreliable? Is that correct? A. Yes. Q. Their steering is in the same fashion? A. Yes. Q. Did it not cross your mind at all that the vessel being blown onto a lee shore on the north western side of the island might be in danger at 6.01? A. As I said, not at that early stage, no. Q. Were you of the view there may not have been a vessel there? Is that what you're seeking to say? A. It was possible. Q. Even though there'd been a report from your command that a vessel was in that position? A. The report was that there was a vessel seen off Rocky Point and we were - we - I was only asked is that the same vessel that the navy were looking after, 220. Q. At 6.01 you knew that it wasn't and you asked Pirie to investigate? A. Correct. Q. You had asked Pirie to investigate because (a) they were closer and (b) they were quicker? A. Yes. Q. The necessity for speed, you say, was to prevent a landing in Flying Fish Cove? A. Yes, amongst other things. Yes. Q. Did you really believe in those conditions that a landing could be effected in Flying Fish Cove? Is that your truly held belief, is it? A. Yes.

The response of the Pirie

1. Following the call from Enforcement Commander Saunders, Commander Livingstone gave instructions to his crew to prepare the Pirie to head north to investigate the reported SIEV.
2. At that time the Pirie remained southeast of Nui Nui Point. From that position, visual coverage of Rocky Point was obscured by the presence of a 237m hill, as well as the prevailing weather conditions. These factors, and what Commander Livingstone referred to as the "resulting clutter", all combined to reduce the effective range of the radar systems on the Pirie [117] . In these circumstances, despite the fact that the members of the steaming party on board SIEV 220 had been there for 12 hours and were fatigued, Commander Livingstone decided that only two members of the party should be replaced. He explained that he considered it more important to proceed immediately north to investigate the possible presence of another SIEV, rather than take the extra time to replace the entire steaming party [118] .
3. In order to head north, it was necessary for Commander Livingstone to: 1. ensure the RHIB which was in the process of being launched to relieve the steaming party on board SIEV 220 was clear of the ship's side; 2. bring the port engine of the Pirie on-line; 3. attend to preparations on the bridge, such as establishing lookouts; and 4. shape a course to the north [119] .
4. Commander Livingstone explained in cross-examination that carrying out these tasks took some short time [120] : A. Bringing the engine online and also unlocking a shaft is quite a lengthy process, well lengthy, it takes some time. The engine is immediate notice for sea and the engine room is unmanned in the - however you need to do your checks, engineers need to check all their fluid levels, the temperature levels. In this case they need to go and unlock a shaft, because we were on one engine trailing a propeller which means propeller is able spin freely. He needs to go and check the boat shaft and that propeller are able to be reengaged. So that's a process of leaving his station on the bridge, going down about two decks and about 25 minutes - through several hatches to physically check that that engineering plant is ready to be used. Q. Of course but what I had suggested to you earlier was that that plant could be brought online whilst you were tracking north on the one engine that you had running. You don't have to stop the boat to start the engine I assume? A. No. Q. All you need to do is lock off the shaft to stop it trailing and then go through your processes to fire up and warm up your engine, is that correct? A. Yes.
5. Commander Livingstone explained that the Pirie's port engine was in fact being started as it was tracking to the north, and that he had commenced to head in that direction after receiving the call from Enforcement Commander Saunders on the Triton [121] . He agreed that having received that call he had continued to launch the RHIB to relieve members of the steaming party on board SIEV 220 [122] : Q. But at that stage having received the call from Triton you continued to launch the starboard boat did you not? A. We continued to launch the RHIB to relieve the steaming party who had been in SIEV 220 overnight, in terrible conditions, with a fresher crew and as we still had carried of SIEV 220 despite our response to the north. Q. That wasn't slipped until 6.11 according to your log? A. Yes. Q. Of course as you say in your affidavit your primary concern is to investigate a SIEV upon arrival, is it not or look for it or look at it? A. Yes. Q. There was no reason at that stage why you couldn't have said to the steaming party on 220, look just hang on for a minute, we'll relieve you a bit later and have proceeded north with boat your sea boats on board? A. Again working on the worst case scenario which we always do because I had a lack of full appreciation of what was happening to the north I needed to make best plans for a mix of responses and disappearing to the north with both RHIBs was not a considered response. Q. As I understand it about what time did you in fact start to move to the north, I mean it's unclear when you say at paragraph 49 "these tasks took together about 15 minutes to complete"? A. Once the RHIB was clear of the ship we would have altered course to the north and commenced making our way towards the north-east quad.
6. Commander Livingstone was then asked [123] : Q. Of course when you did appreciate I think you were told by Norcomm (sic) that there was a SIEV in close proximity to the island at about 6.21 you immediately took prompt and effective measures to get yourself up there as soon as possible, did you not? A. That process started after the initial call from Triton. Q. Are you saying that whatever happened, whether it was a SOLAS or not you wouldn't have changed anything you did in preparation to go north and moving north? A. Or responses for a SOLAS or a boarding or several other situations are fairly similar. Certainly that process would not have changed much and we certainly made our best effort to respond as best we could in a timely manner. Q. I'm not being unduly critical. A. No, I'm just trying to frame a response.
7. Commander Livingstone was then asked further questions, by reference to the Pirie's log, about the time it had actually taken the Pirie to commence travelling to the north [124] : Q. You'll see there, sir, about just above the middle of the page, 6.05 received report from Triton on a SIEV sighting or sighted, I'm sorry, and then at 6.09, carry on starboard sea boat, I take it SB a sea boat? A. Yes. Q. That's the RHIB? A. Yes. Q. That was slipped at 6.11? A. Yes. Q. What is the next entry at 6.18? A. Start up port management. Q. That didn't start til 6.18? A. Yes. Q. Presumably by then you were travelling north, were you? A. There's no entry at that time to indicate that course but we very shortly after the sea boat was slipped we would have changed course to the north. Q. By 620 at least at that stage the engine was running correctly? A. Yes.
8. The evidence thus establishes that by about 06:11, the RHIB launched by the Pirie was clear of its side and the Pirie was proceeding north to investigate the reported presence of what was SIEV 221 [125] . By about 06:18 the Pirie's port engine was available for use. By about 06:21 the Pirie was heading north at a speed of about 18 knots. In the light of the prevailing weather conditions Commander Livingstone considered that to be the maximum safe speed [126] .

SIEV 221 in distress

1. At about 06:15, as Mr Adams walked along the northern coastline of Christmas Island and SIEV 221 was approximately 100m away from him, the vessel was struck by an incoming swell, resulting in backwash from the cliff face and causing it to list heavily from starboard and then to port. As it did so, Mr Adams was able to see the section of the hull that was below the water line. When it listed to its port side, he saw the 44 gallon drum roll off the stern and into the water, leaving a 40mm brown hose lying on the stern. When the drum hit the ocean, the water turned brown and Mr Adams detected a strong smell of diesel fuel [127] . Mr Adams said that at about the same time, the smoke and noise from the vessel's exhaust stack stopped and it appeared to cease moving forward. Mr Adams heard someone attempting to restart the engine several times without success [128] . It is evident that the loss of the drum from the stern of SIEV 221 terminated its fuel supply and caused the engine to fail.
2. The drum having been swept away, Mr Adams described the situation having changed "drastically" [129] . For the first time since SIEV 221 initially came under his observation he formed the view that it was in danger. He thought that a potential SOLAS situation had arisen, primarily because the swell was pushing the vessel towards the cliffs, in circumstances where it appeared to have lost power [130] .
3. At approximately 06:28, from his vantage point at the Golden Bosun Tavern, Mr Martin observed SIEV 221 being "violently pushed and pulled in both directions by the incoming and outgoing swell", and taking on large amounts of water from waves crashing over its sides. Parts of the vessel were beginning to break up. At that point, it had become clear to Mr Martin that a SOLAS situation had arisen [131] .
4. DVD footage which was tendered in evidence depicted (inter alia) SIEV 221 in close proximity to the cliff face on the northern coastline of Christmas Island. That footage simply confirms the observations made by Mr Martin and Mr Adams.

The availability of the Colin Winchester and the Sea Eye

1. At the point at which he formed the view that a SOLAS situation had arisen, Mr Adams considered that there were two possible responses, namely [132] : 1. to use a VMRS vessel or an AFP vessel, such as the Sea Eye or the Colin Winchester; or 2. to assist as best he could from the shore, by obtaining life jackets if necessary.
2. According to Mr Adams, the second option was the only practical one in the circumstances. He formed the view that it would be neither safe nor viable to launch the Sea Eye, the Colin Winchester, or any other vessel which might have been available to the VMRS, given the prevailing conditions. He also explained that he was aware that the VMRS was trying to contact the RAN by radio, and that he believed that the RAN and Customs would be able to assist. He also believed that neither the VMRS nor the AFP would be able to reach the scene any faster than the RAN or Customs, or do anything more than what Navy and Customs' vessels were capable of doing to assist those on board [133] .
3. Mr Adams also explained, based on his experience, that even if the Sea Eye had been in proper repair and not out of survey it could not have been taken out to assist in any rescue operation. He regarded the conditions as too rough, such that it would have been unsafe to attempt to operate the Sea Eye in that kind of weather [134] .
4. Mr Adams also stated that the conditions prevented the use of any privately owned vessels that may have been available to the VMRS [135] . He said that the conditions were too dangerous for the deployment of small craft of that nature and that even had it been possible to launch any VMRS vessel at the time (be it the Sea Eye or some other vessel) it would have taken approximately 1 hour to transport it to Ethel Beach, launch it, and then travel to Rocky Point. Accordingly, even had it been possible to launch a vessel from Ethel Beach, it would not have arrived at Rocky Point any faster than the Pirie or the Triton, or any RHIB or tender which may have been launched from them [136] .
5. Mr Adams also explained that the Colin Winchester could only be launched with a medium to high tide at Flying Fish Cove, and could not be launched at Ethel Beach. Bearing in mind the conditions, he took the view that even if the Colin Winchester had not been out of survey, it similarly could not have been used to assist in any rescue operation because it would not have been capable of coping with the sea conditions. He said any attempt to use the Colin Winchester would have resulted in the lives of those on board being placed in serious danger [137] .
6. It should be noted that the evidence of Mr Adams regarding the unsuitability of the Sea Eye and the Colin Winchester to respond to the situation which had arisen was not the subject of any substantive challenge in cross-examination.

The Pirie tracks north

1. At about 06:21 Commander Livingstone was contacted by NORCOM, at which time the presence of SIEV 221 to the north of Rocky Point, close to the coast, was confirmed. Commander Livingstone advised that he was proceeding north, at the maximum possible speed, with his remaining RHIB (having left the second RHIB behind). He was informed by NORCOM that the Pirie would need both RHIBs because of the number of people on board SIEV 221 [138] . Accordingly at about 06:23, the Pirie turned south to recover the RHIB which it had previously launched, a process which took about 10 minutes. By about 06:32, it had resumed travelling north at the maximum speed which was possible in the prevailing conditions [139] . At approximately 06:32 Commander Livingstone received a message from NORCOM in the following terms: "Have CCOI 50m off rocky pt, the vsi has lost engines and heading towards to coast, proceed with all dispatch to assist" [140] .
2. He explained that by this time his priority had changed from one of "care taking" SIEV 220, to "shaping the best response (he) could with Pirie to a SIEV to the north". However, he emphasised that the objective of getting to Rocky Point as quickly as he could had in fact commenced when he was originally alerted to the possible presence of a SIEV by Enforcement Commander Saunders [141] : Q. Of course when you did appreciate I think you were told by Norcomm (sic) that there was a SIEV in close proximity to the island at about 6.21 you immediately took prompt and effective measures to get yourself up there as soon as possible, did you not? A. That process started after the initial call from Triton. Q. Are you saying that whatever happened, whether it was a SOLAS or not you wouldn't have changed anything you did in preparation to go north and moving north? A. Or responses for a SOLAS or a boarding or several other situations are fairly similar. Certainly that process would not have changed much and we certainly made our best effort to respond as best we could in a timely manner. Q. I'm not being unduly critical. A. No, I'm just trying to frame a response. … Q. There were in fact differences in what you did in the situation on 15 December to what would ordinarily be a response to investigate a SIEV, wasn't there? A. The preparations are the same, the priority for me changed from caretaking SIEV 220 to shaping the best response I could with Pirie to a SIEV to the north. Q. Indeed it was in response to that sense of urgency that you were prepared to leave 220 to its own devices, weren't you? A. Triton came up to take carriage or oversight of 220, it was the understanding early on in the response.
3. Commander Livingstone said that the message he had received from NORCOM at about 06:32 "certainly clarified the situation" and that as a consequence, there was "an added degree of urgency" which "helped re-focus (his) priorities from SIEV 220 to what we might have to deal with to the north". He also agreed that the fact that SIEV 221 was apparently close to the rocks, and had no engine power, combined to pose a threat of danger [142] . In cross-examination, Commander Livingstone explained the situation in this way [143] : Q. It appears then that with the clarity of communication that was available to you at 25 past you went with all despatch including launching the RHIBs independently, is that correct? A. That happened shortly afterwards, yes. The we proceeded to the north having recovered and launched RHIBs several times for various reasons, and then made the assessment that the weather to the north of Christmas Island was too rough to launch them out there and then so proceeded to launch them on our way. Q. But in fact, and correct me if I'm wrong about this, you formed the view that the day before the weather was too rough to launch them to the north of the island did you not? A. That's correct, yes. Q. That was something well within your knowledge on 15 December that whatever response was required from you you weren't going to be able to launch your RHIBs securely once you got out of the lee of the land? A. Yes, that's correct. Q. The RHIBs could have been launched immediately you became aware that there was a problem to the north of the island at about 6.25? A. The simple answer is "yes", but the considerations on launching a boat poorly equipped or inadequately equipped weigh into that. Q. I'm just talking about the fact that they would have to be launched at some stage in the lee of the island to ensure that they could be launched safely, is that correct? A. Certainly based on what we knew at the time to mitigate the risk launch in the lee of Christmas Island was the preferred option. … Q. You knew what the situation was generally with the island and indeed the 15 to 25 minutes was your own estimate is it not? A. The time to run, where? Q. To run to where the SIEV was off Rocky Point? A. Sorry, I'm not clear. Launching the RHIBs at which point to get to the Q. From within your racetrack off Ethel Beach, that is, the point north of Ethel Beach and then back down to Ethel Beach, somewhere within that racetrack you could have a RHIB around there 15 to 25 minutes? A. Sorry, I'm just thinking about the weather. Time wise yes that is feasible. Yeah, probably the right end edge of that 25 minutes noting the weather and we still weren't sure exactly the location of the SIEV at this time. So trying to out where the end point was going to be was awkward to calculate the mass there. Q. I just wanted to ask you whether or not you were unaware of the fact that the vessel was at Rocky Point, is that what you're trying to suggest at the moment? A. No, I'm just referring back to your question about - I'm probably still not clear about use 15 to 25 minute timeframe from where to where? Q. There was no doubt in your mind the vessel was somewhere near Rocky Point, near the settlement? A. Seen to the north of Christmas Island, Flying Fish Cove vicinity, yeah. Q. We're talking a span of sort of perhaps one nautical mile from one edge of the settlement to the other are we not? A. That's correct, yes. … Q. At 6.35 you or rather Pirie of course, it may not have been you, it might have been your XO caused a message in the following fashion to be sent to the command centre, "I've had an emergency stop on my port main engine so maximum speed 11 knots. Priority will be to launch RHIBs with life jackets, embark then follow them round at my best speed". SP, I assume that's speed, is it? A. Yes. Q. Presumably by 6.32 you were well aware of the issues that confronted you and you took adequate steps to get the RHIBs launched and on the way? A. Yes, that's correct. Q. If you had the solid communication that you did at 6.25 at 5.40 or perhaps even 5.50 I take it your response would have been exactly as you have done subsequently after 6.25; in other words you left the SIEV 220, got your RHIBs on board stocked and then launched and made whatever dispatch you could to get around to the other side of the island? The response would have been the same at 5.40 or 5.50 as it was at 6.25? A. Yes, we would've been preparing for either situation, a boarding or a SOLAS event, probably less so SOLAS; depending on distance off the land it was at that point, 5.30, at 5.40. … Q. I'm not trying to put a label on this, Commander, I'm just simply saying that I assume by your response at 6.25 the same response would have occurred had you been told earlier in solid information at 5.40 or sorry, 5.50 for that matter? A. Yes, that's correct. Q. I assume that if you had known what you subsequently knew at 6.25 following if you had known that at 5.40 the probability is that the RHIBs would have made it somewhere between in 15 or 20 minutes to where the shipwreck occurred? A. That would depend on again the time taken to load those RHIBs with a boarding team, with life jackets, with first aid gear, the necessary preps so that to draw a timeframe there is Q. You did draw such a timeframe, didn't you, in the coronial inquiry? A. Based on what happened, yes. Q. If you had been notified at 5.40 you wouldn't have a RHIB over the side attending to the SIEV 220, it would have still been on board, would it not? A. I would certainly have to think again about the make up of the team I had in the SIEV and the team I had ready to board or respond to the SIEV, to the SIEV 221. Q. Of course, I'm not suggesting otherwise but I'm simply saying if in fact as we know the starboard RHIB wasn't launched until 6.11 that logically one must assume at 5.40 that it was still on board and either getting ready to launch or perhaps not even in a state of readiness at that point of time? In other words still with the Pirie? A. It is correct and SIEV 220 was still a factor. I couldn't overlook it or just continue to ---"

The launch of the RHIBs from the Pirie

1. At about 06:34 Commander Livingstone directed the crew of the Pirie to prepare for an imminent boarding, and to prepare to launch the RHIBs. At approximately 06:35, an alarm sounded, indicating a fault in the Pirie's port main engine. This resulted in that engine being shut down, with Commander Livingstone ordering that the speed of the starboard main engine of the Pirie be reduced to avoid damaging both. This had the effect of reducing the speed of the Pirie to approximately 11 knots. Commander Livingstone then re-started the port main engine, a process which took about one minute. He took the view that the speed of the port main engine should be restricted so as to reduce the chance of it shutting down again. He increased the speed of the starboard engine so as to lead, and to compensate for the port engine, and estimated that in these circumstances the Pirie was travelling about 16 knots [144] .
2. Commander Livingstone said that at this point he was unsure whether the circumstances might require a SOLAS response, but that he erred on the side of such a response being required. He determined that each RHIB should carry 4 boarding team members, as well as a bowman and a coxswain. This meant that there would be a total of 8 crew members ready to board SIEV 221 and recover passengers. Commander Livingstone, in accordance with the standard operating procedure for a SOLAS situation, ordered that all lifejackets and life rings on the Pirie be gathered and placed into the RHIBs [145] .
3. Whilst still some distance from Rocky Point, Commander Livingstone formed the view that in light of the conditions, the Pirie would not be able to safely launch the RHIBs in that area. He also thought that once launched, the RHIBs would be able to reach Rocky Point much faster than the Pirie, due to the Pirie's restricted engine capacity. In these circumstances, and in order to prepare for the launch of the RHIBs, the Pirie reduced speed and altered its course to the south so as to provide a lee to enable the safe launching of the RHIBs [146] . Commander Livingstone was cross-examined about that process [147] : Q. You knew form (sic) the day before that it would be difficult to launch the RHIBs once you'd cleared the lee of the island, that's correct isn't it? A. That's correct. Q. Applying what you subsequently did to 5.40 if you had both RHIBs on board once you'd got your boarding parties together you would have been able to lower them and get them underway before you reached the tip of the eastern side of the island, in other words, while still in the lee but just in the lee? A. Potentially, yes. Q. They could have cut the corner where you couldn't, in other words, they could take a more direct line towards Rocky Point than you could? A. Which is what they did on the day, yes. ... Q. Just for the sake of completeness sir I take it that when it was at 5.40, or 5.50, or 5.55, or indeed 6 o'clock your response would have still have been the same as you've said, is that correct? A. Certainly very similar based on the circumstances we were dealing with at the time.
4. In re-examination, Commander Livingstone expanded upon what was required to launch the RHIBs [148] : Q. You were asked about the RHIBs and launching the RHIBs and you said it takes some time, and then you also said in answer to a question that the length of time to launch depends on the RHIBs mission is. Can you just explain what general steps there are in launching a RHIB and how those general steps will vary, and the time implications of varying depending on missions? A. Certainly. First you need two personnel in the RHIB, one to drive and one to act as the bow. You'll need a davit operator, so the person who operates the crane to physically launch the boat over the side. You'll need a line handler at the front end of the RHIB to do that with a head rope, to assist the RHIB into the water. The officer watch will survey that launch if I've I'm generally captain on the bridge anyway. So the officer watch, the captain and the navigator are generally on the bridge to observe that evolution because it's quite dangerous even in calm weather, or has a risk to it. A second alternator has to be started up to provide power enough to the davit. Again fuel conservation; you will generally, depending on what you're doing, run on one alternator, so that's a process. Finding a suitable course to launch the RHIB; it may take some time if there's a confused swell or you're balancing, making headway to somewhere you'll meet that lee halfway with whatever your other goal maybe and you've got to make sure that the RHIB is suitable for the mission you're launching for. If you're launching for a man overboard the medic will go in, and a first aid kit, and again that's not decided till the point of just prior to launch. So you've got to find the medic, make sure they're organised and in, lifejacket on, helmet on. For a boarding it's generally six people in that RHIB in total. They need firstly to have been made aware of the boarding, they are to close up, put their lifejackets on, flat jackets on if required, gather their weapons, fill their waterbags if they're not already full. Again for assaults or any kind of response of that nature first aid kits, any life rings, any other lifesaving devices you may have, lifejackets need to be put into that boat and that takes time. They're generally a deck below. Weather is a big consideration if you are trying to minimise the transit time for the RHIB to protect the people in the RHIB, and also those RHIBS, you know they are your main weapons in those patrol boats. You'll take a patrol boat further than you normally would on a calm day, so there's a number of considerations to just getting that boat with the right people and the right kit over the side. Q. The kit or the equipping of the RHIB for the relieving of the steaming party how did that differ, if at all, from the equipping of the RHIBs which when they were launched to attend Rocky Point? A. For the steaming party relief, we were going to change over four originally, so those four people would have had enough rations and water and batteries for radios which they would carry in a backpack in the RHIB and across and a tool bag of sorts. For a boarding or a SOLAS response option you have a different team of people, for example in SIEV 220 I had an army trouper, an army gentleman purely to act as lookout whereas I wouldn't necessarily use him. In this case we did for the boarding party. So it just depends on what you're the role is of who you put in. Prior to the RHIB departing for a boarding or a SOLAS they need to be a boarding officer, and the RHIB coxswain need to come to the bridge to get a brief on the last information that we have. We expedited that, we made that a lot faster on for 221. I told them as they were getting ready not to worry about weapons which is batons, 9 mils or shotguns depending on their role so they'd be lighter in case one did fall in the water and also just it's a much quicker process when they're not having to be issued all those weapons from the armoury so yeah, a steaming boat transfer is relatively straightforward. Embarking a boarding party in both RHIBs is a more complex operation. Q. When Mr Cranitch put to you one of his scenarios about finding out about matters in more detail earlier and to you a scenario of the RHIBs being able to reach Flying Fish Cove or past Rocky Point in 20 or 25 minutes or 20 minutes, you remember he put that scenario to you; does that 20 minutes include or not include the preparation time of the kind you've just described for equipping a RHIB or was it simply the travelling time once you launched? A. That's purely transit time, yes. That's just speed across the water. Again based on their best possible speed in those conditions. Q. On the assumption which he asked you to make that the SIEV 220 steaming party evolution hadn't occurred and that the RHIBs were in their cradles on the boat, how long in your opinion or assessment would it take to equip, man and lower and release both of the RHIBs from the vessel? A. So the crew were asleep other than those on watch so initially they would have had to wake up, get out of bed, get into the appropriate cover all or their boarding gear. The issue, their jackets, their bits and pieces even without being issued their weapons and then lowering the RHIBs and to the scene I think you'd probably still at least take, I mean between eight people to actually be in the boats, sorry ten, 12 people in the boats, people are launched and the same launcher launches both RHIBs so you can't launch both at the same time; plus everybody else involved in that process, someone to issue the gear, the whole crew would have had to be awake to effect getting those people in the boats with the gear they need and out to the scene so Q. If we assume 20 minutes once in the water the length of time to launch one and then the additional time to launch the other, that's really the A. Yes, I'm just thinking out loud. It would've been 20 to 25 minutes to equip the teams and get the right people in the right place, then ten minutes potentially to launch both boats then the transit time, you know. Q. The RHIB which had the steaming party replacement people on board, bearing in mind the conditions, was that appropriately equipped to have been sent off directly without being recovered and then re equipped and then relaunched in your assessment? A. No, it would've had a minimum of it would've been different equipment for a steaming party and the wrong people or different people would've been required to send that boat to be of any use further north to respond and once they got there without that appropriate equipment embarked their response option would've been very, very limited. Q. Mr Cranitch I think asked you to or maybe his Honour asked the difference in the conditions, I think his Honour asked the difference in the conditions between SIEV 220 and SIEV 221; you addressed the weather conditions but you also addressed the weight of the boat. If you assume that on SIEV 221 there were approximately 80 more people or slightly over 80 more people than on SIEV 220, does that accord with your understanding? A. That's correct, yes. Q. If you assume an average weight of 50 or 60 kilos a person, that equates to what, four to 5 tonnes, is that correct, is that not correct? A. Yes, based on just the people embarked, yeah, roughly 5 tonnes in that SIEV. Q. Something which by reference to that consideration alone, is four to 5 tonnes heavier, what is the impact of four or 5 tonne heavier weight in the conditions that you witnessed on 15 December in terms of the potential to assist a vessel four or 5 tonnes heavier than? … Q. I'm really asking what is the impact of a vessel being at least 4 or 5 tonnes heavier than SIEV 220 in terms of any ability to assist it? A. Certainly in from the that vessel would've originally been designed for a small amount of fishermen potentially, four or five people, plus nets, not 8 tonnes sorry, 5 tonnes, or a larger tonnage of human cargo in this case. Their movement around the vessel and their weight would affect the stability of the SIEV, far more than it was ever designed to do. The vessel was water logged. Because of the weather, they had a lot more water on board they would normally have had fishing. The people would've had limited luggage themselves. Generally they bring a few possessions. The vessel would've had fuel for the journey, more than normal; again, all adding to the weight. So there's the weight of the people, the weight of the vessel, as poorly suited as it was for the venture, plus they had weight of the water, and then add that to the weather effect, poses a huge challenged for trying to manoeuvre it by any means; under its own means, or any other alternate means we might've applied.
5. The launch of the RHIBs from the Pirie commenced at approximately 06:38. By approximately 06:46 both had been launched and were proceeding to Rocky Point. However, Commander Livingstone explained that the RHIBs were prevented from travelling at their full speed because of what he described as "the large swell, frantic sea state and reduced visibility". These factors exceeded all of the standard risk profile limits for normal launch and recovery of the RHIBs, and had necessitated launching them in the lee of the island [149] .
6. At approximately 06:58, the Pirie commenced to round North-East Point, at which time Commander Livingstone explained that the Pirie became exposed to the "full force of the 3 to 4 metre swells from the north-west, rough sea, 30 knot gusting winds and the rain". He said that visibility varied between 500 yards and one nautical mile. At 06:59, he received a message informing him that SIEV 221 was "breaking against the rocks" [150] .

SIEV 221 commences to break up

1. At approximately 06:35 CNOC was advised by Customs Officer Pickett that SIEV 221 was positioned approximately 100 yards off the northern coastline of Christmas Island. It was reported that the vessel was foundering off the cliff face but had so far not struck the rocks. At about the same time, the Triton received a radio call from the Pirie advising that it had received a report that SIEV 221 had no engine power, and was on the rocks [151] .
2. At approximately 06:40, Mr Martin observed that SIEV 221 had started to make contact with the rocks at the bottom of the cliff face of the northern coastline. He said that each time the vessel hit the rocks, it would further disintegrate. He saw people throwing life jackets into the water, and saw some of the passengers from SIEV 221 jump from the vessel into the water trying to grab them. He said that there was a strong smell of diesel fuel, and he saw a large diesel slick forming around the vessel as it continued to founder and disintegrate [152] .
3. At about 06:40-06:45, Mr Adams ran to the edge of the cliff face, at which time SIEV 221 was about 75m away. Swell and sea spray were breaking over the cliffs [153] and Mr Adams heard people on the vessel shouting [154] : "No engine, no engine".
4. Mr Adams left the cliff face and with the assistance of others, gathered a number of life jackets. When he returned at about 07:10 he noticed that SIEV 221 had moved about 150m towards Flying Fish Cove and was only about 8m from the cliff face. He said that by that stage the sea state appeared to have worsened. In particular, the 3 to 4m swells were now closer together, thus intensifying the effect of the backwash from the cliff face. Mr Adams then formed part of what he described as a "human chain" to pass life jackets down to the edge of the cliff face. At this time SIEV 221 was directly in front of him. He could not see any smoke coming out of the exhaust and could not hear any sound from the engine, all of which lead him to form the view that the vessel had lost both power and steerage [155] .
5. Mr Adams said that he could hear people on the vessel, including children, screaming. He then saw the bow of SIEV 221 make contact with the cliff face. One person leapt from the bow of SIEV 221 onto the rocks. The backwash then took the vessel about 5m from the cliffs and spun it around [156] .
6. Over the next 10 minutes the vessel continued to get pushed towards the cliff face by the swell, before being pulled away by the backwash. Mr Adams continued to hold life jackets with other volunteers. At that point, Mr Adams saw a wave approaching which he described as being "much larger than the 3 to 4m swells that had been coming in". He bent over at the waist and grabbed a rock for support, before turning to look at SIEV 221 [157] . He described what he then saw in the following terms [158] : I saw the large wave pick up the vessel and smash it onto the cliff face. I was saturated by a large amount of water breaking over the cliff's edge. At the same time, I heard a tremendous cracking noise which I attributed to the hull of SIEV 221 impacting the cliff edge. I heard the sound of timber breaking and people screaming. As the swell receded I looked up and saw that a large section of the vessel's starboard side was missing and that the vessel was listing heavily to the starboard side and taking on water. The vessel appeared to be breaking up. I also spotted what appeared to be 2 adult males lying face down in the water. Most of the remaining passengers on the vessel had gathered around the damaged verandah structure. I began throwing life jackets into the water. Another large wave came and picked up the vessel, again causing it to smash into the cliff. As the water receded, I saw that most of the vessel had broken up and there was a large amount of debris in the water. The remains of the vessel were listing heavily to starboard and over two-thirds of the remaining deck was under about a foot of water. By this time, a bit after 7am, there were also a number of people in the water and only a few clinging to the remains of the vessel. I noticed that Customs Officer Pickett and Mr Majid had tied life jackets to the ends of their ropes and were throwing the ropes into the water. I helped them try to pull 2 survivors from the water using the rope, but our attempts to rescue those individuals were unsuccessful. Two more sets of large swells broke over the cliff. I looked at the vessel and saw that the stern position of the hull had disintegrated and only a portion of the bow was still afloat. A number of adult males were still clinging to the bow. I saw people, debris and life jackets in the water. The current was carrying them out towards Rocky Point.

The response of the Triton

1. At about 06:35 the Triton received a radio call from the Pirie advising that SIEV 221 was reported to have no engine power and was on the rocks. Enforcement Commander Saunders understood this to mean that the vessel was in danger of breaking up, with the result that people would be in the water. As a consequence, and in circumstances where he had not been advised up to that point that anyone on board SIEV 221 was in distress or required any assistance, it became clear to him that the situation was urgent. He gave instructions to commence preparations for the launch of the Triton's two tenders [159] .
2. At about 06:41 the Triton's second engine was brought on-line. Enforcement Commander Saunders briefed his tender crews as to the unfolding circumstances, [160] and instructed them to prepare for a SOLAS situation, the nature of which he explained in his evidence [161] : Q. … Could you first explain to the Court what is involved in preparing the tenders for a SOLAS situation? A. Sure. So I mean the lead up to that is I would have given them a briefing on what had occurred, you know, that I had received a call that there was a SIEV on its way. Because they wouldn't have been aware of a lot of the background of it, you know, the numbers on board and that type of things, so I give them a briefing on, you know, expected numbers, that it's possibly people in the water. So to instruct them to prepare for a SOLAS means just ensuring that they have a lot of the safety equipment, you know, throwing quoits, ropes, that sort of thing, and mainly that we I put an extra person on board to help, you know, pull people up onto the tenders, but also maintaining that there's enough space to take on as many people as we can, and also explain to them to look for aim for safety of life at sea, so, you know, getting people who are alive and able to be saved is a priority, so yeah; but the idea of the briefing is to give them a background on what's occurred and what I expect from them. Q. In terms of getting safety rings and other buoyancy equipment, et cetera, was that something that physically would be placed onto the RHIBs or? A. No, most of that stuff's on board, but it's inside like a hold that has a - like a steel hatch, so, you know, getting that sort of thing out. We have long poles for, you know, reaching out over the side, so just making sure that they're prepared, you know, that giving them a heads up on what to expect really. Q. Had you had as part of your training for SOLAS situations? A. Yeah, we have, yes. Q. What did that particular aspect of training entail? A. Not so much as a command role, but more using lifesaving equipment like life rafts, life boats, flares, that type of thing, as opposed to, you know, dragging people out of the water.
3. By about 06:55 the Triton's second engine had been started, and the Triton was heading north at a speed of about 15 knots which was the maximum safe speed in the prevailing conditions. At about that time the Triton received a radio transmission from the Pirie advising that there were approximately 50 people in the water off Rocky Point. This meant that the Triton would need to launch both of its tenders in order to rescue people from the water [162] .
4. As the Triton approached North-East Point, Enforcement Commander Saunders concluded that it would be too dangerous to attempt to launch the tenders at that location, let alone at Rocky Point (the latter location being even more exposed to the prevailing weather conditions). He ordered that Triton be slowed to a speed of 6 knots and that it change course slightly to the south so as to provide a lee for the safe launch of the tenders [163] .
5. The first tender ("tender 1") was launched from the Triton at approximately 07:04, and the second at approximately 07:05, each with a crew of three. Both were ordered by Enforcement Commander Saunders to proceed directly towards Rocky Point to assist SIEV 221. In the meantime, the Triton continued towards the same destination [164] .

The arrival of the Pirie, the Triton, the RHIBs and the tenders at Rocky Point

1. It was Enforcement Commander Saunders' recollection that vessels arrived in the vicinity of Rocky Point in the following order [165] : 1. the RHIBs launched from the Pirie; 2. the Pirie; 3. tender 1; 4. tender 2; 5. the Triton.
2. Each of the RHIBs launched from the Pirie had radioed Commander Livingstone at approximately 07:00 to indicate that they had arrived at the scene. At that time the scene remained obscured from the Pirie but by approximately 07:05, the Pirie had proceeded sufficiently around North-East Point so as to bring the RHIBs within its view. At about 07:07, Commander Livingstone received a report from the RHIBs that there were people in the water, and that life jackets and life rings were being deployed. By that time, Commander Livingstone could see what he thought were either people or debris in the water, although he said that the combined effect of rain, sea spray and a large swell made it very difficult to get a clear view [166] .
3. Commander Livingstone explained that at this point, his main concerns were [167] : 1. the possibility of the RHIBs becoming swamped or overloaded by people in the water; 2. one or other (or both) RHIBs being unable to manoeuvre due to the large number of people in the water; 3. the possibility of losing people overboard whilst trying to recover the RHIBs alongside the Pirie; and 4. whether survivors could be safely recovered onto the Pirie from the RHIBs if the RHIBs were not able to be hoisted by a cradle (in circumstances where it was not safe to use jump ladders and scrambling nets due to the large swell, and the proximity of SIEV 221 to the cliffs).
4. Commander Livingstone gave specific evidence regarding the dangers inherent in a RHIB approaching SIEV 221 [168] : Q. Yes, off, at say 5.50 say just give you a bit more allowance, at 5.50 that you were off Ethel Beach at the southern end of your racetrack and that your time to get the RHIBs having launched them in the lee of the island already you're motoring up on the east side and then launch, it would be about 20 minutes from the point when you made that executive decision to go north, until the RHIBs arrived off the Rocky Point? A. Yes, assuming all those conditions. Q. Assuming that, and assuming at that point the boat was still either just under power, or had just lost power, but was 150 metres out. Your RHIBs with the skill the drivers have shown, would be able to come quite close alongside the SIEV? A. No, from a safety perspective, a vessel of the SIEV's size in those conditions is a dangerous target for a RHIB to approach. They would certainly go no closer than 20 metres. The way that SIEV was moving about, the risk, to RHIB of being punctured or impacted is one factor, whether it was underway or under power or not, and then once they were there assuming they had been there, and within range of the SIEV, their actions would be very limited from that point onwards. Their presence is about all they would be able to provide from that point of view.
5. By approximately 07:08, both of the Triton's tenders were also on the scene. By this time, the RHIBs launched from the Pirie were recovering people from the water. Commander Livingstone explained that due to the unsurveyed coastline, lack of sea room at the scene, and adverse weather conditions, the closest that the Pirie could be positioned to Rocky Point was approximately 300 yards [169] .
6. On and from approximately 07:24, survivors from SIEV 221 were disembarked and taken aboard the Pirie. Between about 11:09 and 13:02, the Pirie's RHIBs ferried survivors (as well as the bodies of some of those who did not survive) ashore, and assisted one of the tenders launched from the Triton in doing the same. Over the ensuing two days, the Pirie conducted additional searches but no further survivors or bodies were found [170] .
7. The Triton arrived at the scene at approximately 07:30, at which time Enforcement Commander Saunders observed people being retrieved from the water. The Triton took up a position about 1 nautical mile from the coastline to provide support to the tenders and RHIBs, and to operate, with the Pirie, as a command centre. Enforcement Commander Saunders said that it was too dangerous to place the Triton any closer to SIEV 221, describing the weather at that point as "severe", with 5m waves crashing into the cliffs at Rocky Point in a wind of about 30 knots. He could see that there was both debris and people in the water adjacent to the coastline. He did not see the hulk of SIEV 221 and concluded that it must have either sunk, or been broken up by being smashed against the rocks [171] .
8. The prevailing conditions obviously rendered the recovery of survivors from SIEV 221 both difficult and dangerous. There was, in Enforcement Commander Saunders' view, a particular danger that if the tenders came too close to the cliffs, they too would be lifted up and/or smashed onto the rocks by the waves. The tenders collected survivors from the water and transported them to the Pirie and to the Triton, before returning to search for more survivors. The tenders had to be retrieved by the Triton each time in order for the survivors to be offloaded before the tender could be relaunched. Although Enforcement Commander Saunders considered that this was inherently dangerous given the prevailing conditions, he nevertheless regarded it as being necessary in order to save lives [172] .
9. At approximately 07:32, after returning to the Triton, tender 2 developed engine problems which continued for several minutes. As a consequence, Enforcement Commander Saunders concluded that tender 2 would not be able to return to attempt further rescues because it would be too dangerous for it to continue to operate near to the rocks in the rough conditions on reduced power. He instructed tender 2 to collect a life raft from the Triton and tow it to the scene before returning. This was because he thought the life raft might be able to be used to receive and hold survivors. The life raft was deployed on the Triton's port side at approximately 07:37 and tender 2 then towed it closer to the SIEV. At that time, tender 2 had six survivors on board. However, at approximately 07:47, Enforcement Commander Saunders was advised that the towline to the life raft kept breaking. At approximately 08:18, he gave instructions to cut the life raft adrift as it was not being utilised [173] .

The viability of towing SIEV 221

1. A considerable amount of evidence was given as to whether it was viable in the circumstances to tow SIEV 221 away from the cliff face at Rocky Point.
2. Commander Livingstone said that even if SIEV 221 had not struck the rocks prior to the arrival of the RHIBs or the Pirie, it would still not have been a viable option to attempt to tow it [174] . He explained that this was so for a number of reasons.
3. Firstly, he said that even in ideal conditions with an experienced towing party, it would have taken about 30 minutes to effect a tow. He explained that he first learned of the possible presence of a CCOI just after 06:00 and that SIEV 221 had first struck the cliff face at Rocky Point at about 07:00. He said that it was impossible for the Pirie to proceed to the scene of SIEV 221 from its position at 06:00, and effect a tow prior to SIEV 221 striking the cliff face [175] .
4. Secondly, he explained it would have been necessary to embark a party on to SIEV 221 in order to attach a tow line to it. To do that, it would have been necessary for a RHIB to get alongside SIEV 221. Commander Livingstone said that in the prevailing conditions, and bearing in mind that SIEV 221 was close to the cliff face, such a manoeuvre would have been dangerous, and would have carried with it "every chance" of the RHIB being punctured which, in turn, would have created a risk of people falling into the water [176] .
5. Thirdly, he explained that in order to tow SIEV 221 it would have been necessary for the towing party (on the assumption that they had managed to embark) to attach a tow line to a strongpoint on SIEV 221. According to Commander Livingstone, there were no strongpoints on SIEV 221 sufficient to support a tow. He stated that the attachment of a tow line to SIEV 221 was such that any attempt to tow it would have resulted in "tearing the vessel apart" [177] .
6. Fourthly, he said that the members of any towing party who might have managed to embark SIEV 221 would have been placed in grave danger while preparing for the tow. This was because SIEV 221 was not under power, was at the mercy of the sea and wind, such that could well have struck the cliffs with the towing party on board [178] .
7. Fifthly, he said that even if a tow line could have been attached to SIEV 221, and an attempt made to tow it away from the cliff, it would necessarily have been towed directly into the prevailing weather, giving rise to a very high likelihood of SIEV 221 broaching (i.e. tipping over on its side) as a consequence of a combination of the wind and the force of the tow [179] .
8. Sixthly, he explained that in any event, the RHIBs were not equipped, and were not sufficiently powerful, to generate the force necessary to overcome the conditions and tow SIEV 221 [180] . Moreover, given the prevailing conditions, the tow line which was required to tow SIEV 221 would have been too large to attach to the RHIB without causing the RHIB damage [181] .
9. Seventhly, he said that in order to tow SIEV 221 from its position it would have been necessary for the Pirie in order to enter unsurveyed waters, within 300 yards of the cliff face, in extreme weather conditions. According to Commander Livingstone, this would not only have placed the Pirie in grave danger, but would have reduced its manoeuvrability [182] .
10. In Commander Livingstone's view, all of these factors meant that any attempt to tow SIEV 221 away from the cliff face would have been reckless, and would have created a very high likelihood of an even greater loss of life, including the loss of members of the crew of the Pirie [183] .
11. Commander Livingstone was cross-examined at length in relation to this issue [184] : A. To pass a line would have been ineffectual; the RHIBs aren't capable of towing or pushing or dragging a SIEV away or influencing how the SIEV is going to act in those conditions, or on a very calm day. The towing point on the RHIBs aren't rated so whatever you manage to tow tie to the back end of a RHIB and somehow attach it to a SIEV the shock pull on that rope would have snapped if it didn't drag the RHIB back under. A SIEV would have had very little impact on the direction or heading of the RHIB of the SIEV. Q. Even if they could just get the SIEV around head to wind? A. That would have been impossible, your Honour. Yeah, the effect of the wind and the weather, typically the sea state and swell on the action on the SIEV, whether it was underway or without an engine, any effect that a RHIB would have of any line that it passed across to it, however they achieved that, would have been negligible. It's just not the force the horsepower of the RHIB would not be able to effect would not be able to counter the effect of the weather and sea state on a vessel of that weight and size. Q. Have you done calculations that might demonstrate what you're seeking to say? A. No I haven't but through experience with numerous boarding's of SIEVs and fishing boats, and real operation RHIBs are not used for towing, unless it's particularly calm and it would be a matter of metres to tie a SIEV up to a buoy, in Flying Fish Cove for example, on a particularly good day. The mass involved in an exercise like that should speak for themselves, that's without having done. Q. You say that they're not used for towing because they weren't regularly used for towing were they? A. See the main purpose of - the purpose of the RHIB is not to tow, your Honour, yes. Q. May I take it that you have no idea, in a practical sense, what these RHIBs were in fact capable of if they had to take a vessel under tow? A. As I previously said, your Honour, I have seen towed SIEVs in calm weather short distances to a buoy to affect a mooring. Certainly based on experience the SIEV is not a suitable tow vessel or a vessel the weight and the size of the SIEV in those conditions. There's just the - the RHIB is not designed nor has the power to in effect any kind of improvement in course of a SIEV. Q. Well you don't know because it's just not been tried in these conditions has it? A. The risk of trying to tow a SIEV in those conditions with a RHIB would have resulted in damage to the RHIB, or people being thrown overboard from that RHIB, and certainly would not have improved the situation that we are facing. Q. How do you know that? A. Based on experience. Q. Of what, towing SIEVs in these conditions? A. The risk to the RHIB crew in trying to attempt an evolution like that, whether or not they got the line across, trying to attempt to part - to pass a towline to a SIEV was beyond any risk I was willing to accept. So the argument of whether we in effect could tow them is outweighed by getting a line across in the first place. Q. That is a matter of judgment as you've said previously of the RHIB operators, the coxswain is it not? A. Passing of the line or what they were trying to do? Q. Yes, that evolution as you've described it? A. That evolution is considered approach from the captain to his key team, that's not just a decision made lightly by a junior sailor. Q. But you in fact, when it became clear it was a solo (sic) situation, as you've said in previous evidence to some degree the rules go out the window don't they? A. The rules never go out the window, you certainly acknowledge the rules and your standing profiles and based on your experience and the experience of your team. You mitigate the risk for those rules are designed to guide. Q. You of course had no idea what the bollard pull on the RHIBs would be; you've never done those sums have you? A. The bollards on the RHIBs are unrated, your Honour, so they're not rated, they're not tested to any particular strength. Q. Your supposition is that the crew couldn't of a RHIB couldn't get a line across is entirely based upon your standard operating parameters, that's true isn't it? BELL: I think to be fair to the witness my friend should identify what type of line, what weight, what length otherwise it's not very helpful. CRANITCH Q. Your RHIBs are equipped with towing lines aren't they? A. No, the RHIBs don't carry a towing line as a general rule, no. HIS HONOUR Q. Was that the case back in 2010? A. Yes, your Honour, the RHIBs carry - well it depends on their mission, but as a rule they don't carry tow lines. They carry berthing lines for themselves to tie up to a patrol boat when they're stationed, when there's no one in them, or to tie up to a wharf if they're nearby. Q. That was the general position in 2010? A. Yes, your Honour. CRANITCH Q. But they could have had equipment put on them if it was known that the SIEV was in danger which would enable them to have suitable tying lines; presuming they could tow you could have had lines on board them? A. Again at no point was towing the SIEV a realistic option. Q. I beg your pardon? HIS HONOUR: At no time was towing the SIEV a realistic option. CRANITCH Q. That's depending upon your assessment of the situation, is that correct? A. I can only speak for myself, your Honour, it certainly was my assessment at the time. HIS HONOUR Q. Your assessment was based, as you've said, on your experience as well as the various other factors that you referred to? A. That's correct, your Honour, yes. CRANITCH Q. Assuming that the boat was 150 metres off at the time when the RHIBs arrived are you saying all they could do was stand by and watch the disaster unfold? A. The conditions within that range of the cliff face prevented them, would have prevented them from trying to get alongside the SIEV, to embark personnel from the SIEV; that would be far too risky and again the numbers they would be able to embark would be few. The risk if they did try that of getting alongside; historically when people have been rescued from ships or boats there's an ..(not transcribable).. to get to the side where potential rescue may exist. There's a risk of capsizing the SIEV as people moved. Quite a large number of people on a small boat, ships that ballast shift their weight around quite a lot. Passing a line would've been again - the act of trying to get a line across would've been far too dangerous. Had they achieved that it would've been - again the risk and the effect the RHIB would have had on the SIEV is not a consideration. Q. What about putting a life raft in the water adjacent to the SIEV so that people could come off the SIEV and get into a life raft because you could drift it down with the wind and the swell? A. The differing vessels drift at different rates so putting a life raft in the water next to a SIEV, there's no guarantee they would've actually been close enough to each other for personnel to enter a life raft. Had the life raft nested up against the SIEV there's every chance it would've been punctured. People trying to get from a pitching vessel into a life raft which is quite low to the water would've risked entering the water, falling in and again once those people are in the lift raft they're still drifting towards the cliff face with no control. HIS HONOUR Q. Presumably a life raft in that situation is as susceptible to the conditions as any other vessel? A. It is, your Honour.
12. Enforcement Commander Saunders explained that even if the Triton or its tenders had arrived at Rocky Point before SIEV 221 struck the rocks, it would have been neither possible nor practical for either tender to have attempted to tow SIEV 221 [185] . He held that view for the following reasons.
13. Firstly, he explained that in order to effect a tow it would have been necessary to embark a boarding party on SIEV 221, which would have required positioning a tender sufficiently close to SIEV 221 to allow the boarding party to transfer. This, he said, would have placed the tender at risk of being thrown onto the rocks by the surge of the swell and the heavy sea conditions [186] . He also explained that the members of the boarding party would have been at significant risk of falling into the water while attempting to transfer from the tender to SIEV 221, because of having to jump from one moving platform to another in rough weather conditions [187] .
14. Secondly, he said that even assuming it was possible to embark a boarding party on SIEV 221 without losing the tender or some (or all) of the boarding party, the boarding party would have been at great risk of being swept onto the rocks, along with SIEV 221 [188] .
15. Thirdly, he described the response of passengers on board a SIEV as unpredictable and difficult to manage, particularly in weather conditions of this kind. It was his view that passengers were likely to be fearful and in a state of panic, and that there was a risk that they could rush or overrun the boarding party, thus affecting the stability of the SIEV in the prevailing conditions [189] .
16. Fourthly, he explained that in order to effect a tow of SIEV 221 it would have been necessary to find suitable points on SIEV 221 which were strong enough to withstand the force of the tow in the prevailing conditions. He said that in his experience, SIEVs are notoriously unseaworthy, poorly constructed, and overloaded, all of which would have rendered it difficult to find a strong point. He said that those difficulties would have been exacerbated by the fact that SIEV 221 was heavy by reason of having taken on excess water. The members of any boarding party would have been at risk of being swept onto the rocks whilst searching for suitable tow points [190] .
17. Fifthly, even assuming suitable tow points could be found, Enforcement Commander Saunders explained that a tender would have needed to position itself alongside SIEV 221 to get close enough to throw a tow line onto SIEV 221. For the same reasons as those previously set out [191] this would have resulted in the tender being placed in danger of being swept onto the rocks [192] .
18. Sixthly, he said that even if towing could have been commenced, there would have been a risk of SIEV 221 being positioned "beam on", or in other words side-on into the prevailing swell, rendering it highly susceptible to rolling and capsizing.
19. Seventhly, he explained that in the extreme conditions there was a risk of: 1. the tow point failing, either by slipping or breaking; 2. SIEV 221 breaking apart from the force of the tow; 3. the presence of debris in the water affecting the operation of the tender's jets; and 4. members of the boarding party, or PIIs from SIEV 221, being injured or falling overboard during towing [193] .
20. Eighthly, he explained that the necessary steps directed towards towing SIEV 221 would necessarily have taken time to complete, during which time SIEV 221 would likely have moved closer to the rocks. He said that even in more favourable conditions, such as in a calmer sea state and with an empty SIEV, it would take 20 to 30 minutes to set up a suitable tow. In light of the conditions at the time, it would have taken significantly longer to do so [194] .
21. Finally, he explained even if the entirety of these difficulties could have been overcome, he would still have had serious doubts about the capability of a tender to tow SIEV 221 away from the rocks to safety, given all of the prevailing conditions [195] .
22. For all of these reasons, Enforcement Commander Saunders explained that even if the Triton or its tenders had arrived at Rocky Point before SIEV 221 struck the rocks, he would not have directed the tenders to attempt to tow SIEV 221 away because such a direction would have placed the lives of the tender crew, and the boarding party, at great risk, and would have amounted to a breach of his duty to ensure their safety [196] .
23. Enforcement Commander Saunders was also cross-examined at some length in relation to this issue. He was first asked [197] : Q. I take it that on a reasonably regular basis you do in fact attach tow lines to SIEVs, is that correct? A. Not really, no. Q. Certainly you attached one to 220 the day before? A. No, I didn't. Or we, Triton didn't. … Q. But it wouldn't be unusual, I take it? A. When we vary rarely tow a vessel that's been intercepted when there's people on board, the time that we may tow one is to tow out to sea to destroy. Q. When it's a hulk essentially? A. Correct. Q. I take it that that is not a complicated or difficult exercise? A. No, not when there's no people on board and the weather is fair, yeah, it's not difficult.
24. Enforcement Commander Saunders agreed that tenders of the kind launched from the Triton had, in the past, been used for towing purposes [198] . He also explained that they had been used for the purpose of towing SIEVs into a position where they could be scuttled in calm waters [199] , and agreed that he had no experience in (inter alia) attaching a line to a SIEV in the kind of conditions prevailed on 15 December 2010. [200] He was then asked [201] : Q. For example, if you had a grappling hook, which I assume you have on these vessels? A. Yes. Q. A grappling hook could be thrown on board from some little distance away from a vessel that you were seeking to bring in tow, could it not? A. In this particular circumstances in this weather -- Q. Any vessel. A. Any vessel, yes. Q. Do you have a gun to shoot your grappling hook? A. No. Q. It's got to be manually thrown, has it? A. Yes. … Q. If you could get a tender within throwing distance of a grapping hook, you could throw a grappling hook on board this boat in these conditions, could you not? A. In the conditions on the day of the -- Q. On the day, yes? A. No. Q. Why not? A. That would require going within ten or 15 metres of the vessel and the sea state and the swell and the surge of a tender there would be extremely dangerous, not to mention the debris in the water would have a huge effect on the jet propulsion system of the vessel. Q. Perhaps I haven't made myself clear. By the time you got there or your tenders from the Triton got there, this vessel had been destroyed and there was a debris field? A. Yes. Q. I'm talking about a situation which would occur prior to this boat impacting the rocks at a point of time when it was away a little distance from the cliff but in the backwash from the cliffs. Are you seriously saying you couldn't get within ten or 15 metres on the seaward side of that boat and throw a grappling hook, are you saying that couldn't be done? A. Well, I'd like to point out you didn't make that clear when you asked the first question. Q. I beg your pardon, I didn't mean to confuse you. Do you now agree with me that could be done? A. As long as there's enough distance away from the rocks that a tender could safety go there with no debris to throw a grappling hook with some rope on it, I would agree that that is possible to throw a grappling hook with a light line on it, yes. Q. That would obviate the necessity for having a boarding party on board? A. No. Q. Why not? A. In order to effect a proper tow, you would need to set up - find a strong point which you need some knowledge of how to do that, and normally we'd set up a bridle system which takes some time and you need someone with some knowledge on that, so I'm not sure whose setting that up once we throw the grappling hook on board.
25. Enforcement Commander Saunders was then asked [202] : Q. It depends whose on the other end of the grappling line, doesn't it, as to whether or not it gets attached? A. If somebody has some knowledge, some seamanship knowledge, yes. Q. You say that the response of passengers is unpredictable and difficult to manage because they were fearful and panicked? A. Yes. Q. Your concern was, what, that they would somehow overwhelm a boat which had thrown a line to the vessel? A. Yes. Q. 15 metres away? A. Yes. Q. How would they do that exactly? A. The people that we deal with are quite desperate and can be hysterical. They're not - a lot of them don't know how to swim. So you could imagine that two people getting on board would create some, you know, panic and hysteria. It would also lead - it has, you know, it can lead to a surge of people to one side which can cause a capsizing which has happened in the past. So there's different factors that can affect whether the boarding party can, you know, do that - -
26. He was then asked [203] : Q. I'm sorry, commander, I beg your pardon if I have misled you. If you assume that the scenario I put earlier to you whereby you're 15 metres out and you throw the line and get a grappling hook aboard, that's going to obviate the problem of the boarding party risk, is it not? There's no boarding party in other words? A. As we mentioned, if there's someone who suitably understands how to set the tow up, it's, you know, possible. Q. You say that if a two was set up it would have to have a bridle. Why does it have to have a bridle? A. Normally with these vessels they're unseaworthy as we mentioned. Q. Yes? A. A bridle, it gives an even amount of force on the Samson post, so therefore it has less chance of ripping the Samson post out. It allows it to be Q. Can I ask you to stop for a second. The Samson post is a strong point on the RHIBs, is that correct? A. No, on the SIEV. Q. On the SIEV? A. Yes. Q. Do they generally have a Samson post? A. Yes. A bridle, it's - I guess it's your standard for allowing it to be towed safety without basically pulling or, you know, damaging the vessel and without and in the safest way without creating, you know, it pulls it basically pulls the vessel, you know, straight through the water. Q. Certainly. I take it there's only one Samson post on the vessel? A. Not necessarily. There's - you'll have them on port and starboard side. … Q. Samson posts are designed for vessels to take lines aboard and tie up, is that right? A. That's correct. Q. And/or use them for the purposes of fishing or towing or other purposes? A. Probably not fishing, but for - it can be used for towing, yes. Q. They are generally in a position on the vessel, as you say, port and starboard? A. Yes. Q. Ideally of course one would like to have the line attached to the port Samson post and one to the starboard Samson post leading back to a common point and then a single line coming to the RHIBs? A. Correct. Q. Who I take it also have the equivalent of a Samson post? A. Yes. Q. That is in the ideal situation. Might I suggest to you in an emergency you don't need a bridle, you just need one line on board to get the nose of the boat into the weather. Would you agree with that? A. Again, if you find a suitable tow point that's possible. Q. A Samson post for example? A. Yes.

THE RESULTS OF THE RESCUE EFFORTS

1. A total of 41 persons were rescued from SIEV 221. 50 bodies were recovered from the water [204] .

A BRIEF SUMMARY OF THE COMPETING POSITIONS OF THE PARTIES

1. Before turning to the individual questions that I am required to determine, it is appropriate that I set out, in broad terms, a brief summary of the competing positions of the parties.

The plaintiffs' position

1. The plaintiffs' case is that what was an obvious tragedy should never have occurred, and could have been avoided: 1. with more timely action from the defendant when it became known, by at least 05:40, that a SIEV was approaching the dangerous side of the island, in a heavy sea state, giving rise to what was an obvious SOLAS situation, and where there was no response from the defendant, and a SOLAS situation was not declared, until about 06:39; and/or 2. had the Pirie been maintained its normal surveillance patrol that morning (i.e. on an east/west racetrack to the north of Christmas Island) ready to intercept the regular flow of SIEVs to the island, rather than sheltering on the leeward side of the island providing support to those crew who remained on the hulk of SIEV 220, a task that could have been performed by the crew of the Triton; and/or 3. had any working search and rescue facilities been available to the VMRS.
2. It is the plaintiffs' position that the delay in commencing the rescue operation was of critical importance. They argue, in particular, that had rescue personnel been sent out even a short time earlier, they would have faced a far less severe situation, and in particular would have arrived at Rocky Point before SIEV 221 hit the cliff face.
3. The plaintiffs also submit that upon the statutory forfeiture of SIEV 221 to the defendant, the defendant assumed duties and responsibilities analogous to those owed by an occupier of premises to an entrant.
4. The plaintiffs further argue that all of these circumstances form the basis for an action for breach of statutory duty, having regard to particular provisions of the NA.

The defendant's position

1. The defendant submits that the plaintiffs' principal claim in negligence, based upon an alleged failure on its part to take reasonable care in the exercise of its powers and the deployment of its resources, is based upon an asserted duty of care that is unsupported by precedent, contradicted by principle, and lacking in evidentiary support. The defendant submits that the duty of care alleged by the plaintiffs is incapable of arising at law, and that the legal and factual context of the present case does not support its recognition.
2. The defendant further submits that it was not responsible for conducting an ongoing search and rescue operation for SIEVs in the waters surrounding Christmas Island in 2010, and that it did not have control over (inter alia) the conditions at sea, and the relevant risk of harm that eventuated. The defendant submits that it was able to control only its response to the emergency, which required the use and deployment of limited resources, and which was necessarily required to be balanced against the wider policy and security objectives that governed BPC's operational mandate.
3. Further, the defendant submits that even if the plaintiffs could establish that a duty of care was owed, there is no evidence to support the conclusion that its alleged failures caused or contributed to any loss and damage which may have been suffered. In particular, the defendant submits that: 1. the Commanding Officers of the Pirie and the Triton did not delay, let alone delay unreasonably, responding to the reported presence of SIEV 221; 2. the respective responses of the Pirie and the Triton were each efficient and highly professional; 3. there was no unreasonable failure on the part of either the Pirie or the Triton to patrol the waters to the north of Christmas Island throughout the night of 14 December 2010, and that even had such a patrol been maintained, there is no basis to assume that either vessel would have detected or intercepted SIEV 221; 4. the weather conditions at the time were such that it would not have been possible to launch any land based response vessel from Christmas Island, even if the Sea Eye and the Colin Winchester had been in working order; 5. even had the RHIBs launched from the Pirie, and the tenders launched from the Triton, reached SIEV 221 earlier than they did, it would have been neither safe, nor practically feasible, to tow SIEV 221, or to do anything else to prevent it from being washed against the coastline; and 6. towing SIEV was not, in the circumstances, a viable option.
4. The defendant further submits that it did not assume any duties or responsibilities as a result of becoming the owner of SIEV 221, and that any asserted duty arising as a consequence of the statutory forfeiture of the vessel is fundamentally inconsistent with the nature of statutory forfeiture as a measure of penalising the criminal conduct of illegally entering Australia.
5. In terms of the claims brought by the plaintiffs alleging breach of statutory duty, it is the defendant's position that properly construed, the provisions upon which the plaintiffs rely do not ground a cause of action for damages.

QUESTION 1: Whether, by no later than September 2010, the defendant was involved in an ongoing operation for the interception of SIEVs in territorial waters north of Christmas Island ("the Interception Operation")?

Submissions of the plaintiffs

1. It was submitted on behalf of the plaintiffs that the answer to this question was plainly yes.

Submissions of the defendant

1. The defendant took no substantive issue with the proposition that this question should be answered yes. The defendant's formulated response incorporated detail as to (inter alia) the particular agency of the defendant who had the responsibility for the detection and inception of SIEVs.

Answer to Question 1

1. There is uncontradicted evidence that Operation Resolute was in force on 14 and 15 December 2010 and that it was directed, at least in part, to the detection and interception of SIEVs. Question 1 is therefore answered in the following terms: Yes. In 2010, the BPC, an agent of the defendant, had stationed a permanent response vessel at Christmas Island for the purposes of conducting surveillance on the northern approaches to Christmas Island to detect and respond to maritime security threats, including to detect and intercept Suspected Illegal Entry Vessels and transfer their crew and Potential Illegal Immigrants to Christmas Island for processing under the Migration Act 1958 (Cth).

QUESTION 2: Whether, in the period September to December 2010, the defendant owed to passengers on board SIEVs which approached Christmas Island, a duty to take reasonable care in the exercise of the defendant's powers and the deployment of the defendant's resources in the Interception Operation, so as to avoid foreseeable physical harm to those passengers?

The plaintiffs' case

1. Paragraphs [25] to [30] of the FASOC [205] plead the following: [25] In the premises, by no later than September 2010 and from that time until December 2010, in the exercise of its statutory powers under the Migration Act, the Defendant through its agency BPC was engaged in an ongoing operation ("the Interception Operation") which was: a. Directed to the surveillance, detection and interception of SIEVs approaching Christmas Island from the North; b. Geographically focused on a narrow stretch of territorial waters to the North of Christmas Island; c. Intercepting and boarding SIEVs at that location on a regular basis; d. Accepting the forfeiture and thereby becoming owner of any SIEV which entered that location, by operation of s. 261A of the Migration Act; e. Known to people smugglers and those intending to travel to Australia as "Irregular Maritime Arrivals"; and f. Relied upon by passengers of SIEVs to continue to operate in this way, as once those passengers had set off for Christmas Island, they had: i) no means of turning back; ii) limited means of landing at Christmas Island without being intercepted; and iii) if not intercepted, a substantial risk of being shipwrecked and catastrophic loss of life, especially if they encountered poor weather, ran out of fuel or had engine failure. [26] Further, by no later than September 2010 and from that time until December 2010, the Defendant: a. Had assumed responsibility and control of the safe arrival of SIEVs approaching Christmas Island from the North through the Interception Operation; and b. Had special knowledge of: i) the particular vulnerability of passengers of SIEVs approaching Christmas Island from the north in the expectation of being intercepted by the servants and agents of the Defendant; and ii) the particular reliance of passengers of SIEVs approaching Christmas Island from the north upon Interception by the servants and agents of the defendant. Duties of Care in the Conduct of the Interception Operation [27] By reason of the matters in paragraphs 13 to 26 above, in September to December 2010 the Defendant owed, to the passengers of SIEVs approaching Christmas Island, a duty to take reasonable care in the exercise of its powers and the deployment of resources in the conduct of the Interception Operation, so as to avoid foreseeable risks of physical injury, death and property damage to those passengers. [28] Further, given the potentially catastrophic consequences for passengers of a SIEV if it were shipwrecked on the coast of Christmas Island due to any failure by the Defendant to take reasonable care in the conduct of the Interception Operation, the Defendant ought to have foreseen that: a. the family members of a passenger learning of the passenger being killed, injured or put in peril; and b. the bystanders and rescuers witnessing the passengers being killed, injured or put in peril, might, though of normal fortitude, in the circumstances suffer a recognised psychiatric illness. [29] By reason of the above, in September to December 2010 the Defendant owed to: a. the family members of passengers on a SIEV approaching Christmas Island; and b. the bystanders and rescuers who witness (sic) a shipwreck of a SIEV approaching Christmas Island, a duty to take reasonable care in the exercise of its powers and the deployment of resources in the conduct of the Interception Operation, so as to avoid foreseeable risks of mental harm to them. The Relevant Risk of Harm - The Shipwreck Risk [30] In September to December 2010, there was a risk that in the course of the Interception Operation, a SIEV might if not intercepted on approaching Christmas Island from the north, be shipwrecked on the rocky coast of Christmas Island due to poor weather, poor navigation, running out of fuel, or a combination of those factors, thereby leading to catastrophic loss of life ("the Shipwreck Risk").

Submissions of the plaintiffs

1. It was submitted on behalf of the plaintiffs that the question of the source of a duty of care to the plaintiffs arose in: 1. undertaking the ongoing interception operation which was underway when the shipwreck of SIEV 221 occurred ("the interception duty"); 2. carrying out the rescue response operation once the defendant had embarked upon the response ("the earlier response duty"); and 3. the maintenance of the search and rescue vessel facilities on Christmas Island which had been allocated by the defendant ("the readiness duty").
2. It was submitted that the interception duty arose because the defendant: 1. having engaged its statutory powers under the MA to undertake the surveillance, detection and interception of SIEVs approaching Christmas Island from the north, was required to exercise reasonable care in using those powers to intervene; 2. had assumed a duty for the safe arrival of SIEVs approaching Christmas Island from the north; and 3. had accepted, by operation of s. 261A of the MA, the forfeiture of any SIEV arriving at Christmas Island, and by doing so had automatically become the owner of such SIEV.
3. It was submitted that the earlier response duty arose as a consequence of: 1. the assumed duty of care of rescuers, once they have engaged in responding to a situation of danger, to act with reasonable care; 2. the duty of a shipowner to exercise reasonable care in responding to a known danger to occupants of its vessel; and 3. the special obligation of mariners to respond to vessels in their vicinity which are in danger of foundering.
4. It was submitted that the readiness duty arose, in the context of an assumed duty of a rescue service, from the placement of search and rescue facilities pursuant to the exercise of statutory functions so as to ensure that such facilities would be fit for purpose, and that reasonable care would be exercised in maintaining such search and rescue capacity.
5. To the extent that the defendant relied upon analogies which were sought to be drawn from so-called "emergency services" cases, the plaintiffs submitted that such cases were readily distinguishable. It was submitted that none of the authorities upon which the defendant relied in that respect involved "the very complex and unique factual matrix" of the present case, and that the defendant's reliance upon that line of authority reflected an unsatisfactory approach towards concluding that the plaintiffs' case should fail. It was emphasised that the rescuers in the present case were Navy personnel who were highly skilled professionals, and it was submitted that in those circumstances, given the obviously treacherous conditions which prevailed on 15 December 2010, they were the only persons who had the adequate skill to rescue the passengers on board SIEV 221. It was submitted that it must have been obvious to them that serious harm would occur to the passengers on board SIEV 221 if they did not respond and that accordingly, a duty of care was owed to those passengers.
6. Whilst acknowledging that "the law of the land" does not generally recognise any good samaritan rule, senior counsel for the plaintiff submitted that the "law of the sea" had always demanded a higher degree of care, vigilance and diligence, and imposed a duty on a person to come to the aid of a stranger in peril. It was submitted that even though there may not be any positive duty on a member of the public to come to the aid of a stranger, there remained a duty upon the master of a vessel to go to the aid of, and render assistance to, a person in distress at sea. This, it was submitted, was because of the specific nature of the obligations imposed by the NA, as well as the operation of international instruments which dealt with the safety of life at sea.
7. It was further submitted that just as an occupier owes a duty of care to all persons coming on to premises, so did the defendant owe a duty of care to those on board SIEV 221. This, it was submitted, arose by virtue of the fact that the defendant became the owner, and thus the occupier, of SIEV 221 as a consequence of its statutory forfeiture pursuant to s. 261A of the MA. It was submitted that as a consequence, the defendant owed to those on board SIEV 221 a duty analogous to that owed by an occupier of premises to an entrant.
8. It was further submitted that a conclusion that a duty of care was owed was supported by the fact that those on board SIEV 221 were, to the knowledge of the defendant, vulnerable and unable to protect themselves from risk of injury once they were on the vessel. It was submitted that they had no control over its passage and were entirely at the mercy of people smugglers, such that the only other group of people who did have power over their fate, and who were within the vicinity of Christmas Island at the relevant time, were the officers of the defendant. The vulnerability of those on board was said to stem from the fact that: 1. they included children; 2. they were malnourished and unlikely to be able to swim; 3. SIEV 221 was unlikely to be in a seaworthy state, and was unlikely to have life vests available for its passengers; and 4. SIEV 221 was not likely to have sufficient fuel to continue to remain at sea, and was unable to dock at Christmas Island.
9. Senior counsel for the plaintiffs took particular issue with the suggestion that they were seeking to impose a duty on the defendant which was unrestricted in location, circumstance and time. He emphasised that the duty sought to be imposed was limited to the particular circumstances of the present case. He submitted that there had, over time, been a consistent rejection of a universal or absolute approach to the determination of whether a common law duty of care existed in a given set of circumstances, and that in the present case the duty of care arose from a unique set of facts, which included the arrival of persons on a vessel: 1. in an area known for such arrivals; 2. at a time when there was a medium alert about arrivals of this kind, such that they were expected; 3. in the middle of an extensive BPC operation, in which statutory powers had been invoked in order to detect and seize SIEVs in Australian territorial waters; and 4. which was controlled by people smugglers.
10. Senior counsel for the plaintiffs accepted, as I understood it, that the question whether a duty of care was owed in circumstances such as the present had not been the subject of judicial consideration, and that if a duty of care was found to be owed it would be novel. However, he submitted that a conclusion that a duty was owed would not represent a "radical" development in the common law, which had not been reticent formulating new sets of circumstances in which such a duty was found to be owed. He submitted, in particular, the present case demonstrated that the defendant's officers on Christmas Island had, at the relevant time, substantial control and authority over the risk that eventuated as evidenced by (inter alia) its: 1. power to seize, and its subsequent ownership of, SIEV 221 pursuant to the MA; 2. power to detain the plaintiffs in Australian territorial waters; 3. power to arrest people smugglers and take control of vessels such as SIEV 221; 4. control over a rescue and response capability located at Christmas Island at the time; and 5. control over BPC assets located at Christmas Island at the time.
11. Senior counsel for the plaintiffs also cautioned against what he submitted was the defendant's attempt to categorise those on board SIEV 221 as having acted unlawfully. It was submitted that any attempt by the defendant to disentitle the plaintiffs to the availability of a cause of action at common law by "incorrectly colouring them as being outside of the law" should be rejected.
12. It was also emphasised that the plaintiffs did not seek to impose upon the defendant a duty to anticipate all unforeseen possibilities. However, it was submitted that: 1. an operation had been put in place to watch for, intercept, and detain people seeking to arrive illegally at Christmas Island on a SIEV; 2. such operation was being carried out at Christmas Island when SIEV 221 arrived; 3. the defendant's officers had a reasonable suspicion that SIEV had been used in an offence of people smuggling contrary to, and that the plaintiffs were people whom they were empowered to detain under, the MA; 4. as it approached Christmas Island, SIEV 221 was a vessel that had been automatically forfeited to the defendant pursuant to s. 261A of the MA; and 5. the Commanding Officers of the Triton and the Pirie knew, at least from about 06:05 on 15 December 2010 (although they should have known earlier) that there were persons on a SIEV who were in distress.

Submissions of the defendant

1. Senior counsel for the defendant submitted that there is no general duty at common law to rescue and that although there are some limited exceptions to that general principle, a public authority exercising statutory powers should not be regarded by the common law any differently from the citizen, and in particular, should not be considered to have an obligation to act as a rescuer. It was submitted that in the absence of a statutory direction, the mere existence of a statutory power does not impose a duty to exercise that power for the protection of others.
2. It was submitted that in determining whether a duty of care arose in the present case, it was firstly necessary to identify the relevant aspects of the relationship between defendant as a public authority, and the plaintiffs as a class of persons to whom the duty was said to be owed. It was submitted that in the circumstances of the present case, the relevant aspects included (although were not limited to): 1. the nature of the statutory or public power; 2. the degree of control exercised by the defendant; 3. the vulnerability of the plaintiffs, and their reliance upon the defendant; and 4. the degree of consistency between the asserted duty on the one hand, and relevant statutes and other doctrines of law on the other.
3. In addressing those matters it was submitted that it was particularly important, for the purposes of determining whether a duty of care existed, to consider the nature and degree of control exercised by the defendant over the risk of harm that eventuated. Senior counsel stressed however, that the capacity of a public authority to exercise managerial or regulatory control to avert a risk of harm which did not emanate from matters for which it was responsible, and which it did not create, was not a relevant aspect of control.
4. It was further submitted that where an asserted common law duty of care was directly inconsistent with statutory duties or where, even if not directly inconsistent, such a duty would distort the focus of the performance of statutory duties (for example, by stimulating conduct which it was the policy of the law to suppress) or cause those statutory duties to be exercised in a defensive way, no duty of care will arise.
5. The submissions advanced on behalf of the defendant also made reference to a number of authorities in which emergency service providers, and law enforcement personnel, were found not to have owed a duty of care in particular circumstances. By analogy, senior counsel submitted that no duty of care was owed in the present case.
6. Against a background of these general propositions, senior counsel for the defendant advanced a number of specific submissions which, he argued, supported a conclusion that the duty of care for which the plaintiffs contended was not one which was recognised by the law.
7. It was submitted that the duty of care asserted by the plaintiffs was a duty to take affirmative action to avert a risk of harm to another, in circumstances where that risk was not created by the defendant. It was submitted that properly understood, the duty asserted by the plaintiffs was really a duty that the defendant employ the resources of BPC to avoid the wrecking of a SIEV at Christmas Island by intercepting it. It was submitted that as a general proposition, such a duty to take affirmative action will not arise because a public authority has no duty to take reasonable care to protect other persons merely because the legislature has vested it with a power, the exercise of which could prevent harm.
8. It was submitted that the primary purpose of BPC in conducting an operation such as Operation Resolute was to respond to, and protect the Australian community from, identified threats, including the irregular arrival of persons from other countries. It was submitted that such operations were conducted, and the relevant powers exercised, by BPC for the purposes of protecting Australia's interests, by ensuring that only those persons who had a lawful right to do so entered Australia, remained in Australia, and integrated into the Australian community. It was submitted, in particular, that the powers and operations of BPC were not granted or exercised, and that operations were not conducted, for the benefit of a particular class of persons, and specifically not for the benefit of persons arriving unlawfully into Australia to ensure their safe arrival in this country. It was further submitted that in circumstances where powers and operations were exercised and conducted by BPC for broad public purposes (including for the purposes of protecting Australia's national interests) and not for the benefit of any particular class of persons, such powers and operations were not appropriate subjects for the imposition of a common law duty of care.
9. It was submitted that the operations of BPC (in its capacity as a civil maritime law enforcement operation) responding to, and protecting Australia from, threats in its maritime domain, were analogous to the traditional functions of police maintaining the peace. It was submitted that generally, the common law had not recognised that a duty of care was owed by police in the exercise of their functions of preventing and suppressing crime, and protecting life and property. It was submitted that by analogy, the same conclusion should be reached in the circumstances of the present case. It was submitted, in particular, that it was important to bear in mind that the defendant had acted in the context of a danger which had already been created, and damage which already had been caused, over none of which it had any control.
10. In developing the submission that the defendant had no control over the risk of harm which eventuated, senior counsel submitted in particular that the defendant had no control over: 1. the route that was taken to Australia by those in control of SIEV 221; 2. the skills, experience and level competence of the crew of SIEV 221; 3. the condition and level of seaworthiness of SIEV 221; and 4. the weather and sea conditions in the waters surrounding Christmas Island on 15 December 2010.
11. It was further submitted that this was not a case where the defendant had, by its actions, assumed any responsibility for the safety of any persons. It was submitted that the conduct of operations by the defendant, through BPC, to protect Australia from threats to its maritime domain and enforce Australia's migration laws, did not amount to, or incorporate, any assumption of responsibility to ensure that any person entering Australia unlawfully was able to do so safely. Further, it was submitted that any reliance placed upon the operations of BPC by persons unlawfully coming to Australia to intercept them, and to ensure their safe passage, was not one which the common law recognised as reasonable.
12. It was further submitted that in the absence of any action on its part which served to increase the risk of harm, the fact that the defendant had responded to the arrival of SIEV 221, and had attempted to rescue those on board, did not lead to a conclusion that it owed a duty of care in the conduct of that rescue. It was submitted that there was no allegation (and no basis for an allegation) that anything done by the defendant in attempting to rescue those on board SIEV 221 had increased the risk of harm, or rendered the situation worse. It was further submitted that just as the defendant did not owe a duty of care to come to the rescue of SIEV 221, it did not owe a duty of care by attempting a rescue, provided its actions did not worsen the situation which had arisen, and which had necessitated the attempted rescue in the first place.
13. Senior counsel for the defendant further submitted that passengers on SIEVs generally, and those on SIEV 221 in particular, were not "vulnerable" in the relevant sense because they were able to protect themselves from the consequences of the conduct which was alleged to be negligent. Put simply, it was submitted that those on board SIEV 221 could have completely avoided the risk of harm by not travelling to Australia in the first place.
14. It was further submitted that the class of persons to whom the duty of care was said to be owed was a wholly self-selecting, and potentially limitless, class, such that the duty was said to be owed to any person who presented "uninvited and unheralded" as a consequence of SIEVs approaching Christmas Island. Senior counsel for the defendant submitted that the common law did not recognise a duty of that width, where no relationship of neighbourhood existed. It was submitted that to conclude to the contrary would be to "stretch the concept of neighbourhood beyond its breaking point".
15. It was further submitted that the duty of care asserted by the plaintiffs was inconsistent with other duties and principles. It was submitted that as members of a disciplined force, BPC personnel operating the defendant's assets did so in the context of a chain of command which had, as its object, responding to, and meeting, threats in Australia's maritime domain, according to the exigencies of the time and Government policy of the day. It was submitted that a common law duty of the kind asserted by the plaintiffs had the potential to distort the performance of the obligations of BPC, by giving privilege or priority to one maritime threat (unlawful arrival) over, and at the expense of, other maritime threats (eg illegal fishing). In other words, it was submitted that the duty posited by the plaintiffs would have the potential to convert BPC into something that it was never intended to be, namely a search and rescue organisation for unlawful arrivals in Australia. It was further submitted that a Commander of a Commonwealth vessel confronted with another vessel in need of assistance, necessarily faced conflicting priorities, namely the need of the vessel in distress for assistance on the one hand, and the need to ensure the safety of his or her crew on the other.
16. It was further submitted that there is an inherent tension between providing assistance to those in distress at sea, and the underlying policy of the MA to prevent, deter and control the unlawful entry of persons into Australia. It was submitted that although BPC vessels could (and on occasions did) render assistance to vessels in distress, it was no part of the role of the common law to resolve such tension by recognising a duty of care, the objective effect of which would be to stimulate the conduct which was the policy of the legislature, as expressed in the MA, to suppress.
17. Finally, it was submitted that there was no authority, or settled principle, supportive of the duty of care asserted by the plaintiffs in the present case, and that, by a process of analogical reasoning, such authority as there was weighed firmly against a conclusion that such a duty existed.

Consideration

1. The plaintiffs, through senior counsel, obviously accept that their case against the defendant rests, at least in part, upon establishing the existence of a duty of care. They also accept that the posited duty of care is appropriately categorised as novel. However, they argue that historically, the common law has evolved in a way which reflects a preparedness to impose a duty of care in the face of changing circumstances.
2. There is no general test for determining whether, for the purposes of the law of negligence, a duty of care is owed in a given set of circumstances. Different cases necessarily raise different issues. Determining whether a duty of care is owed requires an evaluation of a number of factors which may operate in favour, or against, a conclusion that a duty of care is owed [206] . The ultimate determination of that question may also involve a process of analogical reasoning [207] .
3. In Caltex Refineries (Qld) Pty Limited v Stavar [208] Allsop P (as his Honour then was) firmly rejected the adoption of a fixed, formulaic approach to determine whether a duty of care is owed. His Honour explained the correct approach in the following way [209] : [102] This rejection of any particular formula or methodology or test the application of which will yield an answer to the question whether there exists in any given circumstance a duty of care, and if so, its scope or content, has been accompanied by the identification of an approach to be used to assist in drawing the conclusion whether in novel circumstances the law imputes a duty and, if so, in identifying its scope or content. If the circumstances fall within an accepted category of duty, little or no difficulty arises. If, however, the posited duty is a novel one, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the "salient features" or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury. [103] These salient features include: (a) the foreseeability of harm; (b) the nature of the harm alleged; (c) the degree and nature of control able to be exercised by the defendant to avoid harm; (d) the degree of vulnerability of the plaintiff to harm from the defendant's conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself; (e) the degree of reliance by the plaintiff upon the defendant; (f) any assumption of responsibility by the defendant; (g) the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant; (h) the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff; (i) the nature of the activity undertaken by the defendant; (j) the nature or the degree of the hazard or danger liable to be caused by the defendant's conduct or the activity or substance controlled by the defendant; (k) knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff; (l) any potential indeterminacy of liability; (m) the nature and consequences of any action that can be taken to avoid the harm to the plaintiff; (n) the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one's own interests; (o) the existence of conflicting duties arising from other principles of law or statute; (p) consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and (q) the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law.
4. His Honour pointed out that it was not compulsory, in any given case, to make findings about all of those factors, and made it clear that those which were identified as being relevant did not comprise an exhaustive list. Rather, his Honour observed [210] that the list was a "non-exhaustive universe" of relevant considerations. In that particular respect, Basten JA emphasised that such a multifactorial approach should not be treated as a "shopping list", to the point where all of the identified considerations must be present before it can be said that a duty of care will arise [211] .
5. Control, which was one of the factors to which his Honour referred, is of fundamental importance in determining whether a duty of care is owed, particularly where a public authority is said to owe the duty [212] . For example, in Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council [213] some emphasis was placed on the fact that the relevant public authorities had physical control over the structure (in one case, a bridge and in the other case, a footpath) which were said to be the respective sources of the risk of harm. The existence of that control was significant in determining whether a duty of care existed [214] .
6. In Crimmins v Stevedoring Industry Finance Committee [215] the respondent, who was the regulator of stevedoring operations throughout Australia, was found to owe a duty of care to the appellant, a waterside worker, on the basis that (inter alia) it had exercised control over the appellant by directing him to places of work where there were risks of injury of which the respondent was (or ought to have been) aware, and in respect of which it knew (or ought to have known) that the appellant was especially vulnerable. McHugh J observed [216] : [105] To my mind, the factor that points compellingly to the Authority owing an affirmative duty of care is that the Authority directed the waterside workers where they had to work and that the failure to obey such a direction could lead to disciplinary action and even deregistration as a waterside worker. That factor points so strongly to the existence of a duty of care that it should be negatived only if to impose the duty was inconsistent with the scheme of the Act. It can seldom be the case that a person, who controls or directs another person, does not owe that person a duty to take reasonable care to avoid risks of harm from that direction or the effect of that control. The police officer who directs traffic, the gaoler who has the custody of the prisoner and the helpful bystander, who obligingly points the way to the traveller seeking guidance, all owe a duty to take care that their directions or control do not lead to harm.
7. In the present case, the plaintiffs allege that the relevant risk of harm was the risk that a SIEV, if not intercepted, might be shipwrecked on the coast of Christmas Island due to poor weather, poor navigation, running out of fuel or a combination of those (and perhaps other) factors. In my view, even accepting that there was such a risk, the defendant had no control over it. The defendant did not put the plaintiffs at any risk of harm. The defendant could not (and obviously did not) direct those in charge of SIEV 221 to navigate a particular route to Australia. Whilst there is no doubt that the weather conditions around Christmas Island on the morning of 15 December 2010 were treacherous, the defendant was not in control of those conditions. The defendant had no control (and, on the evidence, knew nothing at all about) the level of skill of those operating SIEV 221. The defendant similarly had no control over the fact that SIEV 221 was, to say the least, a primitive vessel which was unseaworthy by Australian standards.
8. I am therefore satisfied on the evidence that on the morning of 15 December 2010, the circumstances which faced the defendant, and which gave rise to the identified risk, were circumstances over which it had no control.
9. The one matter over which the defendant did have control was its response to the risk of harm which had arisen. That is quite different from having control over the factors which give rise to the risk in the first place. In that respect, the defendant's position may be likened to that of a bushfire authority faced with fighting a bushfire. Just as a bushfire authority has no control over the spark which ignites the fire, the defendant in the present case had no control over the factors which gave rise to the risk of a shipwreck [217] . The fact that the defendant may have had the power to seize SIEV 221, detain those on board and arrest people smugglers does not alter that position Those powers do not ground a duty of care.
10. It follows that in my view, the defendant's lack of control tends against a conclusion that it owed a duty of care to the plaintiffs.
11. Vulnerability is another factor which has been identified as being relevant to the question of whether or not a duty of care was owed by the defendant in the present case. I am unable to accept the submission of senior counsel for the plaintiffs that for present purposes, the relevant vulnerability is founded in the personal circumstances of the plaintiffs, or matters of that general nature. In the present context, vulnerability refers to the inability of those on board SIEV 221 to protect themselves from the consequences of the defendant's conduct which is said to have been negligent [218] .
12. Those on board SIEV 221 were not vulnerable in that sense. As senior counsel for the defendant pointed out, they could have protected themselves completely simply by not undertaking the voyage on SIEV 221. The absence of any relevant vulnerability also tends against a conclusion that a duty of care was owed.
13. One of the principal submissions advanced on behalf of the plaintiffs was based upon what was said to be a special duty imposed on mariners. The "law of the sea", it was submitted, had always demanded a higher degree of care, vigilance and diligence than the "law of the land", to the extent that the former imposes a duty on a person to come to the aid of a stranger in peril. A number of United States decisions were relied upon by the plaintiffs in support of that proposition.
14. The first was Walsh v Zuisei Kaiun K. K [219] , a case in which a sound pilot fell into the water and drowned whilst attempting to transfer to a launch from the vessel he was piloting. Proceedings for wrongful death were instituted against (inter alia) the shipowner. The shipowner argued that it could not be liable in negligence as there was no duty to rescue, particularly in circumstances where there had been no finding of negligence against it in respect of any of the circumstances which led to the deceased's fall into the water.
15. In the course of delivering judgment, the court observed that the decision in Moragne v States Marine Lines Inc [220] had created a non-statutory remedy for wrongful death arising from the violation of maritime duties. The court also noted that the Death on the High Seas Act [221] provided guidance as to the attribution of responsibility in such cases, and that in Mobil Oil Corp. v Higginbotham [222] it had been observed that the Death on the High Seas Act should be the courts' primary guide in matters of this nature.
16. In reaching a conclusion that the shipowner owed the deceased a duty of care, the court said [223] : The Death on the High Seas Act extends its remedy not to a "seaman" but to a "person" who suffers death on the high seas. Had this compulsory pilot's death occurred on the high seas, he would have been considered within the ambit of the statute. Moreover, again ruling on a damage issue, the court in Sea-Land Services, Incorp v Gaudet 414 U.S. 573, 588, 94S. ct. 806, 816, 39 L. Ed. 2d 9 (1974), extended relief to the representative of the decedent beyond the relief afforded by the Death on the High Seas Act because of the 'humanitarian policy of the maritime law to show special solicitude for those who are injured within its jurisdiction'. Guided by the Death on the High Seas Act and by the humanitarian rationale of 'Gaudet', we conclude that the owners owed the decedent a duty a rescue, even though there was no negligence on their part for the accident that created the need for rescue.
17. The decision in Walsh was applied in Bach v Trident Shipping Co. Inc [224] . In that case, the deceased collapsed on the floor of the wheelhouse of a vessel and died. No crew member attempted to perform CPR or give any other direct first aid to the deceased, although an order was made to drop anchor. In concluding that the shipowner owed the deceased a duty of care, the court said [225] : The defendants assert that they owed no duty to provide first aid to Bach; in support, they cite "the general tort rule that no one has a duty to go to the assistance of another." Whilst defendants accurately describe the majority state law rule, general maritime law imposes at least a minimal duty on the facts here: a vessel that takes aboard a person be he even a passenger or guest owes that person 'a duty to exercise reasonable care to furnish such aid and assistance as ordinarily prudent persons would render under similar circumstances.
18. The court cited the decision in Walsh as authority for that last proposition. In a subsequent decision of Caminiti v Tomlinson Fleet the Court found [226] that it was implicit and inherent in general maritime law that there was a duty to rescue strangers in peril [227] .
19. It is plain from these authorities that the Death on the High Seas Act provides considerable guidance to courts in the United States in cases of compensation arising from deaths at sea. Its provisions obviously have no application in this country.
20. To the extent that the plaintiffs relied upon s. 265 of the NA in this regard, I have considered those provisions in my determination of Question 14 [228] . For the reasons advanced, s. 265 of the NA does not, in my view, impose a duty to rescue at sea.
21. Moreover, and in circumstances where the authorities upon which the plaintiff relied are obviously not binding on me, I was not directed to any Australian authority which supports the proposition that in a maritime context, a duty of care is imposed to rescue a stranger in peril. Australian courts have consistently concluded that there is no general duty to rescue.
22. In Stuart v Kirkland-Veenstra [229] Gummow, Hayne and Heydon JJ observed [230] : [88] … And there is no general duty to rescue. In this respect, the common law differs sharply from civil law. The common law has been described as 'individualistic', the civil law as 'more socially impregnated'.
23. In the same case Crennan J & Kiefel J (as her Honour then was) said [231] : [127] The common law generally does not impose a duty upon a person to take affirmative action to protect another from harm. Such an approach is regarded as fundamental to the common law and has as its foundation concepts of causation. The law draws a distinction between the creation of, or the material increase of, a risk of harm to another person and the failure to prevent something one has not brought about.
24. Senior counsel for the plaintiffs sought to distinguish the decision in Stuart on its facts. I accept that the facts were different. In particular, Stuart was not a maritime case. However, their Honours spoke of a general common law principle that there is no duty to rescue, or take affirmative action to protect another person from harm. That general principle is one which is fundamentally at odds with that advanced by the plaintiffs, whose position in this respect is based principally upon the United States authorities to which I referred and which are not binding on me. I am unable to accept the proposition that in this country, the common law imposes a duty of care to rescue a stranger in peril, be it in a maritime context or otherwise.
25. In support of their position in respect of this issue, the plaintiffs also sought to rely on the decision in Lowns v Woods [232] . In that case the defendant, a medical practitioner, was found to have breached his duty of care because of his refusal to treat the victim of an epileptic attack, having been personally asked by the victim's sister to administer treatment. In concluding that the defendant was negligent, Cole JA (with whom Kirby P (as his Honour then was) agreed) concluded that the trial judge had correctly found that as a general proposition, the common law does not impose a duty to assist a person in peril, even where it is foreseeable that the consequences of a failure to do so will be the injury or the death of a person, and that something other than the foreseeability of harm is required before the law imposes a duty to intervene. However, his Honour found that in the circumstances of that case, having regard to the fact that the victim was physically proximate to the defendant, as well as the fact that the defendant was a medical practitioner to whom a direct request for assistance was made (in circumstances where he was not impeded in responding), the necessary proximity was established.
26. Senior counsel for the plaintiffs sought to argue that in the present case, BPC personnel who were "highly skilled professionals" were effectively in the same position as that of the defendant in Lowns. However it is important to bear in mind that the decision of the majority in Lowns re-stated the general principle that the common law does not impose a duty to assist a person in peril. What took the facts of that case outside that general principle were the particular matters to which Cole JA explicitly referred. There are no analogous factors in the present case. The decision in Lowns is clearly distinguishable, and in my view, provides no support for the plaintiff's position.
27. It is also important to bear in mind what BPC was actually doing on the morning of 15 December 2010, namely exercising its powers to address such maritime threats as were apparent at the time. The evidence does not support a conclusion that in doing so, BPC assumed any responsibility to ensure the safe arrival of persons who were seeking to enter Australia illegally. For the reasons I have set out, there was no general duty imposed upon BPC to rescue. The fact that it did engage in a rescue does not lead to the conclusion that a duty of care arose. As Stuart-Smith LJ observed in Capital and Counties PLC v Hampshire County Council and ors. [233] : It is not clear why a rescuer who is not under an obligation to attempt a rescue should assume a duty to be careful in effecting the rescue merely by undertaking the attempt.
28. A similar approach was taken in State of NSW v Tyszyk [234] . In that case, the respondent, a furniture removalist, had parked his truck adjacent to an apartment building. Upon stepping out of his truck he was hit on the shoulder by a piece of downpipe that fell from the building. The downpipe had been dangling from the building for some time prior. Two police officers were at the scene, having been called there by a person who reported the downpipe. The respondent sued the State of NSW, alleging that police (for whom the State was vicariously liable) had breached a duty of care owed to him. The primary judge upheld the respondent's claim against the State, who appealed. In allowing that appeal Campbell JA (with whom the other members of the Court agreed) said [235] : [138] While it can be accepted that the constables were acting in the exercise of their public duty in going to the site with a view to protecting people from the danger posed by the downpipe, that duty is one that was imposed, as a matter of public law, for the benefit of any passers-by. The width of the class for whose benefit that duty exists is a factor against recognition of a duty of care concerning that public duty. [139] Mr Marshall argued that, by analogy to Alexandrou, if police who receive a telephone call informing them of a situation of danger owe no duty of care to people who might be affected by that danger, it is hard to see how they come to owe a duty of care if they subsequently go to the scene of the danger but do not take control of it and do nothing to make it worse. In my view that analogy is sound.
29. His Honour's reference to Alexandrou was a reference to the decision in Alexandrou v Oxford [236] . In that case, the plaintiff's clothing shop was burgled on a Sunday evening. The burglars' entry activated the shop's exterior and interior alarms, as well as a recorded telephone message to the local police station stating that the alarm had been activated. Two police officers promptly attended the scene but failed to inspect the rear of the shop where the burglars had forced entry. Some hours later goods were removed from the shop. The plaintiffs sued the Chief Constable for the value of the goods stolen, alleging that the police had been negligent by, inter alia, failing to take adequate precautions to discover why the alarm had been activated, and by assuming that it was a false alarm. At trial, the primary judge found that the theft would have been prevented if the police officers had properly inspected the rear of the premises and that the police had thereby been in breach of a duty of care owed to the plaintiff. The Court of Appeal concluded that the police owed no duty of care of the kind alleged.
30. It is also important to bear in mind that the evidence in the present case does not support a conclusion that anything done by the defendant in attempting to rescue any person from SIEV 221 increased the relevant risk of harm, or rendered an already serious situation any worse. Ordinarily, the common law does not impose a duty of care on a person to protect another from risk of harm unless that person has created the risk. In that respect, the position of a public authority is no different to that of an individual citizen. A public authority has no duty to take reasonable care to protect other persons merely because the Parliament has vested it with a power, the exercise of which could protect others from the risk of harm. It follows that a public authority will not generally be liable in negligence by failing to exercise a discretionary power that is vested in it for the benefit of the general public. If, however, the authority uses its powers to intervene in a particular field of activity, and in doing so increases the risk of harm, then it will ordinarily come under a duty of care [237] . In the present case, there is no evidence whatsoever that anything done by the defendant, through BPC, increased the risk of harm. This also tends against a conclusion that a duty of care was owed.
31. Further in my view, some analogy can be drawn between the position of the defendant in the present case and that of emergency service providers who have been found, in various factual scenarios, not to owe a duty of care [238] . Senior counsel for the plaintiffs sought to distinguish that line of authority on (inter alia) the basis that in the present case the defendant chose to engage in a rescue operation. That is obviously so. However as I have noted [239] , that does not lead to the conclusion that the defendant assumed a responsibility to assure the save arrival of those on board SIEV 221, particularly in circumstances where nothing done by the defendant made the situation worse.
32. Another of the principal submissions advanced on behalf of the plaintiffs sought to draw an analogy between the position of the defendant arising from the statutory forfeiture, and its consequent ownership, of SIEV 221, and the position of an occupier of premises. Section 261A of the MA has the effect of forfeiting, to the defendant, a vessel which is used or involved in a contravention of the MA involving the bringing, or coming to Australia, of unlawful non-citizens, or the entry or proposed entry of unlawful non-citizens into Australia. The section is in the following terms: 261A Forfeiture of things used in certain offences (1) The following things are forfeited to the Commonwealth: (a) a vessel used or involved in a contravention of this Act (where the contravention occurred in Australia), if the contravention involved: (i) the bringing or coming to Australia of one or more persons who were, or upon entry into Australia became, unlawful non-citizens; or (ii) the entry or proposed entry into Australia of one or more such persons; (b) a vehicle or equipment: (i) on a vessel described in paragraph (a) at the time of the contravention mentioned in that paragraph; or (ii) used or involved in the contravention referred to in that paragraph. (2) Despite subsection (1), a vessel that: (a) was used or involved in a contravention of this Act of a kind referred to in that subsection; and (b) at the time of the contravention, was being used in the course of a regular public transport operation; is not forfeited to the Commonwealth if both the master and the owner of the vessel: (c) did not know; and (d) could not reasonably be expected to have known; that it was used or involved in the contravention. (3) In this section: "regular public transport operation " , in relation to a vessel, means an operation of the vessel for the purpose of a service that: (a) is provided for a fee payable by persons using the service; and (b) is conducted in accordance with fixed schedules to or from fixed terminals over specific routes; and (c) is available to the general public on a regular basis.
33. Section 261B of the MA makes provision for the seizure of the thing which is forfeited under s. 261A: 261B Seizure of things used in certain offences (1) An authorised officer may seize a thing in Australia, or may order an officer to seize a thing in Australia, if: (a) the thing is forfeited under section 261A; or (b) the authorised officer reasonably suspects that the thing is forfeited under section 261A. (2) If an officer is ordered by an authorised officer to seize a thing under subsection (1), the officer may seize the thing.
34. Section 261D requires an officer to give written notice of a seizure to the owner of the thing seized: 261D Notice of seizure (1) The officer must give written notice of the seizure of the thing to the owner of the thing. However, if the owner cannot be identified after reasonable inquiry, the officer must give the notice to the person in whose possession or custody or under whose control the thing was immediately before it was seized. (2) If the officer cannot conveniently give the notice to the person referred to in subsection (1) in person, the officer may give written notice of the seizure of the thing by fixing the notice to a prominent part of the thing. (3) The notice must: (a) identify the thing; and (b) state that the thing has been seized; and (c) specify the reason for the seizure; and (d) state that the thing will be condemned as forfeited unless: (i) the owner of the thing, or the person who had possession, custody or control of the thing immediately before it was seized, gives the Secretary or Australian Border Force Commissioner, within 21 days, a claim for the thing; or (ii) within 21 days, the Minister gives a written order that the thing is not to be condemned as forfeited; and (e) specify the address of the Secretary or Australian Border Force Commissioner. Note: Section 261F condemns the thing if it is not claimed within 21 days, unless the Minister gives an order that the thing is not to be condemned as forfeited. Section 261H condemns the thing if a claim is made, but the claimant does not get a court order supporting the claim, unless the Minister gives an order that the thing is not to be condemned as forfeited. (4) A claim under subparagraph (3)(d)(i) must: (a) be in writing; and (b) be in English; and (c) state an address for service on the person making the claim.
35. Section 261F of the MA provides that if after 21 days of notice being given no claim is made for the thing, the thing is taken to be forfeited: Dealing with thing before it is condemned (1) The Secretary or Australian Border Force Commissioner may, on behalf of the Commonwealth, cause the thing to be disposed of or destroyed if: (a) its custody or maintenance creates serious difficulties; or (b) the expenses of its custody or maintenance between its seizure and condemnation are likely to be greater than its value. (2) If the Secretary or Australian Border Force Commissioner causes the thing to be disposed of, the Secretary or Australian Border Force Commissioner may cause the disposal to be subject to specified conditions.
36. Section 261G provides that in the event that a written claim is made, the Minister may order that the thing is not forfeited, or that it will be condemned as forfeited unless proceedings are instituted within one month to recover it.
37. Section 261H provides that if such proceedings are not brought, then the thing is taken to be forfeited.
38. There is no issue that on 3 September 2012 Ali Khorram Heydarkhani was convicted of an offence contrary to s. 233B(1) of the MA, namely that he facilitated the bringing or coming to Australia of non-citizens, and engaged in conduct that gave rise to a danger of death or serious harm, in circumstances where he was reckless to that danger. That offence arose out of the arrival of SIEV 221 [240] . There is therefore no issue that SIEV 221 was a vessel which had been used or involved in a contravention of the MA [241] , as a consequence of which it was forfeited to the defendant pursuant to s. 261A. Used in that sense, the word "forfeiture" refers to the divestiture of title to the property which is forfeited [242] .
39. However, it is one thing to conclude that the owners of SIEV 221 were divested of their title to SIEV 221 by the operation of statute. Whether, in those circumstances, the defendant became the owner of the vessel, such that it assumed duties and responsibilities analogous to those owed by an occupier of premises to an entrant is another question entirely. In my view, the answer to that question lies, at least in part, in the underlying purpose of s. 261A of the MA, and the nature of statutory asset forfeiture arising from criminal conduct.
40. In International Finance Trust Co Limited v NSW Crime Commission [243] French CJ traced the history of asset forfeiture by reason of criminal conduct [244] before stating [245] : [29] The preceding history is mentioned by way of acknowledgment of the widespread acceptance by governments around the world and within Australia of the utility of civil assets forfeiture laws as a means of deterring serious criminal activity which may result in the derivation of large profits and the accumulation of significant assets. The law under consideration in this case is, in many respects, typical of the kind of civil assets forfeiture statutes enacted in other States and Territories of Australia and in other countries.
41. Whilst the statutory provision then under consideration was different [246] , his Honour's observations are nevertheless apposite to a consideration of the operation of s. 261A of the MA. Clearly, statutory forfeiture of the kind for which s. 261A makes provision acts as a means of deterring serious criminal activity.
42. The nature of s. 261A was more specifically considered in Tran v Commonwealth [247] . In that case Rares J [248] traced the history of the enactment of the section, from which it is plain that its principal aim is to address the smuggling of human cargo by sea, and to allow the removal or destruction of vessels which are found to be unseaworthy, a risk to safety or navigation, or a threat to the environment.
43. In the same case, Besanko J described the nature of statutory forfeiture in the following way [249] : [195] The forfeiture of property used in the carrying out of proscribed conduct is a penalty. The law may provide for forfeiture to occur in order to vindicate the law which proscribes the conduct, or, by removing the property from private ownership, to prevent a repetition of the conduct, or both: Burton v Honan (1952) 86 CLR 169 at 181; [1952] ALR 553 at 558-9 per Dixon CJ (with whom McTiernan, Webb and Kitto JJ agreed); Re Director of Public Prosecutions; Ex parte Lawler (1994) 179 CLR 270 ; 119 ALR 655 . Generally speaking, forfeiture follows the use of property in the commission of a criminal offence. The law may provide for forfeiture of property even though it is not the owner of the property who commits the criminal offence. That may be done because it is desirable having regard to the nature of the goods, the need for a deterrent penalty or the difficulty of enforcing provisions against foreign owners: Calero-Toledo v Pearson Yacht Leasing Co (1974) 416 US 663 at 686-8 ; Cheatley v R (1972) 127 CLR 291 at 310 ; [1972-73] ALR 907 at 919-20 per Mason J (as his Honour then was).
44. In my view, there is nothing in the legislative history of s. 261A of the MA, nor is there anything in its terms, which supports the proposition that upon forfeiture of SIEV 221 the defendant assumed duties and responsibilities of the kind submitted by the plaintiffs. I am fortified in that view by the fact that statutory forfeiture is a penalty. Consistent with that, one of the purposes of s. 261A is to deter the commission of people smuggling offences. In my view, it would be fundamentally inconsistent with that underlying purpose to conclude that upon forfeiture, the defendant assumed a liability analogous to that imposed upon an occupier of premises. The incongruity in concluding that such a liability could arise from the precise conduct which the forfeiture provisions specifically seek to deter will be self-evident. The provisions of s. 261F of the MA, pursuant to which anything seized is condemned and forfeited to the Commonwealth 21 days after the notice of seizure has been given under s. 261D, also tend against the conclusion that upon seizure and the consequent forfeiture of SIEV 221, the defendant assumed liabilities of the kind asserted on behalf of the plaintiffs.
45. The broader underlying policy of the MA generally is also inconsistent with the duty of care posited by the plaintiffs. Section 4(1) of the MA provides (inter alia) that its object is to "regulate, in the national interest, the coming into, and the presence in, Australia of non-citizens". Importantly, s. 4(2) expresses an intention on the part of the Parliament that the MA "be the only source of the right of non-citizens to so enter or remain". The underlying policy of those provisions was explained in Plaintiff S4/2014 v Minister for Immigration and Border Protection [250] where it was observed (citations omitted) [251] : [23] The object of the Act, stated in s 4(1), is to regulate, in the national interest, the coming into and presence in Australia of non-citizens. Both the text and the structure of the Act show that regulation of the coming into, and presence in, Australia of non-citizens is effected by providing that the Act - and the visas for which it provides - are to "be the only source of the right of non-citizens to so enter or remain" in Australia, and by further providing that non-citizens whose presence in Australia is not permitted by the Act shall be removed or deported. More particularly, the Act gives the Executive power to detain non-citizens in the context, and for the purposes, of the Executive's statutory power to remove from Australia an alien who is an unlawful non-citizen. The statutory power to remove an unlawful non-citizen is coupled with the statutory obligation to effect that removal "as soon as reasonably practicable".
46. Those observations were consistent with those in an earlier decision of Al-Kateb v Godwin [252] : [45] A law requiring the detention of the alien takes its character from the purpose of the detention. As long as the purpose of the detention is to make the alien available for deportation or to prevent the alien from entering Australia or the Australian community, the detention is non-punitive. The Parliament of the Commonwealth is entitled, in accordance with the power conferred by s 51(xix) and without infringing Ch III of the Constitution, to take such steps as are likely to ensure that unlawful non-citizens do not enter Australia or become part of the Australian community and that they are available for deportation when that becomes practicable. As Latham CJ pointed out in O'Keefe v Calwell: Deportation is not necessarily punishment for an offence. The Government of a country may prevent aliens entering, or may deport aliens … Exclusion in such a case is not a punishment for any offence. Neither is deportation … The deportation of an unwanted immigrant (who could have been excluded altogether without any infringement of right) is an act of the same character: it is a measure of protection of the community from undesired infiltration and is not punishment for any offence. [46] It is open to the Parliament, therefore, to enact legislation that requires unlawful non-citizens to be detained so as to ensure that they do not enter Australia or the Australian community and can be deported when, and if, it is practicable to do so. To hold that Parliament cannot do so would mean that any person who unlawfully entered Australia and could not be deported to another country could thwart the operation of the Migration Act. It would mean that such persons, by their illegal and unwanted entry, could become de facto Australian citizens unless the Parliament made it a criminal offence with a mandatory sentence for a person to be in Australia as a prohibited immigrant. However, passing such a law is not the only way that the Parliament can achieve the object of keeping unlawful non-citizens from entering the Australian community. If Parliament were forced to achieve its object of preventing entry by enacting such laws, form would triumph over substance. The unlawful non-citizen would still be detained in custody. The only difference between detention under such a law and the present legislation would be that the detention would be the result of a judicial order upon a finding that the person was a prohibited immigrant. In substance, the position under that hypothesis would be no different in terms of liberty from what it is under ss 189, 196 and 198. Under the hypothesis, the only issue for the court would be whether the person was a prohibited immigrant. Under the present legislation, the issue for the courts is whether the person is an unlawful non-citizen. A finding of being a prohibited immigrant or an unlawful non-citizen produces the same result - detention. The only difference is that in one case the detention flows by the court applying the legislation and making an order and in the other it flows from the direct operation of the Act.
47. It follows, as the defendant submitted, that there is a tension between the policy of the MA to prevent and deter its contravention on the one hand, and assisting those persons who, in contravention of the MA unlawfully come to Australia and, in doing so, find themselves in distress at sea on the other. In CPCF v Minister for Immigration and Border Protection Crennan J observed [253] : [213] There is inherent tension between the obligations of Australian authorities (whether under the SAR Convention or otherwise) to assist persons in the contiguous zone on unseaworthy vessels in conditions of distress and danger, the federal legislature's object of preventing contraventions of the Migration Act in the contiguous zone, and the preference of persons like the plaintiff to access non-refoulement obligations under the Refugees Convention in Australia rather than in another country. That inherent tension is not unlike the inherent tension in the Refugees Convention between humanitarian concerns for the individual and that aspect of state sovereignty concerned with the exclusion of entry by non-citizens.
48. In its submissions, the defendant properly acknowledged that BPC vessels do, on occasions, go to the assistance of vessels in distress at sea. Obviously they did so in the present case. However, I accept the submission that to recognise a common law duty of care, the objective effect of which would be to stimulate the conduct which the underlying policy of the MA seeks to suppress, would be to highlight the tension of which Crennan J spoke. As the defendant submitted, the fact that an asserted common law duty is apt to stimulate conduct which, as a matter of policy, the law seeks to suppress, tends completely against the recognition of such a duty [254] .
49. Finally, and consistent with the concession that the precise circumstances of the present case had not previously been the subject of any judicial consideration, senior counsel for the plaintiffs was unable to take me to any authority which supported the proposition that a duty of care was owed. For the reasons I have outlined, the adoption of the approach set out by Allsop P in Caltex Refineries (Qld) tends against the existence of such a duty, as does the application of analogical reasoning.
50. For all of these reasons, the defendant did not owe the plaintiffs a duty of care of the kind postulated by Question 2.

QUESTION 3: Whether, in the period September to December 2010, the defendant owed the relatives of passengers on board SIEVs which approached Christmas Island, a duty to take reasonable care in the exercise of the defendant's powers and the deployment of the defendant's resources in the Interception Operation, so as to avoid foreseeable psychiatric injury to those relatives?

Submissions of the plaintiffs

1. It was submitted on behalf of the plaintiffs that in light of the potentially catastrophic consequences for any passenger in the event that a SIEV became shipwrecked due to the failure by the defendant to take reasonable care in the conduct of the interception operation, the defendant ought to have foreseen that the family members of such a passenger, upon learning of the passenger being killed, injured or put in peril, might suffer a recognised psychiatric illness. It was submitted that in these circumstances the defendant owed a duty to take care to avoid a foreseeable risk of mental harm to those family members.
2. Senior counsel for the plaintiffs did not contend that the defendant had guaranteed a safe passage of the vessel to, or the safe arrival of the vessel at, Christmas Island. He also acknowledged that no assurance of safety had been given by the defendant to any of the persons on board. However, he submitted that those on board were entitled to rely on the fact that the defendant had, in protecting Australia's borders, assumed responsibility in the interception of vessels, and the preservation of the lives of the passengers on board.
3. For the reasons relied upon in respect of question 2, it was again submitted that the defendant had relevant control over the risk of harm and specifically, the risk of a shipwreck of a SIEV at Christmas Island. It was submitted that the defendant could (and did over a long period of time) control the risk of a shipwreck at Christmas Island by maintaining surveillance of the approaches to the island from the north, thus providing a barrier patrol in order to be able to exercise of its powers to intercept and detain vessels, and those on board.

Submissions of the defendant

1. The defendant submitted that even if it could be demonstrated that some (or all) of the relatives of those on board SIEV 221 had suffered a recognised psychiatric illness, no duty of care arose. It was submitted that in determining whether, for the purposes of an action in negligence, a defendant owed a duty to take care to avoid recognisable psychiatric injury, the central question was whether, in all the circumstances, the risk of sustaining such an injury was reasonably foreseeable. It was submitted that in these circumstances, the duty of care alleged by the plaintiffs was incapable of arising in the present case for a number of reasons.
2. Firstly, it was submitted that there was no pre-existing relationship between the defendant and the passengers on board SIEV 221, and that the defendant did not owe any duty of care to any primary victim.
3. Secondly, it was submitted that the defendant did not assume any responsibility for the safety of any person entering Australia unlawfully on board a SIEV, and that to the extent that any of the passengers on board SIEV 221, or their family members, relied upon the defendant and its servants to guarantee a safe passage to Christmas Island, such reliance was not reasonable.
4. Thirdly, it was submitted that the defendant had no control over the relevant risk of harm, and that its control was limited to control over its response to the emergency.
5. Finally, it was submitted that the existence of a duty to take care to avoid the risk of psychiatric harm to relatives of passengers on SIEV 221 was inconsistent with the wider duties and operational responsibilities owed by BPC, and the Commanders of vessels owned or operated by the defendant, such duties and responsibilities being consistent with the underlying policy of the MA.

Consideration

1. The claims made by the family members of passengers on board SIEV 221 are claims for damages for pure mental harm. In these circumstances, Part 1B of the CLAW (ss. 5Q to 5T) applies by virtue of s. 5R.
2. Section 5Q is in the following terms: 5Q Terms used In this Part - consequential mental harm means mental harm that is a consequence of a personal injury of any kind; mental harm means impairment of a person's mental condition; pure mental harm means mental harm other than consequential mental harm.
3. Section 5S is in the following terms: 5S Mental harm: duty of care (1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. (2) For the purpose of the application of this section in respect of pure mental harm, the circumstances of the case include the following - (a) whether or not the mental harm was suffered as the result of a sudden shock; (b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril; (c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril; (d) whether or not there was a pre-existing relationship between the plaintiff and the defendant. (3) For the purpose of the application of this section in respect of consequential mental harm, the circumstances of the case include the personal injury suffered by the plaintiff. (4) This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff.
4. The common law position in respect of whether a defendant owes a plaintiff a duty to take reasonable care to avoid recognisable psychiatric injury was set out in Tame v State of NSW [255] . In that case, the High Court concluded that the fundamental question for determination in such a case is whether, in all of the circumstances, the risk of the plaintiff sustaining such an injury is reasonably foreseeable [256] .
5. Subsequently, in Wicks v State Rail Authority of NSW; Sheehan v State Rail Authority of NSW [257] , the High Court concluded that s. 32 of the CLAN (the terms of which are essentially identical to those of s. 5S of the CLAW) was to be understood against the background provided by the common law as stated in Tame [258] . The Court said (citations omitted) [259] : [25] Tame held that in deciding whether, for the purposes of the tort of negligence, a defendant owed a plaintiff a duty to take reasonable care to avoid recognisable psychiatric injury, the central question is whether, in all the circumstances, the risk of the plaintiff sustaining such an injury was reasonably foreseeable. A majority of the court in Tame rejected the propositions that concepts of "reasonable or ordinary fortitude", "shocking event" or "directness of connection" were additional pre-conditions to liability. [26] In part, s 32 of the Civil Liability Act reflects the state of the common law identified in Tame. Consistent with what was decided in Tame, s 32 assumes that foreseeability is the central determinant of duty of care. Consistent with Tame, "shocking event", and the existence and nature of any connection between plaintiff and victim and between plaintiff and defendant, are considerations relevant to foreseeability, but none is to be treated as a condition necessary to finding a duty of care. But contrary to what was decided in Tame, s 32 provides that a duty of care is not to be found unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness.
6. These observations apply to s. 5S of the CLAW, given the similarity between its terms and those of s. 32 of the CLAN.
7. Many of the factors considered in respect of Question 2 are also relevant in determining Question 3, and support a conclusion that no duty of care was owed by the defendant to the relatives of passengers on board SIEV 221. Those factors include the defendant's lack of control over the matters giving rise to the risk of harm, as well as the fact that the defendant did not assume the responsibility of providing to those on board SIEV 221 a safe passage to Australia.
8. The absence of any relevant relationship between the defendant and either the passengers on board or their relatives also supports a conclusion that the defendant did not owe a duty of care to the family members of passengers on board. In Annetts v Australian Stations Pty Limited [260] the appellants had agreed to their son being employed by the respondent on a cattle station after being given several assurances by the respondent as to the conditions under which their son would work. The respondent acted contrary to the assurances which had been given, causing the appellants' son to abscond. He was later found dead from dehydration, exhaustion and hypothermia, following which the appellants brought proceedings against the respondent for damages for psychiatric injury. In concluding that the respondent owed the appellants a duty of care, the High Court emphasised that there was a relevant relationship between the appellants and the respondent which supported the existence of such a duty. Gleeson CJ [261] concluded that the relationship between the parties was sufficient, in combination with reasonable foreseeability of harm, to give rise to a duty of care, even though the appellants did not directly witness their son's death. Gaudron J concluded [262] that it was possible to identify special features of the relationship between the parties, such that the respondent should have had the appellants in contemplation as persons closely and directly affected by its acts and omissions in relation to their son. Gummow and Kirby JJ concluded [263] that the "connections" between the parties were indicative of the existence of a duty of care.
9. A similar approach was taken in Gifford v Strang Patrick Stevedoring Pty Limited [264] . In that case, the children of an employee of a stevedoring company who was crushed to death at work by a vehicle which had been negligently operated by another employee sued the deceased's employer. None of the children witnessed the accident. They were subsequently told of their father's death and claimed to have suffered psychiatric injury as a consequence. The High Court concluded that the deceased's employer owed a duty of care to his children to avoid causing them a recognisable psychiatric illness. In reaching that conclusion, emphasis was placed on the existence of the relevant relationship [265] . In that regard McHugh J said [266] : [53] In the present case, the relationship between the children and their father made them a neighbour of Strang for duty purposes, and Strang owed the father a duty of care to provide a safe place of employment. The father was killed in the course of his employment by reason of the negligence of Strang. A reasonable employer in the position of Strang was bound to have in mind that any harm caused to its employee carried the risk that it would cause psychiatric harm to any children that he might have when they learned of his death. Because that is so, Strang owed a duty to the children to take reasonable care in its relationship with their father to protect them from psychiatric harm. And the admission that Strang negligently caused the death of their father means that Strang breached its duty to the children. However, the trial judge made no finding as to whether any of the children suffered a recognisable psychiatric injury upon being told of their father's death. Accordingly, it is not possible to enter verdicts in favour of the children. The proceedings must be remitted to the District Court for further hearing.
10. In the present case, no relevant relationship existed which rendered the family members of those on board SIEV 221 a neighbour of the defendant. In circumstances where, for the reasons I have set out in my consideration of Question 2, the defendant had no control over the relevant risk of harm, I am unable to accept that any relevant relationship arose upon the arrival of SIEV 221 in Australian waters, or when the defendant came to be the owner of the vessel.
11. Further, the underlying policy of the MA is, for the reasons previously set out [267] , inconsistent with the proposition that the duty posed by this question was owed.
12. It follows that in my view, no duty of care was owed by the defendant to the relatives of passengers on board SIEV 221 to avoid foreseeable psychiatric injury to those relatives.

QUESTION 4: Whether, in the period September to December 2010, the defendant owed rescuers and onlookers at Christmas Island a duty to take reasonable care, in the exercise of the defendant's powers and the deployment of the defendant's resources in the Interception Operation, so as to avoid foreseeable mental harm to those rescuers and onlookers?

Submissions of the plaintiffs

1. It was submitted on behalf of the plaintiffs that the duty of care owed by an employer to its employees not to cause psychiatric or physical harm where the employee has acted as a rescuer should be extended to apply to the present circumstances, and a conclusion reached that the defendant owed a duty of care not to put rescuers and onlookers in a position where it was foreseeable that mental harm would arise.
2. It was submitted that the defendant had control over whether it could intercept, or respond to, the presence of a SIEV, and thus prevent a shipwreck, or at least ameliorate its effects. It was submitted that in the context of a shipwreck, there was likely to be an immediacy of involvement of bystanders, and that the evidence in the present case established that bystanders were, in fact, called upon to assist in the rescue efforts which had been mounted.

Submissions of the defendant

1. The defendant accepted that an employer owes a duty not to cause psychiatric (as well as physical) injury to an employee, including in circumstances where an employee has acted as a rescuer. The defendant also accepted that a common law duty of care may be owed to rescuers, albeit in limited circumstances. However, the defendant submitted that the duty owed by an employer, upon which the plaintiff's relied, could not be extended to cover the circumstances of the present case for a number of reasons.
2. In terms of the rescuers, it was firstly submitted that the plaintiffs' evidence failed to establish many of the important factual elements which were required to support the existence of a duty of care. For example, it was submitted that fundamentally, there was no medical evidence that any rescuer had suffered a recognised psychiatric injury.
3. Secondly, it was submitted that those authorities which supported the proposition that a duty of care may be owed to a rescuer did so in circumstances in which the party said to owe the duty was responsible for creating or causing the peril that necessitated the rescue. It was submitted that the circumstances of the present case were fundamentally different, because the defendant did not create, had no control over, and had no capacity to affect, the relevant risk, and the conditions and circumstances which had unfolded on the morning of 15 December 2010. Those conditions and circumstances included the weather, the sea state, the seaworthiness of SIEV 221, the skill and experience of the vessel's crew, and the geographical features of the northern side of Christmas Island.
4. Thirdly, it was submitted that there was no relevant relationship between the defendant and the rescuers. In terms of any rescuers who were employees of the defendant, it was submitted that the facts of the present case were distinguishable from those authorities in which a defendant employer had been found to have controlled the conditions at the place of work where the relevant accident occurred, and thus owed a duty of care.
5. Fourthly, it was submitted that the existence of a duty to take care to avoid the risk of psychiatric harm to persons attempting to rescue people on board a SIEV was inconsistent with the wider duties and operational responsibilities owed by BPC personnel, and by Commanders of seafaring vessels owned or operated by the defendant, as well as being inconsistent with the underlying policy of the MA.
6. In terms of the onlookers, the defendant accepted that there was no absolute bar to the recovery of damages for psychiatric injury suffered by onlookers who had no pre-existing relationship to the primary victim. However, it was submitted that the weight of authority supported the proposition that recovery of damages by unrelated onlookers would typically be permitted only in exceptional circumstances. The defendant advanced a number of submissions in support of those propositions.
7. Firstly, it was again submitted that many of the important factual elements required to support the existence of a duty of care had not been established by the plaintiffs including, for example, the fact that any onlooker had suffered a recognised psychiatric injury.
8. Secondly, it was submitted that the absence of any pre-existing relationship between onlookers and those on board SIEV 221 weighed against a conclusion that a duty of care was owed by the defendant.
9. Thirdly, it was submitted that there was an onus on the plaintiffs to establish some exceptional circumstance(s) that would justify the imposition of a duty of care, and that no such circumstances had been identified.
10. Fourthly, it was submitted that the presence of onlookers at the scene could not fairly be described as a reasonably foreseeable consequence of any conduct of the defendant.
11. Fifthly, it was submitted that the onlookers did not contribute to, and were not involved in, the accident that caused death and injury to the passengers on board SIEV 221.
12. Finally, and for the reasons previously advanced, it was submitted that the defendant did not have the control over the relevant risk of harm.

Consideration

1. The plaintiffs did not direct me to any evidence supporting a conclusion that any person who participated in attempts to rescue passengers on board SIEV 221, or any person who witnessed the relevant events, had suffered a recognisable psychiatric illness. In the absence of such evidence, any claim for damages for psychiatric injury to rescuers and onlookers must necessarily fail. However, the substance of the issues which are raised by this question, should nevertheless be addressed. In doing so I turn firstly to the position of the rescuers.
2. There is no doubt that an employer owes a duty not to cause injury to an employee. That duty will extend to circumstances which include those in which an employee has acted as a rescuer [268] . However, whether a duty is owed to a rescuer where the factual circumstances fall outside the relationship of employer and employee is less clear.
3. In Chapman v Hearse [269] a person who had stopped to render assistance to the victim of a motor vehicle accident was himself struck by a vehicle and killed. It was concluded that subsequent injury inflicted by passing traffic upon those rendering aid after an earlier accident was by no means unlikely [270] . That conclusion was reached, at least in part, based upon analogies drawn from the so-called "rescue cases" [271] .
4. In Sheehan v State Rail Authority of NSW; Wicks v State Rail Authority of NSW Beazley JA (as her Honour then was), referring to the decision in Chapman, said [272] : [31] Curiously, the High Court did not treat the case as a rescue case. Rather, the Court referred to the case as being analogous to the "so-called 'rescue cases'". It is not necessary to dwell on the reference to the analogy, which is possibly explained by the nature of the proceedings, that is, that they were contribution proceedings and not a claim by the rescuer or the rescuer's estate. Nonetheless, the import of the decision is clear: a duty of care may be owed to rescuers.
5. Her Honour took a similar approach in McDonald v Shoalhaven City Council [273] .
6. Whilst the issue of whether a duty of care may be owed to rescuers has been described as problematic [274] , there is no authority for the proposition that such a duty can never arise. Whether it does will necessarily depend upon the facts and circumstances of the particular case.
7. The facts of the present case are such that, in my view, no duty of care was owed to rescuers, or to onlookers. The fact that the defendant had no control over the relevant risk of harm and was not responsible for causing the peril which required SIEV 221 to be rescued, along with the absence of any relevant pre-existing relationship, are all factors which tend against the existence of a duty of care.

QUESTION 5: Whether, in the period September to December 2010, the defendant owed to passengers on board SIEVs a duty to take reasonable care in the exercise of the defendant's powers and the deployment of the defendant's resources in the Interception Operation so as to avoid foreseeable loss of property belonging to those passengers?

Submissions of the plaintiffs

1. The plaintiffs relied on their previous submissions.

Submissions of the defendant

1. The defendant relied on its previous submissions.

Consideration

1. The same considerations as those already discussed (particularly in relation to Question 2) lead to the conclusion that no duty of care was owed.

QUESTION 6: Whether, in the period September to December 2010, there was a risk that a SIEV heading south through territorial waters towards Christmas Island would, if not intercepted as part of the defendant's Interception Operation, be shipwrecked on the cliffs of Christmas Island resulting in catastrophic loss of life ("the Shipwreck Risk")?

Submissions of the plaintiffs

1. It was submitted on behalf the plaintiffs that in the period between September and December 2010, the shipwreck risk was foreseeable, and that the defendant knew or ought to have known that this was the case. It was further submitted that during this period, and from the perspective of the defendant, the shipwreck risk was not insignificant because it: 1. had a significant probability of coming to fruition, given the increasing regularity of SIEVs approaching Christmas Island; 2. was increasing due to the arrival of the monsoon season in December 2010; 3. potentially involved the catastrophic loss of human life; and 4. involved exposure of the defendant's servants and agents, as well as residents of Christmas Island, to danger in any attempted rescue operation.

Submissions of the defendant

1. The defendant accepted that there was a risk that a SIEV approaching Christmas Island from the north might be shipwrecked. However, the defendant submitted that in the present case such risk did not arise from anything done by the defendant, but rather from: 1. the decision of the passengers to board SIEV 221 in an attempt to enter Australia illegally; 2. the weather conditions; 3. the condition of SIEV 221; and 4. the acts and omissions of the master and crew of SIEV 221.
2. Further, the defendant submitted that any risk was both inherent and obvious and that accordingly, the defendant was not liable.
3. As to the inherent nature of the shipwreck risk, it was submitted that there was always a risk that a small, wooden and overcrowded vessel that had travelled across the open ocean to gain illegal entry into Australia, might encounter weather and sea conditions which it, and its crew, were ill-equipped to withstand or navigate safely, such that it became wrecked against the coastline of Christmas Island. It was submitted that the inherent unpredictability of the weather and conditions at sea, and in the waters in the immediate vicinity of Christmas Island, meant that if those conditions were sufficiently rough or dangerous, the shipwreck risk could not be avoided even if the defendant had exercised the utmost skill and care in the exercise of its powers and functions.
4. It was further submitted that the shipwreck risk was an obvious risk because a reasonable person in the position of those persons on board SIEV 221, in circumstances where they had boarded a vessel of that type which would be exposed to the full force of the elements in travelling across the open ocean to gain illegal entry into Australia, would apprehend that the vessel might sink or be wrecked, resulting in catastrophic loss of life. It was submitted that it would be obvious that the weather and conditions at sea can be both extreme and dangerous, and can be capable of causing severe damage to any vessel, as well as injury or death to any persons on board.

Consideration

1. As the defendant properly conceded there was, on the morning of 15 December 2010, a risk of the kind postulated by this question. However, for the reasons discussed in my consideration of Question 2, the conduct of the defendant did not give rise to that risk. Rather, the risk was brought about by factors over which the defendant had no control.
2. Moreover, for the reasons set out below, the risk was both inherent and obvious. It was therefore a risk in respect of which the defendant cannot be held liable.
3. In terms of the risk being inherent s. 5E of the CLAW provides (inter alia) as follows: inherent risk means a risk of something occurring that cannot be avoided by the exercise of reasonable skill and care [275] …
4. Section 5P of the CLAW is in the following terms: 5P No liability for harm from inherent risk (1) A person (the defendant) is not liable for harm caused by the fault of that person suffered by another person if the harm is the result of the occurrence of something that cannot be avoided by the exercise of reasonable skill and care by the defendant. (2) This section does not operate to exclude liability in connection with a duty to warn of a risk.
5. Section 5I(1) of the CLAN is in similar terms: 5I No liability for materialisation of inherent risk (1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.
6. In determining whether a risk is an inherent risk, it is firstly necessary to look at the circumstances which existed before the risk materialised [276] . In the present case, the evidence establishes that SIEV 221 was a primitive, and by Australian standards, a barely seaworthy vessel. The evidence also establishes that in that condition, and in circumstances where it was obviously overcrowded, SIEV 221 sailed from Indonesia to Australia for the purposes of allowing those on board to attempt to enter Australia illegally.
7. The very nature of the voyage that was undertaken, namely a voyage on the open seas from Indonesia to Australia, was such that there was always a risk that adverse weather and sea conditions would be encountered. The primitive nature of SIEV 221 was such that it was not properly equipped to withstand those conditions, giving rise to a risk that it would be shipwrecked and/or sink. Moreover, the vessel arrived at Christmas Island in the monsoon season, a period which attracts trying weather conditions which render it particularly difficult for vessels approaching (as SIEV 221 did) from the north.
8. All of those circumstances gave rise to a situation where, if it transpired that the weather conditions were treacherous (as turned out to be the case) the shipwreck risk could not (for the reasons discussed more fully in my consideration of Questions 9, 10, 12 and 13 below) have be avoided even if the greatest possible skill and care had been exercised.
9. I am therefore satisfied the shipwreck risk was an inherent risk within the meaning of s. 5E of the CLAW. That leads to a consideration of the provisions of s. 5P and, more specifically, a consideration of whether, in the circumstances, the harm that in fact eventuated was the result of the occurrence or materialisation of the inherent risk. For the reasons already expressed, the answer to that question in the present case is clearly yes. Having regard to s. 5P of the CLAW, the defendant is not liable for any harm suffered by the plaintiffs from the materialisation of an inherent risk.
10. The associated issue raised by this question is whether the shipwreck risk was an obvious risk. Section 5E of the CLAW provides that the term "obvious risk" has the meaning given to it by s. 5F which is in the following terms: 5F Term used: obvious risk (1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable [277] .
11. Section 5N of the CLAW is in the following terms: 5N Injured person presumed to be aware of obvious risk (1) In determining liability for damages for harm caused by the fault of a person, the person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purpose of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.
12. Section 5O of the CLAW is in the following terms: 5O No duty to warn of obvious risk (1) A person (the defendant ) does not owe a duty of care to another person (the plaintiff ) to warn of an obvious risk to the plaintiff. (2) This section does not apply if - (a) the plaintiff has requested advice or information about the risk from the defendant; or (b) the defendant is required by a written law to warn the plaintiff of the risk; or (c) the defendant is a professional and the risk is a risk of harm to the plaintiff from the provision of a professional service by the defendant. (3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.
13. The effect of s. 5N of the CLAW is to create a presumption, on the part of a person who has suffered harm, of awareness of the risk of such harm if the risk was obvious, unless the person proves on the balance of probabilities that he or she was not so aware. The effect of s. 5O of the CLAW is that there is no duty of care to warn of an obvious risk.
14. There was, for the reasons I have previously stated, an obvious risk that a vessel such as SIEV 221 might sink or be wrecked, in circumstances where it would be exposed to the full force of any prevailing weather conditions on the course of its voyage. It must have been obvious to those on board that the vessel would be so exposed, that weather conditions can be dangerous, and that such conditions have the capability to cause death or serious injury. None of the evidence before me in the present case discharges the onus imposed upon the plaintiffs by s. 5N of the CLAW.
15. I am satisfied in these circumstances that the shipwreck risk was an obvious risk within the meaning of s. 5F of the CLAW. As a consequence, there was no duty on the defendant to warn of that risk.

Answer to Question 6

1. Question 6 is answered: There was a shipwreck risk. However, that risk did not arise from any conduct on the part of the defendant and was, in any event, a risk which was both inherent and obvious.

Question 7: Whether, in the period September to December 2010, the Shipwreck Risk was foreseeable within the meaning of s. 5B(1)(a) of the Civil Liability Act 2002 (WA)?

Consideration

1. There is no issue between the parties that the risk that a SIEV approaching Christmas Island from the north might be shipwrecked was a foreseeable risk, in the sense that it was not far-fetched and fanciful (although for the reasons set out in my consideration of Question 6, the risk was both inherent and obvious).

Answer to Question 7

1. Question 7 is answered: The shipwreck risk was foreseeable within the meaning of s 5B(1)(a) of the Civil Liability Act 2002 (WA). However, that risk did not arise from any conduct on the part of the defendant and was, in any event, a risk which was both inherent and obvious.

Question 8: Whether, in about September to December 2010, the Shipwreck Risk was "not insignificant" within the meaning of s. 5B(1)(b) of the Civil Liability Act 2002 (WA)?

Consideration

1. There is no issue between the parties that the risk that a SIEV approaching Christmas Island from the north might be shipwrecked was "not insignificant" within the meaning of s. 5B(1)(b) of the CLAW.

Answer to Question 8

1. Question 8 is answered: The shipwreck risk was "not insignificant" within the meaning of s. 5B(1)(b) of the CLAW.

Question 9: Whether, in response to the Shipwreck Risk, in the period September to December 2010, a reasonable public authority in the position of the defendant and its servants and agents, owing the duties of care owed by the defendant, would have taken the precaution of not permitting the rescue ships Sea Eye and Colin Winchester to remain out of survey and incapable of use in attending to any SIEVs in distress in territorial waters to the north of Christmas Island in poor weather ("the readiness precaution")?

Submissions of the plaintiffs

1. It was submitted on behalf of the plaintiffs that the answer to this question did not depend upon the Sea Eye and the Colin Winchester being assets of BPC. It was submitted that the burden of taking the precaution of not permitting the Sea Eye and the Colin Winchester to remain out of survey was significant, but that there was no evidence that it was unduly onerous.

Submissions of the defendant

1. It was submitted on behalf of the defendant that it did not owe any duty of care and that accordingly, the primary premise upon which this question was based was not made out. However, it was the defendant's position that even if a conclusion was reached that a duty of care was owed, the question nevertheless should be answered in the negative.
2. It was submitted that the evidence established that the Sea Eye and the Colin Winchester were not BPC assets and, as such, did not fall within the scope of the duties of care pleaded in the FASOC. The defendant further submitted that even if the Sea Eye and the Colin Winchester had been in survey, they could not have prevented the wreckage of SIEV 221 because: 1. in the conditions which prevailed on 15 December 2010 they could not have been safely used, even if they were in perfect condition; and 2. even if they could have been utilised, neither vessel would have been able to be launched in time to travel to Rocky Point prior to the arrival of the Pirie and its RHIBs, and the Triton and its tenders.
3. Senior counsel for the defendant accepted that the likely seriousness of the harm resulting from the wreckage of a SIEV was high. However, he submitted that there was no evidence to support a conclusion that there was any unreasonable delay in sending the Sea Eye and/or the Colin Winchester for repair, and having them returned.
4. Finally, it was submitted that the activity creating the harm in the present case, namely the unlawful travel to Australia by SIEV 221 in contravention of the MA, had no social utility, was a contravention of Australian law, and was an activity which was the policy of the Commonwealth Parliament, as expressed in the MA, to suppress.

Consideration

1. Question 9 is predicated on the premise that the defendant owed a duty of care to the plaintiffs. For the reasons previously expressed, I have concluded that no duty was owed. In light of that conclusion, the remaining issues raised by this question do not strictly arise. However, as they were the subject of detailed submissions from both parties, it is appropriate that I consider and determine them.
2. The resolution of this question invites consideration of s. 5B(2) of the CLAW which is in the following terms: 5B General principles … (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) - (a) the probability that the harm would occur if care were not taken; (b) the likely seriousness of the harm; (c) the burden of taking precautions to avoid the risk of harm; (d) the social utility of the activity that creates the risk of harm.
3. I accept that there was a high probability that harm would eventuate if care were not taken, that such harm would be likely to be serious, and that the burden of taking precautions to avoid the risk of harm was not unduly onerous.
4. However, the unchallenged evidence of Mr Adams, which I accept, that even if the Sea Eye and/or the Colin Winchester had been in an acceptable condition, they could not have been safely used on the morning of 15 December 2010 given the prevailing conditions. His evidence also establishes that the time which would have been taken to: 1. retrieve each vessel; 2. travel to the launch area; 3. launch each vessel; and 4. travel to Rocky Point 5. was such that each would have arrived at Rocky Point after the Pirie, the Triton, the RHIBs and the tenders.
5. Further, even if it is accepted that the likely seriousness of the harm resulting from a SIEV being wrecked at Christmas Island was high, the plaintiffs did not direct me to any evidence which would support a conclusion that there was any unreasonable delay in having either the Sea Eye or the Colin Winchester sent for repair and return.
6. Further, as I have already pointed out, the activity which created the harm in the present case was the travel to Australia, on an unseaworthy vessel, by a group of persons whose aim was to enter Australia illegally in contravention of the MA. That activity constituted one of a number of maritime threats, to the prevention of which Operation Resolute was directed and which, as a matter of prevailing Government policy, was prohibited. The activity creating the harm therefore had no social utility whatsoever.

QUESTION 10: Whether in response to the Shipwreck Risk, on the evening of 14 December 2010, a reasonable public authority in the position of the defendant and its servants and agents, owing the duty of care owed by the defendant, would have taken the precaution of returning the HMAS Pirie to patrol at the usual station of intercept of SIEVs in territorial waters to the north of Christmas Island ("the Ongoing Patrol Precaution")?

Submissions of the plaintiffs

1. It was submitted on behalf of the plaintiffs that this question should be answered in the affirmative because: 1. the applicable standing orders required Commander Livingstone to maintain positive surveillance, so as to be able to effectively and safely intercept any approaching SIEV, even when the threat level was low; 2. Commander Livingstone believed his duty was to resume normal patrols once the PII passengers from SIEV 220 had been landed; 3. the Triton could, and should, have taken in control of SIEV 220, there being no reasonable explanation why this could not have occurred the night before; and 4. the Pirie could have extended its racetrack whilst still on the leeward side of the island.

Submissions of the defendant

1. It was submitted on behalf of the defendant that Commander Livingstone had explained why it was not practicable to anchor SIEV 220 or allow it to drift away, and why there was an associated necessity for the Pirie to remain on the eastern side of the island on the evening of 14 December and the morning of 15 December. It was submitted that the evidence established that the decision of Commander Livingstone to limit his patrol on the evening of 14 December 2010 to a short racetrack, so as to stay within visual contact with SIEV 220, was an entirely reasonable one, and an appropriate discharge of his responsibility to preserve the welfare of his crew. It was submitted that the effect of taking the precaution which the plaintiffs allege ought to have been taken would have resulted in the members of the Pirie's crew who formed the steaming party on board SIEV 220 being left effectively unattended, and exposed to considerable danger.
2. Although the defendant accepted that the likely seriousness of the harm resulting from a SIEV being wrecked at Christmas Island was high, it was submitted that there was no evidence to support a conclusion that even if the Pirie had been patrolling further north of Christmas Island during the evening of 14 December 2010 and the morning of 15 December 2010, it would have detected SIEV 221.

Consideration

1. As is the case with Question 9, Question 10 is predicated upon the proposition that a duty of care was owed by the defendant, in circumstances where I have found to the contrary. However, the other issues which are raised by the question should be addressed in light of the submissions made by the parties.
2. Again, in terms of s. 5B(2) of the CLAW, I accept that there was a probability that harm would occur if care were not taken, that the harm was likely to be serious, and that the burden of taking precautions was not unduly onerous. For the reasons set out previously [278] the activity creating the harm had no social utility.
3. The factors set out in s. 5B(2) of the CLAW are not the only relevant factors which bear upon this question. Before considering a number of other factors, it is appropriate that I make some observations about Commander Livingstone, whose evidence bears directly upon this question.
4. Commander Livingstone impressed me as a careful, diligent and highly responsible Commanding Officer. On the morning of 15 December 2010, he was faced with a combination of serious circumstances, in response to which he was required to balance a number of competing responsibilities. It was clear to me, from the manner in which he gave his evidence, that Commander Livingstone gave careful consideration to each decision that he was required to make on that morning.
5. The evidence given by Commander Livingstone which bears upon this question was the subject of three particular challenges in cross-examination. The first concerned his decision to have the Pirie remain on the leeward side of the island on the evening of 14 December 2010, and into the morning of 15 December 2010. Commander Livingstone advanced a number of reasons for making the decision that he made. Those reasons were, in my view, cogent and compelling, and reflected Commander Livingstone having given them considerable thought. On a fair reading of the cross-examination in respect of this issue, Commander Livingstone's evidence was not, in my view, impugned in any material way. His decision to have the Pirie remain on the eastern side of the island, in close proximity to SIEV 220, was in my view, a sound and responsible exercise of judgment for a number of reasons.
6. There was an obvious necessity for the Pirie to maintain visibility of SIEV 220 during the night of 14 December. As Commander Livingstone explained, maintaining visibility was rendered difficult due to the weather conditions, and the corresponding reduction in the efficacy of the Pirie's radar systems. There was a clear need to ensure the safety of the crew of the Pirie who formed the steaming party on board SIEV 220. As a matter of common sense, the prevailing weather conditions and the primitive nature of SIEV 220 could well have combined to necessitate the recovery of the steaming party on board SIEV 220, in order to preserve their safety. In these circumstances it was clearly necessary for the Pirie to remain close by so as to be able to effect such recovery if the circumstances required it.
7. It is also important to bear in mind that the evidence of Commander Livingstone as to the necessity for the Pirie to remain in close proximity to SIEV 220 was corroborated by the evidence given by Rear Admiral Barrett at the Coronial Inquest. A transcript of that evidence forms part of the evidence before me, and it was admitted without objection or challenge from the plaintiffs.
8. Further, Commander Livingstone was entitled to, and quite properly did, take into account the fact that the prevailing threat level at the time was not indicative of the imminent arrival of a further SIEV. That fortified his view that remaining in close proximity to SIEV 220 was the preferred option.
9. I am also unable to accept the submission advanced on behalf of the plaintiffs that the standing orders issued to Commander Livingstone mandated, to the exclusion of every other consideration, that he maintain positive surveillance in the Pirie's original racetrack, so as to allow it to effectively and safely intercept any approaching SIEV. Taken at face value, that was what the standing orders required. However, it could not possibly be the case that the standing orders mandated that action be taken even in circumstances where, to do so, could have resulted in the welfare of the Pirie's crew being placed in significant jeopardy. As a matter of common sense, the terms of any standing orders must necessarily remain subject to prevailing circumstances and conditions, and which impact upon whether such orders can, or should, be followed.
10. The second specific challenge to Commander Livingstone's evidence (which was related to the first) concerned his decision to limit the Pirie's patrol to a short racetrack so to allow it to remain within visual contact of SIEV 220. For the reasons already set out, that decision was both sound and reasonable in circumstances where a number of the Pirie's crew were embarked on SIEV 220 as members of the steaming party. Moreover, delegating the task of surveillance of SIEV 220 to the Triton, so as to allow the Pirie to resume its racetrack was not, in my view, a viable option. There were, after all, in excess of 100 PIIs on board the Triton at the time. The difficulty in the Triton assuming responsibility for the surveillance of SIEV 220 in those circumstances will be obvious.
11. In these circumstances, I am satisfied that the decision of Commander Livingstone to remain on the leeward side of the island in close proximity to SIEV 220 was prudent, well founded, entirely reasonable, and a proper discharge of his duties as the Commander of the Pirie. This is particularly so in circumstances where he had no reason to suspect the arrival of another SIEV, given the existing threat level.
12. Moreover, and in any event, even if Commander Livingstone had decided to resume surveillance further to the north of Christmas Island on the evening of 14 December and into the morning of 15 December, the evidence does not support a conclusion that the Pirie would have detected SIEV 221 in those circumstances. This is particularly so in light of the unchallenged evidence of Commander Livingstone as to the nature of the weather conditions, their effect on the Pirie's ability to detect other vessels through its radar systems, and their effect upon the level of visibility.
13. The third aspect of Commander Livingstone's evidence which is relevant to this question, and which was the subject of cross-examination, concerned his determination that it was not practicable to anchor SIEV 220. For the reasons Commander Livingstone explained in his evidence, anchoring SIEV 220 was not viable because (inter alia) a suitable anchorage location could not be readily found, and the prevailing circumstances rendered it effectively impossible to conduct a survey with a view to finding such a location.

Answer to Question 10

1. Question 10 is answered "No".

QUESTION 11: Whether, by about 06:00 on 15 December 2010, the Commanding Officer of the HMAS Pirie knew, or had reason to suspect, that SIEV 221 was approaching Christmas Island from the north in poor weather and in distress?

Submissions of the plaintiffs

1. It was submitted that in circumstances where information had been provided to the Pirie at or about 06:05 on 15 December regarding SIEV 221, Commander Livingstone clearly had reason to suspect that the vessel was in distress or danger, and that this was consistent with his evidence that any vessel inside 300 yards of Rocky Point in those conditions would be in danger.
2. It was submitted that in these circumstances, this question should be answered Yes.

Submissions of the defendant

1. Senior counsel for the defendant submitted that the initial sightings of SIEV 221 by Mr Martin did not indicate to him that the vessel was in distress, and that accordingly he gave no such indication when he passed on the information of his sighting to Mr Jardine. As a consequence, Mr Jardine did not advise CNOC that SIEV 221 was in distress when he passed on the information at 05.49. In these circumstances, when AMSOC passed on the information to Enforcement Commander Saunders on board the Triton just before 06.00, he was not told that the vessel was in distress. He in turn had no reason to, and did not, convey such indication to Commander Livingstone when he contacted him at or around 06:00.
2. It was submitted that in these circumstances, as at 06:00 on 15 December 2010, Commander Livingstone did not know, and had no reason to suspect, that SIEV 221 was in distress.

Consideration

1. Mr Martin's unchallenged evidence, which I accept, was that he first saw SIEV 221 at approximately 05:40. He was adamant that he did not consider SIEV 221 to be in distress at that time, or indeed for some considerable time after that. The circumstances which lead Mr Martin to form his initial view that SIEV 221 was not in distress included the fact that the vessel was making way, and was steering around dangerous waters. It is therefore entirely unsurprising that when Mr Martin telephoned Mr Jardine to report the sighting of SIEV 221, he mentioned nothing about the vessel being in distress. It is equally unsurprising that, acting on the information which he was given by Mr Martin, Mr Jardine did not advise CNOC that SIEV 221 was in distress.
2. The other witness who made observations of SIEV 221 in the early hours of 15 December 2010 was Mr Adams. He too formed the view when he first saw the vessel that it was not in distress. It is clear from his evidence that amongst the circumstances which led him to form that view were the fact that when he first saw SIEV 221 it was under power, he could see smoke coming from the exhaust, and he was able to hear the sound of its engine. Again, the facts which led Mr Adams to form the view that SIEV 221 was not in distress at that point are entirely reasonable, and I accept his evidence.
3. It is also clear from the evidence of Commander Livingstone that when he received the communication from Enforcement Commander Saunders around 06:00 on 15 December he was alerted to the possible, as opposed to the confirmed, presence of a SIEV. His evidence as to what he was told was completely consistent with the evidence of the observations which had been made by Mr Martin and Mr Adams up to that point. I am satisfied that Commander Livingstone was certainly not informed, at or around 06:00, that there was an SIEV in distress. There is no evidence to support a conclusion that Commander Livingstone knew, or had reason to suspect, that SIEV 221 was in distress at the time that he received the communication from Enforcement Commander Saunders. The first such notification he received was at about 06:32 from NORCOM which, he said, changed his priorities.
4. The plaintiffs relied on the fact that Commander Livingstone gave evidence that any vessel inside 300 yards of Rocky Point would be in danger. That reliance is misplaced. Whilst that was certainly Commander Livingstone's view, I am satisfied on the evidence that the information which he received from Enforcement Commander Saunders did not include any information that SIEV 221 was within any such "danger zone". On the contrary, it was clear from his evidence that the information originally conveyed to him at around 06:00 was in the nature of an alert to the possible presence of a SIEV in the vicinity, rather than a confirmation of that fact.

Answer to Question 11

1. Question 11 is answered No.

QUESTION 12: Whether in response to the Shipwreck Risk, and SIEV 221 being in distress at about 06:00 on 15 December 2010, a servant or agent of a public authority in the position of the defendant, owing the duty of care owed by the defendant, would have taken the precaution of sailing the HMAS Pirie and the ACV Triton to attend to SIEV 221 earlier than they in fact did ("the Earlier Response Precaution")?

Submissions of the plaintiffs

1. It was submitted on behalf of the plaintiffs that if Commander Livingstone had been asked to respond to SIEV 221 at some time between 05:40 and 06:00 (05:40 being the time at which SIEV 221 was first seen by Mr Martin) he: 1. would have altered the crew of the Pirie, and commenced preparations for deployment in the same way that he subsequently did; 2. would not have diverted to collect the starboard RHIB, thus conserving approximately 10 minutes of response time; and 3. would have shaped a course to the north, brought the port engine on-line, and made preparation for the simultaneous launch of the RHIBs, earlier than he did.
2. It was submitted that these and other precautions would have reduced the probability of the harm occurring because (inter alia): 1. had the RHIBs arrived prior to SIEV 221 being foundered on the rocks they would not have been hampered by debris in the water; and 2. the RHIBs would have been able to take charge of the situation.
3. It was further submitted on behalf of the plaintiffs that the evidence supported a conclusion that the RHIBs could have established a line to or from SIEV 221, and then towed it to prevent it from impacting on the rocks. It was also submitted that the RHIB could have pushed the bow or stern of SIEV 221 into the wind, significantly reducing the risk of broaching.

Submissions of the defendant

1. It was submitted on behalf of the defendant that leaving aside the fact that no duty of care was owed, any suggestion that the defendant's response was unreasonable should be rejected for a number of reasons.
2. Firstly, it was submitted that upon becoming aware of the possible presence of SIEV 221 just after 06.00, Commander Livingstone immediately commenced to make preparations to head north. It was pointed out that this could not have happened instantly and that it necessarily took time, simply because in order to sail north the Pirie was required to: 1. ensure that the RHIB which it was in the course of being lowered to change the steaming party on board SIEV 220 was clear of the side of the Pirie; 2. shape a course to the north; 3. bring the second (port) engine on-line; and 4. make necessary preparations on the bridge.
3. The defendant pointed to the evidence of Commander Livingstone that these tasks took about 15 minutes to complete, and submitted that: 1. by 06:11 the Pirie was heading north to investigate the sighting of a SIEV; 2. by 06:18 the Pirie's second engine was available for use; and 3. by 06:21 the Pirie was heading north at about 18 knots which was the maximum safe speed in the condition.
4. It was submitted that this evidence did not establish that there had been any delay, let alone any unreasonable delay, on the part of the Pirie in responding the reported sighting of SIEV 221. It was also emphasised that at no stage of the cross-examination of Commander Livingstone was it specifically put to him that he had delayed responding to the initial report he had received of the possible presence of a SIEV in the vicinity.
5. It was further submitted that the evidence established that upon learning of the possible presence of another SIEV, the Triton promptly sailed north to be closer to SIEV 220, so as to watch over it and thus permit the Pirie to investigate the reported sighting. It was submitted that in the context of what was known at the time, and in light of the competing the demands of the Commanding Officers of the Pirie and the Triton respectively, that was a proper division of responsibility.
6. Senior counsel for the defendant also submitted that the evidence established that at 06:35 Enforcement Commander Saunders became aware, for the first time, that SIEV 221 was not under power and was "on the rocks". Only then did it become apparent to him that the situation had become urgent, at which time the Triton immediately prepared to head north and deploy its tenders. It was submitted that the evidence did not establish any delay in the Triton's response. It was also submitted that it had not been specifically put to Enforcement Commander Saunders in cross-examination that he had delayed in responding to SIEV 221 upon becoming aware that it was in distress.
7. It was further submitted that the plaintiffs' allegation that the Pirie should have launched its RHIBs, and the Triton should have launched it tenders, shortly after 06:00 could not be sustained in light of the fact that: 1. it would have taken time to prepare and load boarding crews, along with the necessary safety and boarding equipment, onto the Pirie's RHIBs; 2. if the Pirie's RHIBs, or the Triton's tenders, had arrived at Flying Fish Cove far in advance of the Pirie and the Triton, and had commenced to retrieve people from the water, they would have had no available means of offloading such people, so as to allow them to rescue others, until the Pirie and/or the Triton arrived, leading to a likelihood that fewer people would have been rescued; 3. it would not have been practical or safe to tow SIEV 221 away from the rocks; 4. the RHIB which was lowered from the Pirie to change over the steaming party on board SIEV 220 was not capable of being sent off directly to conduct a boarding or rescue; and 5. until about 06:35 the Triton was continuing to supervise SIEV 220 and only became aware of the urgency of the situation about that time.

Consideration

1. Again, in terms of s. 5B(2) of the CLAW, I accept that there was a probability that harm would occur if care were not taken, that the harm was likely to be serious, and that the burden of taking precautions was not unduly onerous. For the reasons set out previously [279] the activity creating the harm had no social utility.
2. In considering this question it is necessary to bear in mind the plaintiffs' pleaded case. Paragraphs [68] and following of the FASOC [280] are pleaded in the following terms: [68] In the circumstances, a reasonable servant or agent of the Defendant, in the position of the commanding officers of the HMAS Pirie and the ACV Triton, would have in response to the Shipwreck Risk and the information available to him by about 6am on 15 December 2010, taken the precaution of ("the Earlier Response Precaution"): a. Immediately sailing the HMAS Pirie and ACV Triton towards Flying Fish Cove; and b. Immediately deploying their available RHIBs and tenders towards Flying Fish Cove to tow or anchor SIEV 221; and c. Not stopping to collect an additional RHIB. [69] The commanding officers of the HMAS Pirie and the ACV Triton did not take the Earlier Response Precaution. [70] By reason of the above, the Defendant's servants or agents failed to take all reasonable precautions a commanding officer in his position would have, and therefore breached its duty of care to the Plaintiffs. [71] The Defendant is vicariously liable for that breach of duty.
3. The first aspect of what is said to have been the defendant's unreasonable response concerns the asserted failure on the part of both the Pirie and the Triton to "immediately" sail towards Flying Fish Cove upon first being made aware of the sighting of SIEV 221. To begin with, and as I have already observed [281] , the evidence of Commander Livingstone (which I accept) makes it clear that he was not advised of the confirmed presence of any SIEV when he was contacted by Enforcement Commander Saunders on the morning of 15 December. Moreover, the use of the term "immediately" suggests that it was possible for both the Pirie and the Triton to, in effect, instantaneously proceed to Flying Fish Cove. The evidence demonstrates that for differing reasons, neither vessel was in a position to do so.
4. In terms of the Pirie's response, the evidence of Commander Livingstone was that there were several tasks which were necessary to be undertaken in order to allow the Pirie to sail north, and which took about 15 minutes to complete. The cross-examination as to that issue does not cause me to doubt that those steps were necessary. I am satisfied on the evidence that: 1. at about 06:00 Commander Livingstone was alerted to the possible presence of a SIEV in the vicinity of Christmas Island; 2. at about 06:10 he instructed his crew to prepare to head north; 3. by 06:11, the Pirie was heading north; 4. by 06:18 the second engine on the Pirie was on line and available for use; and 5. by 06:21 the Pirie was proceeding at a speed of about 18 knots which, in the opinion of Commander Livingstone, was about the maximum safe speed in the prevailing circumstances.
5. Those facts do not support a conclusion that there was any delay, let alone any unreasonable delay, in the Pirie's response.
6. Similarly, in terms of the Triton, I am satisfied on the evidence that: 1. at about 06:35 Enforcement Commander Saunders received a radio call from the Pirie advising that SIEV 221 was reported to have no engine power and was on the rocks; 2. the call at 06:35 was the first indication that Enforcement Commander Saunders had received that SIEV 221 might be in distress; 3. Enforcement Commander Saunders immediately gave instructions to commence preparations for the launch of the Triton's two tenders; 4. at about 06:41 the Triton's second engine was brought online and Enforcement Commander Saunders briefed his tenders' crews; 5. by about 06:55 the second engine of the Triton was online and the Triton was heading north at a speed of about 15 knots which was the maximum speed in the circumstances; 6. at 07:04 Tender 1 was launched from the Triton; 7. at 07:05 Tender 2 was launched from the Triton; and 8. once launched, both tenders immediately headed towards Rocky Point.
7. In my view, the evidence does not support a conclusion that the response of either the Pirie or the Triton was delayed, let alone delayed unreasonably.
8. There is also considerable merit in the submission advanced by the defendant that if the RHIBs or the Tenders had arrived at Flying Fish Cove in advance of the Pirie and the Triton, and had immediately commenced retrieving survivors, they would have found themselves in the position of not being able to offload those survivors, so as to be able to attempt to make further rescues.

Answer to Question 12

1. Question 12 is answered No.

QUESTION 13: Whether, had the defendant taken the Readiness Precaution, the Ongoing Patrol Precaution and/or the Earlier Response Precaution, SIEV 221 would not have been shipwrecked on the north coast of Christmas Island on 15 December 2010?

Submissions of the plaintiffs

1. In terms of the readiness precaution, it was the plaintiffs' principal submission that had the Sea Eye and/or the Colin Winchester been sufficiently modified to render them suitable for, and capable of, being used as sea rescue vessels, it would have included making them capable for launch on the leeward side of the island in a sea rescue situation, and thus available for deployment from the time the first notification of the presence of any SIEV.
2. In terms of the ongoing patrol precaution, it was submitted that the evidence concerning the manner in which SIEV 220 was dealt with on the previous day provided a proper basis to conclude that at the very least, had the Pirie intercepted SIEV 221 before its engines failed, a shipwreck would probably had been averted. It was submitted, in particular, that the evidence of Commander Livingstone that he would not have been able to persuade SIEV 221 to follow him, if intercepted, was based on nothing more than generalised speculation, and was inconsistent with other unchallenged evidence in the case to the effect that the passengers on the vessel were seeking to attract attention.
3. In terms of the earlier response precaution it was submitted that on the whole of the evidence it was probable that had such precaution been taken, the RHIBs could have either fastened a line to the SIEV to prevent the shipwreck, or maintained a position until such an operation could be conducted. It was submitted that in all of the circumstances, the prospects in those circumstances of saving more lives would have been substantial.

Submissions of the defendant

1. It was submitted on behalf of the defendant that the causal hypotheses pleaded by the plaintiffs at paragraphs [72] - [79] of the FASOC were that had the defendant taken one or more of the stated precautions: 1. the Sea Eye and the Colin Winchester would have intercepted SIEV 221 and either towed it or anchored it so as to avoid its wrecking; and/or 2. the Pirie would have intercepted SIEV 221 on the evening of 14 December 2010 prior to its arrival at Flying Fish Cove, and so avoided its wrecking; and/or 3. either the Pirie or the Triton, or the RHIBs or the tenders from them respectively, would have reached SIEV 221 prior to it smashing into the rocks and towed it to safety, thereby avoiding the shipwreck.
2. It was submitted on behalf of the defendant that such hypotheses were both misconceived, and unsupported by the evidence.
3. In terms of the readiness precaution, it was submitted that the evidence clearly demonstrated that even if the Sea Eye and the Colin Winchester had been available, neither would have been suitable to be deployed in an attempt to assist SIEV 221. It was further submitted that the evidence established that in order to organise the launch of any vessel from Christmas Island on the morning of 15 December 2010 it would have been necessary to organise a crew, collect the vessel, transport it to a launching ramp, launch it and then travel to Rocky Point, all of which would have taken (at best) approximately one hour. It was submitted that the evidence established that the members of the VMRS only became aware of the presence of SIEV 221 at around 05.45 on 15 December, and that SIEV 221 commenced to strike the rocks at Rocky Point sometime between 06.40 and 06.50 such that in these circumstances, even if they had been launched, the Sea Eye and the Colin Winchester, or indeed any VMRS vessel, would not have reached SIEV 221 in time. It was further submitted that there was no evidence that these vessels would have been capable of towing, or would have been equipped to tow, SIEV 221, particularly given the number of passengers on board.
4. In terms of the ongoing patrol precaution, it was submitted that there was no evidence to support the conclusion that even if the Pirie had undertaken a patrol further to the north of Christmas Island on the evening of 14 December 2010, it would have detected SIEV 221 and would have been able to intercept it. It was submitted, in particular, that it was necessary to bear in mind the fact that visibility was limited, and that the weather conditions substantially hampered the effectiveness of the Pirie's radar systems.
5. In terms of the earlier response precaution it was submitted that the evidence of Commander Livingstone, as well as that of Enforcement Commander Saunders, supported a conclusion that any attempt to tow SIEV 221 away from the rocks at Christmas Island would have been reckless, and would have carried a very high likelihood of the loss of further life, including the loss of life of the crew of the Pirie and/or the Triton. It was submitted that the plaintiffs had not adduced any evidence to demonstrate that an attempt to tow SIEV 221 would have been a safe, practical, responsible or realistic option given the prevailing conditions, and that any suggestion that Commander Livingstone and/or Enforcement Commander Saunders were negligent for failing to effect, or attempt to effect, a towing operation should be rejected.

Consideration

1. Paragraph 6 of the FASOC [282] defines the readiness precaution as follows: Whether in response to the Shipwreck Risk, in the period September to December 2010 a reasonable public authority in the position of the Defendant and its servants and agents, owing the duties of care owed by the Defendant, would have taken the precaution of not permitting the rescue ships Sea Eye and Colin Winchester to remain out of survey and incapable of use in attending to any SIEVs in distress in territorial waters to the north of Christmas Island in poor weather ("the Readiness Precaution").
2. Paragraph 6 defines the ongoing patrol precaution as follows: Whether in response to the Shipwreck Risk, on the evening of 14 December 2010 a reasonable public authority in the position of the Defendant and its servants and agents, owing the duties of care owed by the Defendant, would have taken the precaution of returning the HMAS Pirie to patrol at the usual station for intercept of SIEVs in territorial waters to the north of Christmas Island ("the Ongoing Patrol Precaution").
3. Paragraph 6 defines the earlier response precaution as follows: Whether in response to the Shipwreck Risk and the SIEV 221 being in distress about 6am on 15 December 2010 a servant or agent of a public authority in the position of the Defendant, owning (sic) the duty of care owed by the Defendant, would have taken the precaution of sailing the HMAS Pirie and the ACV Triton to attend SIEV 221 earlier than they in fact did ("the Earlier Response Precaution").
4. Paragraphs [72] - [79] are in the following terms: [72] Had the Defendant taken the Readiness Precaution, the Colin Winchester or the Sea Eye, or both of them, would have been capable of use as a search and rescue vessel on 14-15 December 2010. [73] The AFP would have on 14-15 December 2010 deployed the Colin Winchester to the usual station in territorial waters north of Christmas Island was both ACV Triton and HMAS Pirie were attending to SIEV 220 in the east of Christmas Island. [74] The AFP personnel on board the Colin Winchester would have intercepted SIEV 221 prior to its arrival at Flying Fish Cove and avoided the shipwreck. [75] Alternatively, the Volunteer Marine Rescue Service would have deployed the Sea Eye no later than about 5:20am on 15 December 2010 to attend to SIEV 221 in Flying Fish Cove. [76] The Sea Eye would have anchored SIEV 221 before it reached the shore, or towed SIEV to safer waters in the eastern side of the Christmas Island, and avoided the shipwreck. [77] Had the defendant taken the Ongoing Patrol Precaution, on the evening of 14 December 2010 the HMAS Pirie would have been deployed in the usual station in territorial waters north of Christmas Island and intercepted SIEV 221 prior to its arrival at Flying Fish Cove and avoided the shipwreck. [78] Had the defendant taken the Earlier Response Precaution, the HMAS Pirie and the ACV Triton, or the RHiBs (sic) and tenders deployed from them, would have reached SIEV 221 before it first smashed into rocks at Flying Fish Cove and anchored or towed SIEV 221 to safety, thereby avoiding the shipwreck. [79] Alternatively, the HMAS Pirie and the ACV Triton, or the RHiBs (sic) and tenders deployed from them, would have reached SIEV 221 before it began to disintegrate, and rescued the passengers of SIEV 221 before they drowned.
5. In terms of s. 5B(2) of the CLAW, I accept that there was a probability that harm would occur if care were not taken, that the harm was likely to be serious, and that the burden of taking precautions was not unduly onerous. For the reasons set out previously [283] the activity creating the harm had no social utility.
6. In terms of the readiness precaution, I have already addressed the evidence concerning the Sea Eye and the Colin Winchester [284] . The unequivocal evidence of Mr Adams was that in light of the conditions which prevailed at the time, it would not have been safe or viable to launch the Sea Eye or the Colin Winchester, or any other vessel which would otherwise have been available to the VMRS. That evidence was not the subject of any challenge in cross-examination and I accept it. Further, Mr Adams' evidence was that it would have taken approximately one hour for either vessel to be launched and reach Rocky Point.
7. It follows that even if the Colin Winchester and the Sea Eye had been in survey, and even if they had been launched at or about the time that SIEV 221 was first sighted, neither would have reached Rocky Point before SIEV 221 commenced to strike the rocks. In this regard the evidence establishes that: 1. SIEV 221 was first sighted by Mr Martin at approximately 05:40 on the morning of 15 December 2010, at which time it was making way; 2. the first indication that SIEV 221 was losing power was at approximately 06:11, at which time Mr Martin could not see any black smoke coming from the vessel's exhaust; 3. it was not until about 06:15 that there was any indication that the vessel might be in distress, such observation being made at that time by Mr Adams; and 4. it was at about 06:40 that the first observation was made, again by Mr Martin, that SIEV 221 was coming into contact with the rocks.
8. In terms of the ongoing patrol precaution, I accept the defendant's submission that the evidence does not support a conclusion that even if the Pirie had undertaken a patrol further to the north of Christmas Island it would have detected SIEV 221 and, if so, would have been able to intercept it. The Pirie's ability to detect other vessels was seriously impaired. The evidence of Commander Livingstone, which I accept, was that the weather conditions seriously impeded visibility, and imposed a corresponding impediment upon the efficacy of the Pirie's radar systems.
9. In terms of the earlier response precaution, I have already concluded [285] in determining Question 12 that there was no delay, let alone any unreasonable delay, in the response of the Pirie or the Triton.
10. Further, for the reasons advanced by Commander Livingstone and Enforcement Commander Saunders, towing SIEV 221 was not a viable option. A true appreciation of the fundamental difficulty, and the inherent danger, in attempting to effect a tow is evident from the footage of the conditions at Rocky Point at the time which was tendered in evidence. The fundamental task of attaching a tow line to SIEV 221 in those conditions was both difficult and dangerous. Moreover, it bordered on being futile. Even if a line were able to be attached (which, on the evidence, was a remote possibility), the evidence of Commander Livingstone and Enforcement Commander Saunders establishes that any towing manoeuvre was fraught with danger, and had the potential to result in even further loss of life if it were attempted.

Answer to Question 13

1. Question 13 is answered No.

QUESTION 14: Whether on about 15 December 2010 the defendant's servants or agents in command of the HMAS Pirie and the ACV Triton owed any statutory duty to the Represented Persons pursuant to s. 265 of the Navigation Act 1912 (Cth)?

Submissions of the plaintiffs

1. It was submitted on behalf of the plaintiffs that any suggestion that Australian naval vessels do not have an obligation to go the rescue of other vessels in distress at sea during peace time should be rejected. It was submitted that a contrary intention is evident from the terms of (inter alia) s. 3 of the NA.
2. It was further submitted that in any event, any attempt to exclude such vessels from the operation of s. 265 of the NA failed in respect of the Triton, and the Triton ought to have declared a SOLAS situation by at least 06:00 on 15 December 2010, and at that time rendered all assistance.
3. Finally, it was submitted that the obligation of the master of a vessel to go to the aid of another vessel in distress at sea is a well settled, and fundamental, part of admiralty law which finds statutory expression in the NA.

Submissions of the defendant

1. It was submitted on behalf of the defendant that there was nothing in s. 265 of the NA which gave rise to the "contrary intention" contemplated by s. 3. It was further submitted that s. 261A of the NA was a strong indicator that s. 3 had no application to s. 265. It was submitted that in enacting s. 261A, the legislature had specifically turned its mind to those sections within Division 11, Part IV which should apply to ships of the ADF, and had not included s. 265.
2. It was further submitted that s. 265 of the NA did not apply to the Pirie, which was a vessel belonging to, and operated by, the RAN (and therefore the ADF). It was accepted that s. 265 did apply to the Triton, it being a Customs vessel. However, it was submitted that s. 265 of the NA did not create a civil cause of action, and that its terms did not reflect an intention on the part of the Parliament that its contravention should give rise to such an action, because: 1. the section does not provide protection for a particular class of persons, but creates an obligation in the nature of a general public duty to go to the assistance of a ship or aircraft in distress when reasonably able to do so; 2. the section creates an offence, the maximum penalty for which is four years imprisonment which, prima facie, excludes the imposition of an additional civil liability; 3. the relationship between the master of a vessel, and those on board another vessel in distress, is not one which gives rise to a common law duty obliging the former to take care for the safety of the latter; and 4. s. 265(1A) creates a defence to the offence created by s. 265(1), the onus in respect of which lies on the master of the vessel, such that the statutory scheme runs contrary to an implied civil cause of action arising from a breach of statutory duty.

Consideration

1. Section 3 of the NA provides as follows: 3 Act does not apply to naval ships etc. Except where the contrary intention appears, this Act does not apply to or in relation to a ship belonging to, or operated by: (a) the Australian Defence Force; or (b) the naval, military or air forces of a country other than Australia.
2. Section 10 provides as follows: 10 Application of Part Except so far as the contrary intention appears, this Part applies only to: (a) a ship registered in Australia; (b) a ship that is used to engage in coastal trading (within the meaning of the Coastal Trading (Revitalising Australian Shipping) Act 2012) under a general licence (within the meaning of that Act); or (c) a ship (other than a ship to which paragraph (a) or (b) applies) of which the majority of the crew are residents of Australia and which is operated by any of the following (whether or not in association with any other person, firm or company, being a person, firm or company of any description), namely: (i) a person who is a resident of, or has his or her principal place of business in, Australia; (ii) a firm that has its principal place of business in Australia; or (iii) a company that is incorporated, or has its principal place of business, in Australia; and to the owner, master and crew of such a ship.
3. Section 261A provides as follows: Application of sections 259, 260 and 261 to Defence ships The provisions of sections 259, 260 and 261 apply in the case of ships belonging to, or operated by, the Australian Defence Force as they apply in the case of other ships.
4. Section 265 provides as follows: 265 Obligation to render assistance (1) If: (a) a ship to which Part II applies is at sea; and (b) the master of the ship has reason to believe that persons on or from a ship or aircraft are in distress; the master shall cause his or her ship to proceed with all practicable speed to the assistance of those persons and, if possible, inform them that he or she is so doing. Penalty: Imprisonment for 4 years. (1A) Subsection (1) does not apply if the master is unable to do so or, in the special circumstances of the case, considers it unreasonable or unnecessary to do so. Note: A defendant bears an evidential burden in relation to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal Code). (2) The master of a ship or aircraft in distress may, after consultation so far as possible with the masters of ships which answer his or her call for assistance, requisition such of those ships as he or she considers best able to render assistance and the master of a ship to which Part II applies so requisitioned shall comply with the requisition by causing his or her ship to proceed with all practicable speed to the assistance of persons in distress on or from the ship or aircraft in distress. Penalty: Imprisonment for 10 years. (3) When the master of a ship which has not been requisitioned is informed of the requisition of another ship and that the requisition is being complied with by that other ship, the master is released from the obligation imposed on him or her by subsection (1). (4) If the master of a ship is informed by persons in distress, or by the master of another ship which has reached those persons, that assistance is no longer necessary, the first‑mentioned master is released from any obligation imposed on him or her by subsection (1) or (2) in relation to those persons. (6) The master of a ship to which Part II applies shall make a record, or cause a record to be made: (a) of any information received by him or her that a ship or aircraft is in distress at sea; and (b) if, on receipt of any such information, the master does not proceed to the assistance of persons on or from that ship or aircraft - of his or her reasons for not so proceeding. Penalty: 50 penalty units. (7) A record required to be made under subsection (6) shall be made in the official log‑book of the ship. (8) This section does not affect the operation of section 317A. (9) Compliance by the master of a ship with the provisions of this section does not affect his or her right, or the right of any other person, to salvage.
5. I have already dealt with, and rejected, the proposition that the common law imposes a duty upon the master of a vessel to go to the aid of a stranger in peril [286] . Further, I am unable to accept the submission that the Triton ought to have declared a SOLAS situation by 06:00 on 15 December. The evidence does not support a conclusion that any information conveyed to Enforcement Commander Saunders around that time suggested, in any way, that SIEV was in distress, much less that a SOLAS situation had developed.
6. I turn then to consider the terms of s. 265 of the NA. In doing so, it is to be noted that, fundamentally, any task of statutory construction begins and ends with a consideration of the statutory text [287] . In my view, there is nothing in the text of s. 265 of the NA which suggests, in any way, a contrary intention of the kind contemplated by s. 3 of the NA. Further, s. 261A of the NA serves as a clear indication that the Parliament specifically considered the question of which particular provisions should apply to ships belonging to, or operated by, the ADF, and had concluded that s. 265 should not do so. I am satisfied in these circumstances that s. 265 does not apply to the Pirie.
7. Further, even if it is accepted that s. 265 of the NA did apply to the Triton I am not satisfied that s. 265 impose a statutory duty of the kind asserted by the plaintiffs. I have reached that conclusion on the basis of the following analysis.
8. As the first step in determining whether s. 265 imposes a statutory duty, it is necessary to consider the circumstances in which a cause of action for damages for a breach of statutory duty will generally arise. In Byrne and Frew v Australian Airlines Limited [288] the following observations were made [289] : A cause of action for damages for breach of statutory duty arises where a statute which imposes an obligation for the protection or benefit of a particular class of persons is, upon its proper construction, intended to provide a ground of civil liability when the breach of the obligation causes injury or damage of a kind against which the statute was designed to afford protection. The question is one of the construction of the statute, although as Dixon J pointed out in O'Connor v S P Bray Ltd, an examination of the statute "will rarely yield a necessary implication positively giving a civil remedy". One generalisation that can be made is that where the persons upon whom the statutory obligation is imposed are under an existing common law duty of care towards the persons whom the statute is intended to benefit or protect, the statutory prescription of a higher or more specific standard of care may, in the absence of any indication of a contrary intention, properly be construed as creating a private right. Thus it is that Factories and Shops Acts and other legislation designed to protect the health and safety of employees in the workplace have been held to impose duties the breach of which gives rise to a right to sue for damages.
9. For the reasons I have already expressed, the defendant was not under an existing common law duty of care. That is inconsistent with the conclusion that s. 265 of the NA creates a private right.
10. In Stuart, Crennan J and Kiefel J (as her Honour then was) having made reference to that passage from Byrne [290] continued [291] : [142] The requirement of legislative intention concerning the availability of a cause of action has been regarded as the defining feature of the action for breach of statutory duty. The difficulty, in most cases, of discerning an intention on the part of the legislature, that a remedy be provided to the persons to whom the statute might be seen as directed, was referred to by Dixon J in O'Connor v S P Bray Ltd. His Honour observed that the legislature will rarely express such an intention. Resort has therefore often been had to presumptions or policy to supply the intention.
11. It follows that fundamental to the question of whether a cause of action for damages for a breach of statutory duty arises in the present case by virtue of s. 265 of the NA is whether the construction of s. 265 evinces a legislative intention that its contravention should give rise to such a cause of action. In my view, it does not do so for a number of reasons.
12. Section 265 is a penal provision, carrying with it a penalty of imprisonment. Prima facie, the attachment of a penal sanction to a legislative prescription excludes the implication of any additional civil liability [292] . In Cutler v Wandsworth Stadium Limited [293] Lord Simonds observed that if a statutory duty is prescribed, but no remedy by way of penalty or otherwise for its breach is imposed, it can be assumed that a right of civil action accrues to the person who is "damnified by the breach" [294] . However his Honour went on to observe that the sanction of criminal proceedings emphasises that a statutory obligation is imposed for the public benefit, such that the breach of it is a public and not a private wrong [295] . Those observations support the conclusion that s. 265 excludes civil liability.
13. Further, and for the reasons previously set out [296] , I have come to the conclusion that the defendant did not owe any common law duty of care to those on board SIEV 221 obliging it to (inter alia) take care of those persons by rescuing them. The absence of such a duty tends against a conclusion that a provision such as s. 265 of the NA confers a private right of action [297] .
14. Finally, the provisions of s. 265(1A) operate to create a defence to the offence created by s. 265(1). The existence of that defence points away from a conclusion that s. 265 confers a civil cause of action for a breach of statutory duty [298] .
15. For all of these reasons, no action for breach of statutory duty arises from s. 265 of the NA.

Answer to Question 14

1. Question 14 is answered "No".

QUESTION 15: Whether the defendant's servants or agents breached that duty by failing to cause their respective ships to proceed with all practicable speed to the passengers of SIEV 221?

Submissions of the plaintiffs

1. The plaintiffs relied on their submissions in respect of Question 14.

Submissions of the defendant

1. It was submitted on behalf of the defendant that the evidence established that: 1. when Commander Livingstone and Enforcement Commander Saunders each learned of the sighting of SIEV 221 on the morning of 15 December 2010 they were not told, and did not have reason to believe, that SIEV 221 was in distress; 2. nevertheless, the Pirie made immediate preparations to head north, and by 06:21 was doing so at a speed of 18 knots; 3. the Triton thereafter headed north to relieve the Pirie from its oversight of SIEV 220 which, in light of the competing demands at the time, was a reasonable division of responsibility; 4. the Pirie was first informed that SIEV 221 had lost power at 06:32 when it was heading north at its best speed; 5. the Triton was first informed at 06:35 that SIEV 221 had lost its engines and was on the rocks, and immediately commenced preparations to bring both its engines on-line, and launch the tenders; and 6. by 06:55 the Triton was heading north on both engines at its best speed and, by about 07:05, had launched both of its tenders.
2. It was submitted that in these circumstances the evidence did not disclose any basis for any allegation that the masters of the Pirie and the Triton, having reason to believe that SIEV 221 was in distress, failed to proceed with all practical speed to its assistance.

Consideration

1. This question proceeds on the assumption that there was a breach of statutory duty on the part of the defendant. For the reasons set out in my consideration of question 14 [299] I have concluded to the contrary.
2. In any event, and for the reasons set out in my determination of question 12 [300] , there was no failure on the part of Commander Livingstone or Enforcement Commander Saunders to proceed with all practical speed to the assistance of the passengers on SIEV 221 once they each became aware that SIEV 221 was in fact in distress.

Answer to Question 15

1. Question 15 is answered "No".

QUESTION 16: Whether on the morning of 15 December 2010 the defendant was, by operation of s. 261A of the Migration Act 1958 (Cth), the owner of SIEV 221?

Submissions of the plaintiffs

1. It was submitted that upon the commission of a people smuggling offence, the original owners of SIEV 221 were divested of their ownership of the vessel, and that the defendant was thereupon vested with title. It was submitted that the automatic terms of such forfeiture were immutable, such that SIEV 221 became the defendant's property.
2. It was submitted that any attempt to create a different "class" of ownership arising from the fact that title was vested by the operation of s. 261A of the MA was not supported by, and in fact was inconsistent with, authority. It was submitted that there was no basis in the language of either the NA or the MA for creating some new, and different, class of ownership of the vessel. It was submitted, in particular, that references to the "previous owner" in ss. 261D and 261F of the NA could not "resurrect some propriety interest in the vessel on the behalf of the owner", such interest having clearly been extinguished by the operation of s. 261A.

Submissions of the defendant

1. In circumstances where a conviction had been recorded against Ali Khorram Heydarkhani for an offence contrary to s. 233B(1) of the MA relating to SIEV 221, the defendant accepted that SIEV 221 was a vessel which was used or involved in a contravention of the MA, and that this amounted to an offence. The defendant also accepted that in these circumstances SIEV 221 was subject to the automatic forfeiture provisions of s. 261A of the MA, the effect of which were that the previous owners of SIEV 221 were divested of their title to the vessel.
2. However it was submitted that those circumstances did not lead to the imposition of duties and obligations on the defendant in relation to (inter alia) the condition of the vessel and the safety of its passengers. It was submitted that to adopt such a construction of the relevant provisions of the MA would be "patently absurd".
3. It was further submitted that the authorities made it plain that statutory forfeiture in s. 261A of the MA is a penalty, the purpose of which is to vindicate the law and deter the commission of certain proscribed conduct, namely, the bringing of persons to Australia who have no lawful right of entry. It was submitted that s. 261A of the MA was not a vehicle for the assumption, by the defendant, of the obligations and liabilities of the offending owner arising from the very conduct which the section seeks to deter and punish, nor was it an occasion for the assumption, by the defendant, of a duty to ensure that reasonable care is taken in bringing about the safe arrival, into Australia, of passengers in a forfeited vessel.
4. Finally, it was submitted that the continuing status of the "owner" of a forfeited vessel is recognised by ss. 261D and 261F of the MA, which confirm that the effect of the MA is not simply to novate the defendant as the owner of the forfeited vessel, and thus impose on the defendant all of an owner's duties and obligations.

Consideration

1. The issues raised by this question have been considered in my determination of question 2 [301] .

Answer to Question 16

1. Question 16 is answered: By virtue of the provisions of s. 261A of the Migration Act 1958 (Cth) SIEV 221 was forfeited to the defendant and the owners of SIEV 221 were divested of title to that vessel. The defendant became the owner of the vessel by virtue of the statutory forfeiture but the defendant did not assume any duty or obligation in relation to the condition of the vessel, or the safety of its passengers.

QUESTION 17: Whether by reason of its ownership, on the morning of 15 December 2010 the defendant owed any statutory duty or duties to the represented persons consistently with, and derived in part from, a shipowner's obligations under ss. 208 and 227B of the Navigation Act 1912 (Cth)?

Submissions of the plaintiff

1. The plaintiffs repeated the submissions advanced in support of their position in respect of question 16. It was further submitted that on a proper construction of s. 208 of the NA, the phrase "sending a ship to sea" should be construed as including "allowing a ship to remain at sea".

Submissions of the defendant

1. It was submitted on behalf of the defendant that the statutory forfeiture of SIEV 221 under s. 261A of the MA, as a penalty for the commission of an offence against the MA, could not sensibly be construed as giving rise to the assumption by the defendant, or the imposition upon the defendant, of the obligations of an owner of a vessel, particularly as to its operation in the very activity which gave rise to its forfeiture. It was further submitted that such statutory forfeiture could not be an occasion for the assumption, by the defendant, of a duty to ensure the vessel's successful passage to Australia, that being the very conduct which the forfeiture was designed to punish and deter.
2. It was further submitted that the specific provisions of the NA which were relied upon by the plaintiffs did not assist their position. It was submitted, in particular, that there was no basis on which s. 208 of the NA could apply to the defendant in respect of SIEV 221 because the defendant had not, on any view, "sent" SIEV 221 to sea.
3. Further, in terms of s. 227B of the NA, the defendant submitted that SIEV 221: 1. was not a vessel registered in Australia; 2. did not go to sea from Australia; and 3. did not arrive at any port in Australia.
4. Further, it was submitted that the term "owner of the ship" referred to in s. 227B(1) was only capable of being construed as a reference to a person who could determine its load. It was submitted, in particular, that the section was not to be construed as a reference to the defendant having acquired title to the vessel pursuant to s. 261A of the MA.

Consideration

1. Section 208 of the NA is in the following terms: 208 Sending unseaworthy ship to sea (1) Every person who sends any ship to sea in an unseaworthy state, so that the life of any person is likely to be thereby endangered, shall be guilty of an offence punishable on conviction by a fine not exceeding $20,000 or imprisonment for a period not exceeding 10 years, or both. (1A) It is a defence to a prosecution for an offence against subsection (1) if the defendant proves that he or she used all reasonable means to ensure the seaworthiness of the ship. Note: The defendant bears a legal burden in relation to the matter in subsection (1A) (see section 13.4 of the Criminal Code). (2) Every master who takes a ship to sea, reckless as to whether the ship is in an unseaworthy state, so that the life of any person is likely to be thereby endangered, shall be guilty of an offence punishable on conviction by a fine not exceeding $20,000 or imprisonment for a period not exceeding 10 years, or both. (4) Nothing in this section shall subject the owner or master of a ship to any liability, by reason of the ship being sent or taken to sea in an unseaworthy state, where, owing to special circumstances, the sending of the ship to sea in that state was reasonable and justifiable.
2. Section 227B is in the following terms: 227B Ships not to be overloaded (1) If: (a) a ship registered in Australia that is overloaded goes to sea from, or arrives at, any port, or is on any voyage; or (b) a ship not registered in Australia that is overloaded goes to sea from, or arrives at, a port in Australia; the master and owner of the ship are each guilty of an indictable offence punishable upon conviction by a fine not exceeding $2,000 and by an additional fine not exceeding an amount calculated at the rate of such amount as is applicable to the ship in accordance with the table at the foot of this subsection (having regard to the gross tonnage of the ship if the ship is a passenger ship, or the deadweight tonneage of the ship if the ship is a cargo ship) for each 25 millimetres or part thereof by which the ship is overloaded. 1 - Gross tonnage (passenger ships) Amount $ Not exceeding 1,000 tons............................................................... 500 Exceeding 1,000 tons but not exceeding 5,000 tons................. 1,000 Exceeding 5,000 tons but not exceeding 10,000 tons............... 2,000 Exceeding 10,000 tons but not exceeding 20,000 tons............ 4,000 Exceeding 20,000 tons but not exceeding 40,000 tons............ 6,000 Exceeding 40,000 tons.................................................................... 8,000 2 - Deadweight tonneage (cargo ships) Not exceeding 1,000 tonnes .......................................................... 500 Exceeding 1,000 tonnes but not exceeding 5,000 tonnes........ 1,000 Exceeding 5,000 tonnes but not exceeding 10,000 tonnes...... 2,000 Exceeding 10,000 tonnes but not exceeding 20,000 tonnes.... 4,000 Exceeding 20,000 tonnes but not exceeding 40,000 tonnes.... 6,000 Exceeding 40,000 tonnes............................................................... 8,000

(1A) An offence under subsection (1) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. (2) The Authority may certify in writing, in relation to a ship specified in the certificate, that: (a) having regard to the Register Book issued by the Committee of Lloyd's Register of Shipping and Supplements to that Register; or (b) having regard to the report of a surveyor furnished to it for the purposes of the certificate; it is satisfied that, on a date specified in the certificate, the gross tonnage of the ship or the deadweight tonneage of the ship, as the case may be, was such number of tons or tonnes, as the case requires, as is specified in the certificate, and, in proceedings for an offence against subsection (1) in respect of the ship, the certificate is evidence that the gross tonnage of the ship or the deadweight tonneage of the ship, as the case may be, was, on the date so specified, the number of tons or tonnes, as the case requires, so specified. (3) It is a defence in proceedings for an offence against subsection (1) in respect of a ship if it is proved that the circumstances giving rise to the offence were due only to a deviation or delay of the ship caused solely by stress of weather or other circumstances which neither the master nor owner of the ship could have prevented or forestalled. Note: A defendant bears a legal burden in relation to the matter in subsection (3) (see subsection 13.4 of the Criminal Code).

1. For the reasons previously expressed [302] , the fact that title in SIEV 221 was vested in the defendant pursuant to s. 261A of the MA did not result in the defendant assuming the obligations of an owner, whether in relation to the condition of the vessel or the safety of its passengers.
2. I am also unable to accept the submission advanced by the plaintiffs as to the proper construction of s. 208 of the NA. As I have previously noted [303] , the task of statutory construction begins and ends with a consideration of the statutory text. Moreover, in construing a statute, it is preferable to adopt a construction that will avoid an absurd outcome or consequences [304] .
3. The terms of s. 208 of the NA create an offence against a person who "sends" any ship to sea in an unseaworthy state, so that the life of any person is likely to be thereby endangered. The Macquarie Dictionary (6th Edition) defines the word "send" as follows: To cause to go; direct or order to go; to cause to be conveyed or transmitted to a destination; to compel, order or force to go.
4. On no view could it be said that the defendant caused, directed or ordered SIEV 221 to travel from Indonesia to Australia. To interpret the word "send" as meaning to allow a ship to remain at sea (as senior counsel for the plaintiffs argued) would be to read into the section words that are simply not there. It would also bring about the perverse result of imposing liability on the defendant in respect of matters over which it had no control, pursuant to a statutory provision which was designed to deter the very conduct from which the liability was said to arise.
5. I am similarly not satisfied that s. 227B of the NA has any application in the circumstances. As the submissions of the defendant pointed out, SIEV 221 was not a vessel registered in Australia, it did not go to sea from Australia and it did not arrive at any port in Australia.
6. Further, s. 227B creates an indictable offence against the master and owner of a vessel for allowing a ship to be overloaded. To the extent that the defendant was the "owner" of the vessel, its ownership was by virtue of s. 261A of the MA. By the time the defendant became the owner of the vessel, the overloading had already occurred.
7. Finally, ss. 208 and 227B of the NA are penal provisions. For the reasons set out in my consideration of Question 14 [305] the imposition of a penal sanction runs contrary to the proposition that a cause of action is available for breach of statutory duty.

Answer to Question 17

1. Question 17 is answered "No".

QUESTION 18: Whether the causes of action pleaded in paragraphs 52-71 and 80-92 of the FASOC were commenced outside the limitation period in s. 14 of the Limitation Act 2005 (WA) and/or s. 18A of the Limitation Act 1969 (NSW) and are, therefore, statute barred?

The plaintiffs pleaded case

1. Paras. [52]-[71] of the FASOC [306] are as follows: Precaution C (s 5B(1)(c) of the CLA) -The Earlier Response Precaution 52 On or about 11 December 2010, SIEV 221 departed Indonesia bound for Christmas Island, carrying non-citizens of Australia. 53 The passage of SIEV 221 towards Christmas Island comprised the following stages: a. At 9 pm on 14 December 2010 it entered the contiguous zone north of Christmas Island; b. At 2 am on 15 December 2010 it entered territorial waters north of Christmas Island; c. At 5 am on 15 December 2010 it entered coastal waters north of Christmas Island; d. At 6:40 am on 15 December 2010 it entered Flying Fish Cove, being internal waters of Christmas Island; and e. At 7:10 am on 15 December 2010 it broke apart after smashing into rocks at Flying Fish Cove. 54 At all material times SIEV 221 was not seaworthy in that: a. it carried an excess of passengers for its size and capability; b. it had no or insufficient life jackets; c. it did not have sufficient fuel to travel to and dock at Christmas Island safely; d. it was not manned by crew capable of navigating it to and docking at Christmas island safely; and e. it was unfit for use in poor weather. 55 SIEV 221 was observed from the shore of Christmas Island between about 5:10am and 5:40am, in that: a. Nicola Tassone observed SIEV 221 at 5:10 am; b. Beverly Orchard observed SIEV 221 400 metres from shore at 5:15 am and 100 metres off shore at 5:20 am; c. Brian Key took photographs of SIEV 221 at 5:35 am; and d. Ross Martin observed SIEV 221 when it was 100 metres from shore at 5:40 am and telephoned Customs Officer William Jardine at 5:43 am to advise. 56 At 5:49 am William Jardine informed CNOC of SIEV 221's location. 57 At about 5:55 am, the AFP was informed by Amy Leutch of SIEV 221 's location. 58 At about 5:55 am, Mr Saunders on ACV Triton was informed by AMSOC of SIEV 221's location. 59 At 6:00 am, the Commanding Officer of ACV Triton advised the Commanding Officer of HMAS Pirie of the reports of SIEV 221 approaching Christmas island. 60 At or about 6:00am, the Commanding Officers of both the HMAS Pirie and the ACV Triton knew or ought to have known that the SIEV 221 was approaching the windward side of the Island and was in distress at sea. 61 At approximately 6:10 a.m. the engine of SIEV 221 failed and stopped. 62 As a consequence of the engine failing, SIEV 221 drifted off the shoreline of Christmas Island, in Flying Fish Cove. 63 At 6:18 am HMAS Pirie set out for Flying Fish Cove from the eastern leeward side of the island. 64 At 6:23 am HMAS Pirie turned around to collect an additional RHiB (sic) rescue boat and resumed sailing to Flying Fish Cove at 6:32 am. 65 At about 6:40 am SIEV 221 first smashed onto the rocks at Flying Fish Cove and commenced to disintegrate by 6:58 am. 66 Two RHiB (sic) rescue boats launched from HMAS Pirie arrived at the shipwreck scene at 7:05am. 67 The spine of the hull of SIEV 221 was last observed at 7:12 am. 68 In the circumstances, a reasonable servant or agent of the Defendant, in the position of the commanding officers of the HMAS Pirie and the ACV Triton, would have in response to the Shipwreck Risk and the information available to him by about 6 am on 15 December 2010, taken the precaution of ("the Earlier Response Precaution"): a. Immediately sailing the HMAS Pirie and ACV Triton towards Flying Fish Cove; and b. Immediately deploying their available RHiBs (sic) and tenders towards Flying Fish Cove to tow or anchor SIEV 221; and c. Not stopping to collect an additional RHiB (sic). 69 The commanding officers of the HMAS Pirie and the ACV Triton did not take the Earlier Response Precaution. 70 By reason of the above, the Defendant's servants or agents failed to take all reasonable precautions a commanding officer in his position would have, and therefore breached its duties of care to the Plaintiffs. 71 The Defendant is vicariously liable for that breach of duty.
2. Paras. [80]-[92] of the FASOC are as follows: First Alternative Claim - Breach of Statutory Duty to Rescue 80 As at 15 December 2010, the HMAS Pirie was a ship: a. owned by the Defendant; and b. operated by the BPC for customs and border protection operations; and c. to which Part 4 of the Navigation Act 1912 (Cth) applied. 81 As at 15 December 2010, the ACV Triton was a ship: a. leased by the Defendant; b. operated by the Australian Customs and Border Protection Service; and c. to which Part 4 of the Navigation Act 1912 (Cth) applied. 82 As at 15 December 2010, both the HMAS Pirie and the ACV Triton were ships: a. registered in Australia; or b. alternatively of which the majority of the crew were residents of Australia and which was operated by the BPC of the Australian Customs and Border Protection Service, being agencies of the Defendant and firms with their principal place of business in Australia. 83 By reason of the above, as at 15 December 2010, both the HMAS Pirie and the ACV Triton were ships to which Part 2 of the Navigation Act 1912 (Cth) applied. 84 As at 15 December 2010, both the HMAS Pirie and the ACV Triton were at sea within the meaning of that expression in section 265 of the Navigation Act 1912 (Cth). 85 By reason of the matters in paragraphs 52 to 60 above, at about 6:00 am on 15 December 2010 both the Commanding Officer of the HMAS Pirie and the Commanding Officer of the ACV Triton had reason to believe that the passengers on SIEV 221 were in distress. 86 At about 6:00 am on 15 December 2010, both the Commanding Officer of the HMAS Pirie and the Commanding Officer of the ACV Triton owed a duty, pursuant to section 265 of the Navigation Act 1912 (Cth), to cause the HMAS Pirie and the ACV Triton respectively, and their RHiBs (sic) and tenders, to proceed with all practicable speed to the assistance of those passengers. 87 This duty was owed to: a. the passengers of SIEV 221; b. the relatives of the passengers, who might suffer a recognised psychiatric injury if they witnessed, or learned of a family member who was a passenger of SIEV 221, being killed, injured or put in peril from a failure to discharge the duty; and c. rescuers and onlookers present at Christmas Island, who might suffer a recognised psychiatric injury if they witnessed a passenger of SIEV 221 being killed, injured or put in peril from a failure to discharge the duty. 88 By reason of the matters in paragraphs 61 to 68 above, both the Commanding Officer of the HMAS Pirie and the Commanding Officer of the ACV Triton failed to cause their respective ships and RHiBs and tenders to proceed with all practicable speed to the assistance of those passengers. 89 That failure was in breach of each Commanding Officer's duty under s 265 of the Navigation Act 1912 (Cth). 90 The Defendant is vicariously liable for each Commanding Officer's breach of duty. 91 Had either Commanding Officer proceeded with all practicable speed to the assistance of those passengers, either the HMAS Pirie, the ACV Triton, or their RHiBs (sic) and tenders would have reached SIEV 221 before it first smashed into rocks at Flying Fish Cove and anchored or towed SIEV 221 to safety, thereby avoiding the shipwreck. 92 Alternatively, the HMAS Pirie and/or the ACV Triton, and/or their RHiBs and tenders would have reached SIEV 221 before it began to disintegrate, and rescued the passengers of SIEV 221 before they drowned,

Submissions of the plaintiffs

1. It was submitted on behalf of the plaintiffs that any suggestion that amendments to the pleadings had expanded the proceedings in such a way as to constitute a "new cause of action" was inconsistent with submissions made on behalf of the defendant during the initial application for amendment.
2. It was further submitted that the proceedings had been commenced "by then unrepresented plaintiffs with no resources" and that there were "no serious limitation of actions issues which would prevent the court from doing justice in this case".

Submissions of the defendant

1. Senior counsel for the defendant submitted that in paras. [80]-[92] of the FASOC the plaintiffs had pleaded a claim which was not included in either the SOC or the ASOC. It was submitted that what was pleaded in paras. [80]-[92] of the FASOC was a new cause of action, the key factual allegation in support of that claim being found at [88].
2. It was further submitted that the factual matters pleaded in paras. [68] and [88] of the FASOC were not specifically pleaded in the SOC or ASOC, each of which had merely particularised a failure to proceed with greater speed to the rescue of persons in distress. It was submitted that in these circumstances, the plaintiffs' claim for breach of statutory duty to rescue did not arise from substantially the same facts as those which had already been pleaded.
3. It was further submitted that the claim pleaded in paras. [52]-[71] of the FASOC suffered from the same defect. Whilst the defendant accepted that the underlying cause of action in negligence pleased in the FASOC did not differ (at least in broad terms) from that which had been previously pleaded, the "factual substratum" regarding the asserted failures by Commander Livingstone and Enforcement Commander Saunders to respond to the situation with sufficient speed had not been adequately pleaded in the SOC or the ASOC.

Consideration

1. Unfortunately, the submissions advanced on behalf of the plaintiffs in respect of this question did not engage with the issues. Whether the proceedings were commenced "by then unrepresented plaintiffs with no resources" is really not to the point. Moreover, as will be seen from the analysis set out below, there are several issues to be resolved in answering this question, the majority of which were not addressed in the plaintiffs' submissions.
2. In order to resolve this question it is necessary to firstly trace the history of these proceedings. The proceedings were commenced on 16 December 2013 by the filing of the SOC. The defendant expressly accepted that the SOC was filed within the 3 year limitation period for personal injury claims provided for in s. 14 of the LAW and s. 18A of the LAN.
3. The ASOC was filed on 18 September 2014. The date of filing the ASOC was outside the relevant limitation period.
4. The FASOC was filed on 11 May 2015 which was similarly outside the relevant limitation period.
5. In terms of relevant statutory provisions, s. 64(1) of the CPA is in the following terms: 64 AMENDMENT OF DOCUMENTS GENERALLY (1) At any stage of proceedings, the court may order: (a) that any document in the proceedings be amended, or (b) that leave be granted to a party to amend any document in the proceedings. (2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings. (3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made. (4) If there has been a mistake in the name of a party, this section applies to the person intended to be made a party as if he or she were a party. (5) This section does not apply to the amendment of a judgment, order or certificate.
6. The effect of s. 64 is that the court has power to order the amendment of any document in the proceedings, or to grant leave to amend any document in the proceedings. Either order may be made, even if the amendment in question has the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings. In that event, the date of the commencement of the proceedings in relation to the specific cause of action is, subject to s. 65, taken to be the date on which the amendment was made.
7. Section 65 of the CPA is in the following terms: 65 AMENDMENT OF ORIGINATING PROCESS AFTER EXPIRY OF LIMITATION PERIOD (1) This section applies to any proceedings commenced before the expiration of any relevant limitation period for the commencement of the proceedings. (2) At any time after the expiration of the relevant limitation period, the plaintiff in any such proceedings may, with the leave of the court under section 64 (1) (b), amend the originating process so as: (a) to enable the plaintiff to maintain the proceedings in a capacity in which he or she has, since the proceedings were commenced, become entitled to bring and maintain the proceedings, or (b) to correct a mistake in the name of a party to the proceedings, whether or not the effect of the amendment is to substitute a new party, being a mistake that, in the courts opinion, is neither misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party, or (c) to add or substitute a new cause of action, together with a claim for relief on the new cause of action, being a new cause of action that, in the courts€™s opinion, arises from the same (or substantially the same) facts as those giving rise to an existing cause of action and claim for relief set out in the originating process. (3) Unless the court otherwise orders, an amendment made under this section is taken to have had effect as from the date on which the proceedings were commenced. (4) This section does not limit the powers of the court under section 64. (5) This section has effect despite anything to the contrary in the Limitation Act 1969 . (6) In this section, "originating process" , in relation to any proceedings, includes any pleading subsequently filed in the proceedings.
8. The effect of s. 65 is to confer a power on the court to grant leave to amend a pleading so as to include a new cause of action that would otherwise be statute barred. The provision permits such an amendment if the claim based on the new cause of action arises out of "substantially the same set of facts as those involved in the original claim".
9. It is not a valid objection to an amendment that some of the facts out of which the new cause of action arises are peculiar to it, or that some of the facts out of which the previous cause of action arises are peculiar to it. It is enough if the overlap is so great that the new cause of action arises from the previous one [307] . That question is to be answered as a matter of general impression, rand does not require precise similarity of the factual circumstances [308] .
10. Bearing these matters in mind, I turn firstly to consider this question as it concerns paras. [52]-[71] of the FASOC.
11. The essence of the cause of action pleaded in those paragraphs is to be found, in particular, in paras. [68]-[71] which assert, in effect, that the defendant, and in particular Commander Livingstone and Enforcement Commander Saunders, should have responded to the circumstances surrounding SIEV 221 earlier than they did. The SOC pleaded (inter alia) that the defendant breached its duty of care to the plaintiffs on a number of separate bases [309] , and particulars of negligence were specifically pleaded [310] . Those particulars included the following [311] : 117 In relation to the acts and/or omissions of BPC and/or Lieutenant Commander Mitchell Livingstone, the Commanding Officer of HMAS Pirie: (i) A failure to: i. Command four members of ACV Triton to take over surveillance of SIEV 220 earlier or at all; and ii. Direct a surveillance crew to be stationed on Christmas Island on the night of 14 December 2010; or iii. Have HMAS Pirie resume surveillance at sea just north of Christmas Island on the evening of 14 December 2010 (ii) A failure to ensure that there was a system in place to allow Lieutenant Commander Livingstone to communicate with a ACV Triton in order to: i. Command four members of ACV Triton to take over surveillance of SIEV 220; and ii. Direct surveillance crew on Christmas Island on the night of 14 December 2010 from HMAS Pirie or ACV Triton; or iii. Have HMAS Pirie resume surveillance at sea just north of Christmas Island on the evening of 14 December 2010. (iii) A failure to acknowledge that looking after SIEV 220 was not the prime responsibility of the asset at Christmas Island; (iv) Failing to appreciate and/or to the risk of injury to persons requiring a maritime rescue increased in bad weather; (v) Have in place a line of command through BPC or other department or agency of the Defendant to direct what he should have done. … (ii) Failure to proceed with greater speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected, in particular knowing: i. The weather/sea state conditions; ii. The lack of seaworthiness of a SIEV; iii. The risk to injury/life Flying Fish Cove presented to a SIEV/disabled SIEV in such conditions.
12. These particulars were repeated in the ASOC [312] .
13. In the circumstances, I am not satisfied that paras. [52]-[71] of the FASOC add or substitute a new cause of action. The defendant expressly accepted that the underlying cause of action, namely the cause of action in negligence pleaded at paras. [52]-[71] of the FASOC, did not differ broadly from that pleaded in the SOC or the ASOC. It follows that those pleadings arise from substantially the same facts as those which had already been pleaded.
14. The pleadings in paras. [80]-[92] of the FASOC are headed "Breach of Statutory Duty to Rescue". There was no pleading in those specific terms in either the SOC or the ASOC.
15. Para. [88] of the FASOC pleads that Commander Livingstone and Enforcement Commander Saunders each failed to cause the Pirie and the Triton respectively and the RHIBs and tenders launched from them, "to proceed with all practical speed to the assistance of those passengers". That failure is said to have arisen by reason of the matters pleaded in paras. [61] to [68] of the FASOC. Those paras. plead (inter alia) that: 1. the engine of SIEV 221 failed and stopped at approximately 06:10; 2. as a consequence, SIEV 221 drifted off the shoreline of Christmas Island in Flying Fish Cove; 3. the Pirie set out at 06:18 for Flying Fish Cove from the eastern side of Christmas Island; 4. the Pirie turned around at 06:23 to collect an additional RHIB and resumed proceeding to Flying Fish Cove at 06:32; 5. SIEV 221 first smashed onto the rocks at Flying Fish Cove at about 06:40, and commenced to disintegrate by 06:58; 6. 2 RHIBs which had been launched from the Pirie arrived at the shipwreck scene at 07:05; 7. the spine of the hull of SIEV 221 was last observed at 07:12.
16. The effect of the matters pleaded at para. [61] and following of the FASOC is that a reasonable person in the position of Commander Livingstone and Enforcement Commander Saunders would, by no later than 06:00 on 15 December 2010, have deployed all available RHIBs and tenders and proceeded immediately towards SIEV 221.
17. Although none of these matters were specifically pleaded in the SOC or ASOC, the SOC did plead a failure on the part of Commander Livingstone to "proceed with greater speed to the rescue of persons in distress……" [313] . As a matter of impression (that being the appropriate approach) I am satisfied that the matters pleaded at paras. [80] to [92] of the FASOC arise from substantially the same facts.

Answer to Question 18

1. Question 18 is answered as follows: 1. as to paras. [52]-[71] of the FASOC - "No". 2. as to paras. [80]-[92] of the FASOC - "No".

ORDERS

1. I make the following orders: 1. Question 1 is answered: Yes. In 2010, Border Protection Command, an agent of the defendant, had stationed a permanent response vessel at Christmas Island for the purposes of conducting surveillance on the northern approaches to Christmas Island to detect and respond to maritime security threats, including to detect and intercept Suspected Illegal Entry Vessels and transfer their crew and Potential Illegal Immigrants to Christmas Island for processing under the Migration Act 1958 (Cth). 2. Question 2 is answered: No. 3. Question 3 is answered: No. 4. Question 4 is answered: No. 5. Question 5 is answered: No. 6. Question 6 is answered: There was a shipwreck risk. However, that risk did not arise from any conduct on the part of the defendant and was, in any event, a risk which was both inherent and obvious. 7. Question 7 is answered: The shipwreck risk was foreseeable within the meaning of s. 5B(1)(a) of the Civil Liability Act 2002 (WA). However, that risk did not arise from any conduct on the part of the defendant and was, in any event, a risk which was both inherent and obvious. 8. Question 8 is answered: The shipwreck risk was "not insignificant" within the meaning of s. 5B(1)(b) of the Civil Liability Act 2002 (WA). 9. Question 9 is answered: No. 10. Question 10 is answered: No. 11. Question 11 is answered: No. 12. Question 12 is answered: No. 13. Question 13 is answered: No. 14. Question 14 is answered: "No". 15. Question 15 is answered: No. 16. Question 16 is answered: By virtue of the provisions of s. 261A of the Migration Act 1958 (Cth) SIEV 221 was forfeited to the defendant and the owners of SIEV 221 were divested of title to that vessel. The defendant became the owner of the vessel by virtue of the statutory forfeiture but the defendant did not assume any duty or obligation in relation to the condition of the vessel, or the safety of its passengers. 17. Question 17 is answered No. 18. Question 18 is answered: 1. as to paragraphs [52]-[71] of the FASOC - No; 1. as to paragraphs [80]-[92] of the FASOC - No. 1. The proceedings are listed for further directions before me on 20 September 2017 at 9:30am. 2. The parties are to bring in Short Minutes of Order on that day reflecting the conclusions that I have reached in this judgment.

Endnotes

1. CB Vol. 6/81
2. At paragraph (21)
3. At paragraphs (12), (13) and (20)
4. T197 L33-50
5. Affidavit of Timothy William Barrett ("Aff. Barrett") sworn 27 July 2016, [17]
6. Aff. Barrett, [6], [11]-[12]
7. Aff. Barrett, [16]
8. Aff. Barrett, [17]
9. Statement of Timothy William Barrett, 8 April 2011, [3]
10. Aff. Barrett, [21]-[28]
11. Coronial Inquest Transcript, pages 629 - 633 CB3/44
12. Coronial Inquest Transcript, page 663 CB 3/44
13. CB Vol. 8/98, page 3
14. CB Vol. 8/98, page 17
15. CB Vol. 8/98, page 47
16. CB Vol. 8/98, page 47
17. Affidavit of Shane Anwer Adams ("Aff. Adams"), affirmed 23 June 2016, [11]; [13]; T228 L44 - T229 L19
18. Affidavit of Commander Mitchell Livingstone ("Aff. Livingstone"), affirmed 27 July 2016, [14]-[16]
19. Aff. Livingstone, [3]
20. Aff. Livingstone, [12]
21. CB Vol. 5/71
22. T199 L9 - 26
23. Affidavit of Enforcement Commander Matthew Saunders ("Aff. Saunders"), sworn 22 July 2016, [1]-[5]
24. Statement of Andrew Stammers of 19 December 2010, page 1
25. T276 L49 - T277 L1
26. Aff. Saunders, [4]
27. Aff. Saunders, [5]
28. T277 L16-18
29. T277 L16-23
30. Aff. Saunders, [5]
31. Aff. Saunders, [8] - [13]
32. Aff. Saunders, [11] - [13]
33. T228 L25; Aff. Adams, [9]
34. Aff. Adams [9] - [10]
35. Aff. Adams, [12] - [13]
36. Aff. Adams, [14]
37. Aff. Livingstone, [12] - [15]
38. Exh. C, document "A", page 2
39. Exh. C, doc. "A"
40. Exh. C, doc. "A", page 5; Exh. C doc. "C". It is noted that 16:00 AEDT is 12:00 midday CXT (Christmas Island time). All times stated in these reasons are CXT
41. This was the same foreshadowed arrival as the second entry on the SATM issued on 14 December 2010
42. Exh. C, doc. "A", page 6
43. Aff. Livingstone, [36]; T201 L4 and following
44. Aff. Livingstone, [21] - [26]
45. T201 L45
46. T201 L42-48; Aff. Livingstone, [27]
47. T202 L5-7; Aff. Livingstone, [27]
48. T206 L6-9
49. T202 L9-17; Aff. Livingstone, [28]
50. Aff. Livingstone, [28]
51. Aff. Livingstone, [28] - [32]
52. T203 L30-39
53. Aff. Livingstone, [38]; [47]
54. Statement of Mitchell Livingstone of 20 March 2011, [20]
55. Aff. Livingstone, [39] - [40]
56. Aff. Livingstone, [33] - [35]
57. T256 L34-T259 L44
58. CB Vol. 3/44, Coronial Inquest Transcript, 666
59. T205 L28-31
60. T206 L25-40
61. Aff. Saunders, [24] - [27]
62. Aff. Saunders, [17]
63. T207 L15-22
64. Affidavit of Ross Martin ("Aff. Martin"), sworn 6 June 2016, [5] - [7]
65. T47 L25-27
66. Aff. Martin, [8]
67. T48 L23
68. T48 L3-13
69. T42 L47
70. T48 L23
71. T54 L17-22
72. Aff. Martin, [9]
73. Commencing at T48 L19
74. Aff. Martin, [10]
75. Affidavit of Leslie Jardine, affirmed 22 July 2016, [12]
76. CB Vol. 3/48, Coronial Inquest Transcript, 2098
77. CB Vol. 3/48, Coronial Inquest Transcript, 2129-2130
78. Aff. Adams, [15] - [17]
79. Aff. Adams, [17]
80. Aff. Adams, [19] - [20]
81. Aff. Adams, [22]
82. Aff. Adams, [23]
83. T230 L26-42
84. Aff. Adams, [24]
85. T230 L37
86. T230 L40-42
87. Aff. Martin, [11]
88. T49 L7-18
89. T48 L35-37
90. Aff. Martin, [12]
91. T49 L10-21
92. T49 L24-39
93. Aff. Martin, [13]
94. Aff. Martin, [14] - [15]
95. T43 L33-46; Aff. Martin, [16]
96. T51 L32
97. T52 L15-17
98. T52 L23-30
99. Aff. Martin, [17] - [18]
100. Aff. Saunders, [18]
101. CB Vol. 6/82
102. Aff. Saunders, [19]
103. T71 L43; T67 L9-11
104. Aff. Livingstone, [48]
105. T209 L14-24
106. Aff. Livingstone, [41] - [47]
107. Aff. Livingstone, [48] - [50]
108. T214 L14-16
109. Aff. Saunders, [26]
110. T210 L1-7
111. T236 L35-45
112. T71 L43-46
113. T72 L1-3
114. T72 L5-18
115. Commencing at T72 L20
116. Commencing at T73 L32
117. Aff. Livingstone, [51]
118. Aff. Livingstone, [52]
119. Aff. Livingstone, [48]
120. Commencing at T211 L13
121. T211 L46-48
122. Commencing at T212 L1
123. T214 L19-33
124. Commencing at T213 L12
125. T212 L7-8
126. Aff. Livingstone, [54] - [55]
127. Aff. Adams, [25] - [26]
128. Aff. Adams, [27]
129. T231 L41-43; Aff. Adams, [28]
130. Aff. Adams, [28]
131. Aff. Martin, [16] - [19]
132. Aff. Adams, [29]
133. Aff. Adams, [30]
134. Aff. Adams, [59]
135. Aff. Adams, [61]
136. Aff. Adams, [61] - [62]
137. Aff. Adams, [63] - [64]
138. T219 L30-33; Aff. Livingstone, [55]
139. Aff. Livingstone, [55] - [57]
140. Aff. Livingstone, [58]
141. Commencing at T214 L19
142. T220 L1-19
143. Commencing at T220 L29
144. Aff. Livingstone, [60] - [63]
145. Aff. Livingstone, [64] - [65]
146. Aff. Livingstone, [67] - [69]
147. Commencing at T238 L37
148. Commencing at T262 L33
149. Aff. Livingstone, [69]-[71]
150. Aff. Livingstone, [77] - [78]
151. Aff. Saunders, [29]
152. Aff. Martin, [21]
153. Aff. Adams, [31] - [34]
154. Aff. Adams, [34]
155. Aff. Adams, [36] - [39]
156. Aff. Adams, [40] - [42]
157. Aff. Adams, [42] - [45]
158. Aff. Adams, [46] - [51]
159. Aff. Saunders, [29] - [31]
160. Aff. Saunders, [33] - [34]
161. Commencing at T63 L31
162. Aff. Saunders, [35]
163. Aff. Saunders, [36] - [37]
164. Aff. Saunders, [38] - [40]
165. Aff. Saunders, [41]
166. Aff. Livingstone, [80] - [83]
167. Aff. Livingstone, [86]
168. Commencing at T242 L20
169. Aff. Livingstone, [87] - [89]
170. Aff. Livingstone, [92] - [114]
171. Aff. Saunders, [43] - [46]
172. Aff. Saunders, [47] - [48]
173. Aff. Saunders, [49] - [58]
174. Commencing at T244 L17
175. Aff. Livingstone, [115a]
176. T247 L1-30; Aff. Livingstone, [115b]
177. Aff. Livingstone, [115c]
178. Aff. Livingstone, [115d]
179. Aff. Livingstone, [115e]
180. Commencing at T244 L27
181. Aff. Livingstone, [115f]
182. Aff. Livingstone, [115g]
183. Aff. Livingstone, [116]
184. Commencing at T244 L27
185. Aff. Saunders, [84a]
186. T94 L17
187. Aff. Saunders, [84a]
188. Aff. Saunders, [84b]
189. T79 L20; Aff. Saunders, [84c]
190. Aff. Saunders, [84d]
191. At [139] above]
192. Aff. Saunders, [84e]
193. Aff. Saunders, [84f]
194. Aff. Saunders, [84g]
195. Aff. Saunders, [84h]
196. Aff. Saunders, [85]
197. Commencing at T66 L11
198. T75 L48-49
199. T76 L7-12
200. T76 L18-20
201. Commencing at T76 L36
202. Commencing at T79 L5
203. Commencing at T80 L14
204. CB Vol. 2/25 pages i-ii
205. CB Vol.1/1
206. Brookfield Multiplex Limited v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185; [2014] HCA 36 at 201; [24] citing Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 at 579-580; [49]-[53]
207. Brookfield Multiplex Limited at 201; [25] citing Crimmins v Stevedoring Finance Committee (1999) 200 CLR 1; [1999] HCA 59 at 32; [73] per McHugh J
208. (2009) 75 NSWLR 649; [2009] NSWCA 258
209. At 676; [102]-[103]
210. At 676; [104]
211. At 690; [172]
212. Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54 at 597-598; [149] per Gummow and Hayne JJ
213. (2001) 206 CLR 512; [2001] HCA 29
214. See for example at 573-574; [140]
215. (1999) 200 CLR 1; [1999] HCA 59
216. At 43; [105]
217. Electro Optic Systems Pty Limited v State of New South Wales; West & Anor v State of New South Wales (2014) 180 ACTR 1; [2014] ACTCA 45 at 71; [345] per Jagot J; Warragamba Winery Pty Limited v State of New South Wales (No.9) [2012] NSWSC 701 at [707]
218. Hunter Area Health Service v Presland (2005) 63 NSWLR 22; [2005] NSWCA 33 at 29; [19] per Spigelman CJ
219. (1980) AMC 2788
220. (1970) AMC 967
221. 46 USC Chapter 303
222. (1978) AMC 1059
223. Walsh v Zuisei at 2792
224. 708 F. Supp. 776 (E.D. La 1989)
225. At 780
226. (1981) AMC 201 at 206
227. See also United States Coast Guard v Trosclair (23 April 2014) Smith J, unreported
228. Commencing at [400] below
229. (2009) 237 CLR 215; [2009] HCA 15
230. At 248; [88]. See also 255; [116] where the absence of a general duty of rescue was confirmed
231. At 258; [127]
232. (1996) Australian Torts Reports 81-376
233. [1997] 3 WLR 331 at 351
234. [2008] NSWCA 107
235. At [138]-[139]
236. [1993] 4 All ER 328
237. Graham Barclay Oysters Pty Ltd at 575-576; [81] per McHugh J
238. See for example Capital and Counties PLC v Hampshire County Council [1997] 3 WLR 331 at 343-344; Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057 at 1067; [32]; OLL Limited v Secretary of State for Transport [1997] 3 All ER 897 at 905
239. At [222]-[225] above
240. Heydarkhani v R [2014] WASCA 52 at [8]; [14]-[17]
241. s. 261A(1)(a)
242. Olbers Co Ltd v The Commonwealth (2004) 136 FCR 67; [2004] FCA 229 at 89; [73] per French J (as his Honour then was)
243. (2009) 240 CLR 319; [2009] HCA 49
244. Commencing at 344; [25]
245. At 345; [29]
246. Criminal Assets Recovery Act 1990 (NSW) s. 22
247. (2010) 187 FCR 54; [2010] FCAFC 80
248. Commencing at 67; [52]
249. At 98-99; [195]
250. (2014) 253 CLR 219; [2014] HCA 34
251. At 230; [23] per French CJ, Hayne, Crennan, Kiefel and Keane JJ
252. (2004) 219 CLR 562; [2004] HCA 37 at 584-585; [45]-[46] per McHugh J; see also Plaintiff M76 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322; [2013] HCA 53 at 366; [127] per Hayne J; 385; [207] per Kiefel J (as her Honour then was) and Keane J
253. (2015) 255 CLR 514; [2015] HCA 1 at 583; [213]
254. CAL No 14 Pty Limited t/a Tandara Motor Inn v Motor Accidents Insurance Board (2009) 239 CLR 390; [2009] HCA 47 at 407-408; [40]-[41] per Gummow, Heydon and Crennan JJ
255. (2002) 211 CLR 317; [2002] HCA 35
256. Per Gleeson CJ at 335-336; [29]; per McHugh J at 349; [89]-[90]; at 385; [201] per Gummow and Kirby JJ; at 411-412; [275] per Hayne J
257. (2010) 241 CLR 60; [2010] HCA 22
258. At 71; [24] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ
259. At 71-72; [25]-[26]
260. Annetts was heard together with Tame v State of NSW
261. At 337; [37]
262. At 341; [54]
263. At 397-399; [237]-[241]
264. (2003) 214 CLR 269; [2003] HCA 33
265. Per Gleeson CJ at 276-277; [10]-[13]; per Hayne J at 305; [101]-[103]
266. At 291; [53]
267. At [237]-[240] above
268. Mt Isa Mines v Pusey (1970) 125 CLR 383; [1970] HCA 60 per Barwick CJ at 389; McTiernan J at 392; Menzies J at 392; Windeyer J at 404
269. (1961) 106 CLR 112; [1961] HCA 46
270. At 121 per Dixon CJ, Kitto, Taylor, Menzies and Windeyer JJ
271. At 125
272. [2009] NSWCA 261 at [31]
273. [2013] NSWCA 81
274. FAI General Insurance Company Limited v Lucre (2000) 50 NSWLR 261; [2000] NSWCA 346 at 266; [24] per Mason P (with whom Meagher and Giles JJA agreed)
275. A definition in identical terms appears in s. 5I(2) of the CLAN
276. Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311 per Leeming JA (Basten and Ward JJA agreeing) at 182-183; [64]-[67]
277. The provisions of s. 5F of the CLAN are in identical terms
278. At [329] above
279. At [329] above
280. CB Vol. 1/1
281. At [76]; [354]
282. CB Vol. 1/1
283. At [329] above
284. At [327]-[328] above
285. At [370] and following above
286. At [209] and following above
287. Commissioner of Taxation v Consolidated Media Holdings Limited (2012) 250 CLR 503; [2012] HCA 55 at 519; [39] per French CJ, Hayne, Crennan, Bell and Gageler JJ
288. (1995) 185 CLR 410; [1995] HCA 24
289. At 424 per Brennan CJ, Dawson and Toohey JJ
290. At 263; [140]
291. At 263-264; [142]
292. Gardner v State of Victoria [1999] 2 VR 461; [1999] VSCA 100 at 469; [25] per Phillips JA
293. [1949] AC 398
294. At 407
295. At 408
296. Commencing at [216] above
297. O'Connor v SP Bray Limited (1937) 56 CLR 464; [1937] HCA 18 at 478 per Dixon J.
298. Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397; [1967] HCA 31 at 405-406
299. Commencing at [400] above
300. Commencing at [367] above
301. Commencing at [227] above
302. Commencing at [227] above
303. At [408] above
304. Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627; [2009] HCA 37 at 640; [35] per French CJ, Gummow, Hayne, Crennan and Bell JJ
305. Commencing at [411] above
306. CB Vol. 1/1
307. Brickfield Properties Limited v Newton [1971] 1 WLR 862 at 880 per Cross LJ cited by Mahoney JA in McGee v Yeomans [1977] 1 NSWLR 273 at 284
308. State of NSW v Radford (2010) 79 NSWLR 327; [2010] NSWCA 276 at 340-342; [66]-[71] per Sackville AJA (Beazley JA (as her Honour then was) and Macfarlan JA agreeing) and the authorities cited therein.
309. At [114] and following
310. At [117]
311. At 117 and (ii)
312. At 120 and (ii).
313. See [462] above.

Amendments 13 September 2017 - Correction to formatting 18 September 2017 - Typographical error made to coversheet. Typographical corrections made to [172]; [174]; [175]; 211]; 217]; [229]; [232]; [237]; [262]. Corrections made to endnotes 258, 260 and 274. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 September 2017